Opinion
No. FA 05 4017313
February 28, 2011
MEMORANDUM OF DECISION
I. BACKGROUND
The defendant, Tashana Hamilton, has filed a motion (No. 253) to disqualify the plaintiff's legal counsel from representing a witness in this case who has been subpoenaed to a deposition. The deposition of the witness, Monique S. Biggs, was noticed by the defendant during this contentious and ongoing post-judgment proceeding involving competing claims of sole legal custody of the parties' minor child. The court notes that after approximately five days of trial thus far, the parties have scheduled two additional days of testimony before the court, Adelman, J.
Ms. Biggs is described in the pleadings as the plaintiff's current "girlfriend" and the defendant claims that she intends to call Ms. Biggs as a witness in this custody matter for the purpose of testifying to facts concerning her use of the parties' "Family Wizard" account. Although no testimony was elicited concerning these facts at the hearing before the court on this motion on February 23, 2011, the defendant proffered that Ms. Biggs may have used the Family Wizard account on at least one and on as many as 300 occasions.
Family Wizard is an online service used for the purpose of communications and scheduling in high-conflict dissolution and custody cases.
The defendant asserts there is an inherent and non-waivable conflict of interest in the plaintiff's attorney representing Ms. Biggs because his primary obligation is to the plaintiff in this case. The plaintiff's attorney counters that he has considered the matter carefully and has obtained the informed and written consent of both parties. In her written consent, however, Ms. Biggs acknowledges that the plaintiff lawyer's "primary loyalty may be to Mr. Harris . . ." and that although their "interests . . . are not fundamentally antagonistic . . . "any substantial discrepancy in our testimony could damage my credibility or result in additional cost, embarrassment and recrimination to me." See Objection to Defendant's Motion to Disqualify, dated February 23, 2011.
For reasons set forth in this decision, the motion to disqualify is denied.
II. DISCUSSION
A. The Rules of Professional Conduct
In support of her claim, the defendant cites the conflict of interest section of the Rules of Professional Conduct. Rule 1.7 provides: "Conflict of Interest: General Rule (a) Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or the same proceeding before any tribunal; and (4) each affected client gives informed consent, confirmed in writing.
Under the facts proffered in this case, the defendant intends to call Ms. Biggs as a witness, upon which the plaintiff may exercise his right of cross-examination. In the commentary section to Rule 1.7, it is explained that "a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit." Although this commentary also notes that multiple representation involves greater risks in criminal cases than in civil cases, the custody of a child undeniably involves issues of tremendous social importance and inherently implicates the constitutional rights of parents to raise their children. See Fish v. Fish, 285 Conn. 24, 46, 939 A.2d 1040 (2008).
Citing federal circuit court authority in criminal cases, our Appellate Court has stated that "[c] onflicts of interest arise whenever an attorney's loyalties are divided, and an attorney who cross-examines former clients inherently encounters divided loyalties . . . An attorney who cross-examines a former client inherently encounters divided loyalties . . . In these circumstances, counsel is placed in the equivocal position of having to cross-examine his own client as an adverse witness. His zeal in defense of his client the accused is thus counterpoised against solicitude for his client the witness." (Emphasis in original; citations omitted; internal quotation marks omitted.) State v. Crocker, 83 Conn.App. 615, 627-28, 852 A.2d 762 (2004); cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). "Thus, a trial court may, in certain situations, reject a defendant's choice of counsel on the ground of a potential conflict of interest, because a serious conflict may indeed destroy the integrity of the trial process." Id. at 615.
It is clear, therefore, that preemptory disqualification of an attorney is within the authority of the Superior Court; however, it is a remedy exercised with great caution because "disqualification is both harsh and draconian, and . . . the movants have a heavy burden to show clearly that disqualification is warranted . . ." Murray v. Murray, Superior Court, judicial district of Hartford, Docket No. CV 02 0820216 (June 16, 2003, Shapiro, J.) [ 35 Conn. L. Rptr. 103]. It is important to note, however, that the disqualification of counsel appears to be a remedy more regularly exercised by our courts in criminal cases than in family cases.
B. Non-waivable Conflicts in Family Cases
The issue before the court in this case is whether the potential of a serious conflict of interest in this family matter may be the subject of informed consent or if it is non-waivable, per se. Generally, the decisions in family matters favor continued representation by counsel, except in instances where a direct conflict of interest is clearly present. These cases include instances where an attorney represents intimate partners in simultaneous dissolution proceedings. See Jenkins v. Jenkins, Superior Court, judicial district of Hartford, Docket No. FA 09 4042671 (April 14, 2010, Fischer, J.) [ 49 Conn. L. Rptr. 620]; also see Gurlides v. Dinan Dinan, Statewide Grievance Committee 5 Conn. Ops 380 (March 29, 1990).
