2006 Ct. Sup. 6423
No. CV 05-4006819 SConnecticut Superior Court Judicial District of New Haven at New Haven
March 29, 2006
MEMORANDUM OF DECISION RE AMENDED MOTION TO DISQUALIFY
JONATHAN E. SILBERT, JUDGE.
This is a breach of contract action in which the plaintiff real estate agency, having allegedly found a ready, willing and able buyer for property owned by the defendant, is now attempting to recover a commission from the defendant. The defendant has moved to disqualify the plaintiff’s attorney, Frank Kolb, Esq., based on his contention that Kolb had represented the defendant’s former wife in the now completed action to dissolve their marriage. The defendant argues that because the defendant’s wife had once claimed a financial interest in the marital home, which is the subject matter of this litigation, and because the wife was also a signatory to a contract for the purchase of a new home, it would be a conflict of interest for Kolb to “now represent a creditor of both the defendant and of his former wife.” He also contends that there is an additional conflict in the possibility that the defendant’s former wife could be “called as a witness in this matter or cited in as a party defendant . . .”
The plaintiff has objected to the motion to disqualify, arguing that Kolb has never represented the defendant and that, to the contrary, he has always represented a position adverse to that of the defendant. The plaintiff contends that all issues relating to the former wife’s interest in the property in question were disposed of in the context of the dissolution matter and that her having been a signatory to the contract mentioned by the defendant is irrelevant because she was not an owner of the property in question. The plaintiff also represents that Kolb has received no privileged information relevant to this case and that the mere possibility that a former client of his might be called to testify is not, in and of itself, grounds for disqualification.
“The trial court has the authority to regulate the conduct of CT Page 6424 attorneys and has a duty to enforce the standards of conduct regarding attorneys . . . The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney . . . Disqualification of counsel is a remedy that serves to enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information . . . In disqualification matters, however, we must be solicitous of a client’s right freely to choose his counsel . . . mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime counsel’s specialized knowledge of its operations . . . The competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant’s interest in protecting confidential information; (2) the plaintiffs’ interest in freely selecting counsel of their choice; and (3) the public’s interest in the scrupulous administration of justice.” (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993). Additionally, “the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases . . . Although considering the appearance of impropriety may be part of the inherent power of the court to regulate conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct.” (Citations omitted; internal quotation marks omitted.)Id., 399-400.
“A party moving for disqualification of an opponent’s counsel must meet a high standard of proof . . . [B]efore permitting a party to disqualify an attorney the moving party bears the burden of proving facts which indicate disqualification is necessary. The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice.” (Citation omitted; internal quotation marks omitted.) Blakemar Construction v. CRS Engineering, Inc.,
Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0412727 (February 10, 2005, Skolnick, J.). “Disqualification is both harsh and draconian, and . . . [t]he courts should act very carefully before disqualifying an attorney . . .” Id.
Although the defendant’s motion to disqualify cites “the Rules of Practice,” he has not deigned to draw the court’s attention to CT Page 6425 any particular rule of practice that might support his claim nor, for that matter, to provide the court with any authority whatsoever for his position. The court has, therefore, undertaken to review for itself those rules that might possibly be applicable to the present situation.
Rule 1.6 of The Rules of Professional Conduct, dealing with Confidentiality of Information, states that a “lawyer shall not reveal information relating to representation of a client unless the client consents after consultation . . .” There have been no allegations in this case that plaintiff’s counsel is about to reveal any confidences conveyed to him by Dana Cuzio or that Ms. Cuzio has any concerns at all about Kolb’s representation of Cyr.
The general conflict of interest rule is found in Rule 1.7 of The Rules of Professional Conduct, and it states that a “lawyer shall not represent a client if the representation of that client will be directly adverse to another client . . .” There has been absolutely no suggestion here that Attorney Kolb’s representation of Cyr would be directly adverse to the interests of Dana Cuzio, or vice versa.
Rule 1.9 deals with “Conflict of Interest: Former Client.” It states that “a lawyer who has formerly represented a client in a matter shall not thereafter: (1) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (2) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.” The defendant in this case has not suggested any manner in which the plaintiff’s interests are materially adverse to those of Dana Cuzio, nor has there been any suggestion that this attorney will be using information relating to his representation of this plaintiff to the disadvantage of his former client. Nor has the defendant in any way established that this matter is “substantially related” to the dissolution of marriage action in which Kolb represented the defendant’s former wife.
If there are other “Rules of Practice” that require the disqualification of plaintiff’s attorney, this court has been unable to find them. As previously indicated, the defendant has been of no assistance to the court in finding them either. CT Page 6426
The amended motion for disqualification is denied. CT Page 6427