Court Lawyer Whistleblower Fired Over Ethics Breach 'Crusade'
by Thomas B. Scheffey, The Connecticut Law Tribune, December 12, 2004

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Mary Ann Mierzwa, fired from her job as a court services officer in juvenile court in Hartford, Conn., is suing the Judicial Branch in federal court under state whistleblower, workplace free speech and federal civil rights laws.

Last April, state Judicial Branch attorney Mary Ann Mierzwa claims she witnessed what seemed to be a breathtakingly audacious breach of lawyer ethics: an assistant attorney general representing the Department of Children and Families altered a judge's order apparently to get the result the AAG was advocating.

When the judge in the case, William Wollenberg, appeared unwilling to vigorously pursue the matter, Mierzwa took matters into her own hands and consulted a West Hartford attorney about her legal rights and ethical duties.

As evidence, she provided the lawyer, Leon Rosenblatt, with a redacted copy of the allegedly altered order -- and was subsequently suspended, then fired for going outside the Judicial Branch "chain of command" and showing Rosenblatt the form without a court order authorizing her to do so. Mierzwa's now suing the Judicial Branch in federal court under state whistleblower, workplace free speech and federal civil rights laws.

THIRD PARTY DISCLOSURE?

As an attorney employed by the Judicial Branch as a court services officer at the Broad Street juvenile matters court in Hartford Mierzwa was negotiating on the day in question with five other lawyers to reach an accord on the specific conditions for a juvenile's release from DCF custody.

According to Mierzwa's Dec. 6 complaint, the unnamed AAG left to make copies of Wollenberg's checklist order. The copies that were later distributed to the lawyers "had been altered in several ways," she alleges.

"Two portions of the judge's ruling," the complaint states, "had been crossed out, and a new requirement had been imposed on the mother of the juvenile [to] make it appear the judge had ordered the 'Specific Steps' which the AAG had advocated."

Three days later, Wollenberg had Mierzwa redraft the original version of his orders, despite further unsuccessful argument from the AAG to change them, Mierzwa claims.

Meanwhile, the complaint alleges, Mierzwa's supervisors "embarked on a course of conduct to cover up what appeared to be misconduct by the AAG," letting Mierzwa know, "explicitly or impliedly, that she would be deemed insubordinate if she spoke to anyone outside the judicial branch and her chain of command about the matter."

The defendants named in the federal suit are: Superior Court Operations Executive Director Joseph D. D'Alesio; Maria R. Kewer, program manager for the court operations division; Cynthia L. Cunningham, chief clerk for juvenile matters; judicial district Chief Clerk Robin C. Smith; and Nancy A. Porter, counsel in the legal services unit of the court operations division.

A Judicial Branch spokeswoman declined comment, while Attorney General Richard Blumenthal said he has found no evidence that his AAG did anything wrong.

In an Oct. 6 memo to D'Alesio, Porter summarized the findings of a pre-disciplinary hearing with Mierzwa, which Porter conducted. Mierzwa was being investigated for disclosure of confidential information in violation of C.G.S. Sec. 46b-124 and Practice Book Sec. 30a-8, "use of her Judicial Branch position for personal gain; misrepresenting the Judicial Branch; and failing to follow supervisors' directions."

Porter wrote that Mierzwa met with Rosenblatt on May 25 and brought a copy of the order, redacted so the juvenile's identity would remain obscure. "Mierzwa was incredulous that Court Operations decided not to pursue the matter further."

Porter recounted Mierzwa saying that Wollenberg "did not understand the gravity of what happened," and despite her protests, she felt "he did not want to take it on [and] did not want the matter put in front of him." The memo then quotes Mierzwa claiming her "duty was to the Bar, not management" to act on her own.

Porter probed to find out whether Mierzwa had made a report to the Statewide Grievance Committee or Blumenthal's whistleblower unit. Mierzwa, who was not represented by counsel at the meeting, said she'd have to "ask her attorney if she could respond."

Porter waxed italic, quoting the statute, to emphasize the key charges against Mierzwa. "All records of cases of juvenile matters ... shall be confidential and for the use of the court in juvenile matters," she pointed out. Porter also grilled Mierzwa with a series of hypothetical questions, and Mierzwa asserted that attorney-client privilege extended to the redacted order she showed her attorney.

Rosenblatt, in an interview, argued that, within the strictures of the privilege, "showing a document to your lawyer is like showing it to yourself," and really isn't disclosure to a third party.

In Porter's inquiry, Mierzwa explained she brought the order with her as proof. "I felt compelled to see an attorney and I could not go to an attorney without anything," she said. Porter recounted in her memo to D'Alesio that she asked Mierzwa whether she couldn't have described the situation as a hypothetical, in great detail, without disclosing the judge's order. Answering, Mierzwa's "eyes welled up and she said: 'I have an answer, but I am not comfortable answering the question.'"

In her stinging conclusion, Porter found that "Mierzwa used the cloak of professional and ethical obligations to act as a rogue employee." The document disclosure to her lawyer "constitutes a failure to follow the most basic direction of a Judicial Branch supervisor -- uphold and follow Connecticut law," Porter wrote.

Porter concluded, however, that Mierzwa didn't misrepresent the Judicial Branch or use her position for personal gain, other than "whatever personal aggrandizement Mierzwa may have enjoyed as a result of her crusade."

Far from being a "rogue," Rosenblatt said his client's performance reviews show she was a highly praised and competent professional. Her annual review for the period ending in March gives her consistent "very good" marks, except for a "good" in attendance. "Mary Ann conducts herself very professionally in all aspects of her job," states the report, signed by defendant Smith.

Rosenblatt said his client has filed a whistleblower complaint, and that he has spoken with an assistant attorney general in the whistleblower division. AAG Arnold Menchel "didn't make any promises he couldn't keep," and he recognized the delicacy of investigating a serious ethics complaint against a fellow AAG, Rosenblatt said.

"Their employee has rights here, too," added Rosenblatt, who declined to identify the AAG who is the subject of the complaint.