Opinion
No. CV04-0183088S
November 21, 2007
MEMORANDUM OF DECISION
In the above matter, the defendant, Kathleen Curry, moves to disqualify the plaintiff's law firm of Moynahan Minnella on the basis that rule 1.9 of the Rules of Professional Conduct concerning duties and representation of former clients will disqualify the said Moynahan law firm from representing the above-referenced plaintiff.
The court has broad discretion in regulating the conduct of attorneys and the scope of their representation of any client. The exercise of that discretion will not be reversed unless the abuse is manifest or where an injustice appears to have been done. State v. Jones, 180 Conn. 443, 448 (1980); State v. Brown, 169 Conn. 692, 702 (1975). Rule 1.9 prohibits in general an attorney from representing a party in an action in which a former client is now an opposing party, as in this case. The defendant, Curry, had prior dealings with the Moynahan law firm in 1995 involving a real estate transaction and in 1997 involving a consultation concerning a possible divorce action. The divorce consultation was supposedly no more than an hour and involved an attorney at the Moynahan office who cannot be identified and is presumably no longer employed there. The 1995 real estate transaction was of a routine nature and the attorney that represented the defendant in that proceeding is no longer employed at the Moynahan firm.
The commentary on rule 1.9 and the cases indicate that an attorney who formerly represented a client is not allowed to use any information relating to that representation, nor reveal that information relating to that representation in which the prior matter is substantially related to the present pending matter. This order requires that knowledge of specific facts gained in the prior representation that may be relevant to the present matter would preclude the present representation.
The argument has been made that cross-examining and deposing a former client would by its very nature create a conflict of interest and the appearance of a breach of that duty that the rule attempts to impose on any attorney or his firm. This particular action involving a motor vehicle accident and a pedestrian occurred on March of 2002 and action was commenced against the defendant in March of 2004. The defendant brings this motion to disqualify the plaintiff's counsel in October 2007. Whether there is an implied waiver to disqualify raises the issue of timeliness ( Murray v. Murray, 2003 WL 217162207 [35 Conn. L. Rptr. 103]). Certainly any contractual statute of limitations (6 years) has passed and the two (2) year definition of "former client" suggested in Rule 1.8, Sect. (a)(5) gives some limited guidance.
The case law seems to indicate that disqualification is to be exercised with caution and with full regard to the rights of the party whose attorney or firm is to be disqualified as well as any duties that may run to the party requesting such a disqualification. Colon v. Beaudry, 2003 WL 1478057; Johnston v. Casey, 2002 WL 1008463 [32 Conn. L. Rptr. 74]. In light of all the circumstances surrounding this particular case and the specific facts concerning the prior representations of the defendant by the Moynahan firm, the court finds that the prior representations in `95 and `97 respectively are too attenuated and too remote to constitute a disqualifying basis of the Moynahan firm. The plaintiff is entitled to his day in court with an attorney of his choosing. Bergeron v. Mackler, 623 A.2d 489, 493 (Conn. 1993). Any information or data that may have been disclosed or procured during those prior representations of the defendant by the Moynahan firm are not substantially related to nor even known at this time and would not constitute a conflict of interest between the defendant and the prior representations by the Moynahan law firm. The test that the court has to apply in a practical manner is to grant disqualification only upon "a showing that the relationship between the issues and the prior and the present cases is `patently clear' or when the issues are `identical' or `essentially the same.'" State v. Jones, 180 Conn. 443, 449 (1980).
In Goldenberg v. Corporate Air, Inc., 189 Conn. 504 (1983), the conflict was apparent and obvious and one in which the change in representations by counsel was immediate and obviously in conflict. No specific facts have been shown by the defendant that would in any way prejudice her current position involving a motor vehicle accident and the defense of such action by her counsel. There is no specific information or facts derived from Moynahan's prior legal representations that would in any way prejudice or compromise the defendant's defense in the current pending matter.
Therefore, the motion to disqualify plaintiff's counsel is denied.