Opinion
No. HHB CV05-4008311 S
January 31, 2006
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY PLAINTIFFS' ATTORNEY
This matter involving a dispute between siblings about an alleged agreement to provide financial assistance to their mother is before the court on the defendant's motion for disqualification of plaintiffs' counsel, including the individual attorney and his law firm, dated November 18, 2005 (#101). The plaintiffs are the defendant's two sisters and brother. After the motion initially appeared on the short calendar as a non-arguable matter, the court scheduled and held a hearing concerning the motion on January 9, 2006, at which it heard argument, and at which the parties were afforded the opportunity to present evidence. For the reasons stated below, the motion is granted.
For ease of reference, the individual attorney will be referred to as "plaintiffs' counsel."
I Background
In their complaint, dated October 27, 2005, the plaintiffs allege that on May 1, 2004, and prior thereto, the parties' mother resided at 224 Barbour Road in New Britain, Connecticut (the "family home"), and required extensive contributions from her children for her care, food, clothing, utilities and other necessities of life. The plaintiffs allege that they and the defendant mutually promised and agreed that the four of them would provide for their mother's care and necessities of life. They allege that, in compliance with the agreement, the defendant paid $1,502.00 in July 2004, and again in August 2004. Also, they allege that, in July 2004, she paid $650.00 towards the taxes on the family home.
The plaintiffs also allege that they have expended over $100,000.00 for the care and maintenance of their mother, and that the defendant refuses to pay her proportionate share thereof. The plaintiffs seeks damages from the defendant.
In her verified motion, the defendant states that plaintiffs' counsel and his firm represented her, individually, as her attorney on prior occasions on other matters and, as the "family lawyer," has represented and/or counseled all the parties to the action jointly, on family matters. See motion, ¶¶ 3-4. In September 2002, the defendant retained plaintiffs' counsel to represent her in connection with the dissolution of her marriage, which went to judgment on November 19, 2003.
In the motion, p. 2, the defendant also states that plaintiffs' counsel previously represented and counseled the parties' mother. Their mother is not a party to this action.
The defendant asserts that, while representing her during the divorce action and as a result of the dissolution, plaintiffs' counsel "obtained information about defendant's income, expenses and assets, and counseled her on her rights and obligations in connection therewith." See motion, ¶ 8. She states that she reposed in plaintiffs' counsel "her personal thoughts, emotions, and sensibilities as well as her thoughts about her family responsibilities, her plans and her financial resources, relying on her attorney for protection of her rights, consistent with her goals and means." See motion, ¶ 9.
Also, the defendant states that plaintiffs' counsel's firm recently represented the defendant in an accident case. Concerning the issue of damages in that matter, she notes that it "normally requires a discussion of the claimant's income, losses, employment qualifications, and future plans." See motion, ¶ 10. The period of time during which plaintiffs' counsel's firm represented the defendant in connection with the accident claim was not provided to the court.
She asserts that, as late as January 2004, plaintiffs' counsel counseled her as to "rights she had against her former husband as they affected the financial needs of her mother, in particular the former husband's tax lien on the house in which the defendant's mother lived . . ." See motion, ¶ 7. The mother had conveyed the family home to the four children, each of whom received a one-quarter interest therein, while the mother reserved a life use thereof. The United States Internal Revenue Service filed a tax lien on the family home as to the defendant's one-quarter interest, as a result of a joint tax return signed by the defendant and her former husband. The defendant approached plaintiffs' counsel after the divorce judgment to inquire about compelling her former husband to pay off the taxes in order to remove the lien. Removal of the lien would have permitted the four siblings to use the family home as security for a reverse mortgage. The defendant does not contend that the plaintiffs had agreed to or rejected a plan for a reverse mortgage, or that it was feasible. See motion, ¶¶ 20-21.
In his objection to the motion, plaintiffs' counsel has not contested the above-cited factual allegations made by the defendant. See plaintiffs' attorney's objection to defendant's motion to disqualify plaintiffs' attorney, dated December 5, 2005 (#102) (objection). For example, in his objection, p. 2, he states that "[t]he Defendant's divorce was granted over two years ago and the representation of her ended except for a letter of clarification on the terms of the divorce." Although plaintiffs' counsel did not provide the date of the "letter of clarification," it appears to coincide with the defendant's assertion that, in January 2004, he advised her concerning her former husband's obligations under the divorce judgment. He stated that he has not had any attorney-client relationship with the defendant for at least two years. See objection, pp. 5-6.
