Peck v. Statewide Grievance Committee

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MICHAEL RUBEN PECK v. STATEWIDE
GRIEVANCE COMMITTEE
(AC 42700)
Alvord, Bright and Bear, Js.
Syllabus
The plaintiff attorney appealed to this court from the judgment of the trial
court dismissing, for lack of subject matter jurisdiction, his appeal from
the decision of the defendant Statewide Grievance Committee, which
had denied his request to vacate a prior decision by a reviewing commit-
tee of the defendant that imposed a disciplinary sanction against him.
The plaintiff, who had represented L in a real estate transaction, intro-
duced L to one of the plaintiff’s then law partners, O, who was looking
to secure a loan for the law firm. In 2001, L loaned the plaintiff’s law
firm $70,000, and, by 2008, when the law firm had not repaid the loan,
the plaintiff and O each executed new notes for repayment of the loan
by 2013. In 2011, L filed a grievance complaint against the plaintiff. The
reviewing committee concluded in its 2013 decision that the plaintiff
violated rule 1.8 (a) of the Rules of Professional Conduct by failing to
advise L that he should seek the advice of independent counsel in
connection with the loan, and by failing to advise L in writing that he
was not acting as his lawyer in connection with the loan and to establish
in writing the precise nature of the plaintiff’s role in the transaction.
The reviewing committee ordered the plaintiff to attend a continuing
education course in legal ethics. The defendant thereafter denied the
plaintiff’s request for review, in which he stated that he accepted the
discipline that was imposed and waived any appeal to the Superior
Court. Four years later, the defendant declined to act on a motion that
the plaintiff filed in 2017, pursuant to Disciplinary Counsel v. Elder
(325 Conn. 378), in which he sought to vacate the disciplinary sanction
on the ground that the six year time period in the applicable rule of
practice (§ 2-32 (a) (2) (E)) for filing a grievance mandated the dismissal
of L’s grievance. The defendant also declined to act on the plaintiff’s
subsequent motion for reconsideration. In granting the defendant’s
motion to dismiss and rendering judgment for the defendant, the trial
court concluded that it lacked subject matter jurisdiction over the appeal
because the plaintiff had waived his right to appeal from the disciplinary
decision. The court reasoned that the plaintiff could not circumvent his
failure to appeal from the disciplinary decision by fashioning his appeal
as one stemming from the defendant’s denials of his motions to vacate
and for reconsideration. On appeal to this court, held that the trial court
properly granted the defendant’s motion to dismiss the plaintiff’s appeal
as nonjusticiable, as it was an improper attempt to relitigate the defen-
dant’s 2013 decision, and the court therefore could afford the plaintiff
no remedy; although the court in Elder stated that the six year limitation
period in Practice Book § 2-32 (a) (2) (E) is mandatory and that untimely
claims are barred, that limitation period did not deprive the defendant
of subject matter jurisdiction over L’s 2011 grievance, as the statutes
(§ 51-90 et seq.) governing the filing of a grievance contained neither a
period of limitation nor an indication that any limitation period set
by the rules of practice could affect the defendant’s subject matter
jurisdiction, and the plaintiff’s challenges to the defendant’s rejections
of his motions to vacate the 2013 disciplinary order and for reconsidera-
tion of that rejection were nothing more than an attempted, impermissi-
ble end run to avoid the consequences of his waiver of his right to
appeal and failure to appeal four years earlier by using a procedure that
is not contemplated by the relevant rules of practice or § 51-90 et seq.
Submitted on briefs March 17—officially released June 16, 2020
Procedural History
Appeal from the decision of the defendant denying
the plaintiff’s request for review and affirming the deci-
sion of the defendant’s reviewing committee ordering
the plaintiff to attend a legal ethics course as a result
of the plaintiff’s alleged violation of the Rules of Profes-
sional Conduct, brought to the Superior Court in the
judicial district of Hartford, where the court, Sheridan,
J., granted the defendant’s motion to dismiss and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
James F. Sullivan filed a brief for the appellant
(plaintiff).
Leanne F. Larson, assistant chief disciplinary coun-
sel, filed a brief for the appellee (defendant).
Opinion
BRIGHT, J. The plaintiff attorney, Michael Ruben
Peck, appeals from the judgment of the trial court dis-
missing his appeal from the decision of the defendant,
the Statewide Grievance Committee, on the ground that
it lacked jurisdiction to consider the merits of the plain-
tiff’s appeal challenging the sanction imposed against
him by the defendant’s reviewing committee. The defen-
dant claims that the court committed error. We affirm
the judgment of dismissal.
The following facts, as revealed by the record, as
well as the relevant procedural history, inform our
review. On April 26, 2013, a local reviewing committee
(committee) of the defendant issued a decision regard-
ing a grievance complaint that had been filed against
the plaintiff on December 29, 2011, by Michael Longo.
