Opinion
No. H-1304, Docket No. HDSP-134296
May 9, 2006
MEMORANDUM OF DECISION DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL
This is a summary process action based on nonpayment of rent. On August 29, 2005, the Summons and Complaint were filed with a return date of September 2, 2005. On September 7, 2005, the defendant filed an Answer, Special Defenses and Counterclaims. The defendant alleges the existence of an oral contract between the parties as the basis of the defendant's Fifth Special Defense (Unclean Hands) and First, Second, Third and Fifth Counterclaims (Specific Performance, Promissory Estoppel, Breach of the Covenant of Good Faith and Fair Dealing, and Fraud).
On September 28, 2005, the defendant filed the Motion to Disqualify Plaintiff's Counsel, Attorney Davis. The defendant argues that Attorney Davis' testimony will be a necessary at trial because he handled the closing of the property and participated in two telephone conversations during which the parties discussed the contract at issue. The defendant intends to call Attorney Davis as a witness. The plaintiff's Objection to Motion to Disqualify was filed on or around September 29, 2005. The plaintiff contends that Attorney Davis did not listen or participate in a telephone conversation between the parties in April 2004. Attorney Davis denies ever meeting or speaking with the defendant.
On October 7, 2005, the court ordered the parties to submit affidavits in support of their respective positions. After reviewing the affidavits, the court ordered the matter to be scheduled for an evidentiary hearing. The matter was heard on December 16, 2005 and January 18, 2006. The court gave the parties the opportunity to submit post-hearing briefs with the last brief due on April 15, 2006.
Facts
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. . . . It is the quintessential function of the fact finder to reject or accept certain evidence. . . ." (Citations omitted; internal quotation marks omitted.)" In re Antonio M., 56 Conn. App. 534, 540, 744 A.2d 915 (2000). "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. "That determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 333, 763 A.2d 199 (2001). The trial court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Citation omitted; internal quotation marks omitted.) In re Christine F., 6 Conn. App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).
Based on the evidence presented, it is reasonable and logical to infer that Attorney Davis participated in one or more telephone conversations during which the parties discussed the contract at issue.
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. State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982). Since October, 1986, the conduct of attorneys has been regulated also by the Rules of Professional Conduct, which were approved by the judges of the Superior Court and which superseded the Code of Professional Responsibility. Williams v. Warden, 217 Conn. 419, 432, n. 5, 586 A.2d 582 (1991). The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney. State v. Jones, supra. 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.' Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975). In disqualification matters, however, we must be `solicitous of a client's right freely to choose his counsel; Government of India v. Cook Industries, Inc., 569 F.2d 737, 569 F.2d 737, 739 (2d Cir. 1978); 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.' Id. 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. Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 457 A.2d 296 (1983), overruled in part, Burger Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987)." Bergeron v. Mackler, 225 Conn. 391, 397-398, 623 A.2d 489 (1993).
Rule 3.7, Lawyer As Witness, of the Rules of Professional Conduct provides as follows:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
COMMENTARY: Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.
Subsection (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Subsection (a)(2) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony.
Apart from these two exceptions, subsection (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's testimony, and the probability that the lawyer's testimony will conflict with that of other witnesses. Even if there is risk of such prejudice, in determining whether the lawyer should be disqualified, due regard must be given to the effect of disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. The principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem.
Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7 or 1.9. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. The problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party. Determining whether or not such a conflict exists is primarily the responsibility of the lawyer involved. See Comment to Rule 1.7. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10 disqualifies the firm also.
"Whenever a counsel for a client reasonably foresees that he will be called as a witness to testify on a material matter, the proper action is for that attorney to withdraw from the case." Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 376, 477 A.2d 648 (1984). "Where, however, an attorney does not withdraw, a court exercising its supervisory power can . . . disqualify the attorney." Id.
"Whether a witness `ought' to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue. Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence. . . . A party's mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony . . . There is a dual test for `necessity.' First the proposed testimony must be relevant and material. Second, it must be unobtainable elsewhere." Tropical Suntan Centers, Inc. v. Salvati, 1 CONN. L. RPTR. 497, 498 (April 12, 1990) (Meadow, J.), quoting S S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-46 (1987), see also Keoseian v. Von Kaulbach, 707 F. Sup. 50, 154 (S.D.N Y 1989); and quoting Security General Life Ins. v. Superior Court, 149 Am. 332 (1986).
