Opinion
156027583
02-27-2017
Lou DeVito v. Monica Roy
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISQUALIFY AND SANCTIONS
Mark H. Taylor, Judge.
I
BACKGROUND AND FACTS
In this contract and unjust enrichment action, involving a loan of money between former friends, the defendant moves to disqualify the plaintiff's legal counsel. The plaintiff has objected to the motion to disqualify and has filed a related motion for sanctions. After considering the applicable law and facts presented by the parties, both motions are denied.
The court finds the following facts to be relevant in these proceedings. While the parties were on friendly terms in 2012, the plaintiff recommended the Robert S. Kolesnik, PC law firm to the defendant for legal representation in a family matter. The Kolesnik law firm also represents the plaintiff in this case. The question of a conflict of interest arose for the first time at an agreed-upon deposition of the parties in this case, noticed for September 28, 2016. Although this case had been filed on June 19, 2015 and a potential conflict had therefore existed for fifteen months at the time of the deposition, the defendant refused to testify. For this reason, the plaintiff seeks sanctions.
The defendant credibly testified that, although she felt uncomfortable with the Kolesnik law firm opposing her in the present case, she was unaware of the potential conflict of interest until she saw Robert S. Kolesnik, Sr., her former attorney's father, at the time of the deposition. Once informed of the potential conflict of interest by her legal counsel, she refused to be deposed.
At the time the Kolesnik law firm represented the defendant in 2012, there were three principal attorneys working at the firm: Robert S. Kolesnik, Sr., Robert S. Kolesnik, Jr. and Maureen Norris Wilkas, who initially filed the present action. The firm divides its practice of law between Waterbury, where Attorney Kolesnik, Sr. primarily operates his practice, and in Woodbury, where his son, Attorney Kolesnik, Jr., primarily operates his practice. Attorney Norris Wilkas no longer practices with the firm.
The defendant has sufficiently proven to the court that she was represented by Robert S. Kolesnik, Jr. in a post-dissolution motion for contempt, resolved by a written agreement entered on the record in the New Haven Family Court on February 9, 2012. The defendant credibly testified that she consulted with Attorney Robert S. Kolesnik, Jr. in negotiating the resolution of her motion for contempt, primarily involving the custody of her children. Although not raised in the defendant's motion for contempt, the February 9th modification agreement also addressed a long-pending motion to reopen the judgment of dissolution, filed by the defendant to modify a financial order concerning the refinancing and division of equity in the marital abode. In the agreement, the defendant's payment of equity in the home to her ex-husband was reduced by $5,000. Although no financial affidavits were produced or filed in that matter at that time, the defendant credibly testified that she discussed her financial circumstances with Attorney Kolesnik, Jr., in support of her need to modify this financial order in the judgment of dissolution.
Over three years later on June 19, 2015, this action was filed on behalf of the plaintiff, arising from financial transactions that occurred in 2014. At the time this case was filed by Attorney Norris Wilkas, she was no longer working with the Kolesnik law firm and had opened her own, solo practice of law in Thomaston, Connecticut. Eight months later on February 26, 2016, Robert S. Kolesnik, Sr. filed an appearance in addition to Attorney Norris Wilkas, due to an illness she has suffered.
At the hearing held in this matter on February 17, 2017, Attorney Kolesnik credibly stated that he had no knowledge of the defendant, or recollection of meeting her, prior to the deposition noticed for September 28, 2015. He also represented to the court that his office had no file on the defendant's family matter, retainer agreement or record of a payment to the firm, and that she was not otherwise listed as a client. In reviewing the issue with his son, Attorney Kolesnik, Jr. had no recollection of information shared with him by the defendant during his very limited representation of her in the post-dissolution proceeding, which he had done as a favor to the plaintiff.
In support of his objection, as well as his motion for sanctions, Attorney Kolesnik, Sr. represented to the court that the plaintiff has been a client of the Kolesnik law firm and Attorney Norris Wilkas for many years. The plaintiff has paid a substantial retainer in this matter and, together with his attorneys, has spent many hours in preparation of the lawsuit and the deposition that did not go forward on September 28, 2016.
II
DISCUSSION
A
Motion to Disqualify
Rule 1.9 of the Code of Professional Conduct sets forth, in relevant part, the duty owed by attorneys to former clients of their law firms: " . . . (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client."
In generally characterizing Rule 1.9, our Supreme Court has held that " [t]he standards for attorney disqualification are directed at protecting client confidences. They may not be used to restrict an individual's ability to select counsel of choice on the basis of nothing more than a litigant's subjective perception that another litigant is influencing the proceedings." Bergeron v. Mackler, 225 Conn. 391, 400, 623 A.2d 489 (1993).
The Bergeron case is often cited in superior court decisions concerning motions to disqualify. In Bergeron, the defendant sought to disqualify the plaintiffs' attorney, who had noticed them for a deposition in the defendant's dissolution case, based upon the fact that the attorney represented the defendant and her husband in the course of a real estate closing. The trial court granted the motion to disqualify based upon an appearance of impropriety.