The committee found that the plaintiff had represented
Longo in various legal matters in 1999 and 2000, includ-
ing the sale of real property in May, 2000. After Longo
had informed the plaintiff that it was his intention to
lend out the money from the sale, the plaintiff intro-
duced Longo to one of his then law partners, John J.
O’Brien, Jr., who was looking for someone to lend
money to the law firm to fund a lobbying group. The
plaintiff and O’Brien then met with Longo to discuss a
loan. The plaintiff did not tell Longo that he was not
acting as his attorney in this matter. On March 27, 2001,
the law firm secured a $70,000 loan from Longo, which
came from the proceeds of the real estate sale in 2000.
The loan matured on September 30, 2001, but, as of
March 29, 2002, it had not been paid. New notes were
executed by the law firm and Longo on March 29, 2002,
and on December 15, 2004. The new maturity date was
March 31, 2007. As of February 1, 2008, however, the
law firm had not paid the loan. Attorney O’Brien then
executed a new note with Longo in the amount of
$34,335, which required monthly payments and had a
maturity date of January 1, 2013. The plaintiff also exe-
cuted a new note with Longo in March, 2008, in the
amount of $32,070, which required monthly payments
and had a maturity date of February 1, 2013. The plaintiff
neither informed Longo in writing that he should con-
sider seeking the advice of independent counsel nor
obtained Longo’s written consent. The plaintiff paid his
loan on February 6, 2013.
On the basis of these facts, the committee, on April
26, 2013, concluded that the plaintiff’s ‘‘failure to advise
[Longo] in writing that he should consider seeking the
advice of independent counsel in connection with the
loan of [Longo’s] money to the [plaintiff’s] law firm
constituted a violation of rule 1.8 (a) of the Rules of
Professional Conduct. The [plaintiff’s] failure to estab-
lish in writing the precise nature of his role in this
transaction and the [plaintiff’s] failure to advise [Longo]
in writing that he was not acting as his lawyer in connec-
tion with the March, 2001 loan constituted further viola-
tions of rule 1.8 (a) of the Rules of Professional Conduct.
. . . We have considered the [plaintiff’s] payment of
the March, 2008 note as a mitigating factor.’’ The com-
mittee, pursuant to Practice Book § 2-37 (a) (5), ordered
the plaintiff to attend a continuing legal education
course in legal ethics.
The plaintiff timely requested that the defendant
review the committee’s decision, stating in his request
that he ‘‘accepts the discipline imposed . . . [and]
waives any appeal to the Superior Court.’’ The plaintiff’s
requested review asked that the defendant insert a find-
ing in the committee’s decision stating that, although
the plaintiff had failed to inform Longo in writing that
he should consider seeking the advice of independent
counsel or obtain Longo’s written consent, he did
inform Longo orally and Longo did obtain such counsel.
In a decision dated June 21, 2013, the defendant denied
the plaintiff’s request. The plaintiff did not appeal to
the Superior Court.
On April 30, 2017, nearly four years after the defen-
dant denied the plaintiff’s request for review, the plain-
tiff filed a motion with the defendant asking that it
vacate the sanction imposed in its April 26, 2013 deci-
sion pursuant to Disciplinary Counsel v. Elder, 325
Conn. 378, 159 A.3d 220 (2017) (Elder). See id., 393 (six
year time period for person to file grievance under
Practice Book § 2-32 (a) (2) (E) is mandatory; commit-
tee must dismiss grievance filed more than six years
after attorney’s last act or omission forming basis for
complaint unless exception in § 2-32 (a) (2) (E) (i) or
(ii) applies).1 On May 9, 2017, the defendant sent a letter
to the plaintiff explaining that it would not take action
on his motion to vacate. On May 16, 2017, the plaintiff
filed a request for review with the defendant, arguing
that Elder controls this matter. On June 21, 2017, the
defendant, again, declined to vacate the sanction. On
July 1, 2017, the plaintiff requested that the defendant
reconsider its decision, arguing that Elder should have
retroactive application. On July 26, 2017, the defendant
responded that it would ‘‘have no further comment on
the matter.’’
On August 21, 2017, the plaintiff filed an appeal with
the Superior Court, stating that he was appealing ‘‘from
the decision of the reviewing committee of the [defen-
dant] and the denial of the [r]equest for [r]eview by the
[defendant] in accordance with Practice Book § 2-38
. . . .’’2 The defendant filed a motion to dismiss the
appeal on the ground that the court did not have subject
matter jurisdiction because the plaintiff’s appeal was
an attempt to circumvent his failure to appeal from the
defendant’s 2013 decision. The plaintiff objected to the
defendant’s motion to dismiss, arguing that he was
appealing from the defendant’s denials of his motions
to vacate and to reconsider. The Superior Court, in a
February 25, 2019 memorandum of decision, granted
the defendant’s motion to dismiss, concluding that it
did not have jurisdiction. The court reasoned that
although the plaintiff was fashioning his appeal as one
stemming from the defendant’s denial of his motions
to vacate and to reconsider, because the plaintiff had
failed to timely appeal from the committee’s sanction
order and the defendant’s 2013 denial of his motion for
review, in which the plaintiff expressly waived his right
to appeal to the Superior Court, he could not circumvent
this failure by attempting to seek the same relief he
could have claimed had he properly and timely appealed
in 2013. Accordingly, the court concluded that it had
no jurisdiction over the matter. This appeal followed.
