Background
Attorney Nickola J. Cunha faced a presentment—a formal disciplinary proceeding—stemming from three separate grievances. The first was filed by a guardian ad litem, Attorney Susan Cousineau, after Cunha accused her, in a court email and later under oath at a grievance hearing, of criminal conspiracy and RICO violations for the mere act of requesting a status conference in a family matter. The reviewing committee found those accusations baseless and in violation of multiple Rules of Professional Conduct. The second grievance, filed by former client Jennifer Recalde, arose from Cunha’s failure to communicate, file any motions, provide legal guidance, or account for a $5,000 retainer—as well as a threatening email sent to disciplinary counsel warning of collected “evidence” against them. The third grievance, brought by Attorney Edward Nusbaum, involved Cunha’s preparation and filing of a restraining order application containing a client affidavit that falsely represented there were no pending custody orders, which caused a New Haven court to grant an ex parte restraining order it promptly vacated upon learning the truth.
The Superior Court (Abrams, J.) found Cunha in violation of numerous Rules of Professional Conduct across all three grievances and imposed a two-and-a-half-year suspension to run consecutively to a separate disbarment Cunha was already serving. However, the court carved out one category of conduct from discipline: statements Cunha made while testifying at the Cousineau grievance hearing, holding that the litigation privilege afforded her absolute immunity from further disciplinary proceedings based on that testimony. The court reasoned that subjecting attorneys to additional grievances for their grievance-hearing testimony would chill free and candid participation in those proceedings.
The Office of Chief Disciplinary Counsel appealed the litigation-privilege ruling, arguing the privilege protects against retaliatory civil suits but not against professional discipline for misconduct. Cunha cross-appealed, contending that the underlying findings of misconduct lacked factual and legal support.
The Court’s Holding
The Appellate Court reversed the trial court’s application of the litigation privilege and affirmed the misconduct findings in all other respects. On the core question, the court agreed that the litigation privilege applies to statements made during grievance proceedings—meaning Cousineau could not sue Cunha in tort for those accusations—but held that the privilege’s immunity extends only to certain retaliatory lawsuits and does not insulate an attorney from professional discipline arising out of misconduct committed during those proceedings. The court drew on Connecticut Supreme Court precedent establishing that disciplinary proceedings, judicial contempt powers, and grievance referrals are the very “other remedies” courts rely upon to deter attorney misconduct that the litigation privilege is designed to preserve access to, not to foreclose.
The court emphasized that an attorney “as an officer of the court” remains “continually accountable” for the manner in which she exercises her professional privileges, and that continued enjoyment of those privileges depends on remaining “a fit and safe person” to hold them. Because Cunha’s testimony contained unfounded accusations of criminal conspiracy with no factual or legal support, the litigation privilege shielded her only from a defamation or similar civil claim by Cousineau—not from the disciplinary system’s response to that same conduct. The case was remanded for further proceedings on the previously shielded allegations.
On cross-appeal, the court affirmed the trial court’s factual findings, applying a clearly erroneous standard to the committee’s factual determinations and plenary review to questions of rule interpretation. Reviewing the record across all three grievances, the court found the evidence sufficient to support each finding of misconduct and rejected Cunha’s arguments that the underlying rules were inapplicable to her conduct.
Key Takeaways
- The litigation privilege protects attorneys who testify in grievance proceedings from retaliatory civil lawsuits, but it does not bar the disciplinary authority from pursuing further professional sanctions for misconduct committed during that testimony.
- Making baseless criminal accusations—including meritless RICO allegations—against opposing counsel during grievance proceedings remains subject to discipline under Rules 3.1, 3.4(7), 4.4(a), and 8.4(3) and (4), even where those statements are privileged against civil liability.
- Failing to communicate with a client, file promised motions, or provide an accounting of a retainer constitutes violations of competence, diligence, and client-communication rules and may support an order of partial fee disgorgement.
- Assisting a client in filing an affidavit that omits existing custody orders in an ex parte restraining order application implicates candor-to-the-tribunal rules prohibiting false statements, false evidence, and failure to disclose material facts in ex parte proceedings.
Why It Matters
This decision resolves a question left open by prior Connecticut precedent: while the litigation privilege broadly protects attorney speech in quasi-judicial proceedings, it cannot be weaponized as a blanket shield against the professional discipline system that the privilege itself was designed to protect. Attorneys who engage in misconduct during grievance hearings—making frivolous criminal accusations, misrepresenting facts, or otherwise abusing the forum—remain subject to the full range of disciplinary sanctions. The ruling reinforces that the litigation privilege and attorney accountability are complementary, not competing, mechanisms for protecting the integrity of the judicial process.
For practitioners, the case is also a cautionary illustration of compounding disciplinary exposure: Cunha entered the appellate proceedings already disbarred, and the remand opens the door to additional sanctions for her grievance-hearing conduct. Courts and grievance bodies have broad tools to address attorney misconduct at every stage of the disciplinary process, and invoking a privilege defense to foreclose their use will not succeed where the alleged misconduct goes to professional fitness rather than mere civil liability.