Opinion
MMXCV156013773
10-06-2016
H. Scott Kirkpatrick et al. v. Robert J. Shickel et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY (#112)
Julia L. Aurigemma, J.
The defendants, Robert J. Shickel, Robert J. Shickel, Co-Trustee of the Robert J. Shickel Revocable Trust, Valerie N. Shickel, Co-Trustee of the Robert J. Shickel Revocable Trust, and Robert J. Shickel Revocable Trust, have moved to disqualify the plaintiffs' counsel, John S. Bennet and the law firm of Gould, Larson, Bennet & McDonnell, P.C., from continuing its representation of the plaintiffs in this case.
Factual and Procedural Background
This action concerns the interpretation of an easement created by a Probate Distribution Agreement in 1954 over an access way known as Mill Road. The defendants have acknowledged that the easement exists in favor of the plaintiffs' property, but have recorded an affidavit encumbering the plaintiffs' access rights. The defendants have also recorded an " Environmental Affidavit" dated June 9, 1997 on the land records. The plaintiffs argue that the defendant, Robert Shickel, testified at his deposition that said Affidavit was created with the advice of Attorney Jane Marsh, who has represented him for years, and that there is no testing evidence to support the Affidavit's allegation that the plaintiffs' property has polluted the property of the defendants.
The defendant, Robert J. Shickel, has submitted an affidavit in which he avers:
3. The Robert J. Shickel Revocable Trust (" Trust") owns property in Essex, CT that includes the private driveway known as Mill Road. I have paid all of the taxes on this property since it was conveyed to me; the Trust has paid all of the taxes on this property since the property was conveyed to it.
4. I was conveyed the property including Mill Road in 1983 by Bernard Doane. I was represented by the law firm of Gould, Larson, Reardon, Carr & Stanley, now known as Gould Larson, Bennet & McDonald (sic), P.C. (" Bennet's Firm"), in that transaction. Attorney John S. Bennet was a member of the firm at the same time as I purchased the property from Bernard Doane.
5. It is my understanding that Bennet's Firm was involved in the original " root deed" that conveyed the properties owned by Anna E. Doane to her beneficiaries, and created the right-of-ways at issue in this litigation. My belief is based upon information that was provided to me by Bennet's Firm when the property including Mill Road was conveyed to me.
6. As part of the real restate transaction that conveyed the property from Bernard Doane to me, Bennet's Firm hired a surveyor, conducted a title search and issued me a Certificate of Title. It was and remains my understanding that I was conveyed Mill Road based on Bennet's Firm representations.
7. Prior to that transaction, beginning in approximately 1975, Bennet's Firm represented me in various matters including other real estate transactions, mortgage executions and in civil litigation, and this representation continued through 1984.
8. In approximately 2005 I engaged the law firm of Kitchings & Potter, LLC to represent me in various matters, and they continue to do so. I hired Kitchings & Potter to advise my wife, Valerie Shickel, and me regarding the creation of the Trust. Kitchings & Potter provided advice and subsequently created the Trust. We had detailed conversation about the Trust, what would be included in the corpus of the Trust, and including the property that includes Mill Road.
9. Kitchings & Potter has provided advice on the Trust and other matters as recently as the past few months, including while this litigation has been pending.
10. I have never been told by either Kitchings & Potter nor the Bennet's Firm of the " Of Counsel" relationship that the two firms share with each other, including after this instant litigation was commenced against the Trust that Kitchings & Potter created on our behalf.
11. I, on behalf of myself or on behalf of the Trust, was never asked to waive any conflict by Kitchings & Potter, LLC, nor by Bennet's Firm. I would not have waived the conflict if the same ha been presented to me.
Attorney Bennet has presented an affidavit in which he avers that:
3. I am associated with the firm of Gould, Larson, Bennet, McDonnell, Quilliam & McGlinchey which is a successor firm to several predecessor firms practicing law in the lower Connecticut River Valley area since, at least, 1953.
4. I am in possession of no information, whatever concerning a transaction for purchase by the Defendants, or any of them, in approximately 1983 or any other transaction or file in which they may have been represented by a member of the predecessor firm in any matter. This firm retains no files or records of any kind indicating representation of the Defendants in any matter at any time. All such material would have been and has been destroyed in keeping with file retention guidelines of the Connecticut Bar Association after six years.
5. All members of the predecessor firm who were alive in 1983 at the time of the transaction of acquisition of the subject property, other than myself, are deceased.
6. In 1983, my predecessor law firm maintained two offices, one in the Town of Essex and one in the Town of Old Saybrook.
