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Disciplinary Counsel v. Elder

Supreme Court of Connecticut

May 2, 2017

DISCIPLINARY COUNSEL
v.
JOSEPH ELDER

          Argued November 7, 2016

          Joseph Elder, self-represented, the appellant (defendant).

          Beth L. Baldwin, assistant disciplinary counsel, with whom was Karyl L. Carrasquilla, chief disciplinary counsel, for the appellee (plaintiff).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          PALMER, J.

         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)[1] 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.[2] 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 record reveals the following procedural history and facts that were found by the trial court or that are undisputed. On July 26, 2004, two police officers with the Plainville Police Department were directed to secure the residence of a suspect while an arrest warrant was obtained. The suspect called his attorney from his cell phone from outside his residence. After speaking to his attorney, the suspect forced his way into the residence. The police officers followed the suspect into his residence, discovered him attempting to hide or destroy contraband and arrested him.

         Dean Cyr, a sergeant with the Plainville Police Department, arrived at the suspect's residence shortly after his arrest. The suspect told Cyr that he had entered the residence on the advice of counsel, but he did not provide the name of his attorney. When the suspect's cell phone rang, Cyr took possession of it and answered the incoming call. The caller then hung up.

         The next day, July 27, 2004, Cyr called the last telephone number that appeared on the call list of the suspect's cell phone and posed as a prospective client. The defendant answered the phone and identified himself as Spears. On August 25, 2004, Cyr again called the same telephone number from a telephone at the Plainville Police Department. The call was recorded. When the defendant answered the telephone, the following exchange took place:

‘‘[The Defendant]: Hello.
‘‘[Cyr]: Attorney Spears?
‘‘[The Defendant]: Who?
‘‘[Cyr]: Attorney Spears?
‘‘[The Defendant]: Yes.''

         Cyr then identified himself and told the defendant that he was going to apply for a warrant for his arrest and file a grievance complaint in connection with the incident on July 26, 2004.

         Thereafter, Cyr filed an application for an arrest warrant for Spears, which was denied. Cyr also filed a grievance complaint against Spears.[3] Upon reviewing the grievance complaint, Spears noticed that the telephone number that Cyr had called was not his. When Spears called the telephone number, Deborah Pizzonia answered. Pizzonia told Spears that the telephone number had only recently been assigned to her, and that she had been receiving numerous telephone calls for the defendant. Several weeks later, Spears asked the defendant if he had impersonated him, and the defendant denied that he had.

         Spears ultimately filed an action against Cyr and the town of Plainville.[4] During the course of the ensuing litigation, Spears took Cyr's deposition and obtained a recording of the August 25, 2004 telephone conversation between Cyr and the defendant. Thereafter, Spears brought a civil action against the defendant, alleging, inter alia, impersonation and defamation. The trial court rendered judgment in favor of Spears in that action, and the judgment was affirmed by the Appellate Court. See Spears v. Elder, 124 Conn.App. 280, 281, 5 A.3d 500, cert. denied, 299 Conn. 913, 10 A.3d 528 (2010).

         On April 4, 2014, Spears filed a grievance complaint against the defendant pursuant to Practice Book § 2-32, which was referred to a reviewing committee. Although the grievance complaint is not part of the record before this court, it appears that Spears claimed that the defendant's conduct in identifying himself as Spears during the 2004 telephone conversations with Cyr and the defendant's subsequent denial to Spears that he had impersonated Spears were the basis for the complaint. After conducting an evidentiary hearing, the reviewing committee concluded that the defendant ...


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