Disciplinary Counsel v. Elder

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DISCIPLINARY COUNSEL v. JOSEPH ELDER
(SC 19698)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued November 7, 2016—officially released May 2, 2017
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).
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 manda-
tory bar to grievance complaints brought after that six
year limitation period has expired or whether the provi-
sion, instead, is discretionary. On April 4, 2014, Wesley
S. Spears filed a grievance complaint against the defen-
dant, Attorney Joseph Elder, alleging that the defendant
had engaged in professional misconduct in 2004. A
reviewing committee of the Statewide Grievance Com-
mittee conducted a hearing on the grievance complaint
and found by clear and convincing evidence that the
defendant had violated certain of the Rules of Profes-
sional Conduct. The reviewing committee also directed
the plaintiff, the Disciplinary Counsel, to bring this pre-
sentment action against the defendant. After the plain-
tiff 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 Profes-
sional Conduct and ordered that the defendant be sus-
pended 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 war-
rant was obtained. The suspect called his attorney from
his cell phone from outside his residence. After speak-
ing 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 tele-
phone 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 him-
self 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 fol-
lowing 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 war-
rant for Spears, which was denied. Cyr also filed a
grievance complaint against Spears.3 Upon reviewing
the grievance complaint, Spears noticed that the tele-
phone number that Cyr had called was not his. When
Spears called the telephone number, Deborah Pizzonia
answered. Pizzonia told Spears that the telephone num-
ber 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 defen-
dant 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 had
violated rules 4.1 (1)5 and 8.4 (3)6 of the Rules of Profes-
sional Conduct and directed the plaintiff to file a pre-
sentment action in the Superior Court.
Pursuant to the direction of the reviewing committee,
the plaintiff brought this presentment action. There-
after, the defendant filed a motion to dismiss the action
on the ground that it was barred by the six year limita-
tion period set forth in Practice Book § 2-32 (a) (2)
(E). The trial court denied the defendant’s motion to
dismiss. In the order denying the motion, the court
stated that ‘‘[§ 2-32 (a) (2) (E)] does not operate as a
statute of limitations and does not affect the court’s
jurisdiction. The section provides that a complaint shall
be dismissed if the misconduct occurred more than six
years prior ‘if deemed appropriate.’ As such, it is not
mandatory, and the [defendant’s] motion is denied.’’
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 misrepre-
senting 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 prac-
tice of law for a period of one year.
This appeal followed. The defendant claims that the
trial court incorrectly concluded that the time limitation
set forth in Practice Book § 2-32 (a) (2) (E) is discretion-
ary and improperly denied his motion to dismiss.7 We
agree.
We begin with the standard of review. ‘‘The interpre-
tive construction of the rules of practice is to be gov-
erned by the same principles as those regulating
statutory interpretation. . . . The interpretation and
application of a statute, and thus a Practice Book provi-
sion, involves a question of law over which our review
is plenary.’’ (Citations omitted; internal quotation marks
omitted.) Wiseman v. Armstrong, 295 Conn. 94, 99,
989 A.2d 1027 (2010). ‘‘In seeking to determine [the]
meaning [of a statute or a rule of practice, we] . . .
first . . . consider the text of the statute [or rule] itself
and its relationship to other statutes [or rules].’’ (Inter-
nal quotation marks omitted.) Thomas v. Dept. of Devel-
opmental Services, 297 Conn. 391, 399, 999 A.2d 682
(2010).
