Opinion
No. CV 03 0082717 S
November 19, 2004
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY APPELLANT'S COUNSEL (#106)
This is an appeal from probate. Attorney Seymour A. Rothenberg represents Kathleen Lavigne and Victoria Ullah, the Appellants, who claim to be aggrieved by a Probate Court's ruling in which it denied an application for probate of a will, finding that the decedent, Cleopatra Matlis, was a domiciliary of New Hampshire. The Appellee, Michael C. Loulakis, has moved that counsel for the Appellants, as well as his law firm, Rothenberg Rothenberg, be disqualified from representing the Appellants in this matter because: (1) counsel has a conflict of interest in representing the Appellants since their interests are adverse to the interests of Attorney Rothenberg's former client Cleopatra Matlis, and (2) counsel, as well as several members of his law firm, are material witnesses and will be called upon to testify in this appeal. Attorney Rothenberg has filed no objection to the motion but appeared at short calendar and argued in opposition to it.
In his motion to disqualify, the Appellee alleges that Rothenberg has a long-standing attorney-client relation with Lavigne and he has represented her in two other previous matters. In March 2002, Rothenberg represented the decedent in connection with the preparation and execution of the will sought to be admitted to probate. Employees of Rothenberg's firm served as witnesses to the decedent's signing of the will. In this will, the decedent left virtually all of her estate to the Appellants. In contrast, in November 1992, the decedent had executed another will in which she left almost nothing to the Appellants. On October 14, 2003, the Appellee was appointed co-executor of the decedent's estate by a New Hampshire probate court.
"The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney . . . 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, [the court] 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 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 [movant'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.) Bergeron v. Mackler, 225 Conn. 391, 397-98 (1993).
"[R]ule 1.7 of the Rules of Professional Conduct sets forth the general rule on conflicts of interest in an attorney-client relationship." Burton v. Mottolese, 267 Conn. 1, 44, cert. denied, 124 S.Ct. 2422, 158 L.Ed. 983 (2003). Subsection (a) of the Rule provides: "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents after consultation.
Rule 1.9 of the Rules of Professional Conduct "governs disqualification of counsel for a conflict of interest relating to a former client." Bergeron v. Mackler, supra, 225 Conn. 398. The rule states that: "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." Rules of Professional Conduct 1.9.
Pursuant to Rule 1.9, "an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation . . . This 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 . . . Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed." (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, supra, 225 Conn. 398-99.
Here there appears to be no dispute that Attorney Rothenberg represented both the Appellants and the decedent at the time the will was executed. Attorney Rothenberg is now representing the Appellants in an action in which the Appellee claims he is taking a position in opposition to the decedent. However, although the Appellee has been appointed as co-executor in New Hampshire, he was neither named nor has he appeared in this matter in that capacity. His appearance is on behalf of "contestant." An executor, however, does not stand in the shoes of the decedent but represents the rights of the heirs, distributees, and creditors of the estate. Cadle Company v. D'Addario, 268 Conn. 441, 445 (2004).
In any event, the Appellee appears in this matter pro se and may not appear as such in his capacity as executor of the decedent's estate. "`Because pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause.' (Emphasis in original.) Iannaccone v. Law, 142 F.3d 553, 558 (2d Cur. 1998). `Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state `in his own cause.' General Statutes § 51-88(d)(2). The authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity.' (Emphasis added.) Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994)." Lowe v. Shelton, 83 Conn.App. 750, 756 (2004).
Since the Appellee does not represent the interests of the decedent or of the estate, he is not the proper person to either object or consent to Rothenberg's dual representation.
As to the second grounds of the motion to disqualify, the motion indicates that at the hearing before the Probate Court, Attorney Rothenberg introduced the testimony of employees of his firm. There is no indication that Attorney Rothenberg was a witness before the Probate Court or that his testimony will be required in this proceeding. Rule 3.7 of the Rules of Professional Conduct governs whether an attorney should be disqualified when he or she is a necessary witness. The rule states: "(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." Rules of Professional Conduct 3.7.
According to the Supreme Court, "Rule 3.7 of the Rules of Professional Conduct requires an attorney to withdraw if he or she reasonably foresees that he will be called as a witness to testify on a material matter." (Emphasis in original; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 695, cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed. 909 (1998).
