DISCIPLINARY COUNSEL v. JOSEPH ELDER, SC 19698

Judicial District of Hartford

 Attorney Misconduct; Whether Appeal From Statewide Grievance Committee Should Have Been Dismissed Where Grievance Complaint Filed Beyond Six Year Limitation Period in Practice Book § 2-32 (a) (2) (E); Whether Attorney Violated Rules of Professional Conduct by Misrepresenting his Identity when Speaking to a Police Officer.  In 2004, Eric Krajewski was arrested when, just after speaking to his attorney on his cell phone, he forced his way past police officers and into his home.  A police officer called the last number that appeared on Krajewski’s cell phone, posing as a prospective client.  The defendant attorney answered the call and identified himself as Attorney Wesley Spears, and he again identified himself as Spears in a subsequent telephone conversation with the officer.  The Statewide Grievance Committee brought this presentment action, claiming that the defendant violated rule 4.1 of the Rules of Professional Conduct, which provides that “[i]n the course of representing a client a lawyer shall not knowingly . . . [m]ake a false statement of material fact or law to a third person.”  The plaintiff claims that the defendant wrongfully misrepresented his identity when speaking to the police officer and that his failure to rectify the misrepresentation hindered an ongoing criminal investigation.  The defendant moved to dismiss the presentment, claiming that the grievance complaint that led to the presentment was not timely filed under Practice Book § 2-32 (a) (2) (E), which provides that “the statewide bar counsel . . . shall, if deemed appropriate, dismiss [a grievance] complaint” on the ground that “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.”  The trial court denied the motion to dismiss, finding that Practice Book § 2-32 (a) (2) (E) is not mandatory in that it provides only that a complaint filed beyond the six year period shall be dismissed “if deemed appropriate.”  As to the merits of the presentment, the court found that the defendant violated rule 4.1 by misrepresenting his identity in the course of his representation of Krajewski and in failing to correct his misrepresentation at any time despite having had ample opportunity to do so.  The court pointed out that the defendant’s misrepresentation caused a grievance complaint and an arrest warrant application to be wrongfully filed against Spears.  The court ordered that the defendant be suspended from the practice of law for one year.  The defendant appeals, claiming that the trial court improperly suspended him from the practice of law based on a grievance complaint that was filed with statewide bar counsel nearly ten years after the alleged misconduct occurred.  He also maintains that the court improperly found that he had violated rule 4.1 absent any evidence that he was “[i]n the course of representing a client” when he spoke to the police officer on the telephone.