The plaintiff claims that the court had jurisdiction
because he was timely appealing from the defendant’s
2017 refusal to vacate its 2013 sanction order or to
reconsider its refusal to vacate that order, rather than
from the original 2013 order itself. He argues, as an
alternative ground for reversing the judgment of the
Superior Court, that the defendant did not have jurisdic-
tion to consider the original 2011 grievance complaint
because it alleged wrongdoing that occurred beyond
the six year mandatory limitation period set forth in
Practice Book § 2-32 (a) (2) (E), as more fully explained
in Elder.3 Further, he argues that the authority to open
and vacate a prior order is within the defendant’s inher-
ent authority and that its refusal to do so is an appeal-
able final judgment, especially when the defendant
lacked jurisdiction to enter the original order. We con-
clude that the period of limitation set forth in § 2-32
(a) (2) (E) is not jurisdictional. Additionally, we agree
with the Superior Court that it did not have jurisdiction
to consider the plaintiff’s appeal because it was an
improper attempt to circumvent the fact that the plain-
tiff waived his right to appeal from the defendant’s 2013
sanction order, and he, in fact, failed to appeal from
that decision.
Practice Book § 2-32 (a) provides in relevant part:
‘‘Any person, including disciplinary counsel, or a griev-
ance panel on its own motion, may file a written com-
plaint, 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 . . . (2) refer the complaint to the chair of the
Statewide Grievance Committee or an attorney desig-
nee of the chair and to a nonattorney member of the
committee, and the statewide bar counsel in conjunc-
tion with the chair or attorney designee and the nonat-
torney member shall, if deemed appropriate, dismiss
the complaint on one or more of the following grounds
. . . (E) the complaint alleges that the last act or omis-
sion 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 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 . . . .’’
The plaintiff argues that our Supreme Court in Elder
held that the six year period of limitation set forth in
Practice Book § 2-32 (a) (2) (E) was not only mandatory
‘‘but [was] jurisdictional in nature.’’ We disagree.
In Elder, on the basis of a 2014 grievance complaint
filed pursuant to Practice Book § 2-32, disciplinary
counsel brought a presentment against the defendant
attorney in the Superior Court, alleging that he had
impersonated another attorney in 2004. See Elder,
supra, 325 Conn. 384. The defendant filed a motion to
dismiss the presentment on the ground that it was
barred by the six year period of limitation set forth in
Practice Book § 2-32 (a) (2) (E). Id., 385. The trial court
denied the motion, concluding that the rule neither
affected the court’s jurisdiction nor operated as a man-
datory period of limitation. Id. Following the court’s
judgment finding the defendant in violation of the Rules
of Professional Conduct, the defendant appealed. Id.,
382. On appeal, our Supreme Court determined that the
six year period of limitation set forth in Practice Book
§ 2-32 (a) (2) (E) was mandatory and that a ‘‘defendant
is not barred from seeking review of those decisions
at a later stage of the proceedings, that is, in the pro-
ceedings before the grievance panel or reviewing com-
mittee, 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.’’ Id., 389. The court, however, never stated
that the period of limitation is jurisdictional but only
that it is mandatory unless one of the exceptions
applies.
Although no appellate court in our state has
addressed directly whether the period of limitation set
forth in Practice Book § 2-32 is jurisdictional, we find
instructive the Supreme Court’s decision in Williams
v. Commission on Human Rights & Opportunities,
257 Conn. 258, 777 A.2d 645 (2001). See id., 271
(although time limit set forth in General Statutes § 46a-
82 is mandatory, it is not subject matter jurisdictional).
In Williams, our Supreme Court considered whether
the statutory 180 day period set forth in § 46a-82 (e)
for filing a discrimination complaint with the Commis-
sion on Human Rights and Opportunities is subject mat-
ter jurisdictional. Id., 259–60. The court held that,
although mandatory, ‘‘the 180 day time requirement for
filing a discrimination petition pursuant to § 46a-82 (e)
is not jurisdictional, but rather, is subject to waiver
and equitable tolling.’’ Id., 264. The court thoroughly
explained the process to be undertaken in analyzing
whether a period of limitation is jurisdictional; id., 266;
and, therefore, that is where we begin.
‘‘[T]here is a presumption in favor of subject matter
jurisdiction, and we require a strong showing of legisla-
tive intent that such a time limit is jurisdictional.’’ Id.
