Opinion
KNLCV186033842S
01-17-2020
Tonya Beckford v. Joseph Casavecchia et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Knox, Kimberly Ann, J.
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY
Knox, J.
The plaintiff, Tonya Beckford, has moved to disqualify the law firm of Ryan Ryan Deluca LLP (RRD), which is the appearing counsel representing the defendant, USAA Casualty Insurance Company (USAA). The plaintiff has a direct claim against USAA for UIM coverage. USAA was represented by other counsel from March 23, 2018 until November 8, 2019. On November 8, 2019, RRD filed an appearance in lieu of prior counsel, on behalf of USAA.
In the motion to disqualify, the plaintiff claims she consulted with RRD regarding the motor vehicle accident at issue in this matter prior to retaining her current legal counsel (#129.00). USAA filed an objection to the motion for disqualification on the grounds that the consultation was with a former attorney of the law firm, the plaintiff did not become a client of the law firm, and the law firm has taken all necessary measures to secure the consultation file from access. (#132.00).
The motion to disqualify was heard by the court on December 19, 2019. The plaintiff testified in support of her motion. The plaintiff testified that shortly after she was involved in a motor vehicle accident on June 23, 2016, she met one time with Attorney Joaquin Madry, a former lawyer with RRD. The plaintiff testified that the one-time consultation was within a few weeks, but likely no more than a month after the accident, and lasted approximately one hour. During the consultation, she discussed the accident and her medical treatment following the accident to the date of the meeting. At the time, she did not know if the alleged tortfeasor had insurance coverage and she disclosed that her personal motor vehicle coverage was with USAA. She did not enter into any representation agreement, did not discuss attorney fees or costs, and did not have any further communications with any other attorney in the firm. Shortly thereafter, she received a letter notifying her that the firm could not represent her, as it had an attorney-client relationship with USAA.
The defendant offered an affidavit that shows Attorney Madry opened a file in July of 2016 in the law firm’s practice management system; that Attorney Madry’s physical file went to storage in February of 2018; and, that he left the firm in August of 2018. Upon opening the file in this pending action, RRD locked down the electronic and paper file created by Attorney Madry, which is unavailable for any purpose to any attorney at RRD.
The electronic file has been quarantined from access by any RRD employee, excluding the Executive Director, who submitted the affidavit, and the billing manager of the law firm.
The parties stipulated that the plaintiff was a "prospective client" under rule 1.18 of the Rules of Professional Conduct.
DISCUSSION
"The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court ... In its execution of this duty, the Superior Court has broad discretionary power to determine whether an attorney should be disqualified for an alleged breach of confidentiality or conflict of interest." Smigelski v. Kosiorek, 138 Conn.App. 728, 740, 54 A.3d 584 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).
"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 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 [plaintiff’s] interest in freely selecting counsel of [her] choice; and (3) the public’s interest in the scrupulous administration of justice." (Citations omitted; internal quotation marks omitted.) In re Nyasia H., 146 Conn.App. 375, 380-81, 76 A.2d 757 (2013); see also American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001).
Burden of Proof
"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. The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." Bank of New York Mellon v. Fisher, Superior Court, judicial district of Litchfield, Docket No. CV-15-6012944-S (August 30, 2019, Bentivegna, J.).
Rule 1.18
There is no claim that the plaintiff became a client of RRD. Therefore, the plaintiff’s motion is based exclusively on rule 1.18 pertaining to prospective clients. Rule 1.18(a) provides: "A person who consults with a lawyer concerning the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Id., (emphasis added). Because a prospective client does not in fact enter into an attorney-client relationship, he or she receives "some but not all of the protections afforded to clients." Rules of Professional Conduct 1.18, commentary.
The protections afforded to the prospective client are further defined in the rule 1.18, which "prohibits a lawyer who has received information from a prospective client that could be significantly harmful to that person shall not represent a client with interests materially adverse to those of the prospective client in the same or a substantially related matter. If the lawyer is disqualified from representation, so is his entire law firm." Beckenstein Enterprises-Prestige Park, LLC v. Lichtenstein, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-03-0183486-S (August 11, 2004, Alander, J.) (37 Conn.L.Rptr. 627). The consultation and this pending action are the same or substantially related. Therefore, the next inquiry is whether the former attorney received information from the plaintiff, as a prospective client, that could be significantly harmful. The plaintiff relies on the presumption of confidentiality in the attorney-client relationship, rather than the significantly harmful test required by rule 1.18. The court applies the latter test. In this case, there is no evidence that the former attorney received information from the plaintiff, as a prospective client, that could be significantly harmful to her in the pending action. The attorney returned the medical records to the plaintiff after RRD declined the representation. There is no evidence that Attorney Madry or RRD retained any medical records. The plaintiff offered no testimony as to what, if any, information or communication was revealed that could be significantly harmful to her. The court does not find that the former attorney received significantly harmful information that can be used against the plaintiff or that requires disqualification of RRD. See Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven, Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.).
There is an additional reason to deny the motion for disqualification, which the defendant relies on. Rule 1.18(d) expressly recognizes two exceptions to a prohibition of representation. The first exception permits representation if the prospective client consents, which is not applicable in the present action. The second exception, set forth in rule 1.18(d) provides: "When the lawyer has received disqualifying information as defined in subsection (c) representation is permissible if ... (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (A) the disqualified lawyer is timely screened from any participation in the matter; and (B) written notice is promptly given to the prospective client."
In the present case, Attorney Madry, who met with the plaintiff, is no longer with the firm and is effectively screened from participation. There is no evidence that any other attorney of RRD learned or accessed any information revealed by the plaintiff to Madry. In the absence of the consultation attorney, the only remnants of the consultation are in the electronic or paper file created by Attorney Madry, which are secured. In sum, no attorney at RRD has information about the consultation.
In Beckenstein Enterprises-Prestige Park, LLC v. Lichtenstein, supra, 37 Conn.L.Rptr. 627, the court denied a motion to disqualify, under similar circumstances, where the law firm took appropriate steps to protect any information revealed from the prospective client in the consultation. See also Hollis v. Ogenski, Superior Court, judicial district of New Haven, Docket No. FA-14-4063759-S (December 4, 2014, Goodrow, J.). For these reasons, the court concludes that based on the limited, single consultation with a former lawyer of the firm and the prophylactic measures taken by RRD, disqualification of RRD is not required under rule 1.18.
The plaintiff further testified that RRD previously defended her stepdaughter. The court finds no conflict exists on the grounds of a prior representation of a family member, at an indeterminate time, in an unrelated case.
For the foregoing reasons, the plaintiff’s motion to disqualify is hereby ordered: Denied.