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CHIEF DISCIPLINARY COUNSEL v. JOSEPH ELDER
(AC 43733)
Bright, C. J., and Alvord and DiPentima, Js.
Syllabus
The defendant attorney appealed to this court from the judgment of the
trial court reprimanding him for violations of the rules of practice and
the Rules of Professional Conduct in connection with misconduct involv-
ing his IOLTA account. The plaintiff, the Chief Disciplinary Counsel,
filed a presentment alleging the misconduct after a reviewing committee
of the Statewide Grievance Committee found that there was probable
cause that the defendant had violated various provisions of the Rules
of Professional Conduct and the rules of practice. The trial court denied
the defendant’s motion to dismiss the presentment complaint on the
grounds that it was untimely because the reviewing committee took more
than ninety days to render its final written decision, in contravention
of the applicable statute (§ 51-90g (c)) and rule of practice (§ 2-35 (i)),
and because the reviewing committee had considered allegations of
misconduct beyond the scope of its probable cause determination. Held:
1. The trial court did not err when it refused to dismiss the presentment
complaint due to the reviewing committee’s failure to issue a final
written decision within ninety days of its determination of probable
cause; the failure of the reviewing committee to abide by the time frames
established in § 51-90g (c) and Practice Book § 2-35 (i) did not divest
the trial court of subject matter jurisdiction over the disciplinary action,
as § 51-90g (c) and Practice Book § 2-35 (m) provide that the reviewing
committee’s untimeliness did not require dismissal of the presentment
complaint.
2. The trial court did nor err when it refused to dismiss the presentment
complaint because the reviewing committee considered allegations out-
side the scope of its probable cause determination; the applicable rule
of practice (§ 2-35 (d) (1)) expressly provides that the disciplinary coun-
sel may add additional allegations of misconduct before the reviewing
committee holds a hearing on the alleged misconduct.
Argued May 25—officially released August 3, 2021
Procedural History
Presentment by the plaintiff for alleged professional
misconduct by the defendant, brought to the Superior
Court in the judicial district of Hartford and tried to
the court, Sheridan, J.; judgment reprimanding the
defendant, from which the defendant appealed to this
court. Affirmed.
Joseph S. Elder, self-represented, the appellant
(defendant).
Leanne M. Larson, first assistant chief disciplinary
counsel, for the appellee (plaintiff).
Opinion
BRIGHT, C. J. The defendant attorney, Joseph Elder,
appeals from the judgment of the trial court reprimand-
ing him for violations of the rules of practice and the
Rules of Professional Conduct. Specifically, the defen-
dant claims that the court erred in not dismissing the
presentment complaint against him because the
reviewing committee (1) did not abide by the time
frames set forth in General Statutes § 51-90g (c) and
Practice Book § 2-35 (i), and (2) improperly considered
allegations of misconduct that were filed by the plain-
tiff, the Chief Disciplinary Counsel, after the reviewing
committee had made a probable cause determination.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On November 14,
2014, the Statewide Grievance Committee received an
overdraft notice from Webster Bank stating that an
interest on lawyers’ trust account (IOLTA) account in
the defendant’s name had posted two transactions for
which the account had insufficient funds. The Statewide
Grievance Committee then mailed a letter to the defen-
dant, requesting an explanation for the overdraft. The
defendant explained that the overdraft had resulted
from an attempt to transfer funds from his PayPal
account to his Webster Bank account.1 After learning
that the defendant’s IOLTA account was linked to a
PayPal account, the Statewide Grievance Committee
requested more information about the accounts. The
defendant failed to comply with this request, and the
overdraft matter was referred to the plaintiff, who filed
a grievance on April 22, 2015.
On July 8, 2015, the assigned reviewing committee
found probable cause that the defendant had violated
Practice Book § 2-27.2 Thereafter, the plaintiff filed addi-
tional allegations of misconduct against the defendant,
asserting that he also had violated rules 1.15 (b), (c),
(j), and (k) (3), and 8.1 (2) of the Rules of Professional
Conduct.3 On November 3, 2015, the reviewing commit-
tee held a hearing on the grievance, and then issued a
decision directing that a presentment complaint be filed
against the defendant in Superior Court. That present-
ment complaint was later dismissed and the matter
was remanded for a new hearing before the reviewing
committee.4 After a second hearing on February 8, 2017,
at which the defendant failed to appear, the reviewing
committee again issued a decision directing that a pre-
sentment complaint be filed. The plaintiff filed a pre-
sentment complaint in the Superior Court on September
28, 2017, alleging that the defendant violated rules 1.15
(b), (c), (j), and (k) (3), and 8.1 (2) of the Rules of
Professional Conduct and Practice Book § 2-27.
