Opinion
FBTFA104031442S
05-02-2017
Robert Parisi v. Kathleen M. Parisi
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY ATTORNEY (MOTION #146.00)
Mary E. Sommer, J.
I. INTRODUCTION AND FACTUAL SUMMARY
On November 19, 2010, the marriage of the parties was dissolved and judgment entered pursuant to the separation agreement dated November 11, 2010. On December 14, 2010 Defendant filed a motion for Contempt which alleged that the Plaintiff had not complied with the terms of the alimony provision of the separation agreement. Paragraph 3 of the separation agreement states, " [T]here shall be no periodic alimony payable or requested from the husband to the wife or from the wife to the husband. In lieu of periodic alimony the husband shall pay the wife nontaxable and nondeductible alimony (an 'alimony buyout') of $300,000 from his share of the marital estate on or before the date Judgment for dissolution of the marriage is entered."
The basis of Defendant wife's motion to disqualify Plaintiff's attorney is that the Plaintiff husband attempted to pay her $300,000 from a retirement account rather than from cash sources. She has alleged that after taxes and penalties for early withdrawal that she would receive substantially less than $300,000. For this reason, she has refused to accept Plaintiff's tender of payment. Following a hearing on the Defendant's motion for contempt for failure to comply with the terms of the separation agreement, the court, Owens, J., denied the Defendant's motion, finding that the Defendant was aware that the Plaintiff did not have $300,000 in cash available to him at the time she entered into the separation agreement. Defendant appealed this decision to the Appellate Court which affirmed the trial court's decision.
The Supreme Court granted certiorari on the issue of the meaning of the alimony buyout provision. The Supreme Court concluded that the alimony buyout provision is ambiguous and, therefore, " the trial court abused its discretion by failing to undertake the factual inquiry necessary to clarify the meaning of the alimony buyout provision and, thereafter, to issue an appropriate order of compliance." Parisi v. Parisi, 315 Conn. 370, 379, 107 A.3d 920 (2015). Based on these findings, the Supreme Court reversed the decision of the Appellate Court and remanded the case for further proceedings to determine the meaning of the alimony buyout provision and the term alimony as intended by the parties in the agreement.
II. APPLICABLE LAW AND ANALYSIS
It is well established that a separation agreement is a contract, and as such, it is subject to the same rules of interpretation, evidence and enforcement which apply generally to contracts in this state.
" A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . The intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Lawson v. Whitey's Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997)." (Internal quotation marks omitted.) Tallmadge Bros. v. Iroquois Gas Transmission Sys., P.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). " When a writing, on its face, does not set forth the entire agreement of the parties, the court may look to parol evidence to add missing terms . . . In such circumstances, the parties' intent is a question of fact, and the trial court examines the evidence adduced at trial to determine that intent . . . The factual determination of the parties' intent is to be garnered in light of the situation of the parties and the circumstances surrounding the contract, along with the primary purpose of the contract . . ." (Citations omitted; internal quotation marks omitted.) Murtha v. City of Hartford, 303 Conn. 1, 12, 35 A.3d 177 (2011). Based on the Supreme Court's conclusion that the subject alimony buyout language is ambiguous, parol evidence is admissible " to explain an ambiguity appearing in the instrument . . ." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 277, 819 A.2d 773 (2003).
The court further notes that this matter is before the trial court on a motion for contempt which requires the court to apply a higher standard of proof, that is, the movant must satisfy her burden by clear and convincing evidence rather than the lower preponderance standard.
The parties agree that the Supreme Court has determined that the alimony buyout provision is ambiguous and, that the trial court must conduct a factual hearing to determine its meaning. In its decision, the Supreme Court directed a number of questions which require evidence of the meaning of the term alimony buyout, including, inter alia, " whether the payment at issue was intended to be in the nature of a property distribution or lump sum alimony. The payment is referred to variously as " alimony" or an " alimony buyout, " and it is stated to be in lieu of " periodic alimony, " but not in lieu of " alimony" per se. Furthermore, it is described as being " nontaxable" to the recipient and " nondeductible, " to the payor. The nature of the payment, if it were clear, might have been instructive as to what the parties intended regarding the manner of payment because, as the defendant contends, alimony is intended to provide the payee spouse ongoing support and, as such, ought to be readily accessible. Additionally, it is unclear whether the parties, in specifying that the payment be " nontaxable and nondeductible, " were contemplating, as the plaintiff claims, that only the initial transfer itself meet those qualifications, or rather, as the defendant suggests, the qualifications apply more broadly to include her subsequent liquidation of the funds for her use." Id., 384. The Supreme Court noted further matters pertinent to the language of the agreement and the circumstances of its execution. It is reasonable to anticipate that in the course of conducting the factual hearing as ordered by the Supreme Court, evidence will be required as to the above legal terms and their meaning.
