2004 Ct. Sup. 6162
No. CV 04 0409192Connecticut Superior Court, Judicial District of Fairfield at Bridgeport
April 6, 2004
MEMORANDUM OF DECISION RE (#103) PLAINTIFF’S MOTION TO DISQUALIFY
DOHERTY, JUDGE.
The plaintiff in the above-captioned matter has moved the court to disqualify the defendant’s attorney, Thomas L. Kanasky, J., from representing any other party in this case.
The reason stated for seeking this relief is that Attorney Kanasky’s testimony at trial will not only be relevant, but material and “. . . absolutely essential for the prosecution of the plaintiff’s claims.”
The case is one brought by the plaintiff against the estate of her former husband, Harold Winer and against Dorothy Winer, Harold’s second wife, both individually and in her capacity as executrix of Harold’s estate.
The allegations against the defendants include fraud and fraudulent conveyance of property.
The plaintiff argues that Attorney Kanasky has personal knowledge which no other living person has regarding certain transactions and other business dealings of Harold and that such information is essential to her claims.
Attorney Kanasky has strenuously objected to the relief sought claiming that if it were granted, there is no one else who can competently represent the plaintiff, especially in view of the length of time he has represented her in matters which will be the subject of the evidence in this case.
Section 3.7(a) of the Rules of Professional Conduct provides, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . .” American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 725 (2001). CT Page 6163
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.
“[I]f by merely announcing his intention to call opposing counsel as a witness an adversary could thereby orchestrate that counsel’s disqualification under the Disciplinary Rules, such a device might often be employed as a purely tactical maneuver. Clearly, however, these Rules were not designed to be used as tools of litigation strategy. Therefore, whenever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel’s testimony is, in fact, genuinely needed.” State v. Peeler, 265 Conn. 460, 473-74 (2003).
To overcome the presumption in favor of a defendant’s choice of counsel, a disqualification decision by the trial court must, therefore, be based upon “a reasoned determination on the basis of a fully prepared record . . .” Fuller v. Diesslin, 868 F.2d 604, 609 n. 4 (3d Cir.), cert. denied sub nom. Perretti v. Fuller, 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989).
The plaintiff must show to the court that her belief that Attorney Kanasky is in possession of discoverable information which is not privileged and which is essential to her case in order for the court to make that reasoned determination on the basis of a fully prepared record.
For that reason, the court directs that if the plaintiff should persist in her motion to disqualify Attorney Kanasky, she will be required to take his deposition regarding the information in question and be prepared to submit that deposition, to the court to permit the court to evaluate her representation that his testimony will be material, relevant and essential, as claimed.
BY THE COURT
JOSEPH W. DOHERTY, JUDGE CT Page 6164