Opinion
HHDFA176079706S
09-10-2019
Geoffrey Luxenberg v. Kelly Luxenberg
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Nastri, Robert, J.
MEMORANDUM OF DECISION RE THE PLAINTIFF’S MOTION TO DISQUALIFY AND FOR ATTORNEYS FEES, COSTS, AND LIQUIDATED DAMAGES, POSTJUDGMENT (#112) AND THE DEFENDANT’S RESPONSE THERETO (#113)
Robert Nastri, Jr., J.
The plaintiff’s March 8, 2019 motion to disqualify (#112) seeks to prevent Attorney Cara Pavalock (Attorney Pavalock) from representing the defendant. The plaintiff offers several grounds to disqualify Attorney Pavalock: (1) "Attorney Pavalock is using her position as a state legislator for financial gain for herself and/or her law practice"; in derogation of General Statute § 1-84(c); Motion to Disqualify, § II, ¶8, p. 3 (#112) ; (2) "Attorney Pavalock has used her status as a legislator of the opposing party to the Plaintiff for personal financial gain"; Motion to Disqualify, § II, ¶9, p. 4 (#112) ; (3) "Attorney Pavalock represents two clients: the Defendant Kelly Juleson-Scopino, fka Kelly Luxenberg, and the People of the State of Connecticut; " Motion to Disqualify, § II, ¶12, p. 5 (#112) ; and (4) "the Defendant has intentionally set out to choose an attorney who would cause the most embarrassment and discomfort to the Plaintiff in his professional work place," a direct violation of the Confidentiality and Non-Disparagement Agreement (CNDA) the parties entered. Motion to Disqualify, § II, ¶13, pp. 5-6 (#112) . In addition, the plaintiff asserted in oral argument that Attorney Pavalock’s representation of the defendant creates an appearance of impropriety.
The plaintiff’s motion was heard by the court on July 11, 2019, along with the defendant’s March 26, 2019 objection (#113). The plaintiff testified in support of his motion and adduced testimony from the defendant.
"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." (Internal quotation marks omitted.) Smigelski v. Kosiorek, 138 Conn.App. 728, 740, 54 A.3d 584 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013). "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." 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." Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975), overruled on other grounds by Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (en banc), vacated and remanded, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). 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, 739 (2d Cir. 1978).
FINDINGS OF FACTS
The parties entered into an agreement to dissolve their marriage on June 29, 2017 (#105). The agreement was incorporated into the court’s judgment of dissolution (Nastri, J.) on the same day (#105.50.) The parties’ agreement came only a few days after the action for divorce was filed, indicating to the court that the parties had carefully considered the terms on which they would end their marriage before they involved the judicial system. At the time of judgment, the plaintiff was represented by counsel; the defendant represented herself, although she was represented by counsel until shortly before the action was filed. Thereafter, the parties were able to avoid returning to court for nearly eighteen months. The parties acknowledged that they have disagreed about a variety of co-parenting issues since the divorce but none of those disagreements required them to seek the court’s intervention.
The plaintiff is a state representative in the Connecticut General Assembly. He is also the assistant majority leader of the House of Representatives. The plaintiff is in his third, nonconsecutive term of office; he was elected as a democrat. Between the plaintiff’s second and third terms of office, the defendant was the state representative from the district the plaintiff now represents; she also was elected as a democrat. Attorney Pavalock also is a state representative in the Connecticut General Assembly; she was elected as a republican. The gist of the plaintiff’s concerns about Attorney Pavalock representing the defendant stem from their political philosophies.
The parties entered into a Confidentiality and Non-Disparagement Agreement (the CNDA) on June 28, 2017. The CNDA sets forth six paragraphs defining what the parties referred to as "confidential information." The CNDA provides in relevant part: "the confidential information may be shared with attorneys ... only after notice to the other party and opportunity to obtain a court ruling on any objection or a suitable protective order prior to such disclosure." Plaintiff’s Exhibit 1, ¶14, p. 3 . Essentially, the CNDA provides that even an attorney has to be "cleared" before a party can share confidential information with that attorney.