On May 8, 2018, the defendant filed a motion to dis-
miss the presentment complaint, claiming that the
reviewing committee had (1) failed to comply with the
applicable time limits and (2) improperly considered
allegations of misconduct that were beyond the scope
of its probable cause determination. The trial court
denied the motion, finding that (1) any untimeliness
did not deprive the court of subject matter jurisdiction
and (2) the defendant’s factual allegations were not
‘‘grounds for dismissing the presentment complaint
. . . .’’ Following a series of motions to continue,5 on
August 7, 2019, the trial court held a hearing on the
presentment complaint. Also on August 7, 2019, the
defendant filed a second motion to dismiss, alleging
the same claims from his 2018 motion and adding a
claim of laches. The trial court denied that motion,
finding that the defendant did not have a valid laches
claim because he had consented to most of the delays in
the proceedings. After the hearing on the presentment
complaint, the court issued a memorandum of decision
finding that the defendant had violated rules 1.15 (b),
(c), (j), (k) (3), and 8.1 (2) of the Rules of Professional
Conduct, and Practice Book § 2-27. As a sanction, the
court issued a reprimand with the condition that the
plaintiff audit ‘‘any IOLTA account currently registered
to the defendant . . . for a period of one year . . . .’’
This appeal followed.
I
The defendant first contends that the trial court erred
in not dismissing the presentment complaint as
untimely because the reviewing committee took more
than ninety days to render its final written decision,
in contravention of General Statutes § 51-90g (c) and
Practice Book § 2-35 (i). We are not persuaded.
We first set forth the applicable standard of review.
Because this claim presents a question of law, namely,
whether a reviewing committee’s failure to comply with
the applicable time frames requires dismissal of a pre-
sentment complaint, our review is plenary. See Bojila v.
Shramko, 80 Conn. App. 508, 512, 836 A.2d 1207 (2003).
Section 51-90g (c) provides in relevant part: ‘‘The
subcommittee shall conclude any hearing or hearings
and shall render its proposed decision not later than
ninety days from the date the panel’s determination of
probable cause or no probable cause was filed with
the State-Wide Grievance Committee. . . .’’ Similarly,
Practice Book § 2-35 (i) provides in relevant part,
‘‘[w]ithin ninety days of the date the grievance panel
filed its [probable cause] determination . . . the
reviewing committee shall render a final written deci-
sion . . . .’’ Practice Book § 2-35 (m), however,
expressly states that ‘‘[t]he failure of a reviewing com-
mittee to complete its action on a [disciplinary] com-
plaint within the period of time provided in this section
shall not be cause for dismissal of the complaint.’’ See
also Doe v. Statewide Grievance Committee, 240 Conn.
671, 672–73, 680 and n.10, 694 A.2d 1218 (1997) (tempo-
ral requirements of General Statutes (Rev. to 1993) § 51-
90g (g) and Practice Book (1997) § 27J (i) (now § 2-35
(i)),6 were discretionary, not mandatory, and failure to
comply with those time limits did not deprive trial court
of subject matter jurisdiction over attorney disciplinary
proceedings). Accordingly, we conclude that the failure
of a reviewing committee to abide by the time frames
established in § 51-90g (c) and Practice Book § 2-35
(i) does not divest the trial court of subject matter
jurisdiction over a disciplinary action. See id.; see also
Practice Book § 2-35 (m). Thus, the untimeliness of the
defendant’s disciplinary proceedings does not require
dismissal of the presentment complaint, and the trial
court did not err when it refused to dismiss the action.7
II
The defendant next claims that the trial court erred
in not dismissing the presentment complaint because
the reviewing committee considered allegations outside
the scope of the committee’s probable cause determina-
tion. We disagree.