Accordingly, we turn to the provisions of Practice
Book § 2-32. Under that rule, complaints against attor-
neys are filed with the statewide bar counsel. Practice
Book § 2-32 (a). After reviewing the complaint, the
statewide bar counsel can either forward the complaint
to a grievance panel in the judicial district in which
the respondent maintains his or her principal office
or residence (local grievance panel) for investigation;
Practice Book § 2-32 (a) (1); or the statewide bar coun-
sel can refer the complaint to the chair of the Statewide
Grievance Committee, or an attorney designee of the
chair, and to a nonattorney member of the Statewide
Grievance Committee, and those persons, in conjunc-
tion with the statewide bar counsel (collectively
referred to hereinafter as the screening panel) will then
make a determination as to whether the complaint
should be dismissed on specified grounds. Practice
Book § 2-32 (a) (2). Practice Book § 2-32 (a) (2) provides
in relevant part that the screening panel ‘‘shall, if
deemed appropriate, dismiss the complaint’’ if ‘‘(E) the
complaint alleges that the last act or omission constitut-
ing the alleged misconduct occurred more than six
years prior to the date on which the complaint was filed
. . . .’’ Practice Book § 2-32 (a) (2) (E) (i) provides:
‘‘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) pro-
vides: ‘‘Each period of limitation in this subparagraph
is tolled during any period in which: (1) the alleged
misconduct remains undiscovered due to active con-
cealment; (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 miscon-
duct; 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.’’
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 spe-
cific period of limitation and then effectively eviscerate
that limitation period by conferring unfettered discre-
tion on the screening panel to ignore it. If that had been
their intent, the judges of the Superior Court could have
simply stated that untimeliness may constitute a reason
for dismissal if deemed appropriate by the screening
panel. Indeed, § 2-32 (a) (2) (E) (i) expressly refers to
the six year period as a ‘‘period of limitation . . . .’’
Accordingly, it is reasonable to conclude that the ‘‘if
deemed appropriate’’ language of § 2-32 (a) (2) was
merely intended to recognize that the equitable excep-
tions set forth in § 2-32 (a) (2) (E) (i) and (ii), as well
as the grounds for dismissal set forth in § 2-32 (a) (2)
(A), (B), (C), (D), (F), (G), (H), (I) and (J) may require
the screening panel to exercise discretion in determin-
ing whether the provisions apply. If there is no claim
that one of the enumerated exceptions to § 2-32 (a) (2)
(E) applies, however, then, even though § 2-32 (a) (2)
does not expressly provide that the screening panel
must dismiss a claim that is untimely under § 2-32 (a)
(2) (E), untimely claims are categorically barred.
Similarly, although Practice Book § 2-32 (a) (2) does
not expressly require the statewide bar counsel to refer
a complaint to a screening panel if one of the grounds
for dismissal exists, to conclude that the statewide bar
counsel has unfettered discretion to ignore the rule
would render it meaningless. Of course, we do not read
rules of practice in such a manner if there is a reason-
able construction that gives meaning to the language
at issue. Accordingly, we conclude that the most reason-
able interpretation of the rule is that the statewide bar
counsel is obliged to refer a complaint to a screening
panel if there is a reasonable likelihood that the com-
plaint could be dismissed on one of the grounds speci-
fied in § 2-32 (a) (2), and the screening panel must
dismiss the complaint if it determines that one of those
grounds exists.
The conclusion that Practice Book § 2-32 does not
confer unfettered discretion on the statewide bar coun-
sel to refer a complaint to a screening panel or on a
screening panel to determine whether the complaint
should be dismissed necessarily implies that the defen-
dant is not barred from seeking review of those deci-
sions at a later stage of the proceedings, that is, in the
proceedings before the grievance panel or reviewing
committee, in an appeal of the ultimate decision on the
grievance complaint pursuant to Practice Book § 2-38,
or in a presentment action brought pursuant to Practice
Book § 2-47. Again, to conclude that these decisions are
unreviewable would effectively render the protections
provided by § 2-32 (a) (2) meaningless. We therefore
construe § 2-32 (a) (2) merely to provide a procedure
by which the complaint can be dismissed early in the
process, in the interest of conserving time and
resources, and that the decisions of the statewide bar
counsel and the screening panel are not final, unreview-
able determinations.
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 pro-
ceedings, which is ‘‘to preserve public confidence in
the system and to protect the public and the court from
unfit practitioners.’’ Massameno v. Statewide Griev-
ance 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).
