Opinion
HHDFA064027147S
10-04-2016
Stephanie Szymonik v. Peter Szymonik
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR REVIEW OF ATTORNEY CONDUCT
Robert Nastri, Jr., Judge.
The defendant filed a request for leave to file a motion for review of attorney conduct on February 1, 2016. (#424.) The request was denied by the court, Suarez, J. Thereafter, the defendant filed a request for leave to file an amendment for motion for review of attorney conduct on February 29, 2016. (#427.) That motion was also denied by the court, Suarez, J.
The court, Carbonneau, J., issued an order on August 20, 2012, stating that " [n]either party shall file any motions with the Court without the prior express written approval of the Presiding judge." (#302.)
The fact that the defendant's second request was docketed as pleading #427 explains the court's order that the parties must seek leave of the court to file motions.
On February 8, 2016, the court began a hearing on the plaintiff's motion to modify, filed October 2, 2015. (#419.) At the start of the sixth day of the hearing on July 14, 2016, the court, Suarez, J., granted the defendant's motion for review of attorney conduct, limited to the single issue of whether, pursuant to rule 3.7 of the Rules of Professional Conduct, the plaintiff's attorney should be disqualified from representing her because he allegedly is a necessary witness in the hearing. (#432.)
The defendant's motion to disqualify the plaintiff's attorney, Keith Yagaloff, came before the court on September 22, 2016. The defendant appeared and testified; the plaintiff did not participate but was represented by counsel. The parties agreed at the onset of the hearing that the defendant is seeking to disqualify Attorney Yagaloff from representing the plaintiff in prosecuting her motion for modification. (#419.)
Because the defendant was denied permission to file both motions seeking review of Attorney Yagaloff's conduct, neither motion was docketed.
The defendant's motion asserts a variety of alleged contretemps and misdeeds by the plaintiff's attorney, all of which centered on his involvement in the Glastonbury Board of Education's planning and placement team meeting. A planning and placement team or " PPT" is " the individualized education program team as defined in the [federal Individuals with Disabilities Education Act] IDEA and who participate equally in the decision making process to determine the specific educational needs of a child with a disability and develop an individualized education program for the child. For purposes of the evaluation, identification or determination of the specific educational needs of a child who may be gifted or talented, the PPT means a group of certified or licensed professionals who represent each of the teaching, administrative and pupil personnel staffs, and who participate equally in the decision making process." Regs., Conn. State Agencies § 10-76a-1 (14).
The defendant testified that the parties' minor child, Jason, is autistic and requires special education. According to the defendant, Attorney Yagaloff's allegedly unwarranted involvement in the PPT meetings makes him a necessary witness in the parties' current dispute. As a necessary witness, the defendant argues, Attorney Yagaloff is disqualified from representing the plaintiff by virtue of rule 3.7 of the Rules of Professional Conduct.
Rule 3.7(a) of the Rules of Professional Conduct provides in relevant part that " [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."
In support of his claims, the defendant offered into evidence recordings of three PPT meetings conducted by Jason's teachers, counselors, and administrators to determine the best way to support his learning environment. The court overruled the plaintiff's objection to the relevance of the recordings and listened to them in camera. Rule 3.7(a) of the Rules of Professional Conduct provides in relevant part that " [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."
In Glastonbury, each PPT includes " the parents of the student with a disability; [a]t least one regular education teacher of the student . . .; [a]t least one special education teacher of the student, or if appropriate, at least one special education provider of the student; [a] representative of the District who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of a student with disabilities, is knowledgeable about the general curriculum and about the availability of resources within the District; [a] representative of the pupil personnel staff; [a]n individual who can interpret the instructional implications of evaluation results (who may be one of the previously listed team members other than the parent); [i]f appropriate, the student; and [a]t the discretion of the parent or the District, other individuals who have knowledge or special expertise regarding the student, including related services personnel." Special Education Policies and Procedures Manual: Glastonbury Public Schools (2015), p. 32.