‘‘In [some] cases, the court, in discerning the intent of
the legislature, at times [has] equated the intent of the
legislature to create a mandatory limitation with the
intent to create a subject matter jurisdictional limit.’’
(Emphasis in original.) Id., 268. In some other cases,
the court ‘‘implicitly [has held] that a conclusion that
a time limit is mandatory does not necessarily mean
that it is also subject matter jurisdictional, because the
notions of waiver and consent are fundamentally incon-
sistent with the notion of subject matter jurisdiction.’’
Id., 269. ‘‘[M]andatory language may be an indication
that the legislature intended a time requirement to be
jurisdictional, [however] such language alone does not
overcome the strong presumption of jurisdiction, nor
does such language alone prove strong legislative intent
to create a jurisdictional bar. In the absence of such a
showing, mandatory time limitations must be complied
with absent an equitable reason for excusing compli-
ance, including waiver or consent by the parties. Such
time limitations do not, however, implicate the subject
matter jurisdiction of the agency or the court.’’ Id.,
269–70.
Whether the period of limitation in Practice Book
§ 2-32 (a) (2) (E) implicates the defendant’s subject
matter jurisdiction is a question of statutory interpreta-
tion. See Elder, supra, 325 Conn. 386. ‘‘The interpretive
construction of the rules of practice is to be governed
by the same principles as those regulating statutory
interpretation. . . . The interpretation and application
of a statute, and thus a Practice Book provision,
involves a question of law over which our review is
plenary. . . . In seeking to determine [the] meaning [of
a statute or a rule of practice, we] . . . first . . . con-
sider the text of the statute [or rule] itself and its rela-
tionship to other statutes [or rules].’’ (Citation omitted;
internal quotation marks omitted.) Id. In considering
the text of § 2-32 (a) (2) (E), our Supreme Court already
has determined that the six year limitation period set
forth in § 2-32 (a) (2) (E) is mandatory and that, ‘‘[i]f
there is no claim that one of the enumerated exceptions
to § 2-32 (a) (2) (E) applies . . . then, even though § 2-
32 (a) (2) does not expressly provide that the screening
panel [of the defendant] must dismiss a claim that is
untimely under § 2-32 (a) (2) (E), untimely claims are
categorically barred.’’ Id., 388. The plaintiff contends
that this means that the defendant has no subject matter
jurisdiction over an untimely complaint. We disagree.
‘‘Rules of practice . . . do not ordinarily define sub-
ject matter jurisdiction. . . . General Statutes § 51-14
(a) authorizes the judges of the Superior Court to pro-
mulgate rules regulating pleading, practice and proce-
dure in judicial proceedings . . . . Such rules shall not
abridge, enlarge or modify any substantive right nor
the jurisdiction of any of the courts.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Psaki v. Karlton, 97 Conn. App. 64, 70, 903 A.2d 224
(2006). Although the Supreme Court, in Elder, stated
that the six year period of limitation in Practice Book
§ 2-32 (a) (2) (E) is ‘‘mandatory’’; Elder, supra, 325
Conn. 389; and that ‘‘untimely claims are categorically
barred’’; id., 388; General Statutes § 51-90 et seq. con-
tains neither a period of limitation nor an indication
that any period of limitation set by the rules of practice
could affect the subject matter jurisdiction of the defen-
dant.4 Although the court certainly has the inherent
authority to regulate attorney conduct, it also has
authority and jurisdiction granted to it by the legislature
pursuant to § 51-90 et seq. Because the legislature did
not establish any time constraint on the filing of a griev-
ance complaint with the defendant in § 51-90 et seq.,
we conclude that the period of limitation imposed by
the rules of practice do not act as a subject matter
jurisdictional bar.5 See Williams v. Commission on
Human Rights & Opportunities, supra, 257 Conn. 270.
Accordingly, the plaintiff’s claim that the defendant did
not have subject matter jurisdiction over the 2011 griev-
ance complaint filed against him fails.
Having determined that the period of limitation in
Practice Book § 2-32 (a) (2) (E) is not subject matter
jurisdictional, we next address the plaintiff’s claim that
the Superior Court improperly concluded that it did not
have jurisdiction to consider the merits of the plaintiff’s
appeal from the defendant’s refusal to vacate the 2013
sanction order. The defendant argues that the plaintiff’s
appeal, although fashioned as an appeal from its refusal
to vacate the 2013 sanction order, ultimately was an
attempt to circumvent the plaintiff’s waiver of his right
to appeal, and his failure to appeal, from that order
in 2013. It also contends that there is no procedural
mechanism for an attorney to file a motion to vacate
a decision of the defendant four years after its decision
becomes final, that the plaintiff did not have standing
to appeal from the letters sent by the defendant, and
that the issues the plaintiff sought to raise in the Supe-
rior Court were moot. Additionally, the defendant
argues that because the plaintiff did not timely appeal
from the defendant’s 2013 order and explicitly waived
his right to do so, the Superior Court could afford him
no relief, and the issues raised by the plaintiff in the
Superior Court were nonjusticiable. We agree that the
plaintiff’s claims submitted to the Superior Court were
nonjusticiable. Consequently, the Superior Court did
not have jurisdiction to consider the plaintiff’s appeal.