In a text exchange between the parties in early May 2018, amid a non-specified disagreement over a parenting issue, the defendant identified Attorney Pavalock as her attorney and provided the plaintiff with Attorney Pavalock’s email address. The plaintiff’s response was to ask "House Republican State Rep Cara Pavalock is your attorney?" When the defendant responded in the affirmative, the plaintiff asked "And she has access to divorce decree?" The plaintiff’s inquiry was strange because the parties’ divorce decree is a public document. Defendant’s Exhibit A .
The plaintiff believes it would be impossible for Attorney Pavalock to represent the defendant without having to acquire confidential information. The plaintiff is uncomfortable with a ranking member of the opposing political party having confidential information about him. The court agrees it would be extremely difficult, although perhaps not impossible, for Attorney Pavalock to represent the defendant without acquiring confidential information at some point. Moreover, it is unlikely an attorney would undertake the representation under those circumstances. The defendant denies providing Attorney Pavalock with confidential information. Her denial is credible because there are no issues or disputes currently before the court, nor have there been any since the divorce. The court recognizes that even if the defendant has not yet provided Attorney Pavalock with confidential information, it is likely she will do so in the future.
The plaintiff asserted that the defendant has interfered in his professional life by her choice of legal counsel. The plaintiff expressed his opinion that it is important for parents who are trying to co-parent to not disparage the other parent because it is in the best interests of the child. If the plaintiff’s view of the CNDA were correct, it would have the effect of preventing the defendant from ever hiring counsel because she could never share with new counsel the details of the divorce and the facts that led to it, nor the issues between the parties. The plaintiff testified that his objection to Attorney Pavalock arises from her being his colleague, irrespective of whether she is a Republican or a Democrat. The plaintiff’s position, carried to its extreme, would prevent the defendant from hiring any lawyer who serves in the legislature.
The plaintiff believes that defendant disparaged him to his work colleague in the course of explaining her past relationship with the plaintiff. The plaintiff believes that the defendant has disparaged him simply by hiring Attorney Pavalock and sharing confidential information with her.
The defendant denies ever telling Attorney Pavalock anything disparaging about the plaintiff. Certainly, parties can disagree about how to raise their children without accusing the other party of being a bad parent. If the plaintiff truly believes the defendant disparaged him in his professional life simply by hiring a particular attorney, as he testified, his definition of disparagement is too broad.
When the defendant responded to the plaintiff’s inquiry as to whether Attorney Pavalock was her attorney with "she will, if this continues. She is my attorney for matters moving forward," the defendant implicitly provided notice that she would share confidential information with her attorney. It is illogical to believe that a person would hire an attorney without providing that attorney all the relevant information about the subject for which the attorney is engaged. To conclude otherwise, requires the court to interpret the CNDA to require notice of both the intent to hire an attorney and the intent to disclose confidential information to that attorney, a nonsensical requirement not found within the four corners of the CNDA.
The plaintiff claimed the defendant did not inform him that Attorney Pavalock would represent her until about six weeks before the hearing, although he did not remember the circumstances. The plaintiff believes the defendant told him about Attorney Pavalock in 2019 and the notice was in writing, however he doesn’t remember if the notice was by text, email or letter, nor does he recall whether the weather was cold or warm at the time. The defendant, for her part, specifically remembers speaking to the plaintiff about Attorney Pavalock being her lawyer in late May or June 2018. The defendant recalls speaking to the plaintiff about the subject three or four times after the initial notice.