In order to explain the ambiguity and enable the trial court to determine the intent of the parties regarding that provision the Defendant has represented that she seeks to elicit from Attorney Murphy testimony as to the intention of the parties regarding the alimony buyout language of the separation agreement. The issue on the Defendant's motion to disqualify is whether Plaintiff's attorney Daniel Murphy who represented the Plaintiff in the dissolution proceedings and actively negotiated the alimony buyout provision in question is necessary to provide parol evidence regarding the meaning of the alimony buyout provisions as intended by the parties. If it is necessary, then Attorney Murphy must be disqualified from representing the plaintiff in this matter.
The decision as to whether to grant the motion to disqualify begins with recognition of the Rules of Professional Conduct. Rule 3.7 of the Rules of Professional Conduct prohibits an attorney from acting as an advocate at a trial in which he is likely to be a necessary witness, except in limited circumstances. " The parties' intent is a question of fact, and the trial court examines evidence adduced at trial to determine that intent." Murtha v. City of Hartford, 303 Conn. 1, 12, 35 A.3d 177 (2011). Under certain circumstances, it may be necessary for an attorney involved in prior negotiations and/or litigation to testify in court as to the parties' intent at the time a contract was executed. If testimony or an attorney is required, said attorney may be disqualified from continuing representation of his/her client in the litigation. Rule 3.7 of the Connecticut Rules of Professional Conduct is the standard used by the courts to judge whether an attorney should be disqualified. Rule 3.7(a) provides:
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 a substantial hardship on the client.
" 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." Tropical Suntan Ctrs., Inc. v. Salvati, Superior Court, judicial district of Ansonia-Milford, Docket No. 031092 (April 12, 1990, 1 Conn.L.Rptr. 497, Meadow, J.). The need for attorney testimony cannot be speculative. State v. Carpenter, 2001 WL 400380. The courts have adopted a two-prong test for necessity. The first prong requires that the testimony be relevant and material. The second prong requires that it must be unobtainable elsewhere. Id. " Disqualification may be required only when it is likely that the testimony 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." (Internal quotation marks omitted.) Brand v. Matheny, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 389922, (February 14, 1994, 9 CSCR 247, Aurigemma, J.).
The Supreme Court has held that the trial court has authority to enter an order disqualifying counsel. " In circumstances where an attorney does not withdraw . . . a court exercising its supervisory power can . . . disqualify the attorney." Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 376, 477 A.2d 648 (1984). " The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys . . . 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).
Trial courts, despite the recognition of the judicial authority to disqualify counsel, generally avoid disqualification unless the circumstances of a particular case warrant such action. There are several important factors which courts weigh when considering whether to disqualify counsel of record in anticipation of a trial. " In disqualification matters . . . [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 [defendant's] 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.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725, 774 A.2d 220 (2001).
Determination of necessity requires the court to find that the proposed testimony must be relevant and material and unobtainable elsewhere. Attorney Murphy was present and a part of the negotiations that took place between the parties when the separation agreement was being drafted. Although he is in a position to testify regarding the intent of the parties, he does not agree that his testimony would be material to this issue and has refused to withdraw from representing the plaintiff. Defendant maintains that the testimony of Attorney Murphy is not only relevant, but it is necessary. She states that she intends to call the attorney who represented her in the negotiations of the separation agreement, Attorney Alan Rubenstein. She also intends to call Attorney Murphy to testify regarding discussions with the Plaintiff that were made in furtherance of the negotiations of the alimony buyout provision. She insists that Attorney Murphy is in a unique position to testify as to Plaintiff's intent and changes to the draft with regard to the alimony buyout provision and that thus his testimony is not obtainable elsewhere.
Walsh v. Lynch, (New London J.D. May 3, 2012) , provides guidance for the court's consideration in this case. There, the court granted a motion for disqualification of Plaintiff's counsel because " [plaintiff's counsel] has firsthand knowledge regarding the settlement negotiations and the effect that these negotiations had on the plaintiff's decision to settle." In this case, both parties disagree about the meaning of the term alimony buyout provision as it relates to their separation agreement. The Supreme Court has found both terms " alimony" and " alimony buyout" as used in the agreement to be ambiguous. Based on the rationale and ruling of the Supreme Court, it is reasonably probable that testimony will be required from the attorneys as to the settlement negotiations and the effect that those negotiations had on the language in drafts of the agreements. The court concludes that the testimony of Attorney Murphy is directly related to the matter at issue and because it necessarily requires evidence of the parties' intent as to the alimony buyout, a critical term in the property settlement that lay testimony may not be sufficient for a full and fair adjudication.
