2008 Ct. Sup. 8947
No. FA 08-4029598Connecticut Superior Court Judicial District of New Haven at New Haven
May 28, 2008
MEMORANDUM OF DECISION RE DEFENDANT’S “MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL DUE TO CONFLICT OF INTEREST” (No. 101) AND PLAINTIFF’S OBJECTION THERETO (No. 103)
STEPHEN F. FRAZZINI, JUDGE.
The defendant has moved, pursuant to Rule 1.18 of the Rules of Professional Conduct, to disqualify Attorney Vincent T. McManus from continuing to represent the plaintiff in this action for dissolution of marriage on the grounds that Attorney McManus “has also consulted the Defendant about marital matters involving the Plaintiff, the Plaintiff’s former spouse, and the Defendant.” The parties appeared with counsel at short calendar on May 15, 2008, for hearing on this motion, at which time both parties testified. Affidavits from McManus and the plaintiff were also admitted into evidence without objection from the defendant. For the following reasons, the motion is denied.
Both sides agree that the parties met once with McManus at his office sometime in 2006 after their marriage in July of that year. The defendant testified that the plaintiff and she discussed with McManus the plaintiff’s visitation with children from his previous marriage, “what were our and my chances of getting these children all the time,” and conflict between the two parties:
[W]e were starting a new marriage. We were consulting with Mr. McManus to basically alleviate some of our issues and problems with Ms. Jawor and we wanted to move on with our marriage. There were issues going on. I had a lot of questions, and basically, we consulted with Mr. McManus.
Transc., 5/15/2008, at 7. Attorney McManus’s affidavit, on the other hand, denies that the defendant had any discussions or communications with him and states that
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As that meeting was commencing I advised my client Walter Jawor that the presence of Katrina Jawor would adversely affect the confidentiality of communications that occurred during the meeting and that those communications would not be subject to the attorney-client privilege. Katrina Jawor took some offense to that and left.
The testimony and affidavit of the plaintiff are to the same effect.
Although Attorney McManus disputes that he formed an attorney-client relationship with the defendant or that they had any discussions concerning the forming of such a relationship, the decision on disqualification rests only in the first instance with counsel and also falls upon the trial court, which is charged with the responsibility “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 (1982). “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.” American Heritage Agency Inc. v. Gelinas, 62 Conn.App. 711, 724-25, 774 A.2d 220 (2001). In view of the strong public policy favoring a party’s right to select its own counsel; id. (“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 law places the burden of showing that disqualification is required upon the moving party. See, e.g., Blakemar Construction v. CRS Engineering, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0412727 (February 10, 2005, Skolnick, J.) (“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.]) Deleo v. Kruger, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 94 0142362S, 21 Conn. L. Rptr. 375 (February 10, 1998) (Minz, J.) (“The party moving for disqualification bears the burden of proving facts which indicate that disqualification is necessary . . . The disqualification of a party’s chosen counsel is a CT Page 8949 harsh sanction, and an extraordinary remedy which should be resorted to sparingly”).
Rule 1.18, upon which the defendant grounds her motion, govern an attorney’s duties to a prospective client.[1] The rule prohibits an attorney from using or revealing information learned from a prospective client during a consultation unless permitted by Rule 1.9 and precludes the attorney from representing someone else (i) “with interests materially adverse,” to that individual (ii) “in the same or a substantially related matter,” (iii) “if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” Since the defendant testified that she consulted Attorney McManus regarding “Walter and myself-conflict . . .” and “to alleviate some of our issues and problems” with his ex-wife, her testimony might also be regarded as claiming that she had established an attorney-client relationship with him, in which case Rule 1.9 would apply. The relevant portion of that rule sets the same standard for disqualification as Rule 1.18.[2]
There can be no doubt that the plaintiff has “interests materially adverse” to those of the defendant in this action to dissolve their marriage. Defendant offered insufficient evidence, however, to meet the second requirement for disqualification under Rules 1.9 or 1.18 — that the present proceeding is “the same or a substantially related matter” to that for which she claims she consulted Attorney McManus. “The substantial relationship 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.’ ” State v. Jones, supra, 180 Conn. 449, citing Government of India v. Cook Industries, Inc., 569 F.2d 737, 739-40 (2d Cir. 1978). The defendant here offered no evidence as to whether the “conflict” between the plaintiff and herself about which she testified the parties consulted Attorney McManus is in any way related or relevant to the current proceeding. Instead, she offered rather generic testimony about such conflict without specifying anything more than that it had to do with his children from his previous marriage. Under these circumstances, the defendant has not met her burden to require Attorney McManus’s disqualification, even if the court found her testimony credible. The court need not, therefore, resolve the credibility issues as to whether to believe the defendant or plaintiff as to what actually transpired in the meeting with Attorney McManus. The court also need not determine whether she was a prospective or actual client, a factual determination that would also require a credibility determination.
CT Page 8950 The defendant not having met her burden of proof, her motion to disqualify Attorney Vincent McManus from representing the plaintiff in this action is therefore DENIED.
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