Opinion
No. CV03-0083020S
March 24, 2004
MEMORANDUM OF DECISION
On July 2, 2002 at about 12:13 p.m., defendant Luigina Capozzi lost control of her car and collided into the front porch of a residential home owned by the plaintiffs, Irene Horgan and Maureen Horgan. How Ms. Capozzi's car ended up in the front porch of the Horgan's home, and what damage that collision caused, are the subjects of the litigation in this and a consolidated case. Neither plaintiff was home at the time of the collision, though plaintiff Irene Horgan arrived at the scene shortly after it occurred.
On September 3, 2003, the court granted defendant Pereira's Motion to Consolidate the instant case, which was pending in the Judicial District of Waterbury, with Luigina Capozzi v. Marc Pereira, CV 03 0175577, which was pending in the Judicial District of Milford.
The plaintiffs claim that defendant Capozzi lost control of her car as a result of a collision with defendant Marc Pereira. The plaintiffs claim that Capozzi's car damaged their front lawn, plants, shrubs, bushes, trees, sign, front porch and siding and that the collision caused environmental damage including the release of engine fluids into the soil and asbestos fibers into soil and air. Finally, both plaintiffs claim that, as a result of the collision, they lost time from work, expended money for repairs, suffered a reduction in the enjoyment of their home and may incur future medical bills as a result of the environmental damage.
Plaintiff Maureen Horgan is an attorney. She brought this action, on behalf of herself and her sister, Irene Horgan, to recover damages from defendants Capozzi and/or Pereira. The return date in this case is July 22, 2003. The case, which was not transferred from the Waterbury docket to the Milford docket until the Fall of 2003, has not been scheduled for a pretrial yet, and has not been given a trial date.
The defendant Pereira moves, now, to disqualify Attorney Horgan from representing her sister arguing that rule 3.7 of the Rules of Professional Conduct bars a lawyer from acting as counsel in a case in which she is also a party. Specifically, defendant Pereira states that pursuant to Rule 3.7 of the Rules of Professional Conduct "[Attorney Horgan] cannot both be a plaintiff in the case and also represent another plaintiff, Irene Horgan." Motion to Disqualify, p. 2 The plaintiffs object. "`The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court.' State v. Jones, 180 Conn. 443, 448 (1980), appeal after remand, 193 Conn. 70 (1984). Attorney conduct is regulated by the Rules bf Professional Conduct Rules 1.1-8.5. The Superior Court has a duty to enforce those rules . . . The Superior Court has broad discretionary power in ruling upon a motion to disqualify . . ." Roosevelt Building Product v. Morin Corp., Superior Court, judicial district of Litchfield, Docket No. CV 00 0083595 (September 4, 2001, Cremins, J.).
Rule 3.7 of the Rules of Professional Conduct provide in pertinent part that:
(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.
Defendant Pereira's motion is based, exclusively, on the mandates of Rule 3.7. He references no other Rules of Professional Conduct as possible grounds for disqualification. Arguing that the plaintiff Maureen Horgan, is a necessary witness, defendant Pereira asks that this court disqualify her as attorney for Irene Horgan in this case. Conspicuously absent from defendant Pereira's motion is citation to any legal authority for his bold assertion that Rule 3.7 provides a basis for the general disqualification of counsel merely because she is also a party. And, though the defendant does recite the text of the rule, he does not provide a basis for his claim that a rule proscribing an attorney from acting as trial counsel when that attorney is likely to be a necessary witness may similarly prevent an attorney from client, representation during pretrial litigation.
In opposition to the motion, the plaintiff argues that she is not likely to be a necessary witness in the case because: she was not present at the time the damage occurred; she is not listed as a witness on the police report; she does not have expert knowledge of the effects of the environmental damages; and all damages requiring a fact witness may reasonably be established by Irene Horgan, her sister and the co-owner of the property. Further, Attorney Horgan represents that she is her sister's counsel of choice, and that forcing her sister to hire another attorney would not only contravene Irene Horgan's express wishes, but would also force her to incur significant expense.
The court denies the motion for the following reasons.
First, Rule 3.7 relates to trial representation. See, Penna v. Margolis, Superior Court, judicial district of New Haven, Docket No. CV 03 0475408 (February 9, 2004, Zoarski, J.T.R.); and Talcott Mountain Science Center for Student Involvement, Inc. v. Abington Ltd. Partnership, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 95 0152121 (June 28, 2001, Hodgson, J.). "The Rules of Professional Conduct carefully and purposively distinguish between circumstances in which a lawyer cannot represent a party at all and circumstances in which a lawyer is limited only in specific ways . . . Rule 3.7 does not, on its face, preclude all representation; rather, it precludes only acting as an advocate at trial." (Emphasis added.) Id. Rule 3.7 does not authorize a court to disqualify an attorney from representing a client. It only allows the court to order that a lawyer be precluded from providing representation at trial if it appears likely that the lawyer will be a necessary witness and if three other exceptions do not apply. Therefore, defendant Pereira requests relief not available pursuant to rule 3.7.
Second, though he did not articulate it, presuming that defendant Pereira is also requesting that this court disqualify Attorney Horgan from acting as trial counsel, this motion is both premature and unpersuasive. The facts in this case are far different from and easily distinguishable from the situations to which rule 3.7 usually applies. Motions to disqualify pursuant to rule 3.7 are most often filed in cases in which non-party counsel for one side is determined to have unique and "necessary" information to the claim of counsel's client. In such a situation, the rules provide that the dual role of fact witness and trial advocate may work a disadvantage to the opposing side and/or to the client such that the counsel, but notably not necessarily counsel's firm, should be disqualified from trial representation.
