Summary
In Anthem Health Plans v. North Haven Zoning Board of Appeals et al, 2004 Ct. Sup. 11667, 37 CLR. 519 (2004) (Corradino, J.) summarized the cases which had addressed this question thereafter.
Summary of this case from Bates v. BatesOpinion
No. CV04-0485919
July 26, 2004
MEMORANDUM OF DECISION
In this case the defendant Mr. Corey on November 18, 2003 applied to the defendant board of appeals for a variance on property known as 326R Bassett Road, North Haven (subject property). A public hearing was held on December 18, 2003 on which date the variance was approved; the decision was published on December 25, 2003. The plaintiff Anthem Health Plans owns property which is alleged to abut the subject property and therefore claims to be statutorily aggrieved. In its complaint the plaintiff claims the board acted "illegally, arbitrarily, capriciously, and in abuse of (the) discretion vested" in it because the application was approved "without the applicant showing an undue hardship." The plaintiff is represented by Attorney Bernard Pellegrino and the defendant Corey has moved to disqualify that attorney and his firm from representing the plaintiff Anthem Health Plans.
In the motion it is said that Mr. Corey was a client of Attorney Pellegrino at the time the Corey property was originally subdivided. It is further alleged that: "Due to the manner in which the original subdivision was designed and approved, Mr. Corey now had to obtain variances to further subdivide his property. These variances are the subject of this appeal brought by Attorney Pellegrino on behalf of Anthem Health Plans against his former client, Mr. Corey." The motion is made under Rule 1.9 of the Rules of Professional Conduct. A more complete statement of the defendant Corey's claim is made in the affidavit submitted by him, portions of which the court will now quote.
2. In 1980, I was referred to and retained Attorney Bernard A. Pellegrino to represent me before the North Haven Planning and Zoning Commission in the subdivision of my property. He filed an application on my behalf and represented me before the Commission. See the attached Schedule 1. The subdivision was approved, and it created two (2) lots, one with 37.502 acres, more or less (the "Extra Lot"), and the other with 4.369 acres, more or less, together with a right of way (the "House Lot").
3. At that time, Attorney Pellegrino and I had discussions regarding the property and the subdivision process. Attorney Pellegrino told me that he would handle everything and that I didn't need to attend the public hearing on or about October 1980.
4. After approval, I sold the Extra Lot to Blue Cross/Blue Shield, who has become Anthem Health Plans.
5. Several years after my approval, I approached the Town of North Haven to further subdivide my House Lot and was informed it would require variances. I was not aware of this limitation on the re-subdivision at the time of the original approval. I did not choose to pursue the re-subdivision to my House Lot at that time.
6. Due to my daughter becoming disabled in an elevator accident, my daughter and I filed an application for two variances for my House Lot with the North Haven Zoning Board of Appeals which was approved in December 2003. The purpose of obtaining the variances is so I am able to subdivide my House Lot so my daughter can build a handicapped accessible house and my wife and I can better take care of her.
7. After we obtained approval for the variances, Attorney Pellegrino, now representing Anthem Health Plans, appealed my approval to Superior Court which will cause my family and I undue delay. I have not consented to Attorney Pellegrino's representation of the plaintiff in this appeal.
8. I don't understand how my former lawyer can bring an appeal against me.
As noted the motion for disqualification is made under Rule 1.9 of the Rules of Professional Conduct which reads as follows:
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.
The leading cases on the application of this rule are Bergeron v. Mackler, 225 Conn. 391 (1993), and State v. Jones, 180 Conn. 443 (1980). In Bergeron the defendant Mackler sought to disqualify a law firm from representing the plaintiffs who had been subpoenaed to testify in Mackler's dissolution action. The basis of the motion to disqualify was the fact that counsel had represented her and her husband in the purchase of a house. The court reversed the trial court's granting of the motion to disqualify. The court reasoned that under Rule 1.9:
. . . an attorney should be disqualified if he (or she) has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation . . . This test has been honed 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". . . Once a substantial relationship between the prior and the present representation is demonstrated the receipt of confidential information, that would potentially disadvantage a former client is presumed . . .
The basis for the presumption is set forth in State v. Jones, 180 Conn. at p. 450, where it is said that, "The court cannot inquire into whether the lawyer did in fact receive confidential information during his (her) previous employment which might be used to his (her) former client's disadvantage because a rule requiring (the party moving to disqualify) to prove actual disclosures would destroy the very same confidences which the rules of professional conduct seek to protect."
In Bergeron, the Supreme Court concluded the trial court did not apply this test but based its disqualification of the lawyer under Rule 1.9 on the "appearance of impropriety." The court, having noted the important interest that a person has in choosing his or her lawyer, observed that the appearance of impropriety "will not stand alone to disqualify an attorney in the absence of any indication that the attorney's representation risks violating the Rules of Professional Conduct." Id. at pp. 399-400.
