Opinion
No. CV 04-0103648S
November 2, 2004
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY
`The defendant, Harbor Hill Care Center, Inc. ("Harbor Hill"), has moved to disqualify the plaintiffs' counsel, Attorney Joseph E. Milardo, Jr., on the grounds that he is a necessary witness as well as an apportionment defendant.
Factual and Procedural Background
Dominic Anziano is the father of the plaintiff Dennis Anziano and was admitted to Harbor Hill, a nursing home facility in Middletown, Connecticut, on January 6, 2004. At that time a judicial restraining order, obtained on January 6, 2004 by Sandra Coleman, Dennis Anziano's sister, prevented Dennis Anziano from entering the dwelling or his parents, from imposing restraint upon them and from threatening, harassing or assaulting them. Dennis Anziano, acting though Attorney Milardo, moved to quash part of the aformentioned restraining order on Jan. 6, 2004.
Thereafter, on January 7, 2004 Dennis Anziano attempted to visit his father at Harbor Hill. The staff at Harbor Hill would not allow the visit due to the existence of the restraining order. On the same day Attorney Milardo telephoned Harbor Hill on behalf of Dennis Anziano to discuss Harbor Hill's denial of access to Dennis Anziano. Lawrence Condon, Administrator of Harbor Hill, advised Attorney Milardo that his client had been prevented from visiting his father because of the restraining order.
On January 20, 2004 after hearing, the restraining order against Dennis Anziano was dismissed by this court, Dubay, J. Attorney Milardo represented Dennis Anziano at the hearing. Thereafter Attorney Milardo had a telephone conversation with Tracy Shugrue, Director of Nursing Services at Harbor Hill, to discuss Dennis Anziano's visitation of his father. Attorney Milardo verbally advised Nurse Shugrue that the restraining order was no longer in effect. Nurse Shugrue requested that Attorney Milardo provide some form of written documentation to prove that the restraining order was no longer in effect, but Attorney Milardo failed to provide any such documentation.
On January 22, 2004 Dennis Anziano was again denied visitation with his father because Harbor Hill had no written confirmation that the restraining order was no longer in effect. Rather than provide the written documentation, Dennis Anziano and his wife Patricia commenced this action for intentional infliction of emotional distress, negligent infliction of emotional distress and violation of the Connecticut Unfair Trade Practices Act (CUTPA) against Harbor Hill. Plaintiffs allege that the defendant's refusal to allow them to visit Dominic Anziano was without good cause and was unauthorized and malicious. Plaintiffs also allege that the defendant's refusal to allow them to visit Dominic Anziano caused them public ridicule, humiliation, emotional distress, anxiety, loss of sleep, headaches, loss of appetite and physical illness.
On June 17, 2004 Harbor Hill served an apportionment complaint on Attorney Milardo. Thereafter, Attorney Milardo moved to strike the apportionment complaint and it was stricken by the undersigned on October 29, 2004.
Disscussion of the Law and Ruling
"The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court." State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), appeal after remand, 193 Conn. 70, 475 A.2d 1087 (1984). Attorney conduct is also regulated by the Rules of Professional Conduct, Rules 1.1-8.5. The Superior Court has a duty to enforce those rules. See e.g., State v. Jones, 180 Conn. at 448 (referring to the Code of Professional Responsibility and Canons of Ethics, the predecessors of the current rules). The Superior Court has broad discretionary power in ruling upon a motion to disqualify. State v. Jones, 180 Conn. at 448. Flanagan v. Kohary, 3 Conn. L. Rptr. 371, 17 CLT 16 (March 18, 1991, Dorsey, J.). However, a court must also be solicitous of a client's right to choose his counsel. Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993).
Rule 3.7, Lawyer As Witness, of the Rules of Professional Conduct provides in pertinent part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: CT Page 16417
(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.
"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." Tropical Suntan Centers, Inc. v. Salvati, 1 Conn. L. Rptr. 497, 498 (April 12, 1990) (Meadow, J.), quoting SS Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-46 (1987), see also Keoseian v. Von Kaulbach, 707 F.Sup. 50, 154 (S.D.N.Y. 1989).
In Tropical Suntan Centers, the Superior Court held that the defendant had failed to satisfy his burden of proof upon his motion to disqualify opposing counsel. In DeMarco v. Fire Command, Inc., 2 Conn. L. Rptr. 159 (July 27, 1990) (Downey, J.), the court also addressed the issue of whether a party's attorney could testify as a witness. The court in DeMarco denied the plaintiff's motion to disqualify opposing counsel on the ground that the plaintiff failed to show that opposing counsel's testimony would be "genuinely needed." DeMarco, 2 Conn. L. Rptr. at 159, citing Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 248-49. The court stated that the mere statement that the attorney "will be a necessary party witness" did not support this motion. Id.
In Fredericks v. Fortin, No. CV89-282910, 13 Conn. L. Rptr. 234, 1994 Ct.Sup. 12877 (Dec. 30, 1994, Hadden, J.), a suit arising from the sale of a corporation, defendant's counsel sought to disqualify the plaintiff's counsel who had represented the plaintiff at the closing of the sale of the corporation on the basis that he was a necessary witness. Statements made at the closing were at issue in the suit. After reviewing Rule 3.7 the court in Fredericks granted the motion to disqualify and stated:
The testimony of Mr. Sherwood [plaintiff's attorney] does relate to a contested issue and is not related to the nature and value of legal services. The plaintiff claims that there were four other people present during the closing and therefore Mr. Sherwood's testimony is not necessary. The court is of the opinion that in view of the allegations by the defendant with respect to what took place at the closing and Mr. Sherwood's role in it, which is denied by the plaintiff, that merely because other participants in the closing may be able to recall what took place, does not make Mr. Sherwood's testimony unnecessary.
He was the only attorney present, and since the evidence will concern what he did and said, he is a necessary witness.
The court in Fredericks also noted that the defendant had initially moved for disqualification very shortly after the case was commenced and that the suit did not involve complex legal issues.
In this case Attorney Milardo communicated with Harbor Hill as the agent of the plaintiffs. Such communication did not deal with peripheral matters, but rather, concerned the crucial issue in the lawsuit: the nature and meaning of the restraining order. In addition, the language of the restraining order, whether or not it restricted all contact between Dennis Anziano and his father and the plaintiffs' failure to provide the defendant with written evidence that it had been vacated, will probably be important issues in the trial. Attorney Milardo's testimony on the foregoing issues will be necessary, not merely optional, in the prosecution of the plaintiffs' claims.
The Motion to Disqualify was filed within five months after the return date. The case is less than one year old and another attorney would have ample time to become familiar with the case prior to trial. The hardship to the plaintiffs, therefore, is minimal. Based on the foregoing, the Motion to Disqualify Attorney Milardo as counsel for the plaintiffs in this case is granted.
By the court,
Aurigemma, J.