On March 11, 2005, plaintiffs' counsel sent a letter to the defendant advising her that he had met with the plaintiffs and they had indicated that the four siblings, including the defendant, had made an agreement to share equally in their mother's care. He enclosed a copy of an agreement for her review.
Copies of this letter are annexed to the motion and to the objection.
In her March 13, 2005 response, the defendant gave her permission to plaintiffs' counsel to discuss with the three plaintiffs pursuing her former husband in court concerning the taxes owed. See defendant's March 13, 2005 letter to plaintiffs' counsel, copies of which are annexed to the motion papers by the parties ("March 13, 2005 letter"). Therein, she denied making an agreement with her siblings.
As his former divorce client, she also advised plaintiffs' counsel that if he was representing the defendants in claims that "go against my interests," he "should withdraw from this matter." See March 13, 2005 letter. Thus, plaintiffs' counsel was advised to withdraw more than seven months before the date of the complaint. She asked to hear from him "as soon as possible about my brother's and sisters' willingness to join me in helping our mother by forcing [her former husband] to pay his tax obligation." See March 13, 2005 letter.
In his objection, p. 6, with regard to the March 13, 2005 letter, and concerning pursuit of the defendant's former husband, plaintiffs' counsel states that he "took no action except to inform [the defendant] that her ex-husband was not in my opinion in contempt of any orders of the divorce court." Plaintiffs' counsel then states, in his objection, p. 6, that, in the March 13, 2005 letter, the defendant "clearly acknowledges and accepts and agrees that I am representing the Plaintiffs in this action and they are my clients." This statement ignores the defendant's explicit request in her letter to him that, if he was representing the plaintiffs against her interests, he should withdraw. Her March 13, 2005 letter does not constitute an agreement to and an acceptance by the defendant of plaintiffs' counsel representing the plaintiffs against the defendant in this action. The subsequent correspondence between them, described below, reflects this as well.
Nearly five months later, on August 5, 2005, Plaintiffs' counsel sent another letter to the defendant. See Exhibit C to motion ("August 5, 2005 letter"). In this letter, plaintiffs' counsel did not specifically respond to the defendant's assertion that he was obligated to withdraw. Instead, he noted that she had written him a letter "that contained several erroneous statements concerning the relationship and your obligations." See August 5, 2005 letter. He proposed to schedule a meeting with the defendant, with either her sisters or her brother present, and himself in attendance also, and asked to hear from the defendant again concerning the alleged agreement which later became the subject of this action. He also stated that "otherwise, it will be necessary for us to take further action to protect their interests," referring to the plaintiffs. See August 5, 2005 letter.
Once again, the defendant promptly responded, with her letter to plaintiffs' counsel, dated August 8, 2005. See Exhibit D to motion. Therein, she reiterated her objection to his representing the plaintiffs against her. This action ensued a little over two months later.
II Discussion
"The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys." (Internal quotation marks omitted.) Daniels v. Alander, 268 Conn. 320, 329, 844 A.2d 182 (2004). "The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney." Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).
"Disqualification 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 he 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." (Internal quotation marks and citations omitted.) Bergeron v. Mackler, supra, 225 Conn. 397-98.
"[D]isqualification is both harsh and draconian, and . . . the movants have a heavy burden to show clearly that disqualification is warranted . . ." Chapman v. Norfolk Dedham Mutual Fire Insurance Co., Superior Court, judicial district of New London at New London, Docket No. 51 30 98 (December 15, 1992, Teller, J.). "The standards for attorney disqualification arc 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, supra, 225 Conn. 400. "Although 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., 399-400.
In his objection, p. 2, plaintiffs' counsel asserts that Rule 1.9 of the Rules of Professional Conduct is dispositive here. Rule 1.9 provides, "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." Thus, Rule 1.9 contains two separate prohibitions.
