In what is certain to make the legal system the butt of more jokes, Connecticut can cross off spanking as an act covered under lawyers' malpractice insurance policies.
Even, according to a recent decision by U.S. District Judge Robert N. Chatigny of the District of Connecticut, if it is done in some bizarre attempt to prepare a client to testify.
The ruling is a victory for New York-based American Home Insurance Co., which insured former Seymour, Conn., attorney Milo J. Altschuler during the time he allegedly took a client across his lap, lifted her skirt and repeatedly slapped her buttocks inside a conference room in Superior Court in Derby, Conn.
In 1992, Altschuler, who could not be reached for this article, pleaded no contest to two counts of fourth-degree sexual assault, and received a suspended sentence and three years of probation in connection with the courthouse incident and a similar allegation brought against him by another client.
According to his Nov. 6, 1991, arrest warrant application on file in U.S. District Court in Hartford, Conn., Altschuler was preparing Leslie Cerrato to testify in her breach-of-peace case when she began fidgeting. The woman claimed Altschuler, before removing her panties and stockings, told her he needed to spank her so the judge didn't think she was lying. Afterward he asked her if she would continue rubbing her hands together. Cerrato said she would stop, to which Altschuler replied: "Well, I guess it worked," the woman claimed.
When questioned by a police detective, Altschuler denied assaulting Cerrato, but admitted that he had threatened to spank her if she gave wrong answers to questions he put to her in preparing her to testify, according to the arrest warrant application. Altschuler also acknowledged that he used similar threats in representing more than a dozen other clients to make them "more afraid of him than they would be of the prosecutor."
Before a Statewide Grievance Committee panel, Altschuler again denied improper sexual contact with the woman and asserted that he took the plea bargain to spare his family embarrassing trial publicity. The SGC, however, found that some form of improper personal contact had occurred and reprimanded him.
Cerrato, who claims to continue to require counseling and anti-depressant medication as a result of the incident, subsequently brought suit against her former attorney. In 1999, she and Altschuler agreed to a $250,000 stipulated judgment, in which Altschuler represented that he was essentially asset-less barring contract or tort claims he may have against his former and present insurers.
BORDEN SHOULD BE PLEASED
Attempting to collect the judgment from American Home, Cerrato relied heavily on the Connecticut Supreme Court's 1992 decision in St. Paul Fire and Marine Insurance Co. v. Shernow. In that case, a majority of the court found a claim brought by a patient who was administered excessive amounts of nitrous oxide and molested by her dentist was covered under the dentist's liability insurance policy. The majority ruled that the administering of the anesthesia, which resulted in diminished lung capacity, was "inextricably intertwined and inseparable from the intentional conduct" that served as the basis for the woman's sexual assault claim.
It wasn't a high point in Connecticut jurisprudence for Justice David M. Borden, who was joined in his infamous dissent by former Chief Justice Robert J. Callahan. The dentist's conduct, Borden fumed, "no more constituted the rendering of professional services than if a lawyer, angry at his client, hit her over the head with volume 24 of Corpus Juris Secundum."
Represented by Avon, Conn., attorney W. Philip Jones, American Home took that "tortured decision" into consideration in its reply brief in support of its motion for summary judgment.
In St. Paul Fire, the Connecticut Supreme Court found the dentist committed professional malpractice prior to the sexual assault by administering the nitrous oxide without checking to see if it would conflict with other medication the patient was taking, American Home noted.
"In the instant case, there is no such 'inextricably intertwined and inseparable' conduct," it argued. The notion that Altschuler's alleged spanking would somehow improve Cerrato's testimony, the insurer maintained, is "pure fantasy."
"The profession of the practice of law is hardly revered," American Home stressed. "Sexual assault cannot be brought under the canopy of professional services. The perverted act of intentionally fondling the bare bottoms of female clients cannot and is not part of the practice of law."
In a far more sedate decision rendered April 2, Chatigny agreed. "The complaint did not allege that Altschuler breached his duty to properly prepare her to testify and in doing so caused her to suffer some harm," he wrote. "Rather, she sought to recover emotional distress damages caused by the sexual assault itself without linking the assault claim to a claim covered by [Altschuler's insurance] policy."
By press time, Cerrato's attorney, Michael S. Hillis, of Dombroski, Knapsack & Hillis in New Haven, Conn., did not return a phone message left with his office.
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