In other disciplinary cases, it has been determined that a non-waivable conflict exists where a lawyer's spouse is a child protection worker for the Department of Human Services and represents a juvenile or parent or acts as guardian ad litem in child abuse cases in which the lawyer's spouse is involved in the investigation of the alleged abuse and is likely to be called as a witness. Opinion 01-06 (3/7/02). On the other hand, it has been determined that a lawyer may represent both a lender and a buyer/borrower in a real estate transaction if the clients consent after consultation. The consultation must cover the implications of the dual representation and its risks and benefits, and must occur far enough in advance of the closing to allow the clients to obtain separate counsel if they wish. Opinion 2001-02 (undated).
Where intimate partners are represented by the same attorney in simultaneous dissolution cases, the conflict of interest of an attorney is more clearly present. For example and hypothetically, if the intimate partner is called as a witness by the opposing side in the others' case to prove fault, as permitted by statute, the attorney may be in the untenable position and in direct conflict by using confidential information obtained through an attorney-client relationship to effectively cross-examine one client on behalf of the other. Given the difficulty in proving an adulterous relationship, for example, privileged information may provide the attorney with knowledge of facts about one client which may, under certain circumstances, be damaging to the other, contemporaneous client. Further, with privileged information from two parties, the attorney is more likely to become aware of intentional inconsistencies in testimony and the potential for perjury, requiring withdrawal.
Turgeon v. Turgeon 190 Conn. 269, 278-79, 460 A.2d 1260 (1983).
"Adultery as a ground for dissolution under General Statutes § 46b-40 requires proof that the other spouse has engaged in extramarital sexual relations . . . Although, because of their clandestine nature, adulterous acts are usually proved by circumstantial evidence . . . the circumstances must be such as to lead the guarded discretion of a reasonable and just person to the conclusion of guilt . . . The adulterous relationship must be established by a fair preponderance of the evidence . . . In weighing the evidence of adultery, the court should exercise great care to see that it is not imposed upon through the intense interest of the parties to color the facts; it should not see evil where the circumstances may reasonably lend themselves to an innocent interpretation, nor, on the other hand, should it refuse to reach that conclusion which the sound and unprejudiced judgment should lead to . . . Adultery will not be inferred from circumstantial evidence unless there is both an opportunity and an adulterous disposition . . . Moreover, the existence of both the opportunity and the inclination without more does not necessarily compel a conclusion that adultery has occurred." (Citations omitted; internal quotation marks omitted.) Turgeon v. Turgeon, supra, 190 Conn. 278-79.
After a review of family cases involving disqualification, Bergeron v. Mackler, 225 Conn. 391, 623 A.2d 489 (1993), is the Supreme Court case most often cited in trial court decisions. In the Bergeron case, 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 and the Supreme Court reversed the trial court.
In reversing the trial court, the Supreme Court 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. 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; citing Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2 751, 754 (2d Cir. 1975).
The Bergeron case involves a less compelling set of circumstances, compared with the present case. In Bergeron, the attorney-client relationship was not concurrent in the same proceeding and the attorney's prior representation involved a simple real estate transaction, the facts of which were already known to the parties. Here, the representation is concurrent and in the same proceeding, potentially involving as yet unknown and conflicting testimony on the same factual issues. Therefore, the potential for a conflict of interest is present, as Ms. Biggs admits in her written consent. However, the court finds that the potential conflict is not necessarily inherent in these proceedings and it is, as yet, undefined because the court has no evidence to conclude that there would be a direct conflict.
In reviewing family court decisions applying the Bergeron case, inter alia, most trial courts have denied motions to disqualify counsel; however, there is little guidance from other Superior Court cases on the particular facts of the present case, especially in that none appear to reflect concurrent representation in the same family court proceeding. In Fallacaro v. Fallacaro, Superior Court, Docket No. FA 98 0719606 (April 8, 1999, Bishop, J.) [ 24 Conn. L. Rptr. 355], a motion to disqualify was denied where a partner in the attorney's firm previously represented one party in a dissolution matter over ten years earlier. In Sumera v. Sumera, Superior Court, FA 01 065939 (November 6, 2002, Cosgrove, J.), a motion to disqualify was denied where the wife of an attorney's partner was a potential witness in a dissolution matter. In Jones v. Jones, Superior Court, judicial district of Stamford, FA 99 0173261 (October 1, 2003, Winslow, J.) [ 35 Conn. L. Rptr. 563], a motion to disqualify was denied where the plaintiff's attorney had previously represented an adverse witness in a dissolution case. In Mettler v. Mettler, Superior Court, judicial district of New Haven, FA 06 4021437 (June 6, 2007, Frazzini, J.) [ 43 Conn. L. Rptr. 578], a motion to disqualify was denied where the movant failed to prove that the plaintiff's counsel and his wife were necessary witnesses. In Kilventon v. Kilventon, Superior Court, judicial district of Litchfield, FA 07 4005836 (January 3, 2008, Marano, J.), a motion to disqualify was denied where the movant failed to prove an attorney-client relationship between the plaintiff's counsel and the parties involving a prior consultation over the disposition of a retirement benefit.