"Section (1) forbids an attorney from representing a new client `in the same or a substantially related' matter adverse to the interests of a former client without that former client's consent. Section (2) bars the use of `information relating to the [new] representation to the disadvantage of the former client.'" Beckenstein Enterprises v. Smith, Superior Court, judicial district of Tolland, Complex Litigation Docket at Tolland, Docket No. X07-CV02 0080437S (March 28, 2003, Sferrazza, J.) ( 34 Conn. L. Rptr. 459). Section 1.9(1)'s "substantially related" "test has been honed in its practical application 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.'" (Internal quotation marks omitted.) Bergeron v. Mackler, supra, 225 Conn. 399.
"Thus Section (1) of 1.9 is limited to those situations where the former and current clients are involved in the same or a substantially related matter. Section (2) of 1.9, however, has no such limitation." Beckenstein Enterprises v. Smith, supra. Under Rule 1.9(2), the issue is whether plaintiffs' counsel "derived confidential information from [his] former representation . . . which may disadvantage" the defendant in this case. Id. "In deciding on the appropriate application of Rule 1.9, it is necessary to understand its purpose. An important purpose of the Rule is to maintain public confidence in the legal system. It is obvious that such confidence is damaged when lawyers appear to use prior relationships with clients to that client's disadvantage. Rule 1.9 has been described then as a prophylactic rule to prevent even the potential that a former client's confidences and secrets may be used against . . . the client." (Internal quotation marks omitted.) Johnston v. Casey, Superior Court, judicial district of New London at New London, Docket No. 557021 (April 25, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 74).
Previous general discussion of a former client's financial structure and ownership interests is not a sufficient basis on which to disqualify counsel under Rule 1.9. See Cadle Co. v. Ginsberg, 70 Conn.App. 748, 771-72, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002) (movant could not recall if there had been any specific discussion of financial records and was unable to state what information was transmitted that reasonably could be considered confidential). Where a former relationship was "close" and "substantial," the court is "entitled . . . to presume that [counsel's] representation would disadvantage the [movant]." American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 727, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).
In a decision rendered when the former Code of Professional Responsibility was in effect, our Supreme Court stated, "[e]very client has a right to expect that his lawyer will not disclose his secrets . . . To protect this right, courts will not inquire whether the lawyer has, in fact, used confidential information to the client's detriment because such inquiry would require the revelation of the very information the canon is designed protect . . . Where the opportunity for disclosure of confidential information to an adversary is shown, the breach of confidence would not have to be proved; it is presumed in order to preserve the spirit of the Code." (Citations omitted; footnote omitted.) Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 512, 457 A.2d 296 (1983) (concerning former EC 4-1, requirement of "preservation by the lawyer of confidences and secrets"; and DR 4-101(B), lawyer shall not knowingly "use a confidence or secret to the disadvantage of the client."), overruled in part on other ground, Burger Burger, Inc. v. Murren, 202 Conn. 660, 669-70, 522 A.2d 812 (1987). " Goldenberg remains the law of Connecticut even under the more recent Rules of Professional Conduct because, although there are differences in wording, the thrust of Rule 1.9(2) is essentially the same as DR 4-101(B)." Salyer v. Carey, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 04 4003396 S (March 29, 2005, Adams, J.).
In considering the issues here, the court is mindful of the role of an attorney who represents a client in a divorce matter. "[L]awyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests." Weinstein v. Weinstein, CT Page 2209 275 Conn. 671, 686-87, 882 A.2d 53 (2005).
Here, in view of plaintiffs' counsel's representation of the defendant in connection with her divorce, from September 2002 to November 2003, there is no doubt that, as the defendant asserts, and plaintiffs' counsel does not deny, she communicated to him information about her income, expenses and assets. Also, he does not dispute that she reposed in him her personal thoughts, emotions, and sensibilities as well as her thoughts about her family responsibilities, her plans and her financial resources. He does not contend that this information "has become generally known." See Rule 1.9(2); Northeast Promotions, Inc. v. Connecticut Marine Trades Association, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0539406 (March 8, 1995, Sheldon, J.). Likewise, he does not assert that any of the situations authorizing disclosure which are listed in Rule 1.6 applies here. See Rule. 1.9(2).
