Opinion
No. 376243
September 22, 1995
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY
On August 11, 1995, the plaintiff filed a twelve count amended complaint against the defendants. Counts six through ten are directed against the defendants Middlesex Mutual Assurance Co. (Middlesex) and Total Insurance Management, Inc., and allege negligence, breach of contract, misrepresentation, and violations of CUIPA and CUTPA. Counts ten and eleven are directed against Middlesex only; count eleven alleges bad faith and count twelve seeks a reformation of the contract of insurance at issue in this case.
On August 22, 1995, Middlesex filed a motion to disqualify the law firm of Attorney Roger Sullivan, counsel for the plaintiffs, on the ground that Attorney Sullivan acted as an arbitrator in arbitration proceedings involving the uninsured motorist of the plaintiffs against Middlesex. In support of its motion, Middlesex raises the specter that the firm may have "gained an unfair advantage as a result of . . . [Attorney Sullivan] having participated in the arbitration in which Middlesex was a respondent." Middlesex fails to crystallize, however, the foundation for this proposition. The plaintiffs filed an objection to Middlesex's motion, and a memorandum. The plaintiffs argue that Rule 1.12(d) of the Connecticut Rules of Professional Conduct permits Attorney Sullivan's representation of the plaintiffs.
The defendant also advances the ground that Attorney Sullivan may be called as a witness in this case. In light of the speculative nature of this argument, it will not be addressed in this memorandum.
Disqualification of an attorney "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." (Internal quotation marks omitted.). Bergeron v. Mackler, 225 Conn. 391, 397 (1993). In matters concerning disqualification, 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." (Citations omitted and internal quotation marks omitted.). Id., 397-98. In the motion to disqualify, therefore, the competing interests are: "(1) the defendant's interest in protecting confidential information; (2) the plaintiff's interest in freely electing counsel of their choice; and (3) the public's interest in the scrupulous administration of justice . . . ." (Citations omitted.). Id., 398.
Rule 1.12(d) of the Rules of Professional Conduct states that "[a]n arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party." There is no case law in Connecticut interpreting this provision. There are, however, ethics opinions which are helpful.
The cases cited by the defendant in support of its motion are distinguishable. In In re Daddario, 23 B.R. 127 (D.Conn. 1992), the court addressed the issue of whether a former interim trustee in a bankruptcy case can represent parties in adverse matters thereafter brought by the bankruptcy estate. Id., 129. The court expressed its view that the interim trustee should be disqualified. Id. The court stated that the trustee's relationship to the estate is analogous to an attorney's relationship to a client. Id. The court then applied Rule of Professional Conduct 1.9(a), and determined that the attorney had a conflict of interest between his responsibilities to the estate and the adverse parties whom he sought to represent. Unlike the attorney in the present action, the attorney in Daddario sought to undertake representation of conflicting interests. In Metropolitan Property and Casualty Insurance Co. v. J.C. Penney Casualty Insurance Co., 280 F. Sup. 885 (D.Conn. 1991), the plaintiff sought to disqualify an attorney appointed as an arbitrator by the defendant. Id. The case involved the plaintiff's claim that the attorney committed arbitrator misconduct and exhibited partiality toward the defendant prior to arbitrating the dispute. No such claims are at issue in the present action.
In one opinion, the propriety of an attorney acting as part-time hearing officers for the Department of Motor Vehicles was discussed. The opinion concluded that "an attorney-hearing officer or a fellow member of his or her firm may represent a client before the Superior Court in cases where the client may be subject to an administrative hearing at DMV, arising from the same facts and circumstances." The committee noted, however, that the major source of conflict was eliminated by the fact that the hearing officer attorney and the firm would not be associated with any DMV proceeding related to the matter pending in the Superior Court. Connecticut Professional Responsibility Reference Guide, Informal Opinion 92-15 (May 27, 1992).
In a California opinion, it was determined that a lawyer who represents a client in a legal matter may accept the client's designation of him as an arbitrator in partisan contractual arbitration. ABA/BNA, Lawyers' Manual on Professional Conduct, Ethics Opinion 1984-80.
Canon 5 of the ABA Model Code of Professional Responsibility, EC 5-20, states that "[a] lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships. After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved." This rule, however, clearly differs from Rule 1.12(d), which expressly permits subsequent representation by a partisan arbitrator.
The record does not support a finding that the defendant will be harmed by Attorney Sullivan's representation or the plaintiffs. The defendant has not claimed, for example, that it is seeking to protect confidential information. The defendant has not presented facts that support a finding of a conflict of interest or attorney misconduct. In addition, the defendant has not offered any relevant and pertinent case law to support the disqualification of Attorney Sullivan or his law firm. The plain language of Rule 1.12(d) and the public policy favoring an individual's right to choose counsel of its choice militate against disqualification. Accordingly, the defendant's motion to disqualify the law firm of Roger Sullivan is denied.