Opinion
DBDCV196030475S
07-09-2019
TAILS OF COURAGE, INC. et al. v. Jaye MARKWELL
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
The issue presented is whether the plaintiffs’ counsel, Attorney Kristan Exner, should be disqualified from acting as counsel pursuant to Rule 3.7 of the Rules of Professional Conduct because she is a necessary witness. Attorney Exner should not be disqualified pursuant to Rule 3.7 of the Rules of Professional Conduct because the defendant has not met her burden of proving that Attorney Exner is likely to be a necessary witness.
FACTS
This case arises out of an action for defamation brought by the plaintiffs, Tails of Courage, Inc. (the organization), Krystel Lopez (Lopez), and Kristan Exner (Exner) against the defendant, Jaye Markwell (Markwell). Pending before the court is the defendant’s motion to disqualify Attorney Exner from representing herself, the organization, and Lopez in this matter. The present motion was filed on April 17, 2019, along with a supporting memorandum. Within her motion, the defendant argues that Attorney Exner should be disqualified from acting as counsel pursuant to Rule 3.7 of the Rules of Professional Conduct because she is a necessary witness. Specifically, the defendant argues that Attorney Exner is a central and material witness as she is directly involved in the events at issue in the plaintiffs’ complaint. Furthermore, pursuant to Rule 3.7, the defendant argues that it would be impracticable for Attorney Exner to serve as both advocate and witness in this matter.
The plaintiffs filed an objection to the motion to disqualify on April 22, 2019, arguing that Attorney Exner is not a necessary witness and that the defendant has not met her burden of showing that disqualification is required. In support, the plaintiffs argue that all parties to the action have agreed to Attorney Exner’s representation, that the organization is operated by a knowledgeable Board of Directors, and that it is not established that the testimony of Attorney Exner is necessary.
The defendant filed a reply on April 22, 2019, arguing that she has proven facts which indicate that disqualification of Attorney Exner is necessary. Specifically, the defendant argues that Attorney Exner has asserted herself as a party plaintiff in the instant action and that she is listed as the Chief Executive Officer of the organization with the Connecticut Secretary of State. A hearing was held for this matter on June 24, 2019. At oral argument, Attorney Exner indicated that she would be willing to withdraw from the matter as a party plaintiff On July 2, 2019, Attorney Exner filed a withdrawal in part as a party plaintiff (#112) from the present matter.
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 ... 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 ... The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney." (Citations omitted.) 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 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., 397-98.
"In view of the strong public policy favoring a party’s right to select its own counsel, the law places the burden of showing that disqualification is required upon the moving party ... 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." (Internal quotation marks omitted.) Fishbein v. Menchetti, Superior Court, judicial district of New Haven, Docket No. CV-146045845-S (April 24, 2018, Wahla, J.). "The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." (Internal quotation marks omitted.) Kemper Independence Ins. Co. v. Stasiewski, Superior Court, Judicial district of Hartford, Docket No. CV-10-6025727-S (April 30, 2013, Scholl, J.).
RULE 3.7
In the present matter, the defendant relies on the Rules of Professional Conduct 3.7 in support of her argument that Attorney Exner should be disqualified. Rule 3.7 of the Rules of Professional Conduct provides: "(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (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." "Rule 3.7 of the Rules of Professional Conduct codifies what is commonly called the advocate-witness rule ..." (Footnote omitted; internal quotation marks omitted.) State v. Thompson, 20 Conn.App. 290, 294, 567 A.2d 837 (1989). "The Rules of Professional Conduct establish the guidelines for our determination of what constitutes a conflict of interest ... We have interpreted [R]ule 3.7 to require an attorney to withdraw if he or she reasonably foresees that [they] will be called as a witness to testify on a material matter ..." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 685 n.14, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).
"[M]any cases have considered the application of this rule to determine whether a client may seek testimony from his own lawyer at trial. The rule permits an attorney actively participating in the case to be a witness as to merely formal matters but discourages testimony as to other matters on behalf of his client except when essential to the ends of justice." State v. Thompson, supra, 20 Conn.App. 294. "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." Horgan v. Capozzi, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-03-0083020-S (March 24, 2004, Robinson, J.) (36 Conn.L.Rptr. 734, 735). "[Rule 3.7] does not render the attorney incompetent as a witness or disqualify him from testifying, although it may be a serious impropriety for him both to testify and to continue active participation in the case." State v. Thompson, supra, 20 Conn.App. 295.
NECESSARY WITNESS
The court’s first step is to determine whether the plaintiffs’ counsel is a necessary witness. See Dinardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp., 153 Conn.App. 10, 49, 100 A.3d 413, cert. denied, 314 Conn. 947, 103 A.3d 976 (2014). "A necessary witness is not just someone with relevant information, however, but someone who has material information that no one else can provide. 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." (Emphasis omitted; internal quotation marks omitted.) Id.
In the present matter, this court finds that the defendant has failed to meet her burden of proving facts which indicate that disqualification of Attorney Exner is necessary. Although the court takes judicial notice that Attorney Exner is listed on the Connecticut Secretary of State’s business registration as the registered agent for the organization, the court also notes that Attorney Exner is no longer a party plaintiff to the present action. Having withdrawn herself from the action, the remaining plaintiffs are only the organization and Lopez. Without additional evidence establishing specifically why Attorney Exner’s testimonial evidence would be relevant, material, and unobtainable elsewhere, the court cannot conclude that Attorney Exner would be a necessary witness to this matter pursuant to the language of Rule 3.7. Therefore, this court finds that there are inadequate grounds for disqualifying Attorney Exner from representing the plaintiffs at trial under Rule 3.7.
Accordingly, because the defendant has not met her burden of proving that Attorney Exner is likely to be a necessary witness, which Rule 3.7(a) requires, the motion to disqualify is denied.