Doe v. Statewide Grievance Committee

SCHALLER, J.,

concurring. Although I concur in the result reached by the majority, I disagree with several aspects of the analysis.

As the majority notes, the dispositive issue in this case is whether the failure of the statewide grievance committee (committee) to comply with the time limitations of General Statutes (Rev. to 1993) § 51-90g (g), now § 51-90g (h), and Practice Book § 27J (i), requires dismissal of the underlying complaint alleging attorney misconduct. As in Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 233-34, 558 A.2d 986 (1989), which governs this case, this issue “concerns the relationship between the judicial department’s supervisory responsibility for the conduct of attorneys and the provisions of [statutory] . . . time constraints upon the adjudicatory processes of the Statewide Grievance Committee . . . with respect to complaints of attorney misconduct.”

Our Supreme Court stated in Rozbicki that “[requiring the grievance committee to dismiss a complaint whenever the review subcommittee has failed to act in a timely manner, with no discretion to pursue another course of action if appropriate, would frustrate the purposes of attorney grievance procedures and run counter to the special supervisory role of the courts in regulating attorney conduct. We will, therefore, require such action only if specifically so directed . . . .” Id., 239. Within this framework, the court analyzed § 51-90g (c). Initially, the court concluded that the word “shall” in § 51-90g (c) “ ‘connotes that the performance of the statutory requirements is mandatory rather than permissive.’ ” Id., 240. The court, nevertheless, relied on *682the savings clause in § 51-90g (c) to conclude that a delay by a subcommittee does not require dismissal. Id., 242-45.

Although the court also emphasized the broader context of the supervisory role of the judiciary in governing attorney conduct, our Supreme Court in Rozbicki based its decision primarily on the impact of the § 51-90g (c) savings clause. In the case before us, concerning the mandatory time limit of § 51-90g (g), the absence of a comparable savings clause together with the acquiescence of the judiciary in adopting the time limits in § 27J compels our result. When the committee is proceeding under § 51-90g (g), neither the statute nor the rule of practice authorizes discretionary action in the event of delay beyond the time limit. By adopting the statutory language in the rule of practice, the judiciary has bound the committee to the statutory standard, without allowing discretion as it carries out its supervisory role over attorney conduct. This court is bound by the analysis in the Rozbicki decision to reach that result. To this extent, I concur in the majority’s analysis.

Because the required result of this case, however, undermines the vital role of judicial supervision of attorney conduct, I disagree with the majority when it attempts to explain and justify the result in terms of reason, common sense and consistency with legislative history or purpose.

The result clearly does not fulfill all the important purposes indicated in the legislative history. The legislative history certainly contains language appropriately indicating that the supervisory process should not be abusive to attorneys. The legislature, however, was also concerned about dealing with the problem of attorney misconduct consistently and fairly in order to eliminate some of the abuses produced by that misconduct and to bolster public confidence in the grievance process. *683It is apparent that the purpose of expediting the process was at least as much for the benefit of the public as for those facing charges of misconduct. The result that we are compelled to reach in this case seriously diminishes any benefit to the public.

In this case, a two month delay by the committee in proceeding with a misconduct complaint against an attorney, whose anonymity is ensured and who has demonstrated no prejudice, results in dismissal of the complaint, effectively depriving the trial court of jurisdiction and the public of appropriate judicial supervision of attorneys. By virtue of the committee’s dereliction, the detrimental impact on public confidence in the judiciary’s authority to supervise attorney misconduct is palpable. The inherent supervisory authority of the judiciary on which our Supreme Court framed its analysis of § 51-90g (c) in Rozbicki should not be so easily subverted. See id., 237-39. By acquiescing in the language of § 51-90g (g), the judicial branch has contributed to limiting its own authority. We cannot, however, avoid being controlled by the conclusion in Rozbicki that the time limits in § 51-90g are mandatory. Id., 240.

I disagree also with the majority’s statement that this conclusion is “especially appropriate in a case such as this in which a local grievance panel found no probable cause that the plaintiff was guilty of misconduct.” Because of the trial court’s order requiring confidentiality, we do not know the identity of the attorney involved, the nature of the complaint, the reasons for the action of the local grievance panel or the reasons for the action and delay by the committee. It is not appropriate, on the record before us, to speculate as to the rationale or validity of either probable cause determination. I disagree, therefore, with the majority’s implicit approval of the local grievance panel’s determination.

*684Finally, the majority’s attempt to justify this result in terms of consistency, logic, or common sense must fail. The majority concludes that it would be a bizarre result to allow a committee to revive a case by submitting it to a subcommittee after its 120 days to act has elapsed. Under the result that this court reaches today, however, the committee can refer every case to a subcommittee at the outset, thereby assuring itself of the discretionary authority of § 51-90g (c) to act later. This also leads to an incongruous and absurd result. When the committee promptly refers the matter to a subcommittee, it assures itself of not being strictly bound by the 120 day requirement. If the subcommittee delays, the committee is empowered with discretion to “inquire into the delay and determine the appropriate course of action.” General Statutes § 51-90g (c). On the other hand, as in the present case, if the subcommittee referral does not take place within 120 days, the very same committee has no such discretion and becomes powerless to act on a grievance complaint. In that respect, the present result is neither reasonable nor sensible.

Accordingly, I concur in the result.