The Superior Court Operations Technology Division transferred the recordings from the device on which they were offered by the defendant to audio files in order to avoid the danger of viral infection. The original Universal Serial Bus (USB) drive offered by the defendant was marked as Court's Exhibit A to preserve the record.
It appears from the date stamps on the audio files that they are records of meetings held on February 19, 2009, March 15, 2011, and December 11, 2015, when Jason was in third grade, fifth grade, and his freshman year of high school, respectively. Due to the length of time between meetings, the individuals in attendance varied, but there were at least six to eight teachers, counselors, administrators, and attorneys at each. The first meeting lasted an hour and twenty-three minutes, the second lasted forty-one minutes, and the third lasted two hours and one minute. In all, the court listened to four hours and five minutes of recordings. The defendant was present at all three meetings; the plaintiff participated telephonically in the first meeting on February 19, 2009. Attorney Yagaloff also participated telephonically in the first meeting. Neither the plaintiff nor attorney Yagaloff is identified as a participant at either of the other two meetings.
The participants in the meetings do not identify the dates of the recordings.
The substance of Attorney Yagaloff's comments at the meeting indicates that he was acting as the plaintiff's advisor and advocate. Attorney Yagaloff's involvement in the discussions regarding Jason was focused on obtaining information for the plaintiff from the PPT team. The plaintiff's statements at the meeting made it clear that she was relying on Attorney Yagaloff's advice regarding her son's educational needs.
" [W]henever counsel for a client reasonably foresees that he will be called as a witness to testify on a material matter, the proper action is for that attorney to withdraw from the case . . . An attorney is not absolutely prohibited from testifying on behalf of a client, but should only do so when the testimony concerns a formal matter, or the need for the testimony arises from an exigency not reasonably foreseeable . . . Where, however, an attorney does not withdraw, a court exercising its supervisory power can . . . disqualify the attorney." (Citations omitted; internal quotation marks omitted.) Enquire Printing & Publishing Co. v. O'Reilly, 193 Conn. 370, 376, 477 A.2d 648 (1984).
" The Rules of Professional Conduct establish the guidelines for our determination of what constitutes a conflict of interest, and we properly look to them for guidance in determining whether a conflict exists that would impair the defendant's sixth amendment right to counsel . . . We have interpreted rule 3.7 to require an attorney to withdraw if he or she reasonably foresees that he 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).
" 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 in original; internal quotation marks omitted.) 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).
Nothing in the statutes or regulations prevents a party from having legal representation at PPT meetings. The defendant argued that it is inappropriate for the plaintiff's divorce attorney to be present at the PPT meetings. The plaintiff is privileged to seek legal representation from whichever attorney she chooses. See 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) (" In disqualification matters . . . 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." [Citation omitted; internal quotation marks omitted.]); see also, e.g., Jean v. Angle, Superior Court, judicial district of Fairfield, Docket No. CV-06-4016486-S, (May 1, 2008, Arnold, J.) (noting client's right to freely choose counsel when discussing disqualification of counsel pursuant to rule 3.7 of the Rules of Professional Conduct).
After listening to the recording of the meeting that Attorney Yagaloff attended, the court is not persuaded that his conduct and participation in the meeting are either material or relevant to the issue before the court regarding the plaintiff's motion to modify. The court also recognizes that only the trial judge can determine materiality and relevance. In the event the court determines that attorney Yagaloff's behavior at the PPT meeting is material and relevant, there are ample witnesses who can testify to that behavior. See Mettler v. Mettler, 50 Conn.Supp. 357, 363, 928 A.2d 631 (2007) (concluding availability of others to testify about conversations and events means attorney is not a necessary witness). Consequently, neither prong of the dual test of necessity has been satisfied, and, therefore, Attorney Yagaloff is not a necessary witness. The motion to disqualify Attorney Yagaloff is denied.