Opinion
No. CV-02-0820216 S
June 16, 2003
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY COUNSEL
This matter involving a dispute between siblings about the ownership of a residence located in Windsor, Connecticut is before the court on the defendant Robert W. Murray, Jr.'s oral motion for disqualification of John P. Clifford, Jr., Esq., and the law firm of Gersten Clifford, as counsel in this matter for his co-defendant (and sister) Kathleen Murray. Kathleen Murray is a defendant in this matter only as a sister; the third count of the complaint seeks a partition of the residential property. In the event of such a partition, she would have an interest in the property. Robert W. Murray, Jr.'s motion, which was presented on the day trial in this matter was scheduled to begin June 12, 2003, was joined by the plaintiff his brother, Kevin Murray. The court held a hearing concerning the motion on June 13, 2003, at which it heard testimony and argument, and received documentary evidence. For the reasons stated below, the motion is denied.
In her testimony she stated that she had no current interest in the property. She supports her brother and codefendant, Dennis Murray's ownership of the residence.
For ease of reference, Kevin Murray and Robert W. Murray, Jr. will be referred to collectively as the "movants."
"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." (Internal quotation marks and citations omitted.) Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993).
"[D]isqualification is both harsh and draconian, and . . . the movants have a heavy burden to show clearly that disqualification is warranted . . ." Chapman v. Norfolk Dedham Mutual Fire Insurance Co., CT Page 7394-cc Superior Court, judicial district of New London at New London, Docket No. 513098 (December 15, 1992, Teller, J.). "The standards for attorney disqualification are directed at protecting client confidences. They may not be used to restrict an individual's ability to select counsel of choice on the basis of nothing more than a litigant's subjective perception that another litigant is influencing the proceedings." Bergeron v. Mackler, supra, 225 Conn. 400. "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." Id., 399-400.
In argument, the movants contend that Rules of Professional Conduct 1.7, 1.9, and 3.7 require that counsel for Kathleen Murray be disqualified. Rule 1.7 has two components, the first concerning representation which is adverse to an existing client and the second relating to representation where the lawyer's role may be materially limited by his responsibilities to another client or a third person or by his own interests.
Rule 1.7 provides, in pertinent part: "(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client . . ." and "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests . . ."
Robert W. Murray, Jr. claims that Attorney Clifford's representation of his codefendant (and sister), Karen Borawski, as administratrix of the Estate of his father, Robert W. Murray, Sr. (the father), at a hearing held at the Windsor Probate Court, on February 12, 2003 (which was held shortly after a pretrial conference in this matter in this court), should disqualify him from representing Kathleen Murray here. The primary basis of Robert Murray's argument is that Karen Borawski, as administratrix, has a fiduciary duty to him as a beneficiary of his father's estate. The subject of the hearing at the Probate Court was whether that court had jurisdiction over this dispute. The Probate Court determined that the residence had never been part of the father's estate, since, upon his death, title to the residence passed to his wife, the parties' mother, in survivorship. The Probate Court also explored whether this dispute could be settled.
He also noted that Kathleen Murray is represented by Attorney Clifford in an action against him which is pending in this court. See Plaintiff's Exhibit 1, the Verified Complaint in that matter. That matter involves, in part, a dispute between Kathleen Murray, as plaintiff, and Robert W. Murray, Jr., as a defendant, over whether Kathleen Murray has the right to live in a Granby, Connecticut residence which was conveyed to Dennis Murray and Robert W. Murray, Jr. by their parents. Clearly, Kathleen Murray's position in that action is adverse to that of Robert Murray, as it is here.
Also, during his testimony before this court on the motion to disqualify, he was shown a copy of his father's will and acknowledged that his mother was the only listed beneficiary. He also testified that he has not received information about the contents of his father's estate or how they were distributed. In addition, he stated that he has not filed any claim about his father's estate.
In his testimony, Robert W. Murray, Sr. acknowledged that he has never been represented by Attorney Clifford, by Gersten Clifford, or by any of its attorneys. He acknowledged that he has communicated no confidential information to Attorney Clifford or his firm.