In support of its claim to the contrary, the plaintiff
relies on this court’s decision in Johnson v. Statewide
Grievance Committee, 248 Conn. 87, 726 A.2d 1154
(1999). In that case, the plaintiff, Attorney Neil Johnson,
brought an action in the Superior Court seeking an
injunction prohibiting further proceedings in connec-
tion with a grievance complaint. Id., 93–94. Johnson
claimed that a reviewing subcommittee had improperly
denied his motion to dismiss the complaint on the
ground that it was duplicative of two prior dismissed
complaints and that it, therefore, should have been dis-
missed pursuant to Practice Book § 2-32 (a) (2) (D).
Id., 92–93. The trial court dismissed the action on the
ground that Johnson had failed to exhaust his adminis-
trative remedies by completing the grievance proce-
dure. Id., 94. On appeal, Johnson claimed, among other
things, that he was excused from exhausting his admin-
istrative remedies because his due process rights were
violated when the statewide bar counsel failed to follow
the procedural rules governing grievance complaints
by failing to forward the grievance complaint to a
screening panel as provided by § 2-32 (a) (2) (D). Id.,
105. This court rejected that claim, stating that ‘‘nothing
in . . . § 2-32 mandates that the statewide bar counsel
refer an allegedly duplicative complaint for preliminary
screening under . . . § 2-32 (a) (2). Furthermore, an
attorney who is the subject of a duplicative complaint
does not have an absolute right, under . . . § 2-32 (a)
(2) (D), to dismissal of that complaint. On the contrary
. . . § 2-32 (a) (2) provides that a complaint shall be
dismissed only ‘if deemed appropriate’ . . . by the
[screening panel]. Because the statewide bar counsel
acted properly in referring the matter to a grievance
panel under . . . § 2-32 (a) (2) (D), [Johnson’s] due
process claim must fail.’’ (Emphasis in original.) Id.,
105–106.
We acknowledge that this language, considered in
isolation, arguably supports the plaintiff’s position in
the present case that the statewide bar counsel and
screening panels have complete discretion in applying
the provisions of Practice Book § 2-32 (a) (2). The issue
that the defendant has raised in the present case, how-
ever—whether the decision of the statewide bar coun-
sel to refer a complaint to a screening panel pursuant
to § 2-32 (a) (2) and the decision of the screening panel
whether to dismiss the complaint are reviewable in
later proceedings—simply was not before the court in
Johnson. Rather, the court in Johnson held only that
the grieved attorney’s right to have the complaint
referred to a screening panel for a determination as to
whether it should be dismissed when there is a reason-
able likelihood that a dismissal on one of the specified
grounds would be appropriate is not immediately
enforceable by the courts; to the contrary, the grieved
attorney is required to exhaust his administrative reme-
dies.8 To the extent that the language in Johnson sup-
ports the plaintiff’s position, we now expressly disavow
any suggestion that the decision of the statewide bar
counsel not to refer a grievance complaint to a screen-
ing panel pursuant to § 2-32 (a) (2) is essentially unre-
viewable. Rather, as we have concluded, that decision,
and the decision of a screening panel to which a com-
plaint has been referred, may be reviewed upon motion
by the grieved attorney at any subsequent stage of the
process, even though the rules do not expressly provide
for such a procedure.
Accordingly, we conclude that, if a screening panel
improperly fails to dismiss a grievance complaint when
one of the grounds for dismissal set forth in Practice
Book § 2-32 (a) (2) exists, or if the statewide bar counsel
improperly fails to refer a grievance complaint to a
screening panel, those actions are reviewable during the
proceedings on the grievance complaint, in an appeal
brought pursuant to Practice Book § 2-38, or in a pre-
sentment action brought pursuant to Practice Book § 2-
47.9 If the trial court determines that the grievance com-
plaint should have been referred to a screening panel
and dismissed, that would be a ground for sustaining
the appeal or dismissing the presentment.
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.10 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 judgment is reversed and the case is remanded
with direction to grant the defendant’s motion to dis-
miss the complaint.
In this opinion the other justices concurred.