Although the court has broad discretion to determine whether disqualification is warranted, all relevant case law illustrates the consistent reluctance of Connecticut courts to disqualify attorneys professional involved in the litigation. Bergeron v. Mackler, supra, 397. True necessity must be clearly demonstrated. " The mere statement that the attorney will be a necessary party witness [does] not support [the] motion." Blakemar Construction, LLC, v. CRS Engineering, Inc. et al., J.D. of Fairfield, Docket No. CV04412727S (2005) (internal quotation marks omitted). It is well settled law that just because a witness has " relevant knowledge or was involved in the transaction at issue, " does not mean that he or she is a necessary witness. Brand v. Matheny, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 389922, (February 14, 1994, 9 CSCR 247, Aurigemma, J.). " Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary." Id.
As noted above, courts do not disqualify counsel without serious consideration of the consequences to parties themselves. In deciding motions to disqualify counsel, a court must be " solicitous of a client's right freely to choose his counsel, " and must consider that a client whose counsel is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of the continuing relationship. 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 court must also consider the client's " interest in protecting confidential information." Id. These interests must be balanced with the public's interest in " the scrupulous administration of justice." Id. ; Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part on other grounds, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987).
The court has considered the plaintiff's argument that he is entitled to counsel of his choice and that disqualifying Attorney Murphy will deprive him of representation by the lawyer who has represented him for six years in this case. As noted the court does not lightly consider disqualification of counsel. In cases where the parties' testimony is not sufficient to resolve the ambiguity, courts have considered the testimony of attorneys, should their testimony be relevant and material, as well as unobtainable elsewhere. Tropical Suntan Ctrs., Inc., 1 Conn.L.Rptr. at 497. If this dual prong test is satisfied, the testifying attorney would be subject to disqualification under Connecticut Rules of Professional Conduct Rule 3.7.
In opposition to the disqualification of his attorney, plaintiff argues both parties and their counsel were also present for the entire negotiation conference. The Plaintiff is willing and able to testify as to the " discussions, " " disagreements and changes to the draft." He claims that there is no additional information that Attorney Murphy can provide that he cannot provide as to the settlement negotiations and the effect that those negotiations had on the language in drafts of the agreement. Defendant has not offered any evidence that Attorney Murphy has any material information that is not otherwise available. The plaintiff is the party in the best position to testify as to his own intent at the time the agreement was negotiated, drafted and executed.
Plaintiff has also argued that disqualification of his attorney for the purpose of mandating his attorney's testimony infringes on his attorney-client privilege. The file in this case reflects that Attorney Murphy has been the Plaintiff's counsel in this matter for more than six and a half years and the Plaintiff wishes to continue this matter with Attorney Murphy as his legal counsel. The attorney-client privilege has long been recognized by American jurisprudence. This privilege extends security to clients that they may speak openly and honestly with their counsel to ensure the best representation. A lawyer with full knowledge of the facts of a case is in a better position to effectively represent their clients. The court has carefully weighed these factors as well as practical considerations facing the party whose attorney may be disqualified. When deciding a motion to disqualify counsel, a court must consider a client's right to freely choose his counsel and must consider that a client whose counsel is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of the continuing relationship. American Heritage Agency, Inc., 62 Conn.App. at 725. The Court must also consider the client's interest in protecting confidential information. Id. These interests must be balanced with the public's interest in " the scrupulous administration of justice." Id. ; Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part on the grounds, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987). " This compelling need test strikes the appropriate balance between, on the one hand, the need for information and, on the other hand, the potential adverse effects on the attorney-client relationship and the judicial process in general." State v. Peeler, 265 Conn. 460, 474, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004).
The Supreme Court has ordered a factual hearing, the parties remain in disagreement about significant terms of their separation agreement following litigation of the issue at both the appellate and Supreme Court levels. There is a significant risk that if Attorney Murphy continued representation of the Plaintiff and his testimony was required during the course of the trial, it would be necessary to declare a mistrial and commence a new trial with replacement counsel.
The court concludes that in the absence of agreement by the parties, the determination of the meaning of the terms " alimony buyout" and " alimony" as intended by the parties may require testimony from counsel who negotiated the provision on behalf of the parties at the time of dissolution.
In light of the procedural history of this case and the Supreme Court's clear conclusion that the trial court must conduct a factual hearing, this court concludes that disqualification of Attorney Murphy serves the interests of justice.
CONCLUSION
Based upon the foregoing, the Court GRANTS Defendants' Motion to Disqualify and OVERRULES Plaintiff's objection thereto.