As an aid to interpreting the Rules of Professional Conduct our appellate courts have looked to the ABA/BNA Lawyers' Manual on Professional Conduct (the "Lawyers' Manual"). See Pinsky v. Statewide Grievance Committee, 216 Conn. 222, 236, 578 A.2d 1075 (1990); Statewide CT Page 7394-cd Grievance Committee v. Fountain, 56 Conn. App. 375, 381, 743 A.2d 647 (2000). "If a person or entity is not a client, the prohibition against concurrent representation of adverse interests does not come into play." Lawyers' Manual (2001), 51:106, p. 234. The fact that Attorney Clifford briefly represented Ms. Borawski, as administratrix of the father's estate, at the Probate Hearing, does not implicate Rule 1.7(a), since Robert W. Murray, Jr. is not and never has been Attorney Clifford's client. See Jaworski v. Anderson, Superior Court, judicial district of Hartford, Docket No. CV 94-0537265 (August 7, 2001, Schuman, J.) (attorney for executrix did not represent the plaintiffs as potential beneficiaries of the estate); see also Krawczyk v. Stingle, 202 Conn. 239, 244-45, 543 A.2d 733 (1988). Also, the case before the court does not involve dual representation of a client who is both an executrix and a beneficiary. See Leeb-Lundberg v. McNamara, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 0123387 (October 20, 1995, Karazin, J.); Frank v. Frank, Superior Court, judicial district of Middlesex, Docket No. 66226 (December 22, 1992, Walsh, J.) ( 8 Conn.L.Rptr. 116).
Similarly unavailing is the movants' reference to what is claimed to be a recently discovered, closed bank account, listed as "Kathleen A. and/or Dennis M. Murray in trust for Robert W. Murray, Jr." See Defendant's Exhibit A. This account was opened in August 1993 and closed in October 1993, long before Attorney Clifford's representation of Kathleen Murray in the pending matters began.
Counsel for Kevin Murray argued that Rule 1.7(b) is implicated here. Allusions were made to support received by Kathleen Murray from siblings who are adverse to the movants' positions, and to evidence of Kathleen Murray's previous intent to sue the father's estate. Robert W. Murray, Jr. asserted that answers filed in this matter appeared to have been prepared by one sibling for others. Concern was expressed about a "shifting target," in that if the plaintiff decided to withdraw against Kathleen Murray, Attorney Clifford may appear for another sibling. The court is unpersuaded. There has been no showing that Attorney Clifford's representation of Kathleen Murray in this case "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests." See Rule 1.7(b). No showing has been made that the concerns expressed in the commentary to Rule 1.7 are implicated here. "An impermissible conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question." See Commentary to Rule 1.7. At this point, Attorney Clifford and his firm have appeared only for Kathleen Murray. No evidence was presented of such "discrepancy," "incompatibility," or different settlement positions between the two persons he has represented, Karen Borawski, as administratrix (at the Probate Court for a single hearing), and Kathleen Murray. See Vitone, Admx. v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 97-0139262 (December 7, 2001, West, J.) ( 31 Conn.L.Rptr. 48). CT Page 7394-ce
The movants also have not shown that Rule 1.9 is implicated here. As discussed above, neither Attorney Clifford nor his firm has represented Robert W. Murray, Jr. In the absence of an attorney-client relationship, Rule 1.9 does not apply. See Johnston v. Casey, Superior Court, judicial district of New London at New London, Docket No. 557021 (April 25, 2002, Corradino, J.) ( 32 Conn.L.Rptr. 74). In addition, since, as discussed above, no confidential information was communicated to Attorney Clifford, a major purpose behind Rule 1.9, limiting a lawyer's use of a client's confidential information in subsequent litigation, is not at issue here. See id.
Rule 1.9 provides "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 CT Page 7394-cg client or when the information has become generally known."
The court also finds that no meaningful showing has been made that Rule 3.7, concerning testimony by an attorney, is implicated here. According to the argument, some unspecified testimony may be required, depending on how another witness testifies at trial. The movants have not shown that Attorney Clifford is "likely" to be a "necessary witness," which the Rule requires.
Rule 3.7 provides: "(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."
Finally, the court notes that this motion was presented just as trial was scheduled to begin. Notice of the June 12, 2003 trial date was sent to the parties by the court in February, 2003. See Defendant's Exhibit B. Robert W. Murray, Jr. stated that he was concerned in February 2003 about what he perceives to be Attorney Clifford's conflict, but did not raise it then before the Probate Court. Although Gersten Clifford's appearance in this action was filed on April 17, 2003, he did not raise the issue before the Superior Court until the date of trial. As discussed above, our Supreme Court has cited a client's right to counsel of his choice as an important consideration, as well as the time and money involved in securing new counsel. Those concerns are applicable here. The movants have not shown that Kathleen Murray's counsel of choice should be disqualified.
CONCLUSION
For the foregoing reasons, the motion for disqualification is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT