2010 Ct. Sup. 15091
No. KNO FA 10-4113572SConnecticut Superior Court Judicial District of New London at Norwich
July 21, 2010
MEMORANDUM OF DECISION REGARDING MOTION TO DISQUALIFY LAW FIRM (120)
SHLUGER, J.
This matter was commenced as a custody and visitation application by the plaintiff-father on April 30, 2010. The plaintiff filed a motion to disqualify the defendant’s law firm on June 28, 2010 and the parties appeared, with counsel, before the undersigned on July 12, 2010. The plaintiff and a partner in the law firm representing the defendant testified. The defendant argued that the motion to disqualify is deficient as it does not properly lay out the facts sufficient to put the opposing party on notice, that plaintiff’s counsel never sent to him a copy of his memorandum of law and that in fact, disqualification is not appropriate.
The substantive question before the court is whether there existed an attorney-client relationship between the plaintiff and counsel for the defendant, close in time and related in subject matter to the issues involved in this litigation.
The plaintiff testified that he and the defendant are the parents of the child at issue. The plaintiff testified that between April 10, 2010 and May 17, 2010 he had numerous (more than 12) and lengthy (15 minutes to 45 minutes) telephone conferences with counsel for the defendant regarding the issues of custody of the child, the fact that the child and the mother were missing and what legal steps he might take.
Counsel for the defendant testified that there were fewer telephone calls (three to five) which altogether comprised just over an hour of discussion. When asked to describe the subject matter of the telephone calls, counsel for the defendant expressed his reluctance to answer that question for fear of divulging client confidences unless the plaintiff would waive any attorney-client privilege which the plaintiff declined to do. Query, if there were attorney-client confidences which he was fearful of divulging, does that not resolve the question of whether or not there existed an attorney-client relationship? CT Page 15092
Rule 1.9 of the rules of professional conduct governs disqualification of counsel for a conflict of interest relating to a former client, providing: “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.”
While counsel for the defendant argues that any potential conflict could be cured by a court order or erecting a “Chinese wall” prohibiting the affected attorney from communicating with the unaffected attorney in this two lawyer firm, rule 1.10 appears to prohibit that conduct: “while lawyers are associated in a firm, none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so . . .”
The competing interests which must be carefully weighed in any motion to disqualify are: (1) one party’s interest in protecting confidential information; (2) the other party’s interest in freely selecting counsel of her choice and (3) the public’s interest in the scrupulous administration of justice. While there was some dispute between the parties as to what was the subject matter discussed between the plaintiff and the defendant’s counsel, it appears that the issues discussed and the issues involved in the present litigation were identical or were substantially similar. “Disqualification of counsel is a remedy that serves to enforce the lawyer’s duty of absolute fidelity in to guard against the danger of inadvertent use of confidential information . . . Once a substantial relationship between the prior and the present representation is demonstrated, the recipient of confidential information that would potentially disadvantage a former client is presumed.”American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725-6, cert. denied, 257 Conn. 903 (2001). “The standards for attorney disqualification are directed at protecting client confidences.” Bergeron v. Mackler, 225 Conn. 391, 400 (1993).
While the defendant argued that the plaintiff might have contacted the affected attorney law firm for the purpose of preemptively prohibiting her from engaging that firm, there was no evidence that she had a longstanding relationship with that firm or that her hiring substitute counsel would adversely affect or delay the litigation.
CT Page 15093 While the court must be cognizant of the defendant’s interest in the free selection of counsel of her choice, that interest is outweighed by the plaintiff’s interest in protecting confidential information on the very subject at issue in the instant litigation. Counsel for the defendant readily admits that he and the plaintiff spoke, just prior to the institution of this litigation five times for a total aggregate of one hour on subjects which the counsel for the defendant refused to describe for fear of violating an attorney-client relationship which he claims did not exist.
Moreover, it does not appear that the motion to disqualify him fails to alert the defendant as to the factual allegations.
For the foregoing reasons the motion to disqualify is granted.
CT Page 15094