This claim also presents a question of law, specifi-
cally, whether a reviewing committee can consider
additional allegations of misconduct after it has already
made a probable cause determination, over which our
review is plenary.8 See Bojila v. Shramko, supra, 80
Conn. App. 512.
Practice Book § 2-35 (d) (1) provides in relevant part
that ‘‘[d]isciplinary counsel may add additional allega-
tions of misconduct to the grievance panel’s determina-
tion that probable cause exists in the following circum-
stances . . . [p]rior to the hearing before the . . .
reviewing committee, disciplinary counsel may add
additional allegations of misconduct from the record
of the grievance complaint or its investigation of the
complaint.’’ This is what happened in the present case.
After the reviewing committee determined that there
was probable cause to find that the defendant had vio-
lated Practice Book § 2-27, but before the reviewing
committee held a hearing on the alleged misconduct,
the plaintiff filed additional allegations of misconduct
against the defendant. That is expressly allowed by
Practice Book § 2-35 (d) (1).9 Consequently, the
reviewing committee’s consideration of additional alle-
gations of misconduct against the defendant does not
constitute a basis for dismissing the presentment com-
plaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant had ‘‘intended to fund a $608 PayPal transaction with his
credit card, but did not specifically indicate that, and therefore the funds
were withdrawn from the bank account linked to the PayPal account, namely
the Webster Bank IOLTA account . . . .’’
2
Practice Book § 2-27 (a) provides: ‘‘Consistent with the requirement of
Rule 1.15 of the Rules of Professional Conduct, each lawyer or law firm
shall maintain, separate from the lawyer’s or the firm’s personal funds, one
lawyer or firm as fiduciary or attorney, and shall not use such funds for
any unauthorized purpose.’’
3
Rule 1.15 (b) of the Rules of Professional Conduct provides in relevant
part: ‘‘A lawyer shall hold property of clients or third persons that is in a
lawyer’s possession in connection with a representation separate from the
lawyer’s own property. Funds shall be kept in a separate account maintained
in the state where the lawyer’s office is situated . . . .’’
Rule 1.15 (c) of the Rules of Professional Conduct provides: ‘‘A lawyer
may deposit the lawyer’s own funds in a client trust account for the sole
purposes of paying bank service charges on that account or obtaining a
waiver of fees and service charges on the account, but only in an amount
necessary for those purposes.’’
Rule 1.15 (j) of the Rules of Professional Conduct provides in relevant
part: ‘‘A lawyer who practices in this jurisdiction shall maintain current
financial records as provided in this Rule and shall retain the following
records for a period of seven years after termination of the representation:
(1) receipt and disbursement journals containing a record of deposits to
and withdrawals from client trust accounts, specifically identifying the date,
source, and description of each item deposited, as well as the date, payee
and purpose of each disbursement;
(2) ledger records for all client trust accounts showing, for each separate
trust client or beneficiary, the source of all funds deposited, the names of
all persons for whom the funds are or were held, the amount of such funds,
the descriptions and amounts of charges or withdrawals, and the names of
all persons or entities to whom such funds were disbursed . . .
(5) copies of bills for legal fees and expenses rendered to clients . . .
(7) the physical or electronic equivalents of all checkbook registers, bank
statements, records of deposit, prenumbered canceled checks, and substi-
tute checks provided by a financial institution;
(8) records of all electronic transfers from client trust accounts, including
the name of the person authorizing transfer, the date of transfer, the name
of the recipient and confirmation from the financial institution of the trust
account number from which money was withdrawn and the date and the
time the transfer was completed; [and]
(9) copies of monthly trial balances and at least quarterly reconciliations
of the client trust accounts maintained by the lawyer . . . .’’
Rule 1.15 (k) of the Rules of Professional Conduct provides in relevant
part: ‘‘With respect to client trust accounts required by this Rule . . . (3)
withdrawals shall be made only by check payable to a named payee or by
authorized electronic transfer and not to cash.’’
Rule 8.1 of the Rules of Professional Conduct provides in relevant part:
‘‘An applicant for admission to the bar, or a lawyer in connection with a
bar admission application or in connection with a disciplinary matter, shall
not . . . (2) Fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or disciplin-
ary authority . . . .’’