In his motion, defendant Pereira misstates the rule and the law, arguing that "Rule 3.7 provides that [Attorney Horgan] cannot both be a plaintiff in the case and also represent another plaintiff, Irene Horgan. Accordingly, she should be disqualified from representing plaintiff Irene Horgan and defendant's motion should be granted." Motion to Disqualify, p. 2. He does not however, make the argument that Attorney Horgan, though permitted to represent Irene Horgan in pre-trial litigation, should be disqualified from acting as trial counsel.
It is easy, in cases like these to not see the forest, for the trees. While it is true that there is the potential in this case for Attorney Horgan to be both a fact witness and a trial advocate, that possibility exists because Attorney Horgan is both a pro se party and the counsel of record. There is evidence for which Attorney Horgan might have relevant and perhaps even unique insights. But, granting the defendant's motion to disqualify her would not preclude her from disclosing those facts as both advocate and party. Notwithstanding his blanket and conclusory statement defendant Pereira has cited and/or relied upon no legal authority to support the conclusion that Attorney Horgan is or would be prevented, under Rule 3.7, from pursuing a pro se claim to recover damages for herself Thus, even if she were ultimately disqualified from providing trial counsel to her sister, an outcome that this court deems unlikely, Attorney Horgan would still be able to represent herself, pro se. Rule 3.7 does not prevent an attorney from proceeding upon a claim at trial, pro se. Though most in the legal profession are familiar with the satirical advice about an attorney who represents himself or herself, such advice applies to the advisability of such representation, not to the permissibility of it. Clearly, Attorney Horgan would be permitted to represent herself, and testify herself about her own damages. Significantly, this testimony is not adverse to her sister's position, even as it is, perhaps duplicative of it.
Attorney Horgan has represented to the court that she intends to establish the factual evidence necessary to support the plaintiffs' claims through her sister. Attorney Horgan also indicated that she would prove the claims for environmental damages and resultant personal injuries, through expert testimony. Aside from introducing documentary evidence of her lost wage claim, she argues that she will not participate in the trial as a fact witness. As the plaintiff is an officer of the court, this court accepts these representations. The court also considers, based on arguments of defendant Pereira, that despite her intent, Attorney Horgan might still be called to be a fact witness. So, the question for this court to answer is, in light of Attorney Horgan's role as advocate of her sister's claim, is she likely to be a necessary witness under the provisions of rule 3.7.
"The Connecticut Supreme Court has interpreted Rule 3.7 to require an attorney to withdraw `if [she] . . . reasonably foresees that [she] will be called as a witness to testify on a material matter.'" (Emphasis in original.) Talcott Mountain Science Center for Student Involvement, Inc. v. Abington Ltd. Partnership, supra, quoting State v. Crespo, 246 Conn. 665, 668 n. 14, cert. denied, 525 U.S. 1125 (1998). Further, whether the witness has pertinent information, and therefore ought to testify is not the applicable test. "[W]hether 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." (Internal quotation marks omitted.) Penna v. Margolis, supra. "[T]he moving party bears the burden of proving facts which indicate disqualification is necessary. The courts should act very carefully before disqualifying an attorney . . ." Roosevelt Building Product Co. v. Morin Corp., supra.
Defendant Pereira bore the burden of establishing that Attorney Horgan would be a necessary witness. In sum, he bore the burden of establishing that there is a likelihood that Attorney Horgan has relevant and material information germane to the case which is unavailable from another source. Absent a showing that there is no equivalent witness to the facts needed to prosecute or defend a case, defendant Pereira can not establish, in this case, that Attorney Horgan is a "necessary" witness pursuant to the language of Rule 3.7. See, Williams v. Barber, Superior Court, judicial district of New Haven, Docket No. 0480338, (December 3, 2003, Pittman, J.); Talcott Mountain Science Center v. Abington, supra; Roosevelt Building Product v. Morin, supra.
Under the applicable test, based on the proof of defendant Pereira, this court finds that Attorney Horgan is not a necessary witness. The factual information relating to her claim for property damage may easily be provided by her sister. Therefore, her testimony is not likely to be necessary. Her lost wage claim, though one which must be established by her, may be done so with documentary evidence. Even if her testimony would be required the scope would be limited and discrete. Evidence of Attorney Horgan's lost wages, also, is not in conflict with the position of her sister in the case. Alignment of the interests between a trial advocate and her client is another factor the court considered in weighing whether disqualification is appropriate. Therefore, even if her brief testimony is required to establish or attack her lost wage claim, such testimony is not adverse to her sister and is limited enough to allow her to continue trial advocacy without unduly prejudicing defendant Pereira or undermining her sister's claims.
Though the conflict of interest consideration applies most often in situations involving the representation of a law firm, from which one or more attorneys are deemed necessary witness, it is a relevant consideration in the instant case.
Irene Horgan has, through counsel, expressed her desire that her sister, Attorney Horgan act as her lawyer and her trial counsel. "The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." Roosevelt Building Product v. Morin Corp, supra. The defendant has failed to meet his burden of presenting evidence to establish that Attorney Horgan would likely be a necessary party under the language of the rule. "[M]ere allegations of necessity do not suffice to support this motion." Id. This court finds that Attorney Horgan can put on the entire case, at trial, with the possible exception of establishing her lost wage claim, without taking the stand, or being legitimately called to the stand Therefore, this court finds that there are inadequate grounds for disqualifying Attorney Horgan from representing Irene Horgan at trial under rule 3.7.
Accordingly, because defendant Pereira, has not met his burden of proving that Maureen Horgan is likely to be a necessary witness, which rule 3.7(a) requires, the motion to disqualify is denied.
Robinson, J. (A)