Opinion
No. FA04 4000813-S
October 26, 2005
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY (#123)
The plaintiff in this dissolution of marriage case has filed a motion to disqualify the defendant's counsel. As a basis for the motion, the plaintiff asserts that the defendant's counsel, in 1994, represented the plaintiff in his workers' compensation matter. The defendant opposes this motion and asserts that:
(1) The representation was of a brief nature;
(2) The representation concerned obtaining workers' compensation benefits; and
(3) The issues raised in the workers' compensation case are unrelated to the instant matter.
The plaintiff argues that the questions of alimony, distribution of property and the present ability of the plaintiff to earn an income are at issue in the instant case.
The leading case on the application of this rule is Bergeron v. Mackler, 225 Conn. 391 (1993). 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.
In Bergeron v. Mackler, the court specifically rejected the "appearance of impropriety" test and rather adopted the Second Circuit Court version of the substantial relationship test. Imposing a high standard, Connecticut follows the rule that there must be a substantial relationship between the previous representation and the present case and that the relationship must be either identical or "patently clear." Moreover, the court in Bergeron v. Mackler, puts the burden on the movant to demonstrate that such a relationship exists. CT Page 13351-mb
Turning to the facts in the instant case, it is apparent that the issues in 1994 in obtaining workers' compensation benefits for the plaintiff herein, included:
(1) Whether the incident occurred in the course and scope of his employment; and
(2) Whether he was then disabled from employment and entitled to benefits.
In contrast, the issues which will likely arise in the divorce case involve a fair division of the property and debts, alimony, child support and a determination of whether or not the plaintiff is presently disabled from employment.
The plaintiff has failed to sustain its burden of proof that these issues were addressed during the brief representation in 1994 and even if the issue of the plaintiff's disability was raised then, eleven years later, that information would hardly be relevant to the inquiry of whether he continues to be disabled.
For the foregoing reasons, the motion to disqualify is denied. CT Page 13351-mc