2006 Ct. Sup. 16156
Nos. H-1323, HCN-0606052Connecticut Superior Court, Housing Session Judicial District of New Britain
September 18, 2006
MEMORANDUM OF DECISION MOTION TO DISQUALIFY DEFENDANT’S COUNSEL
BENTIVEGNA, JUDGE
The plaintiffs, hereinafter (“Tenant”) have filed a housing code enforcement action against the defendant, hereinafter (“Landlord”). On or about August 17, 2006, the Tenant moved to disqualify the Landlord’s attorney, Eric Onore, based on a conflict of interest. The motion was heard on September 7, 2006. The Tenant appeared pro se.
The court finds the following facts by a fair preponderance of the evidence.
In May 2006 or June 2006, the Tenant asked his worker’s compensation attorney, Neil Johnson, to recommend an attorney to handle his housing matter. Attorney Johnson referred him to Attorney Onore, hereinafter (“Onore”). The Tenant called Onore. He told the attorney about his situation and the condition of the premises. He asked Onore to represent him, but he could not afford to retain Onore. The attorney was unable to handle the case on a pro bono or contingency basis. Onore thought that the Tenant had a strong case and advised him to file a housing code enforcement action. The attorney indicated that the forms were available at the court. Onore remembers having a conversation with the Tenant.
The Tenant believes that he revealed confidences to Onore that now put him at a disadvantage. Onore argues that the Tenant’s call was like many others he receives from people seeking advice but unable to retain his services. He gave the Tenant general information. Their contact was limited to that one phone call which probably lasted approximately fifteen minutes. The Tenant never met with Onore in person and never retained him.
Discussion
CT Page 16157 The leading case on attorney disqualification is Bergeron v. Mackler, 225 Conn. 391, 623 A.2d 489 (1993). In Bergeron v. Mackler, supra, 225 Conn. 397-400, the Supreme Court stated:
The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys. State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982). Since October, 1986, the conduct of attorneys has been regulated also by the Rules of Professional Conduct, which were approved by the judges of the Superior Court and which superseded the Code of Professional Responsibility. Williams v. Warden, 217 Conn. 419, 432 n. 5, 586 A.2d 582
(1991). The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney. State v. Jones, supra. 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.'” Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975). In disqualification matters, however, we must be “solicitous of a client’s right freely to choose his counsel”; Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); 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.” Id. 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. Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part, Burger Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987). Rule 1.9 of the Rules of Professional Conduct governs disqualification of CT Page 16158 counsel for a conflict of interest relating to a former client. The rule states that: “A lawyer who has formerly represented a client in a matter shall not thereafter: (a) 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 (b) 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.” Rule 1.9(a) expresses the same standard that we had applied under the Code of Professional Responsibility when a claim of disqualification based on prior representation arose. Thus, an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation. State v. Jones, supra, 449. This test “has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is `patently clear’ or when the issues are `identical’ or `essentially the same.’ Government of India v. Cook Industries, Inc., [supra, 739-40].” Id.; see also State v. Bunkley, 202 Conn. 629, 652, 522 A.2d 795 (1987) Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed. State v. Jones, supra, 450; Goldenberg v. Corporate Air, Inc., supra, 512. . . . The standards for attorney disqualification are directed at protecting client confidences. They may not be used to restrict an individual’s ability to select counsel of choice on the basis of nothing more than a litigant’s subjective perception that another litigant is influencing the proceedings.
“An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession. . . . The burden of establishing an attorney-client relationship is on the party claiming the existence of such a relationship.” (Citations omitted; internal CT Page 16159 quotation marks omitted.) DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005).
“Rule 1.6 of the Rules of Professional Conduct requires an attorney to preserve the confidential communications and information of a client. This ethical obligation does not require the establishment of an attorney-client relationship but `may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.’ See section entitled `Scope’ in the introductory materials to the Rules of Professional Conduct. See also Restatement (Third), The Law Governing Lawyers, § 15(1)(a), (2003) which recognizes a lawyer’s duty not to use or disclose confidential information received from a prospective client.” (internal quotation marks omitted.) Beckenstein v. Lichtenstein, Superior Court, judicial district of Waterbury, Docket No. CV 03 0183486 (August 11, 2004, Alander, J.)2004 Ct. Sup. 11232-kf, 11232-kh.
“The authority of an attorney begins with his or her retainer, but the relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of the parties. The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to the attorney’s profession.” 7 Am. Jur. 2nd, Attorney at Law, § 136, Retainer.
In Beckenstein, the court held that no attorney-client relationship was established during a twenty-five minute telephone consultation where the attorney told the caller that he would be unable to assist her, provided no legal advice, and took no action on the caller’s behalf. Beckenstein v. Lichtenstein,
supra. In this case, however, Onore advised the Tenant to file a housing code enforcement action. Unlike Beckenstein, Onore did not take any reasonable measures to address a potential conflict of interest, including screening himself from the case and having another attorney in his office represent the Landlord.
In the present case, the Court’s first inquiry is whether the prior relation between the Tenant and Onore was such that an attorney-client relationship arose. The conduct of the parties must be evaluated. The Tenant was referred to Onore because of his expertise in housing matters. In seeking the attorney’s advice and assistance, the Tenant revealed confidences relating CT Page 16160 to the condition of the premises that is subject to the instant housing code enforcement action. They discussed the possibility of Onore representing the Tenant. The Tenant was unable to retain Onore. However, the Tenant received advice from Onore about his legal options. The Tenant followed the advice and filed the instant housing code enforcement action. The advice and assistance of Onore was sought and received. Based on the evidence presented, the court finds that an attorney-client relationship arose.
Before deciding this motion, the court must consider Landlord’s interest in freely selecting counsel of his choice. First of all, it was reasonably foreseeable that Onore would have a potential conflict of interest due to his prior contact with the Tenant. Moreover, although this case was filed in early June 2006, Onore did not file an appearance until August 17, 2006. The Motion to Disqualify was filed on the same day. Any subsequent delay has been necessitated by the need to fully litigate the motion. If the Landlord decides to hire another attorney, the attorney would be provided ample time to become familiar with the case prior to trial. Under these circumstances, the court finds that disqualification would not work a substantial hardship on the Landlord.
Conclusion and Order
After balancing the competing interests at stake, the Court makes the following findings. The Court finds that the Tenant’s interest in protecting confidential information outweighs the Landlord’s interest in freely selecting counsel of his choice. The Tenant told Onore all the details of the case. He revealed confidences to Onore in order to obtain the attorney’s advice and assistance. Onore is in receipt of confidential information that would potentially disadvantage the Tenant. The relationships between the issues discussed during the phone conversation in question and the instant matter are patently clear and are identical or essentially the same. In addition, the Court finds that the public’s interest in the scrupulous administration of justice is better served by disqualification. For the above-stated reasons, the Motion to Disqualify is granted. CT Page 16161