"In Fredericks v. Fortin, No. CV89-282910, 13 CONN. L. RPTR. 234, 1994 Ct. Sup. 12877 (Dec. 30, 1994, Hadden, J.), a suit arising from the sale of a corporation, defendant's counsel sought to disqualify the plaintiff's counsel who had represented the plaintiff at the closing of the sale of the corporation on the basis that he was a necessary witness. Statements made at the closing were at issue in the suit. After reviewing Rule 3.7 the court in Fredericks granted the motion to disqualify and stated:
The testimony of Mr. Sherwood [plaintiff's attorney] does relate to a contested issue and is not related to the nature and value of legal services. The plaintiff claims that there were four other people present during the closing and therefore Mr. Sherwood's testimony is not necessary. The court is of the opinion that in view of the allegations by the defendant with respect to what took place at the closing and Mr. Sherwood's role in it, which is denied by the plaintiff, that merely because other participants in the closing may be able to recall what took place, does not make Mr. Sherwood's testimony unnecessary. He was the only attorney present, and since the evidence will concern what he did and said, he is a necessary witness.
The court in Fredericks also noted that the defendant had initially moved for disqualification very shortly after the case was commenced and that the suit did not involve complex legal issues." Command Electric, Inc. v. Stathis Manousos et al., Superior Court, judicial district of Hartford, Docket No. CV 960560381 (Aurigemma, J.; April 14, 1997) ( 1997 Ct. Sup. 3633, 3635-3636).
In Command Electric, Inc., a suit arising from an allegedly fraudulent conveyance of an interest in two properties, the plaintiff moved to disqualify defendant's counsel on the grounds that the attorney was a necessary witness at trial because the attorney had a better recollection of the of the transactions than the defendant did. In granting the motion to disqualify, the court in Command Electric, Inc., stated that: "[u]nlike actions for personal injury where the plaintiff generally has personal knowledge of the pertinent facts, a plaintiff in an action for fraudulent conveyance must often prove his case solely through the testimony of the defendants and the documents within the defendants' possession or control. In this case the testimony of Attorney Case will be necessary because Mr. Manousos has little or no recollection of many of the material facts. The Motion to Disqualify was filed within three months after the return date. The case is less than one year old and another attorney would have ample time to become familiar with the case prior to trial. The hardship to the defendant, Mrs. Manousos, is, therefore, minimal." Command Electric Inc., v. Manousos, supra, 1997 Ct. Sup. 3636.
In the instant matter, the defendant alleges the existence of a contract that forms the basis of several special defenses and counterclaims. The defendant intends to offer testimony regarding the parties' discussions including their telephone conversations. The defendant intends to call Attorney Davis to testify regarding the parties' discussions.
Based on the evidence presented, the court finds that Attorney Davis has relevant knowledge of the conversations at issue. His testimony relates to a contested issue and does not relate to the nature and value of legal services. The testimony is relevant and material to the defendant's case; it is not obtainable elsewhere. Furthermore, it is probable that Attorney Davis' testimony will conflict with that of other witnesses.
Having considered the significance of the matters, weight of the testimony and availability of other evidence, the court finds that Attorney Davis is a necessary witness.
Before deciding this motion, the court must consider plaintiff's interest in freely selecting counsel of her choice. First of all, the plaintiff could have reasonably foreseen that Attorney Davis would be called as a witness. Moreover, shortly after the action was commenced, the Motion to Disqualify was filed. The plaintiff objected to the Motion to Disqualify. Any delay has been necessitated by the need to fully litigate the Motion to Disqualify. Another attorney would have ample time to become familiar with the case prior to trial. Under these circumstances, the court finds that disqualification would not work a substantial hardship on the plaintiff.
Conclusion and Order
After balancing the competing interests of the parties, the court finds that the defendant will likely suffer prejudice if Attorney Davis is not disqualified. Based on the foregoing reasons, the Motion to Disqualify Plaintiff's Counsel is granted.