The court must make a factual determination in deciding whether the attorney's testimony is truly necessary. In fact, "[a] strong showing that the testimony of the opposing attorney is truly necessary is required before the court may grant a motion to disqualify opposing counsel." Somers Associates v. Kendall, Superior Court, judicial district of Windham at Putnam, Docket No. 064478 (February 23, 2001, Foley J.).
"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, Superior Court, judicial district of New Haven, Docket No. CV 03 0475408 S (February 9, 2004, Zoarski, J). "[T]he mere statement that the attorney `will be a necessary party witness' [would] not support [the] motion." (Citation omitted; internal quotation marks omitted.) Bopko v. Bopko, Superior Court, judicial district of Waterbury, Docket No. FA98-0149148S (November 8, 2000, West, J.) ( 28 Conn. L. Rptr. 556).
If the court determines that an attorney's testimony is necessary, then that attorney may not "serve as trial counsel because of the difficulties presented in simultaneously testifying and fulfilling such advocacy functions as objecting to questions of opposing counsel and posing questions on cross-examination. Rule 3.7 cures this logistical problem by permitting non-witness lawyers from the same firm to act as trial counsel unless the whole firm must be disqualified pursuant to Rule 1.7." Talcott Mountain Science Center for Student Involvement v. Abington, Superior Court, judicial district of Waterbury, Docket No. X01 CV 95 0152121 (June 28, 2002, Hodgson, J.) ( 32 Conn. L. Rptr. 420). Courts have drawn a distinction between representation and advocacy for purposes of Rule 3.7. Specifically, finding that "Rule 3.7 does not, on its face, preclude all representation; rather, it precludes only acting as an advocate at trial." (Internal quotation marks omitted.) Id. Thus, "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 . . ." Horgan v. Capozzi, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 03 0083020S (Mar. 24, 2004, Robinson, J.) ( 36 Conn. L. Rptr. 734).
"In determining whether an attorney must be disqualified, a court may [but is not required to,] hold an evidentiary hearing." Id. "Before 1986, the Code of Professional Responsibility proscribed representation not only by the attorney-witness but by any lawyer in the attorney-witness's firm, with certain exceptions which are irrelevant to this motion. However, in 1986 our rules of practice replaced the Code of Professional Responsibility with the Rules of Professional Conduct, including 3.7(b). That subsection broke from the earlier prohibition and now specifically provides that `[a] lawyer may act as advocate in a trial in which another lawyer in the lawyers' firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.'" (Citations omitted.) Beckenstein Enterprises v. Smith, Superior Court, judicial district of Tolland, Docket No. X07-CVO2 0080437S (March 28, 2003, Sferrazza, J.). "Rule 3.7(b) is a significant and important change. Under the Code, if one member of a firm had to testify, all members of the firm were disqualified . . . Rule 3.7(b) eliminates the blanket imputed disqualification which previously existed under the Code. The holding in Erwin M. Jennings Co. v. DiGenova, 107 Conn. 491, 141 A. 866 (1928), that the giving of material testimony by the trial attorney's partner violated the Code, should no longer result under this Rule. It is no longer mandatory for a lawyer, upon discovering she must testify on behalf of a client, to seek the services of another attorney and withdraw from the case. If either the lawyer-advocate or the lawyer-witness (both of the same law firm) has a conflict of interest pursuant to Rule 1.7 (General Conflict) or Rule 1.9 (Former Client) the lawyer-advocate may be precluded from the representation under Rule 1.10. However, absent those specific conflict situations, even if a lawyer called to testify, another lawyer from the firm may now try the case." (Citation omitted; internal quotation marks omitted.) Johnston v. Casey, Superior Court, judicial district of New London, Docket No. 557021 (Apr. 25, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 74).
Here there has not been a sufficient showing at this point to establish that Attorney Rothenberg will be a witness at trial or that, even if he will, all members of his firm would be disqualified.
"Disqualification is both harsh and draconian, and . . . the movants have a heavy burden to show clearly that disqualification is warranted." (Internal quotation marks omitted.) Murray v. Murray Superior Court, judicial district of Hartford at Hartford, Docket No. CV 020820216S (June 16, 2003, Shapiro, J.) ( 35 Conn. L. Rptr. 103). "The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." Close, Jensen Miller v. Lomangino, Superior Court, judicial district of Tolland at Rockville, Docket No. 48419 (March 10, 1995, Klaczak J.).
The Appellee has not met this burden here therefore the Motion to Disqualify Appellant's Counsel is denied without prejudice to renewal if it appears Attorney Rothenberg will be a necessary witness at trial.
Jane S. Scholl, J.