C. Standard of Proof
"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." (Citation omitted; internal quotation marks omitted.) Blakemar Construction, LLC v. CRS Engineering, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 04 0412727 (February 10, 2005, Skolnick, J.).
In considering the relative merits of the claims in this case, the court has determined that there is insufficient evidence to conclude that the potential conflict of interest is non-waivable, per se. Ms. Biggs and the plaintiff are not opposing parties in this or in any other litigation, which would be directly adversarial. Therefore, although the potential for conflict remains, it has yet to be shown to the court.
D. Considerations Involving Concurrent Representation
It may be the better practice to seek independent counsel and to avoid concurrent representation generally because it may be difficult to determine whether a conflict exists until disclosures are made within the solemn confidentiality of the attorney-client relationship, after which loyalty to both clients, is jeopardized. In this case, it is troubling that Ms. Cobb, in her written consent, considers her attorney's longstanding loyalty to the plaintiff to be superior to her own. In fact, she has contemplated that "any substantial discrepancy in our testimony could damage my credibility or result in additional cost, embarrassment and recrimination to me." See Objection to Defendant's Motion to Disqualify, dated February 23, 2011. Whether these statements are merely hypothetical or are her considered expectations, they are inherently problematic in that they appear to reflect the potential for less than zealous advocacy on her behalf, which her counsel is duty-bound to provide, but may appear to be doubtful under the circumstances. See The Law of Lawyering, 2004 Supp. § 11.20. Nonetheless, an appearance of impropriety is not sufficient to require disqualification. Bergeron v. Mackler, supra, 225 Conn. at 399.
Although Ms. Biggs has no legal right currently at issue before this court, the potential for counsel's discovery of perjured testimony requiring withdrawal is most certainly heightened and must be considered by counsel. Furthermore, if it is discovered that Ms. Biggs intentionally logged on to the plaintiff's Family Wizard account without his permission, it may be advantageous for the plaintiff to point this out to the court, on the one hand, but it may be disadvantageous to Ms. Biggs, either civilly or criminally. See Miller v. Meyers, 2011 WL 210070, 1 (W.D.Ark. 2011). However, these considerations are speculative and have no basis in any fact alleged or proven to the court and, absent a showing of a conflict of interest by the defendant, the plaintiff's attorney is in a better position to determine if there is an actual conflict in this case.
In Miller v. Meyers, the plaintiff, Anna Miller, alleged in her motion for summary judgment, private causes of action for violations of certain federal criminal statutes, specifically: 18 U.S.C. § 1030 et seq., for Fraud in Connection with Computers; 18 U.S.C. § 2701 et seq., for Unlawful Access to Stored Conununications; and 18 U.S.C. § 2511 et seq., for Interception and Disclosure of Electronic Communications. Plaintiff also asserts claims for Unlawful Use or Access to Computers, Computer Trespass, Unlawful Act Regarding a Computer, Breach of Contract and Intentional Infliction of Emotional Distress under Arkansas law.
E. An Attorney's Superior Position to Determine a Conflict
As Judge Winslow commented in the Superior Court decision of Jones v. Jones that "[i]t is the attorney himself who is in the best position to determine whether there exists a conflict of interest in his representation of two clients. Jones v. Jones, supra, citing the criminal case of State v. Webb, 238 Conn. 389, 680 A.2d 147 (1996). In the Webb case, the Supreme Court stated that "attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath . . . Trial counsel, moreover, [have] an ethical obligation to seek to withdraw from their representation . . . if they perceived any breach in their duty of undivided loyalty to their client or if any ethical rule would be violated by their continued representation . . . Thus, the defendant's attorneys' decisions not to seek to withdraw, as well as their representations to the court that they were not obliged to withdraw, support the conclusion that they did not possess an actual conflict of interest." State v. Webb, supra, 238 Conn. 420-21.
In the absence of a claim by either client or the attorney himself that a conflict of interest exists, the circumstance under which an opposing party may invoke the claim of a conflict of interest must be limited. See Jones v. Jones, supra. Only "[w]here the conflict is such as clearly to call in question the fair or efficient administration of justice" may opposing counsel properly raise the question. Rules of Professional Conduct 1.7, Commentary.
III. CONCLUSION
The defendant's motion to disqualify is denied.
SO ORDERED.