Whenever the plaintiff learned that Attorney Pavalock might be the defendant’s attorney, he thought the defendant was joking because the parties have "spent our entire adult lives dedicated, almost exclusively, to the Democratic Party. Both personally and professionally. Our jobs, our spare time, our volunteer time has been dedicated, entirely, to that." The plaintiff styles himself and the defendant as "progressive Democrats" while he labels Attorney Pavalock as a "notoriously conservative Republican State Representative"; Motion to Disqualify, § I, ¶6, p. 2 (#112). The plaintiff thought that somebody with the defendant’s history in the democrat party would never hire a partisan republican legislator. The plaintiff testified that "the very concept of a diehard Democratic Party activist professional hiring a diehard Republican activist professional to represent them, when there were no proceedings in the court, seemed to be counter to the spirit of effective co-parenting." The defendant’s notice to the plaintiff came amid a parenting dispute and referred to her hiring Attorney Pavalock as a future event, contingent upon the parenting dispute escalating or continuing.
The defendant entered into a formal representation agreement with Attorney Pavalock in September 2018. The plaintiff raised the question of when the defendant actually became Attorney Pavalock’s client. The relevant question is when the defendant gave notice to the plaintiff that she intended to share confidential information with Attorney Pavalock. That notice occurred when the defendant told the plaintiff that if she needed an attorney in the future, it would be Attorney Pavalock. Implicit in the notion of hiring an attorney is the understanding that a party will provide that attorney with all relevant information- confidential or disparaging- necessary for complete, competent representation. It is of no moment that the plaintiff did not believe the defendant would hire an attorney whose political views differed from her own or the plaintiffs or that the plaintiff thought the defendant was joking about hiring Attorney Pavalock. Nothing in the CNDA requires the defendant to convince the plaintiff of her intent; notice was sufficient.
By letter dated March 6, 2019, Attorney Pavalock notified the plaintiff’s attorney of her intention to enter an appearance on behalf of the defendant. Before Attorney Pavalock could actually file her appearance, the plaintiff filed his motion to disqualify her. On March 18, 2019, Attorney Pavalock filed her appearance on behalf of the defendant and then on March 26, 2019 the defendant filed her response to the plaintiff’s motion to disqualify.
The plaintiff’s testimony was devoid of specificity about any confidential or disparaging information the defendant allegedly shared with Attorney Pavalock but the court does not hold him to greater specificity. "[I]n order to grant a disqualification motion, a court should not require proof that an attorney actually had access to or received privileged information while representing the client in a prior case. Such a requirement would put the former client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether." United States v. Prevezon Holdings Ltd., 839 F.3d 227, 240-41 (2d Cir. 2016), quoting Government of India v. Cook Industries, Inc., supra, 569 F.2d 740. The same reasoning applies in this case. If the court required the plaintiff to detail the confidential or disparaging information he believes the defendant provided to Attorney Pavalock, it would be requiring him to make public the very information he seeks to keep confidential.
The plaintiff argues that Attorney Pavalock is precluded from representing the defendant by statute. General Statutes § 1-84(c) provides that "[n]o public official or state employee shall ... use his public office or position ... to obtain financial gain for himself ... or a business with which he is associated." There is no dispute that Attorney Pavalock is a public official and the court presumes she is representing the defendant for financial gain inasmuch as she is engaged in the practice of law as a business. "The statute prohibits the use of the state employee’s position to obtain financial gain." (Emphasis in original.) Dickman v. Office of State Ethics, 140 Conn.App. 754, 768, 60 A.3d 297, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013). The record is devoid of any evidence that Attorney Pavalock obtained her position as the defendant’s attorney through her position as a public official. The defendant testified credibly that she hired Attorney Pavalock because they were in similar circumstances: both had been through a divorce and recently had babies.
The plaintiff asserts "[i]t defies credulity that the Defendant would have chosen Attorney Pavalock for any reason other than the fact that she is a sitting Republican State Representative, with an ideology that is antithetical to that of both herself and the Plaintiff, to vex, annoy, harass embarrass the Plaintiff at his place of work." The plaintiff then leaps to the conclusion that "[i]t is readily apparent that Attorney Pavalock is using her position as a state legislator for financial gain for such herself and/or her law practice." Motion to Disqualify, § II, ¶12, p. 4 (#112). Even if the defendant had nefarious motives in hiring Attorney Pavalock, the defendant’s motives are not a basis on which to disqualify her attorney.