The court must now apply Bergeron to the facts of this case. First there is no question that Mr. Corey was a prior client of Attorney Pellegrino and secondly there is no question that the interests of the lawyer's present client is adverse to that of the interests of Mr. Corey as regards the variance. The real issue is whether the previous representation and the present case are substantially related. The standard adopted in our state is quite high. In Koch v. Koch Industries, 798 F.Sup. 1525 (D.Kan. 1992), the court indicated that two distinct versions of the "substantially related" test have emerged.
The first version adopted by a majority of the courts, compares the "matters" or factual contexts of the prior and present representations. The Tenth Circuit has followed this majority rule. "Substantiality" is present if the factual contexts of the two representations are similar or related. Smith v. Whatcott, 757 F.2d 1098, 1100 (CA 10, 1985) . . .
The second version adopted by the Second Circuit imposes a higher standard. A substantial relationship must be "patently clear" and requires disqualification only when the issues involved have been "identical" or "patently clear" Government of India v. Cook Industries, Inc., 569 F.2d 737, 741 (CA 2, 1978) . . . The difference between these two versions is with what is examined in the two representations — factual context versus issues — and with what is expected from the movant's proof — a similarity or relatedness versus a patently clear "relationship."
Id. at p. 1533.
Connecticut has adopted the Second Circuit version of the substantial relationship test, see Bergeron's citing of Government of India at 225 Conn. p. 399. The Second Circuit test and our test for disqualification necessarily place the burden of justifying such action on the movant and require a "high standard of proof." See Government of India, 569 F.2d at page 739; also see Northeast Promotions Inc. v. Conn. Marine Trade Assoc., 27 Conn. L. Rptr. 263, 1995 Ct.Sup. 2475 (Sheldon, J.).
Applying these tests the court cannot conclude that the defendant Corey has met the heavy burden necessary to prevail on this motion to disqualify.
In the motion to disqualify Mr. Corey states that at the time of his original subdivision in 1980 he retained Attorney Pellegrino to represent him before the town planning and zoning commission so he could sell property to the defendant Anthem (then known as Blue Cross/Blue Shield). Corey sold a 37.502 acre lot to the corporation and retained his own house on a 4.369 lot.
On December 2003 Mr. Corey and his disabled daughter filed two variances to further subdivide his property; he wanted to have a house built on the proposed subdivided lot for his daughter. The application for the variance sought, pursuant to the town regulations, approved of a building lot having zero frontage on a public street and seeking a 185-foot length of access strip variance, to be allowed to have a 485-foot length of access strip where a maximum of 300 feet is allowed. As noted the variance application was approved. The record indicates three reasons for the requested variance were given by the lawyer representing Mr. Corey in 2003 (1) a copy of the deed conveying the land to Blue Cross was submitted which indicates that it was Corey's intent that Blue Cross would build a road that would in effect be a public road which, if built, would have obviated the need for the variance application. The road built by Blue Cross after the conveyance, however, veered toward their building. When this motion was heard there was no argument or suggestion that Blue Cross had agreed to build such a road; indeed Corey testified that the first time he sought to subdivide his property was in 1986, some six years after the conveyance; (2) another reason for the request was that the irregular shape of the lot created hardship justifying the variance; and (3) that a tragic accident involving Corey's daughter rendered her disabled requiring that her parents assist in caring for her. The lawyer argued that the Americans with Disabilities Act requires local zoning boards to reasonably modify their regulations.
Reason number (3) cannot, of course, form the basis for the motion before the court. The important question raised by this reason involves an issue that had nothing to do with the original subdivision approval based, as it is on a tragic accident occurring decades later.
Using the "issue" test instead regards the first two reasons it cannot be said that they were "issues at the time of the 1980 subdivision approval and in the same sense are "issues" having anything to do with the question of whether the 2003 variance should have been granted. In other words the public road and irregularly shaped lot matters are predicate facts necessary to resolve the variance question but they were not "issues" having to do with whether subdivision approval should have been given under the 1980 regulations because the subdivision had to occur in the exact way it was proposed at that time in order to secure subdivision approval or even allow the conveyance agreement to take place ab initio.
In fact there is a suggestion in the arguments on this motion that the manner of the subdivision of the lots at that time was not a contested issue — it was suggested that if the land had been subdivided "a little bit differently" there would have been no need to apply for a variance application. Also Anthem is not raising some argument that Mr. Corey is somehow "equitably estopped" from raising the first two reasons for the variance as grounds for justifying the granting of it, cf. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 204-05 (1995); certainly Corey does not anticipate the possibility of such an argument since he himself advances these very reasons — irregular lot, public road, access — as grounds for the variance. If all this is so, what possible 1980 confidential communications relating to the public road or irregular lot issue, could have been given by Mr. Corey to Attorney Pellegrino which would have affected the variance request in 2003 or have any bearing on it as an issue?
The court cannot disagree with the observation made by Attorney Pellegrino at argument to the effect that the substantial similarity test was not met because "the granting of a subdivision requires a plan that complies with the regs. The granting of a variance concerns a plan that does not comply with the regs. What is the same? The only similarity is that it happens to be the same property."
The motion to disqualify is denied.
Corradino, J.