4
Shortly after the November 3, 2015 hearing, the defendant filed a motion
to dismiss the presentment complaint because the hearing had been held
despite his motion for a continuance. The trial court, Robaina, J., found
that the denial of the defendant’s request for a continuance had been unwar-
ranted and granted the defendant’s motion to dismiss.
5
Between June 9, 2017, and August 7, 2019, the parties filed at least seven
motions for continuances. The defendant consented to all but one of the
plaintiff’s motions. For the single motion to which the defendant did not
consent, he simply failed to respond. One of the motions for a continuance
was filed by the defendant.
6
General Statutes (Rev. to 1993) § 51-90g and Practice Book (1997) § 27J
(i) both establish a four month time limit for resolving an attorney disciplin-
ary proceeding following the filing of a determination of probable cause or
no probable cause.
7
In his principal brief, the defendant makes a passing reference to the
doctrine of laches, stating: ‘‘A process designed to conclude in an expeditious
manner languished. The doctrine of laches suggests itself as the appropriate
sanction.’’ Notably, however, he fails to discuss the trial court’s denial of
his August 7, 2019 motion to dismiss in which he raised laches as a basis
to dismiss the presentment complaint. In denying the motion to dismiss,
the trial court rejected the defendant’s laches claim because he largely had
consented to the delays in the proceedings. To the extent that the defendant
is renewing his laches claim on appeal, we conclude that the trial court
properly found that there was no inexcusable delay that prejudiced the
defendant because, as the court noted, the defendant largely agreed to the
continuances that led to any delay. See Wiblyi v. McDonald’s Corp., 168
Conn. App. 92, 103, 144 A.3d 530 (2016) (for defense of laches to apply,
there must have been inexcusable delay that prejudiced party).
In addition, the defendant’s argument that his presentment complaint
should have been dismissed because the untimeliness of the disciplinary
proceedings prejudiced him by preventing him from applying for reinstate-
ment to the bar after an unrelated suspension is unpersuasive. In Doe, our
Supreme Court held that claims of prejudice related to an attorney’s delayed
reinstatement do not go to a trial court’s subject matter jurisdiction and thus
do not provide a basis for dismissal. Doe v. Statewide Grievance Committee,
supra, 240 Conn. 685 n.11. Instead, allegations of prejudice are properly
considered by the court ‘‘as part of its oversight responsibilities.’’ Id.
Although the trial court did not specifically address this delay, we see no
basis to conclude that the defendant was prejudiced by it. As previously
explained, the defendant consented to nearly all of the delays in the proceed-
ings and caused many of these delays himself. See footnotes 4 and 5. The
defendant also has not challenged the sanction at issue in this proceeding.
Lastly, the defendant is no longer barred from practicing law and has not
been barred from doing so since our Supreme Court vacated his suspension
on May 25, 2017. See Disciplinary Counsel v. Elder, 325 Conn. 378, 393,
159 A.3d 220 (2017). Given all of this, we cannot conclude that the defendant
was prejudiced by the untimeliness of the disciplinary proceedings. We also
conclude that the defendant’s claim that the delay in the proceedings was
attributable to racial prejudice is speculative and thus does not provide a
reason to dismiss the presentment complaint.
8
The plaintiff argues that we should not consider the defendant’s second
claim because it was not preserved for appeal. We disagree. The defendant’s
second claim was raised in the proceedings in the trial court, specifically
in his motions to dismiss, and the trial court ruled on this claim when, in
its June 9, 2018 order, it stated that the defendant’s objections ‘‘to the facts
and circumstances surrounding the findings and recommendations of the
[reviewing committee] . . . are not grounds for dismissing the presentment
complaint . . . .’’ Thus, this claim was properly preserved. See Practice
Book § 60-5 (this court ‘‘shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to the trial’’).
9
The defendant argues that his presentment complaint should have been
dismissed under Practice Book § 2-35 (d) (2) because that provision bars
the addition of new allegations of misconduct unless good cause can be
shown and the defendant consents. Section 2-35 (d) (2), however, applies
only when the plaintiff seeks to add allegations of misconduct after a disci-
plinary hearing has begun. As previously noted, the additional allegations
in the present case were filed before the reviewing committee held its hearing.
Thus, § 2-35 (d) (2) is irrelevant.