1
Practice Book § 2-32 provides in relevant part: ‘‘(a) Any person, including
disciplinary counsel, or a grievance panel on its own motion, may file a
written complaint, executed under penalties of false statement, alleging
attorney misconduct whether or not such alleged misconduct occurred in
the actual presence of the court. Complaints against attorneys shall be
filed with the statewide bar counsel. Within seven days of the receipt of a
complaint, the statewide bar counsel shall review the complaint and process
it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:
‘‘(1) forward the complaint to a grievance panel in the judicial district in
which the respondent maintains his or her principal office or residence,
provided that, if the respondent does not maintain such an address in this
state, the statewide bar counsel shall forward the complaint to any grievance
panel and notify the complainant and the respondent, by certified mail with
return receipt or with electronic delivery confirmation, of the panel to
which the complaint was sent. The notification to the respondent shall be
accompanied by a copy of the complaint. The respondent shall respond
within thirty days of the date notification is mailed to the respondent unless
for good cause shown such time is extended by the grievance panel. The
response shall be sent to the grievance panel to which the complaint has
been referred. The failure to file a timely response shall constitute miscon-
duct unless the respondent establishes that the failure to respond timely
was for good cause shown;
‘‘(2) refer the complaint to the chair of the statewide grievance committee
committee, and the statewide bar counsel in conjunction with the chair or
attorney designee and the nonattorney member shall, if deemed appropriate,
dismiss the complaint on one or more of the following grounds:
‘‘(A) the complaint only alleges a fee dispute and not a clearly excessive
or improper fee;
‘‘(B) the complaint does not allege facts which, if true, would constitute a
violation of any provision of the applicable rules governing attorney conduct;
‘‘(C) the complaint does not contain sufficient specific allegations on
which to conduct an investigation;
‘‘(D) the complaint is duplicative of a previously adjudicated complaint;
‘‘(E) the complaint alleges that the last act or omission constituting the
alleged misconduct occurred more than six years prior to the date on which
the complaint was filed;
‘‘(i) 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.
‘‘(ii) 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.
‘‘(F) the complaint alleges misconduct occurring in a superior court,
appellate court or supreme court action and the court has been made aware
of the allegations of misconduct and has rendered a decision finding miscon-
duct or finding that either no misconduct has occurred or that the allegations
should not be referred to the statewide grievance committee;
‘‘(G) the complaint alleges personal behavior outside the practice of law
which does not constitute a violation of the Rules of Professional Conduct;
‘‘(H) the complaint alleges the nonpayment of incurred indebtedness;
‘‘(I) the complaint names only a law firm or other entity and not any
individual attorney, unless dismissal would result in gross injustice. If the
complaint names a law firm or other entity as well as an individual attorney
or attorneys, the complaint shall be dismissed only as against the law firm
or entity;
‘‘(J) the complaint alleges misconduct occurring in another jurisdiction
in which the attorney is also admitted and in which the attorney maintains
an office to practice law, and it would be more practicable for the matter
to be determined in the other jurisdiction. If a complaint is dismissed pursu-
ant to this subdivision, it shall be without prejudice and the matter shall
be referred by the statewide bar counsel to the jurisdiction in which the
conduct is alleged to have occurred. . . .’’
2
The defendant appealed to the Appellate Court from the judgment of
the trial court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
3
The grievance complaint against Spears was ultimately dismissed.
4
The record does not reveal the basis for the action or its disposition.
5
Rule 4.1 of the Rules of Professional Conduct provides in relevant part:
‘‘In the course of representing a client a lawyer shall not knowingly:
‘‘(1) Make a false statement of material fact or law to a third person . . . .’’
6
Rule 8.4 of the Rules of Professional Conduct provides in relevant part:
‘‘It is professional misconduct for a lawyer to:
***
‘‘(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresen-
tation . . . .’’
7
The defendant further contends that, if the grievance complaint was not
barred by Practice Book § 2-32 (a) (2) (E), the trial court incorrectly con-
cluded that he had violated the Rules of Professional Conduct. Because we
agree with the defendant that the complaint was time barred, we need not
address this claim.