‘‘[I]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any
time. . . . Similarly, an issue regarding justiciability
implicates this court’s subject matter jurisdiction and
raises a question of law over which our review is
plenary.
‘‘[S]ubject matter jurisdiction and justiciability are
closely related concepts. Subject matter jurisdiction
involves the authority of the court to adjudicate the
type of controversy presented by the action before it.
. . . Justiciability involves the authority of the court to
resolve actual controversies. . . . Because courts are
established to resolve actual controversies, before a
claimed controversy is entitled to a resolution on the
merits it must be justiciable. . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy be capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . As we have recognized, justiciability
comprises several related doctrines, namely, standing,
ripeness, mootness and the political question doctrine.
. . . Consequently, a court may have subject matter
jurisdiction over certain types of controversies in gen-
eral, but may not have jurisdiction in any given case
because the issue is not justiciable.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Statewide Grievance Committee v. Burton, 282 Conn.
1, 6–7, 917 A.2d 966 (2007).
‘‘Collateral attacks on judgments are disfavored. . . .
Unless a litigant can show an absence of subject matter
jurisdiction that makes the prior judgment of a tribunal
entirely invalid, he or she must resort to direct proceed-
ings to correct perceived wrongs in the tribunal’s con-
clusive decision. . . . A collateral attack on a judgment
is a procedurally impermissible substitute for an appeal.
. . . The recurrent theme in our collateral attack cases
is that the availability of an appeal is a significant aspect
of the conclusiveness of a judgment.’’ (Citations omit-
ted.) Convalescent Center of Bloomfield, Inc. v. Dept.
of Income Maintenance, 208 Conn. 187, 200–201, 544
A.2d 604 (1988). Consequently, a party who fails to
appeal from an agency decision may not use a different
action as a substitute for that appeal ‘‘to achieve a de
novo determination of a matter upon which they failed
to take a timely appeal.’’ Honis v. Cohen, 18 Conn. App.
80, 84, 556 A.2d 1028 (1989). A court properly may
dismiss a case that constitutes an improper collateral
attack on a judgment. Glemboski v. Glemboski, 184
Conn. 602, 605–606, 440 A.2d 242 (1981) (Superior Court
properly dismissed case in which plaintiff attempted to
mount procedurally impermissible collateral attack on
prior decision of Probate Court). The reason for this is
that the court can offer no practical relief to the party
collaterally attacking the prior judgment, rendering the
action nonjusticiable. See Mendillo v. Tinley,
Renehan & Dost, LLP, 329 Conn. 515, 527, 187 A.3d
1154 (2018).
Although the plaintiff’s appeal to the Superior Court
was not a ‘‘collateral attack’’ in the traditional meaning
of that phrase because he did not seek to challenge
the defendant’s 2013 decision in an entirely different
proceeding,6 his attempt to challenge that decision by
means of a motion to vacate and a motion for review,
filed four years after the defendant’s decision became
final and the plaintiff chose not to appeal, has the same
effect. See Investment Associates v. Summit Associ-
ates, Inc., 309 Conn. 840, 853–58, 74 A.3d 1192 (2013)
(defendant’s claims that Superior Court lacked jurisdic-
tion over motion to revive were in fact or effect collat-
eral attacks on original judgment in same case); Vogel v.
Vogel, 178 Conn. 358, 364, 422 A.2d 271 (1979) (plaintiff’s
attack, during 1978 contempt hearing, on subject matter
jurisdiction of court to render 1959 judgment in same
case, was impermissible collateral attack on 1959 judg-
ment). This attempt to relitigate the validity of the
defendant’s 2013 decision is the functional equivalent
of a collateral attack because the plaintiff is using a
procedure not contemplated by the rules of practice to
avoid the effects of his failure to appeal pursuant to
the rules. Moreover, not only does Practice Book § 2-
38 neither provide for the filing of a motion to vacate
nor require that the defendant consider such a motion,
the rules of practice also do not provide a right or
mechanism for an attorney to appeal from the defen-
dant’s action or inaction on such a motion. See footnote
2 of this opinion.
‘‘The reason for the rule against collateral attack is
well stated in these words: The law aims to invest judi-
cial transactions with the utmost permanency consis-
tent with justice. . . . Public policy requires that a term
be put to litigation and that judgments, as solemn
records upon which valuable rights rest, should not
lightly be disturbed or overthrown. . . . [T]he law has
established appropriate proceedings to which a judg-
ment party may always resort when he deems himself
wronged by the court’s decision. . . . Unless it is
entirely invalid and that fact is disclosed by an inspec-
tion of the record itself the judgment is invulnerable
to indirect assaults upon it.’’ (Emphasis in original;
internal quotation marks omitted.) Investment Associ-
ates v. Summit Associates, Inc., supra, 309 Conn. 858.
