Connecticut Upholds Statute Of Limitations In Bar Discipline Matters
The Connecticut Supreme Court upheld as mandatory the six-year disciplinary statute of limitations for most violations
The issue that we must decide in this case is whether the six year limitation period set forth in Practice Book § 2-32 (a) (2) (E) constitutes a mandatory bar to grievance complaints brought after that six year limitation period has expired or whether the provision, instead, is discretionary. On April 4, 2014, Wesley S. Spears filed a grievance complaint against the defendant, Attorney Joseph Elder, alleging that the defendant had engaged in professional misconduct in 2004. A reviewing committee of the Statewide Grievance Committee conducted a hearing on the grievance complaint and found by clear and convincing evidence that the defendant had violated certain of the Rules of Professional Conduct. The reviewing committee also directed the plaintiff, the Disciplinary Counsel, to bring this presentment action against the defendant. After the plaintiff brought this action in 2015, the defendant filed a motion to dismiss, claiming that the action was barred by § 2-32 (a) (2) (E). The trial court concluded that the time limitation set forth in § 2-32 (a) (2) (E) is not mandatory and denied the motion to dismiss. After a trial to the court, the trial court concluded that the defendant had violated certain of the Rules of Professional Conduct and ordered that the defendant be suspended from the practice of law for a period of one year. The defendant then filed this appeal. We conclude that § 2-32 (a) (2) (E) bars grievance complaints that are not brought within the six year limitation period unless one of the exceptions set forth in § 2-32 (a) (2) (E) (i) or (ii) applies. Because none of these exceptions applies in the present case, we reverse the judgment of the trial court and remand the case to that court with direction to grant the defendant’s motion to dismiss.
The story is a complicated one that led to this finding
The presentment action was tried to the court, which concluded that the defendant had violated rules 4.1 and 8.4 of the Rules of Professional Conduct by misrepresenting himself to a third person in the course of his representation of a client. As a sanction, the trial court ordered that the defendant be suspended from the practice of law for a period of one year.
The court
We conclude that the most reasonable interpretation of this rule is that the judges of the Superior Court intended that the six year period of limitation set forth in Practice Book § 2-32 (a) (2) (E) would bar any untimely complaints unless one of the exceptions set forth in subparagraph (i) or (ii) applies. We can think of no reason why our judges would expressly impose a specific period of limitation and then effectively eviscerate that limitation period by conferring unfettered discretion on the screening panel to ignore it…
Our determination that the time limitation set forth in Practice Book § 2-32 (a) (2) (E) is mandatory finds support in the underlying purpose of disciplinary proceedings, which is ‘‘to preserve public confidence in the system and to protect the public and the court from unfit practitioners.’’ Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554, 663 A.2d 317 (1995). The purpose is not to punish the attorney. E.g., Statewide Grievance Committee v. Shluger, 230 Conn. 668, 675, 646 A.2d 781 (1994). When an attorney has not engaged in any professional misconduct for six years prior to the date that a grievance complaint has been filed, and none of the exceptions set forth in § 2- 32 (a) (2) (E) (i) or (ii) applies, it reasonably may be presumed that the attorney does not pose a continuing danger to the public or the court. Our interpretation is also bolstered by the policies underlying limitation periods generally, ‘‘namely, to prevent the unexpected enforcement of stale claims and the impairment of proof wrought by lost witnesses and/or evidence.’’ Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 309 n.23, 94 A.3d 553 (2014).
Thus
In the present case, the sole reason that the trial court gave for denying the defendant’s motion to dismiss was that the six year limitation period set forth in Practice Book § 2-32 (a) (2) (E) is not mandatory. Because we have concluded that the limitation period is mandatory unless one of the exceptions set forth in § 2-32 (a) (2) (E) (i) or (ii) applies, we conclude that the trial court improperly denied the defendant’s motion to dismiss.
The violations not subject to limitations
‘‘Notwithstanding the period of limitation set forth in this subparagraph, an allegation of misconduct that would constitute a violation of Rule 1.15, 8.1 or 8.4 (2) through (6) of the Rules of Professional Conduct may still be considered as long as a written complaint is filed within one year of the discovery of such alleged misconduct.’’ Practice Book § 2-32 (a) (2) (E) (ii) provides: ‘‘Each period of limitation in this subparagraph is tolled during any period in which: (1) the alleged misconduct remains undiscovered due to active concealment; (2) the alleged misconduct would constitute a violation of Rule 1.8 (c) and the conditions precedent of the instrument have not been satisfied;(3)the alleged misconduct is part of a continuing course of misconduct; or (4) the aggrieved party is under the age of majority, insane, or otherwise unable to file a complaint due to mental or physical incapacitation.’’
(Mike Frisch)