ZOGAJ v. KACZMEREK, No. CV07-5004755S (Nov. 27, 2007)


SIHANA ZOGAJ ET AL. v. JOHN KACZMEREK ET AL.

2007 Ct. Sup. 20054, 44 CLR 565
No. CV07-5004755SConnecticut Superior Court Judicial District of Waterbury at Waterbury
November 27, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION FOR PRO HAC VICE ADMISSION OF KENNETH M. SUGGS AND MARIA H. DAWSON (#104) AND GILES H. MANLEY (#111)
SALVATORE C. AGATI, J.

This action was commenced by the parents of Sihana Zogaj, a minor child against the defendants; Dr. Kaczmarek, Specialists in Women’s Healthcare, P.C. and Greater Waterbury Health Network, Inc. for alleged claims of medical malpractice by the defendants associated with her birth.

Counsel representing the plaintiffs is the Law Office of R. Bartley Halloran. The plaintiffs have filed motions for Pro Hac Vice Admissions of individual counsel Kenneth M. Suggs, Marina H. Dawson and Giles H. Hanley of the law firm of Janet, Jenner Suggs, LLC of Baltimore, Maryland. In addition to the motions filed by the plaintiffs with supporting affidavits filed for each of the proposed attorneys, the court has reviewed the objections filed by all the defendants, the supporting memoranda filed by all parties and the court heard testimony at a hearing held on the motions.

In summary, the plaintiffs are seeking the admission of the above-referenced attorneys pro hac vice because of their specialization, concentration and expertise in birth-related medical malpractice claims.

The defendants are objecting to their admission pro hac vice on various grounds: 1) that there is no pre-existing attorney-client relationship between plaintiffs and the proposed attorneys, (i.e. good cause has not been established by the plaintiffs) ; 2) plaintiff’s have failed to demonstrate an inability to retain Connecticut counsel who specialize in medical malpractice suits of this type; and 3) the admission of proposed counsel could violate legitimate state interests (i.e. how the court will effectively administer the prosecution of this case and how the court must protect Connecticut attorneys from out of state attorneys representing litigants in these type of actions).

CT Page 20055 The admission of an attorney from another jurisdiction to appear before the courts in Connecticut is governed by Connecticut Practice Book § 2-16, which in pertinent part provides guidance to the court on what facts are to be considered by the court in making its decision as follows:

. . . Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a longstanding attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client’s affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel.

These factors are not exclusive and allows the court to determine good cause based on additional evidence.

The court resolves the first and second grounds raised by the defendants based on the testimony provided by Mr. Shukrije Zagaj, the father of Sihana Zogaj, who instituted this action on behalf of his child. Mr. Zogaj testified that he immigrated to this country and therefore does not have a strong command of the English language. However, upon inquiry by the court, he testified that he had a longstanding attorney-client relationship with Attorney Richard Tolisano with whom he has complete confidence and trust. As a result of his child’s birth trauma, he consulted with Attorney Tolisano who referred him to Attorney Halloran. He further testified that he trusts and respects Attorney Halloran’s opinion and representation. He indicated that he agreed with Attorney Halloran’s advice to seek representation for this child’s cause of action by the pro hac vice counsel which are being proposed by the plaintiff.

The standard by which a court evaluates a motion for pro hac vice admission is well defined. “The decision to grant or deny an application to appear pro hac vice rests within the sound discretion of the court . . . The court must not abuse its discretionary powers, however, and reject the petition without giving due consideration to the petitioner’s request. The right to have counsel of one’s own choice, although not absolute, is important enough to require a legitimate state interest CT Page 20056 before a person can be deprived of that right . . . In this period of greater mobility among members of the bar and the public, and the corresponding growth in interstate business, a court should reluctantly deny an application to appear pro hac vice. A litigant’s request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney.” (Citations omitted; internal quotation marks omitted.) Herrmann v. Summer Plaza Corp., 201 Conn. 263, 268-69, 513 A.2d 1211 (1986).

Based on the standard as established, the court finds that admission of proposed counsel pro hat vice to represent the plaintiffs is reasonable and permissible.

however, the court must still deal with the issue of whether or not admission pro hac vice is a violation of legitimate state interests,

Research of relevant Connecticut case law reveals two categories of state interests which have been judicially determined “sufficient” so as to compel denial of motions for pro hac vice admission. The first relevant interest is the court’s efficiency and docket control. I Herrmann v. Summer Plaza Corp., supra, 201 Conn. 269, our Supreme Court stated that “[t]here is a legitimate state interest in granting the trial court the power to control its own docket.” There, the Supreme Court affirmed the trial court’s denial of the pro hac vice motion of an out-of-state attorney, as the granting of such motion would have “necessitated further continuance of the case” and would have thwarted the legitimate state interest “of docket control and expeditious caseflow management.” Id., 270.

The second circumstance in which our courts have found a legitimate state interest concerns the potential for ethical violations. “The legitimate state interest thwarted by the admission of an out-of-state attorney, sufficient to overcome the litigant’s right to have counsel of his choice, generally involves ethical problems caused by allowing out-of-state counsel to appear.” Yale Literary Magazine v. Yale University, 4 Conn.App. 592, 605, 496 A.2d 201 (1985), aff’d, 202 Conn. 672, 522 A.2d 818 (1987). See, e.g., Enquire Printing Publishing Co. v. O’Reilly, 193 Conn. 370, 374-77, 477 A.2d 648 (1984) (where both parties intended to call the defendants’ out-of-state attorney as a witness during the trial, the attorney would be unable to represent the defendants pursuant to the Code of Professional Responsibility) Gamlestaden v. Lindholm, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0127912 (Karazin, J., June 29, 1994) (the court found a conflict with the out-of-state CT Page 20057 attorneys’ representation of the defendants in violation of the Rules of Professional Conduct, namely, the existence of a continuing attorney-client relationship with an entity related to the case, where confidential information had been exchanged).

The court concludes that based on the case law, the admission of Attorneys Suggs, Dawson and Manley pro hac vice would not be a violation of any legitimate state interests at this time. The case is in its infancy on its litigation track, therefore, there would not be any undue delay. Also, there is no evidence of ethical violations by any of the proposed attorneys.

The court will grant the motion for admission of Attorneys Suggs, Dawson and Manley pro hac vice with the following conditions:

1. Attorney Halloran will sign all pleadings, briefs, requests and applications by the plaintiff with this court and will assume full responsibility for all filings and for the conduct of Attorneys Suggs, Dawson and Manley.

2. Attorney Halloran will be responsible to pay all court fees and court reporters’ costs incurred in the prosecution of this action.

3. Service of any pleading on Attorney Halloran shall be deemed compliance by any party with the rules of practice requiring service on any party.

4. Attorneys Suggs, Dawson and Manley will be subject to all rules of the court and non-compliance with any rule will subject them personally and/or collectively to termination to this limited admission to appear before the court in this case.

5. Attorney Halloran shall not ask the court to be relieved of the requirement that he will familiarize himself with this matter and be personally present for all legal proceedings.

6. Attorneys Suggs, Dawson and Manley, within fifteen days of this decision, shall comply with all Practice Book provisions relative to admission pro hac vice including but not limited to:

a.) Paying all fees associated with the Client Security Fund;

b.) Registering with the Statewide Grievance Committee;

c.) Filing of a certificate of Good Standing from the bar of their CT Page 20058 state.

7. The court orders all counsel, including pro hac vice counsel, to appear at a Status Conference in six months to review how the case is progressing relative to pleadings and discovery.

CT Page 20059