‘‘It has long been accepted that a system of laws upon
which individuals, governments and organizations rely
to resolve disputes is dependent upon according finality
to judicial decisions. Indefinite continuation of a dis-
pute is a social burden. It consumes time and energy
that may be put to other use, not only of the parties,
but of the community as a whole. It rewards the disputa-
tious. It renders uncertain the working premises upon
which the transactions of the day are to be conducted.
. . . The convention concerning finality of judgments
has to be accepted if the idea of law is to be accepted,
certainly if there is to be practical meaning to the idea
that legal disputes can be resolved by judicial process.
1 Restatement (Second), Judgments, [i]ntroduction, p.
11 (1982). [A] party should not be able to relitigate a
matter which it already has had an opportunity to liti-
gate. . . . Stability in judgments grants to parties and
others the certainty in the management of their affairs
which results when a controversy is finally laid to
rest. . . .
‘‘As noted in the Restatement, the trial court may
entertain a request for relief from judgment based upon
a change in law occurring during the appeal period. 2
Restatement (Second), supra, § 71, comment (f). This
power is, however, not a substitute for an appeal.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mar-
one v. Waterbury, 244 Conn. 1, 11–12, 707 A.2d 725
(1998); see also Investment Associates v. Summit Asso-
ciates, Inc., supra, 309 Conn. 855.7
The plaintiff acknowledged that he could have
appealed from the defendant’s 2013 decision when he
specifically waived that right as part of the disposition
of that proceeding. Although there is no statutory right
to appeal pursuant to § 51-90 et seq. from a decision of
the defendant, the right to take such an appeal stems
from the court’s inherent authority to regulate the con-
duct of the attorneys who practice before it. See Pinsky
v. Statewide Grievance Committee, 216 Conn. 228, 232,
578 A.2d 1075 (1990) (‘‘there is no statutory right of
appeal from a reprimand, but . . . the trial court has
authority to review such an order by virtue of its inher-
ent supervisory authority over attorney conduct’’).
‘‘Appeals to the court from the determinations of admin-
istrative, legislative, and quasi-judicial bodies are lim-
ited to a review of the record to determine if the facts
as found are supported by the evidence contained
within the record and whether the conclusions that
follow are legally and logically correct. . . . Although
there is no statutory provision for an appeal from [a]
reprimand ordered by the defendant, [there is] no rea-
son why the right of an attorney to judicial review in
a disciplinary matter should be any different than the
process accorded other professionals in disciplinary
matters before licensing and/or disciplinary boards.’’
(Citations omitted.) Id., 234–35.
‘‘Judges of the Superior Court possess the inherent
authority to regulate attorney conduct and to discipline
members of the bar. . . . It is their unique position as
officers and commissioners of the court . . . which
casts attorneys in a special relationship with the judi-
ciary and subjects them to its discipline. . . . [Section]
51-90 et seq. and Practice Book § 27B et seq. [now § 2-
29 et seq.] are not restrictive of the inherent powers
which reside in courts to inquire into the conduct of
their own officers, and to discipline them for miscon-
duct. . . . [D]isciplinary [proceedings] are taken pri-
marily for the purpose of preserving the courts of justice
from the official ministration of persons unfit to prac-
tice in them. . . . The end result of these proceedings
is a judgment from which an appeal lies to this court.’’
(Citations omitted; internal quotation marks omitted.)
Id., 232–33. ‘‘Although the statewide grievance commit-
tee is not an administrative agency . . . the court’s
review of its conclusions is similar to the review
afforded to an administrative agency decision.’’ (Cita-
tion omitted.) Weiss v. Statewide Grievance Commit-
tee, 227 Conn. 802, 811, 633 A.2d 282 (1993).
In the present case, the plaintiff claims that the court
committed error in determining that it did not have
jurisdiction because the plaintiff was attempting to relit-
igate the defendant’s 2013 disciplinary order. He argues
that he is not appealing from the order of discipline
imposed by the defendant in 2013 but, rather, that he
is appealing from the defendant’s refusal to vacate the
2013 order or to reconsider its refusal to vacate that
order. We are not persuaded.
