Disciplinary Counsel v. Elder
159 A.3d 220
| Conn. | 2017Background
- In 2004 Attorney Joseph Elder was recorded answering police calls and identifying himself as client Wesley Spears; Spears later sued Elder and obtained a civil judgment for impersonation/defamation.
- Ten years later (April 4, 2014) Spears filed a grievance under Practice Book § 2-32 alleging Elder’s misconduct from 2004; a reviewing committee found violations of Rules 4.1 and 8.4 and directed Disciplinary Counsel to bring a presentment action.
- Disciplinary Counsel filed a presentment in 2015; Elder moved to dismiss arguing the complaint was time-barred by the six-year limitation in Practice Book § 2-32(a)(2)(E).
- The trial court denied the motion, reasoning the phrase “if deemed appropriate” made the six-year provision discretionary, then found violations at trial and suspended Elder for one year.
- The Connecticut Supreme Court reviewed de novo whether the six-year limitation is mandatory or discretionary and whether screening/ referral decisions under § 2-32(a)(2) are reviewable in subsequent proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the six-year bar in Practice Book § 2-32(a)(2)(E) is mandatory or discretionary | § 2-32(a)(2)’s phrase “if deemed appropriate” gives screening panels discretion to dismiss or not dismiss untimely complaints | The six-year “period of limitation” bars untimely grievance complaints unless an enumerated exception applies | Mandatory: the six-year limitation bars complaints filed after six years unless exceptions in (i) or (ii) apply |
| Whether statewide bar counsel must refer complaints when dismissal grounds exist | Screening decisions are discretionary and not subject to immediate judicial review | Referral is required when there is a reasonable likelihood dismissal is appropriate; decisions are reviewable later | Referral/dismissal decisions are reviewable in later grievance proceedings, appeals, or presentment actions |
| Whether the trial court properly denied Elder’s motion to dismiss based solely on discretion reading | Trial court’s interpretation of discretion was correct; dismissal not mandatory | Motion to dismiss should have been granted because no exception applied | Trial court erred; dismissal directed because no exceptions applied |
| Whether prior decisions (Johnson/Ankerman) bar review or support discretion | Johnson/Ankerman show screening referrals and dismissal are discretionary/unreviewable | Those cases do not control here; Johnson did not address reviewability and Ankerman is distinguishable | Court clarifies and limits Johnson dictum and distinguishes Ankerman; prior language suggesting unfettered discretion disavowed |
Key Cases Cited
- Massameno v. Statewide Grievance Committee, 234 Conn. 539 (Conn. 1995) (disciplinary proceedings aim to protect public confidence and the court, not punish attorneys)
- Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286 (Conn. 2014) (policy rationale for limitation periods: avoid enforcement of stale claims and loss of proof)
- Johnson v. Statewide Grievance Committee, 248 Conn. 87 (Conn. 1999) (addressed exhaustion and certain language in § 2-32 but did not resolve reviewability of screening decisions)
- Ankerman v. Mancuso, 79 Conn. App. 480 (Conn. App. 2003) (distinguishable; did not involve a grievance presentment under § 2-32)