In reversing the trial court, the Supreme Court in Bergeron reasoned that " [a]lthough considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it 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 399-400, 623 A.2d 489. In setting forth the standard and considerations applicable to disqualification cases, the Bergeron court stated that " [d]isqualification of counsel is a remedy that serves to enforce the lawyer's duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information . . . In disqualification matters, however, we must be solicitous of a client's right freely to choose his counsel . . . 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 . . . The competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant's interest in protecting confidential information; (2) the plaintiffs' interest in freely selecting counsel of their choice; and (3) the public's interest in the scrupulous administration of justice." (Citations omitted; internal quotation marks omitted.) Id. at 397, 623 A.2d 489; citing Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975).
As the party moving to disqualify the plaintiff's legal counsel, the defendant carries the burden of showing that Attorney Kolesnik, Sr. ought to be disqualified. See Mettler v. Mettler, 50 Conn.Supp. 357, 361, 928 A.2d 631 (2007). Although many superior court decisions characterize the burden of proof to disqualify as high, in light of the strong public policy favoring a party's choice of legal counsel, the competing public policy of preserving client confidences requires a balancing of these competing public policies.
A higher standard of proof is not specifically identified in these superior court decisions. Instead, caution appears to be exercised in considering motions to disqualify counsel. " A party moving for disqualification of an opponent's counsel must meet a high standard of proof . . . [B]efore permitting a party to disqualify an attorney the moving party bears the burden of proving facts which indicate disqualification is necessary. The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." Blakemar Construction, LLC v. CRS Engineering, Inc., Superior Court, judicial district of Fairfield, Docket No. CV04-0412727S, (February 9, 2005, Skolnick, J.). " The disqualification of a party's chosen counsel is a harsh sanction, and an extraordinary remedy which should be resorted to sparingly." (Internal quotation marks omitted.) Deleo v. Kruger, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV94-0142362S, (February 10, 1998, Mintz, J.) (21 Conn.L.Rptr. 375, 376). See Langer v. Kensington Acres N. Owners Ass'n, Inc., Superior Court, judicial district of New Haven, Docket No. CV13 6042472, (January 21, 2015, Vitale, J.).
In balancing the Bergeron considerations, based upon the facts of the present case, the court finds that the plaintiff's interest in being represented by his present counsel far outweighs the defendant's interest in protecting confidential information. In fact, the defendant has made no showing or assertion that she shared confidential information with Attorney Kolesnik, Jr. that would be prejudicial to her in this case. Although seeing Attorney Kolesnik, Sr. representing her adversary gave rise to the defendant's genuine feeling of discomfort, the preservation of public's interest in maintaining client confidences is not, in the court's view, substantially interfered with by his continued representation of the plaintiff in this case.
B
Sanctions
Courts have inherent authority to impose sanctions. The judges of the superior court have nonetheless codified a standard for imposing sanctions at Practice Book § 1-25, as follows: " (a) No party or attorney shall bring or defend an action, or assert or oppose a claim or contention, unless there is a basis in law and fact for doing so that is not frivolous. Good faith arguments for an extension, modification or reversal of existing law shall not be deemed frivolous. (b) Except as otherwise provided in these rules, the judicial authority, solely on its own motion and after a hearing, may impose sanctions for actions that include, but are not limited to, the following: (1) Filing of pleadings, motions, objections, requests or other documents that violate subsection (a) above; (2) Wilful or repeated failure to comply with rules or orders of the court, including Section 4-7 on personal identifying information; (3) After prior direction from the court, the filing of any materials or documents that: (A) are not relevant and material to the matter before the court or (B) contain personal, medical or financial information that is not relevant or material to the matter before the court. (c) The judicial authority may impose sanctions including, but not limited to, fines pursuant to General Statutes § 51-84; orders requiring the offending party to pay costs and expenses, including attorneys fees; and orders restricting the filing of papers with the court. (d) Offenders subject to such sanctions may include counsel, self-represented parties, and parties represented by counsel."
In applying this rule of court to the facts of the present case, the court finds there is an insufficient basis for imposing sanctions on the defendant for her refusal to be deposed on September 28, 2016. Although the defendant knew that Attorney Norris Wilkas was formerly with the Kolesnik law firm, and this should have triggered the basis for asserting any conflict perceived at an earlier time, the surprising appearance of an Attorney at the deposition with the identical name as her former attorney, except for the suffix Sr., was understandably alarming. In consulting with her attorney, she became, for the first time, aware of the potential for a conflict of interest and therefore declined to be deposed.
The court finds there was a colorable reason, other than one of a strategic nature, for the defendant to raise the issue of a conflict of interest for the first time at the deposition, and that the basis for imposing sanctions pursuant to the provisions of Practice Book 1-25 has not been met under the facts of this case. Although it is unfortunate that the parties were unable to examine the facts and law and reach the same conclusion as the court has in this case, this certainly cannot be the standard of practice, upon which sanctions are imposed. Any future refusal by the defendant to be deposed in this case, however, may be sanctioned pursuant to Practice Book § 1-25(b)(2), upon further motion.
III
CONCLUSION,
The defendant's motion to disqualify and the plaintiff's motion for sanctions are denied.
SO ORDERED.