The relief the plaintiff requested from both the defen-
dant and the Superior Court was the vacatur of the
2013 disciplinary order from which he had failed to
appeal, and as to which he, in fact, had waived his right
to appeal. His motions filed with the defendant in 2017
and his attempted appeal from the defendant’s rejection
of those motions are nothing more than an attempted,
impermissible end run to avoid the consequences of
the waiver of his right to appeal, and his failure to
appeal, four years earlier, using a procedure not con-
templated by the relevant rules of practice or § 51-90
et seq. We, therefore, conclude that the court properly
dismissed the plaintiff’s appeal because it was an
improper attempt to relitigate the 2013 decision of the
defendant, and the court, therefore, could afford no
remedy to the plaintiff. The matter was nonjusticiable.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s motion to vacate consisted of one paragraph, which pro-
vided: ‘‘The [plaintiff] hereby requests that the discipline imposed in the
decision of the reviewing committee of the [defendant] in the above-cap-
tioned matter be vacated pursuant to the recently published case of Disci-
plinary Counsel v. [Elder, supra, 325 Conn. 378].’’
2
Practice Book § 2-38 provides: ‘‘(a) A respondent may appeal to the
Superior Court a decision by the Statewide Grievance Committee or a
reviewing committee imposing sanctions or conditions against the respon-
dent, in accordance with Section 2-37 (a). A respondent may not appeal
a decision by a reviewing committee imposing sanctions or conditions
against the respondent if the respondent has not timely requested a review
of the decision by the Statewide Grievance Committee under Section 2-35
(k). Within thirty days from the issuance, pursuant to Section 2-36, of the
decision of the Statewide Grievance Committee, the respondent shall: (1)
file the appeal with the clerk of the Superior Court for the judicial district
of Hartford and (2) mail a copy of the appeal by certified mail, return receipt
requested or with electronic delivery confirmation, to the Office of the
Statewide Bar Counsel as agent for the Statewide Grievance Committee and
to the Office of the Chief Disciplinary Counsel.
‘‘(b) Enforcement of a final decision imposing sanctions or conditions
against the respondent pursuant to Section 2-35 (i) or Section 2-35 (m),
including the publication of the notice of a reprimand in accordance with
Section 2-54, shall be stayed for thirty days from the issuance to the parties
of such decision. If within that period the respondent files with the Statewide
Grievance Committee a request for review of the reviewing committee’s
decision, the stay shall remain in effect for thirty days from the issuance
by the Statewide Grievance Committee of its final decision pursuant to
Section 2-36. If the respondent timely commences an appeal pursuant to
subsection (a) of this section, such stay shall remain in full force and effect
until the conclusion of all proceedings, including all appeals, relating to the
decision imposing sanctions or conditions against the respondent. If at the
conclusion of all proceedings, the decision imposing sanctions or conditions
against the respondent is rescinded, the complaint shall be deemed dismissed
as of the date of the decision imposing sanctions or conditions against the
respondent. An application to terminate the stay may be made to the court
and shall be granted if the court is of the opinion that the appeal is taken
only for delay or that the due administration of justice requires that the
stay be terminated.
‘‘(c) Within thirty days after the service of the appeal, or within such
further time as may be allowed by the court, the statewide bar counsel shall
transmit to the reviewing court a certified copy of the entire record of the
proceeding appealed from, which shall include the grievance panel’s record
in the case, as defined in Section 2-32 (i), and a copy of the Statewide
Grievance Committee’s record or the reviewing committee’s record in the
case, which shall include a transcript of any testimony heard by it or by a
reviewing committee which is required by rule to be on the record, any
decision by the reviewing committee in the case, any requests filed pursuant
to Section 2-35 (k) of this section, and a copy of the Statewide Grievance
Committee’s decision on the request for review. By stipulation of all parties
to such appeal proceedings, the record may be shortened. The court may
require or permit subsequent corrections or additions to the record.
‘‘(d) The appeal shall be conducted by the court without a jury and shall
be confined to the record. If alleged irregularities in procedure before the
Statewide Grievance Committee or reviewing committee are not shown in
the record, proof limited thereto may be taken in the court. The court, upon
request, shall hear oral argument.
‘‘(e) The respondent shall file a brief within thirty days after the filing of
the record by the statewide bar counsel. The disciplinary counsel shall file
his or her brief within thirty days of the filing of the respondent’s brief.
Unless permission is given by the court for good cause shown, briefs shall
not exceed thirty-five pages.
‘‘(f) Upon appeal, the court shall not substitute its judgment for that of
the Statewide Grievance Committee or reviewing committee as to the weight
of the evidence on questions of fact. The court shall affirm the decision of
the committee unless the court finds that substantial rights of the respondent
have been prejudiced because the committee’s findings, inferences, conclu-
sions, or decisions are: (1) in violation of constitutional provisions, rules
of practice or statutory provisions; (2) in excess of the authority of the
committee; (3) made upon unlawful procedure; (4) affected by other error
of law; (5) clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or (6) arbitrary or capricious or characterized
by abuse of discretion or clearly unwarranted exercise of discretion. If the
court finds such prejudice, it shall sustain the appeal and, if appropriate,
rescind the action of the Statewide Grievance Committee or take such other
action as may be necessary. For purposes of further appeal, the action taken
by the Superior Court hereunder is a final judgment.