We note that there is no indication in the record that the defendant raised
the claim that the complaint was barred by Practice Book § 2-32 (a) (2) (E)
in the grievance proceedings. Because a presentment proceeding in the trial
court is de novo; e.g., Statewide Grievance Committee v. Egbarin, 61 Conn.
App. 445, 453, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001);
the record of the grievance proceedings was not before the trial court and
it is not before this court. The plaintiff makes no claim, however, that the
defendant’s claim is unreviewable because he failed to raise it in the griev-
ance proceedings. Accordingly, we review the claim.
8
Admittedly, in Johnson, the court stated that ‘‘the statewide bar counsel
acted properly in referring the matter to a grievance panel under . . . Prac-
tice Book § 2-32 (a) (2) (D)’’; Johnson v. Statewide Grievance Committee,
supra, 248 Conn. 106; thereby suggesting that there was no reason for further
review because it is within the unfettered discretion of the statewide bar
counsel either to forward the complaint to the grievance panel or to refer
it to a screening panel. Although this language was perhaps unclear or
misleading, it is apparent that the court was merely attempting to make the
point that the statewide bar counsel had not simply ignored the procedures
set forth in § 2-32 but had followed those procedures, albeit under the
mistaken belief that the rule conferred total discretion in doing so. While
a complete disregard of the prescribed procedures might constitute a due
process violation warranting immediate review, an abuse of discretion in
applying the prescribed procedures that is reviewable in later proceedings
does not.
9
We recognize that the Appellate Court has stated that ‘‘Practice Book
§ 2-32 [a] (2) (E) applies only to complaints filed with the statewide grievance
committee and not with the Superior Court.’’ Ankerman v. Mancuso, 79
Conn. App. 480, 484 n.4, 830 A.2d 388 (2003), aff’d, 271 Conn. 772, 860 A.2d
244 (2004). Ankerman, however, is distinguishable because it did not involve
a grievance complaint but, rather, an action brought by an attorney against
a former client to recover payment on a promissory note secured by a
mortgage. See id., 481–82. The former client claimed that the note was
unenforceable because the attorney had violated the Rules of Professional
Conduct by placing a mortgage on a property that was the subject of an
appeal that the attorney was litigating on the former client’s behalf. Id., 483.
Because the case did not involve an appeal from a grievance proceeding or
a presentment action, there was no complaint that could be subject to
dismissal under § 2-32 (a) (2) (E). Moreover, the Appellate Court’s statement
was dictum because the court ultimately concluded that a violation of the
Rules of Professional Conduct cannot be raised as a special defense in an
action brought by an attorney. See id., 486. In addition, the court noted that
the plaintiff had not adequately briefed any claim that § 2-32 (a) (2) (E)
applies in actions before the Superior Court. Id., 484 n.4. We note, finally,
that, although the plaintiff cited Ankerman at trial in arguing against the
defendant’s motion to dismiss, it has not cited the case on appeal.
10
At oral argument before this court, the plaintiff contended that the trial
court’s decision may be affirmed on the alternative ground that the defendant
engaged in a continuing course of misconduct for purposes of Practice Book
§ 2-32 (a) (2) (E) (ii) (3). Our review of the record reveals, however, that
the plaintiff, in arguing in opposition to the defendant’s motion to dismiss
before the trial court, claimed only that the time limitation set forth in § 2-
32 (a) (2) (E) is discretionary and that, under Ankerman v. Mancuso, 79
Conn. App. 480, 484 n.4, 830 A.2d 388 (2003), aff’d, 271 Conn. 772, 860 A.2d
244 (2004), the time limitation may not be invoked in proceedings before
the trial court. See footnote 9 of this opinion. Accordingly, the record is
devoid of any factual findings concerning the plaintiff’s course of conduct
claim. Moreover, this court ordinarily will not affirm a judgment on an
alternative ground that was not raised in the trial court. See, e.g., Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 142, 84 A.3d 840 (2014).