The plaintiff also argues that Attorney Pavalock is precluded from representing the defendant by operation of the Rules of Professional Conduct. Rule 1.7 provides that "[e]xcept as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client ..." The plaintiff alleges that "Attorney Pavalock represents two clients: the Defendant Kelly Juleson-Scopino, fka Kelly Luxenberg, and the People of the State of Connecticut." Motion to Disqualify, § II, ¶12, p. 5 (#112) . The United States Supreme Court observed that: "[t]here are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it." Stockton v. Ford, 52 U.S. 232, 247, 11 How. 232, 13 L.Ed. 676 (1850).
The Appellate Court’s application of Rule 1.9 of the Rules of Professional Conduct provides guidance to the application of Rule 1.7. The Appellate Court has noted with respect to Rule 1.9 that: "[t]he competing interests at stake in the motion to disqualify, therefore, are: (1) the [plaintiff’s] interest in protecting confidential information; (2) the [defendant’s] interest in freely selecting counsel of [her] choice; and (3) the public’s interest in the scrupulous administration of justice." 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). The same interests should be balanced in a disqualification determination under Rule 1.7.
The Rules of Professional Conduct are silent on the definition of a client. The closest they come to defining the word is Rule 1.18 which 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." What little common law exists on the definition of a client relies on a dictionary definition. See Di Silvestri v. Golden Crest Motel Corp., 148 Conn. 121, 123-24, 167 A.2d 857 (1961); Hosack v. Hosack, Superior Court, judicial district of Hartford, Docket No. FA-02-0731013-S (November 12, 2002, Brennan, J.T.R.) (33 Conn.L.Rptr. 439, 440). A client is one "who applies to a lawyer or counselor for advice and direction on a question of law, or commits his cause to his management in prosecuting a claim or defending against a suit, in a court of justice ... [A] patron or employer of an attorney or solicitor; a person who applies to an advocate for counsel and defense; one who retains an attorney, who is responsible to him for his fees, and to whom the attorney is responsible for his management of the suit ... Ballentine’s Law Dictionary (3d Ed. 1969). A client is also one who "who employs or retains an attorney, or counselor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business. It should include one who disclosed confidential matters to attorney while seeking professional aid, whether attorney was employed or not." Black’s Law Dictionary (5th Ed. 1979). The State of Connecticut does not fit into either definition of a client, therefore there can be no conflict of interest between the defendant and the State of Connecticut.
Finally, the plaintiff argues that Attorney Pavalock’s representation of the defendant creates the appearance of impropriety because he and Attorney Pavalock both serve in the legislature. Even if that were so, which it is not, the appearance of impropriety is not sufficient to warrant disqualification. "Unlike Canon 9 under the Code of Professional Responsibility, however, the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety. Even when Canon 9 was applicable, we rejected the notion that an appearance of impropriety was alone a sufficient ground for disqualifying an attorney. In [State v. Jones, 180 Conn. 443, 452-53, 429 A.2d 936 (1980)], overruled on other grounds by 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)] we stated that the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases ... Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct." (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, supra, 225 Conn. 399-400.
The plaintiff testified he believes that the defendant’s attorney having confidential information about him reduces his effectiveness as a legislator, without explaining how it does so. His subjective belief is insufficient to warrant disqualification. Even if there were objective evidence that Attorney Pavalock’s involvement in the case somehow reduces the plaintiff’s effectiveness as a legislator, it is not clear to the court that there would be grounds for disqualification. The plaintiff repeatedly expressed his discomfort with Attorney Pavalock, another member of the legislative body, representing the defendant. Simply put, the plaintiff’s level of comfort is not the litmus test for disqualification.
ORDERS
The defendant’s motion to disqualify Attorney Pavalock (#112) is denied. The plaintiff’s objection to the motion to disqualify (#113) is sustained.
So ordered.