‘‘(g) In all appeals taken under this section, costs may be taxed in favor
of the Statewide Grievance Committee in the same manner, and to the same
extent, that costs are allowed in judgments rendered by the Superior Court.
No costs shall be taxed against the Statewide Grievance Committee, except
that the court may, in its discretion, award to the respondent reasonable
fees and expenses if the court determines that the action of the committee
was undertaken without any substantial justification. ‘Reasonable fees and
expenses’ means any expenses not in excess of $7500 which the court finds
were reasonably incurred in opposing the committee’s action, including
court costs, expenses incurred in administrative proceedings, attorney’s
fees, witness fees of all necessary witnesses, and such other expenses as
were reasonably incurred.’’ (Emphasis added.)
3
The plaintiff argues in both his appellate brief and his reply brief that
‘‘[t]here is no dispute in this case that the misconduct alleged occurred
more than six years before the subject grievance complaint was filed.’’ The
defendant, however, clearly addressed this matter in its appellate brief:
‘‘Although the plaintiff alleges . . . [in] his brief that ‘[t]here is no dispute
in this case that the misconduct alleged occurred more than six years before
the subject grievance complaint was filed,’ the defendant does not concede
that there is no such dispute, as there may, arguably, exist circumstances
which tolled the six year statute of limitations.’’ We note, for example, that
the plaintiff’s interactions with Longo regarding the money originally loaned
in 2001 continued into 2013, more than one year after Longo filed his griev-
ance complaint.
4
In particular, General Statutes § 51-90e provides: ‘‘(a) Any person may
file a written complaint alleging attorney misconduct. A grievance panel
may, on its own motion, initiate and file a written complaint alleging attorney
misconduct. A complaint against an attorney shall be filed with the State-
Wide Bar Counsel. Within five working days of the receipt of a complaint
the State-Wide Bar Counsel shall:
‘‘(1) Forward the complaint to the appropriate grievance panel as deter-
mined under rules of court; and
‘‘(2) Notify the complainant and the respondent, by certified mail, return
receipt requested, of the panel to which the complaint was forwarded. The
notification to the respondent shall be accompanied by a copy of the com-
plaint.
‘‘(b) The respondent shall have the right to respond within ten days of
receipt of notification to the grievance panel to which the complaint has
been referred.
‘‘(c) The State-Wide Bar Counsel shall keep a record of all complaints
filed with him. The complainant and the respondent shall notify the State-
Wide Bar Counsel of any change of address or telephone number during
the pendency of the proceedings on the complaint.
‘‘(d) If for good cause shown, a grievance panel declines, or is unable
pursuant to sections 51-90 to 51-91b, inclusive, to investigate a complaint
referred to the panel, such panel shall forthwith return the complaint to the
State-Wide Bar Counsel to be referred by him immediately to another panel.
The State-Wide Bar Counsel shall give notice of such referral to the complain-
ant and the respondent by certified mail, return receipt requested.’’
5
General Statutes § 51-90a provides: ‘‘In addition to any other powers
and duties set forth in sections 51-90 to 51-91b, inclusive, the State-Wide
Grievance Committee shall have the power and duty to: (1) Adopt rules for
procedure not inconsistent with the general statutes or rules of court; (2)
investigate and present to the court of proper jurisdiction any person deemed
in contempt under section 51-88; and (3) adopt rules for grievance panels
to carry out their duties which are not inconsistent with the general statutes
or rules of court.’’
6
‘‘A collateral attack is an attack upon a judgment, decree or order offered
in an action or proceeding other than that in which it was obtained, in
support of the contentions of an adversary in the action or proceeding, as
where the judgment is offered in support of a title or as a foundation for
applying the doctrine of res judicata. 46 Am. Jur. 2d, Judgments § 630 [1969];
see also F. James, Civil Procedure § 11.5, pp. 533–34.’’ (Emphasis in original.)
Gennarini Construction Co. v. Messina Painting & Decorating Co., 15
Conn. App. 504, 511–12, 545 A.2d 579 (1988).
7
We recognize that neither the defendant nor the court used the phrase
‘‘collateral attack’’ in analyzing whether the Superior Court had jurisdiction
over the plaintiff’s appeal. Nevertheless, the court concluded that it lacked
jurisdiction because the plaintiff did not timely appeal from the 2013 decision
of the defendant, and his appeal from the defendant’s actions or inactions
on his motion to vacate and motion for review was ‘‘the functional equivalent
of an appeal from the underlying decision,’’ i.e., an attempt to mount the
equivalent of a collateral attack on the underlying judgment. See Vogel v.
Vogel, supra, 178 Conn. 364. Similarly, the defendant argues that the plaintiff’s
appeal to the Superior Court was nonjusticiable because he did not timely
appeal from the defendant’s 2013 order but is attempting, instead, to use a
nonexistent procedure to challenge that order. In so arguing, the defendant
has described an impermissible collateral attack, even though it has not
attached that label to its argument.