7. I was a resident in the Old Saybrook office. There was seldom, if ever, any communication on the status of straight forward real estate and similar transactions between the offices or between counsel, and I have no recollection of any transaction or representation of the Defendants in any matter and no knowledge of such representation except as appears in the public land records or material submitted by the Defendant with their motion.
8. Attorney James H. Gould was a member of the predecessor firm of the current firm and his name is still associated with this firm. This firm maintains no records, whatever, of any transaction in 1954 regarding the subject property, Mill Road or any party involved in the alleged 1954 Distribution Agreement.
9. I have no personal knowledge of matters associated with the Distribution Agreement or the Estate of Ann E. Doane. All such material would have been and has been destroyed in keeping with file retention guidelines of the Connecticut Bar Association after six years.
10. This firm maintains a consulting " of counsel" relationship with the firm of Kitchings & Potter and the occasional referral of clients for specific matters within the particular expertise of attorneys in either firm.
10. (sic) Other than referral, the files of individual clients of each firm have never been discussed.
11. Until the filing of the instant, Motion to Disqualify, I was in possession of no information that the firm of Kitchings & Potter had ever represented any of the Defendants in any matter and had no discussion with any members of the firm of Kitchings & Potter regarding the Defendants (other than to advise they had been named in the instant Motion to Disqualify after it was filed) and have seen no file or related material.
12. No member of the firm of Kitchings and Potter has ever been a member of Gould, Larson, Bennet, McDonnell, Quilliam & McGlinchey or its predecessor firms and no member of Gould, Larson, Bennet, McDonnell, Quilliam & McGlinchey has ever been a member of the Firm of Kitchings and Potter and no individual attorney of either firms has ever been associated with any individual attorney of the other firm.
The defendants were represented in this action solely by Attorney Jane Marsh from the inception of the case, July 6, 2015 until May 6, 2016, when Aeton Law Partners, LLP, entered an appearance for the defendants in addition to that of Attorney Marsh.
Discussion 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).
" 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, at 400.
In State v. Jones, supra [180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982)], we stated that " the appearance of impropriety alone is 'simply too slender a reed on which to rest a disqualification order except in the rarest of cases.' Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979)." Id., 180 Conn. at 452-53, 429 A.2d 936; see also State v. Bunkley, supra, 202 Conn. at 653-54, 522 A.2d 795. 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. at 399-400.
Connecticut Rules of Professional Conduct, § 1.6 deals with the revealing of confidential information. The plaintiff's counsel has averred that neither he nor his law firm have confidential information regarding the defendants and the defendants have presented no evidence to the contrary.
Rule 1.7 of the Connecticut Rules of Professional Conduct provides that " A lawyer shall not represent a client if the representation involves a concurrent conflict of interest." There is no concurrent representation here. The defendants claim that one or more of them were represented by a now deceased member of the plaintiff's law firm 32 years ago.
Rule 1.9 of the Connecticut Rules of Professional Conduct provides " A lawyer who has formerly represented a client shall not thereafter represent another person in the same, or substantially related matter." Attorney Bennet has never represented the defendants.
Subsection (b) of Rule 1.9 provides that " A lawyer shall not knowingly represent a person in the same or substantially related matter in which the firm with which the lawyer formerly was associated had previously represented a client." The commentary to the Rule states " Subsection (b) operates to disqualify a lawyer only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(c)." Emphasis added. Attorney Bennet has averred that he has no knowledge whatsoever of any information concerning his predecessor firm's representation of Mr. Shickel.
Rule of Profession Conduct § 1.10 provides that a) " When lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule. 1.7 or 1.9 . . ." As set forth above, Rules 1.7 and 1.9 do not prevent Attorney Bennet's representation of the plaintiffs under the circumstances of this case.
The fact that Kitchings & Potter is " of counsel" to the plaintiffs' attorney's law firm is the most troubling. It appears that Attorney Bennet's firm used this " of counsel" designation to denote Kitchings & Potter's status as a firm to which referrals are regularly made and from whom referrals are regularly received. It does not appear that the firms are even located at the same address. Kitchings & Potter drafted the trust which owns the property at issue. However, the terms of that trust are not relevant to any issue in the case and there is no evidence that Kitchings & Potter had an involvement representing any party with respect to the easement issue or any other issue in this case.
In this case the defendants were represented by Attorney Marsh, who still represents them, for almost a year before this motion to disqualify was filed. There do not appear to be any client confidences that are in danger. Rather, the defendants are attempting to use the Code of Professional Conduct as a strategic legal maneuver to prevent the plaintiffs from selecting counsel of their choice. The court cannot allow the Code to be thus abused. See Bergeron v. Mackler, supra, at 400. The motion to disqualify is denied.