CASE NO. 1194 CRD-4-91-3Workers’ Compensation Commission
JANUARY 11, 1993
The claimant was represented by Laurence V. Parnoff, Esq.
The respondent was represented by Anne Kelly Zovas, Esq., Pomeranz, Drayton and Stabnick.
This Petition for Review from the March 8, 1991 Ruling of the Commissioner of the Fourth District was heard February 21, 1992 before a Compensation Review Board panel consisting of the then Chairman John Arcudi and Commissioners George Waldron and Jesse M. Frankl.
JOHN ARCUDI, COMMISSIONER.
Claimant appeals the Fourth District March 8, 1991 ruling disqualifying claimant’s counsel. The underlying claim sought benefits for a compensable injury occurring January 4, 1985 and it was resolved in a full and final settlement, an Award by Stipulation approved in the Fourth District May 27 1986. As there agreed, respondents paid $120,000.00 to satisfy any and all claims arising from the January 4, 1985 injury.
Attorney Laurence V. Parnoff represented the claimant throughout the Chapter 568 proceedings concluded by the May 27 stipulation. He also represented the claimant in a third party tort lawsuit based on the same January 4, 1985 injury. Respondents intervened in that action. Ultimately the suit was settled; it was then agreed that $60,000.00 of the suit’s net proceeds be held in escrow. That sum was to be paid the respondents in full settlement of their Sec. 31-293 claim for reimbursement of the money paid claimant on the workers’ compensation claim.
A question arose as to the manner in which the $60,000.00 was to be paid, i.e. whether in a lump sum as respondents contended, or over time in structured payments as claimants alleged. At the outset of the February 25, 1991 formal proceedings on the issue, Atty. Parnoff requested that the trial commissioner first decide whether the original Stipulation should be “reformed” or re-opened, before deciding the manner of paying respondent’s lien.
The commissioner held that the matter in dispute involved the interpretation and application of the language of the Stipulation which had been negotiated in part by Atty. Parnoff. Because of that and because a claim was being made that the language of the Stipulation did not express the intent of the parties, the commissioner ruled that Atty. Parnoff was a necessary witness in the proceeding and was therefore disqualified to act in accordance with the Rules of Professional Conduct.
Claimant argues that Atty. Parnoff’s appearance as counsel would not violate Rule 3.7 of the Rules of Professional Conduct and even if the appearance were arguably violative of the rule, exception (3) to Rule 3.7(a) would allow his representation.
Rule 3.7 provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
“[W]henever counsel reasonably foresees that he will be called as a witness to testify in a material matter, the proper action is for that attorney to withdraw from the case.” State v. Rapuano, 192 Conn. 228, 231 (1984), citing State v. Blake, 157 Conn. 99, 102-103 (1968); Jennings Co. v. DiGenova, 107 Conn. 491, 497-99 (1928). Claimant contests the commissioner’s finding that counsel would be a necessary witness. To determine that, a tribunal must evaluate the significance of the matter about which the attorney will testify, the weight of his or her testimony, and the availability of other witnesses or documentary evidence which the matters could be independently established. Comden v. Superior Court, 576 P.2d 971, 20 Cal. 3d 906, 146 Cal. Rpt. 9, 12 (1978), cert. denied, 439 U.S. 981.
Counsel argues it is the parties’ intent in making the stipulation, and not the attorneys’ intent, which is relevant. It is the parties’ testimony which is necessary, not the counsel’s. Rapuano, supra at 232-33[1] stated: “In determining whether to disqualify an attorney when continued representation may result in violation of a disciplinary rule, a court must balance the risk of violation and its consequences against the defendant’s right to counsel of his choice.” But “[i]n reviewing the court’s action we must not only accord every reasonable presumption in favor of the trial court’s discretion, but we also should hesitate to reverse unless an abuse of discretion is manifest or injustice appears to have been done. State v. Jones, 180 Conn. 443, 448 (1980).” Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 508 (1983);
Rule 3.7 (a) (3) provides exception to disqualification when it would “work substantial hardship on the client.” Counsel maintains that as he has represented the claimant for over five years and given the psychological and emotional state of the claimant, disqualification would work a substantial hardship on his client. Goldberg, supra, 515-16 declared “we are not unmindful that disqualification frequently entails substantial prejudice to the client whose attorney is disqualified.” However the right to counsel is by no means absolute. Rapuano, supra at 233 note 6 (1984). The Official Comment to Rule 3.7, paragraph (a) (3) recognizes a balancing is required between the interests of the client and those of the opposing party.
The trial commissioner made factual findings and granted the Motion to Disqualify only after a careful consideration of all the evidence. Our review is a limited one. His conclusions cannot be changed on appeal unless they result from insufficient evidence, an inference illegally or unreasonably drawn, or an incorrect application of the law Fair v People’s Savings Bank, 207 Conn. 535, 539 (1988). The standard of review for rulings on attorney disqualification necessitates a determination of whether there was an abuse of discretion. We cannot say that this ruling in this instance was such an abuse nor does it violate the standards set in Fair.
Claimant sought to have the CRD consider additional evidence. His motion stated:
The Claimant moves for permission to submit as additional evidence the material attached to his Motion to Correct which was denied by the Commissioner for the Fourth District and which is attached to his Additional Reason For Appeal as Appendix A for the reason that all of such material was submitted to said commissioner for his consideration and consist of additions of the parties.
Regulation Sec. 31-301-9 provides:
If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceeding before the commissioner. . . .
Claimant advances as a reason for submitting this evidence the fact that respondents have objected to his Motion to Correct filed after the appeal to the CRD. He also states that the evidence he seeks to add was proffered before the commissioner but not admitted below. If it had been sought to be admitted below, then the proper argument at the appellate level would be to show error on the commissioner’s exclusion of the evidence in question. The respondents argue that the additional evidence proffered was not submitted below and point to Regulation Section 31-301-4 governing motions to correct. That regulation requires that the movant file with his motion to correct “such portions of the evidence as he deems relevant and material to the corrections asked for.”
If the evidence had been excluded by the commissioner so that there were no portions of the evidentiary record to support the corrections sought, then the request to offer additional evidence should have accompanied the Motion to Correct along with those portions of the record showing the evidence was excluded below. We deny the Motion to Submit Additional Evidence.
We affirm the Fourth District’s ruling and dismiss the appeal.
Commissioners George Waldron and Jesse M. Frankl concur.