Rule 1.6, concerning confidentiality of information, provides,
"(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in subsections (a), (b), (c), and (d).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to: (1) Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another; (2) Rectify the consequence of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.
(d) A lawyer may reveal such information to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client."
Under these circumstances, the court is unpersuaded by plaintiffs' counsel's arguments. For example, he states that this "action has absolutely nothing to do with the Defendant's assets, income, liabilities, or anything related." See objection, p. 1. As stated above, in this action, the plaintiffs are seeking money damages from the defendant based on an alleged breach of an agreement. If they recover a judgment against the defendant, her assets and income may be used to secure the funds necessary to pay the judgment. Knowledge of same would be useful in seeking a prejudgment remedy or in postjudgment recovery efforts.
Similarly unpersuasive is plaintiffs' counsel's argument that "[a]ny situation concerning the Defendant's present situation has changed, I am certain, dramatically over two years and is immaterial and irrelevant to the attempts by her two sisters and brother to enforce the contract." See objection, p. 5. This statement is an unsupported conclusion. After all, plaintiffs' counsel also states that he "has not met, nor discussed with Mrs. Miller anything relating to her divorce or any other matter concerning her status" since November 2003. See objection, p. 7.
In addition to having received, in his role as her divorce attorney, financial information concerning the defendant which could be advantageous to the plaintiffs in this action, plaintiffs' counsel received information from her concerning her personal thoughts, emotions, and sensibilities, as well as her thoughts about her family responsibilities, her plans and her financial resources. In view of the personally sensitive subject involved here, a dispute between siblings about the support of their mother, such information could very well be put to use to her tactical disadvantage. An attorney for the plaintiffs who had not represented the defendant in her divorce action would not be in possession of such confidential information.
Also, it should be noted that the defendant has not belatedly raised the issue of disqualification. She raised it in her March 13, 2005 letter to plaintiffs' counsel. At that time, only about 16 months had elapsed since the divorce judgment was entered. Since the issue was raised well in advance of the commencement of the action, there is no contention that the motion is being pursued as a "technique of harassment." See Commentary to Rule of Professional Conduct 1.7.
The court concludes that the former attorney-client relationship between the defendant and plaintiffs' counsel was "close" and "substantial." American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn.App. 727. The sixteen months between the divorce judgment and the time when plaintiffs' counsel was informed by the defendant that, if he was representing her siblings against her, he should withdraw, was not extensive. In view of the confidential information he obtained from her, his representation of her siblings in this matter would disadvantage her.
As noted above, the court also must consider the plaintiffs' interest in freely selecting counsel of their choice; and the public's interest in the scrupulous administration of justice. See Bergeron v. Mackler, supra, 225 Conn. 397-98. Here, although its precise length was not provided to the court, it is apparent that the plaintiffs have had long relationships with their counsel. The matter at issue, an alleged agreement between the siblings to share equally the expenses required to care for their mother, does not appear to require specialized knowledge by their attorney. See Bergeron v. Mackler, supra, 225 Conn. 397-98. Also, this matter is only in its initial pleading stages. Most recently, the plaintiffs filed an objection to the defendant's request to revise, dated January 5, 2006. Thus, at this point, it appears that the plaintiffs have not yet incurred a substantial amount of attorneys fees.
As discussed above, lawyers who represent clients in matrimonial actions have a special responsibility for a searching dialogue with their clients, about all of the facts that materially affect the client's rights and interests. See Weinstein v. Weinstein, supra, 275 Conn. 686-87. Allowing such attorneys to be in a position to use such information, which was obtained in the course of discharging that responsibility, to the later disadvantage of their clients, would have a chilling effect on such clients and their lawyers, and would he contrary to the scrupulous administration of justice. It would tend to undermine public confidence in the legal system.
In the exercise of its discretion, the court concludes that the plaintiffs' interest in freely selecting counsel of their choice is outweighed by the defendant's interest in protecting confidential information and the public's interest in the scrupulous administration of justice. The defendant has met her burden to show that disqualification is warranted.
In view of this determination, the court need not consider the defendant's arguments concerning the applicability of Rules of Professional Conduct 1.7 and 4.3.
CONCLUSION
For the foregoing reasons, the defendant's motion to disqualify plaintiffs' attorney is granted. It is so ordered.