Opinion
No. FA 05 400 7219 S
June 14, 2006
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY ( MOTION 220 DATED AUGUST 4, 2005)
This case raises a difficult question involving the merits of a motion to disqualify counsel and the extent to which a court must evaluate the conduct of attorneys.
The defendant has moved to disqualify plaintiff's counsel, Attorney Joseph Chiarelli, on the grounds that he received confidential information concerning the subject matter of this action. The defendant asserts that the disqualification of counsel is required due to the fact Attorney Chiarelli failed to disclose the fact he had access to said information. The defendant argues that this court should not address the merits of the motion. He also suggests that the material is not protected by the attorney client privilege.
The suggestion is that the conduct here violated at least the spirit, if not the letter, of the code of professional responsibility.
I. Procedural History
This court must address the procedural history of this case. In July 2005 the litigants were in court for a multi-day pendente lite hearing. During the course of that hearing, plaintiff's counsel, Attorney Chiarelli, revealed that he had a tape recording of a meeting that was held at the office of defendant's counsel. Unbeknownst to her attorney, the defendant had tape-recorded that meeting. She left a copy of the recording in her automobile. (See transcript July 13, 2005, passim; affidavit of Deborah DeMartino in support of the motion to disqualify.)
Although the defendant used the automobile wherein she left the tape recording, the vehicle was one of multiple vehicles jointly owned by this couple. Throughout these proceedings both listed the automobile on their respective financial affidavits. The plaintiff secured a duplicate key for the vehicle in question. While searching the vehicle, he came across the tape recording. He gave the recording to his counsel who transcribed the same. Attorney Chiarelli attempted to use the tape and transcript during the pendent lite hearing. (Transcript July 13, 2005, passim.) At that juncture; defendant's counsel first became aware of the recording and transcripts.
Those financial affidavits pre-date the July 13, 2005 hearing. This automobile was the subject of a motion filed by the plaintiff in June 2005.
The trial court, Kenefick, J., ordered Attorney Chiarelli to return all copies of the tape recording and all transcriptions thereof. Those were filed with the court. They remain sealed by court order.
Attorney Chiarelli has filed notice of intent to appeal that court order. He also filed multiple motions wherein he seeks access to these tapes and transcripts, arguing that the same are necessary for his preparation for various court hearings.
On August 4, 2005 defendant's counsel filed this motion to disqualify Attorney Chiarelli. The matter first appeared on the short calendar in September 2005. Defendant's counsel wished to proceed with transcripts and affidavits. Plaintiff, through counsel, demanded a hearing.
This court initially scheduled a multiple day hearing to commence for October 13, 2005. Defendant's counsel requested a two-week continuance. This court granted said request and re-scheduled the hearing for November 2005. Plaintiff's counsel requested a continuance, which this court granted until December 2005. In December 2005 Attorney Chiarelli was unavailable due to undisclosed medical reasons.
From January 2006 to early May 2006, this court held status conferences regarding the present action. All parties received notice. Attorney Chiarelli was unavailable on each of those dates. As early as January 2006 the court advised the plaintiff that the matter, one involving a contested custody issue, must eventually proceed. In March and again in early May 2006, this court advised the plaintiff that the matter would proceed with or without the presence of Attorney Chiarelli. The motion to disqualify was scheduled for May 24, 2006. Once again, Attorney Chiarelli requested a continuance, citing medical issues. Over objection to the continuance by the defendant the court ordered that the matter would proceed on May 26, 2006.
On May 25, 2006, utilizing essentially the same information already presented, Attorney Chiarelli sent a facsimile to the New Haven Superior Court family case flow coordinator. Contained therein was a note from his physician indicating that the physician was treating Attorney Chiarelli for an infection.
This court indicated that the matter would proceed. Defendant's counsel chose to proceed with affidavits and existing transcripts. The court ordered defendant's counsel to produce that which she relied upon on or before May 31, 2006. This court further ordered plaintiff's counsel to file his affidavits and transcripts on or before June 5, 2006.
Later that same day Attorney Chiarelli filed multiple motions including an appeal of this court's denial of his request for a further continuance. That appeal is pending.
While this matter had been pending, the litigants have filed dozens of separate motions, objections and requests. Plaintiff's counsel himself filed the bulk of these matters. Unfortunately, when the defendant filed this motion to disqualify, action on all other motions was, of necessity, held in abeyance. A motion to disqualify must be resolved before the other pending motions may be decided. Patricia Martini v. Shelter Rock Realty, No. 113425, Connecticut Superior Court, Judicial District of Waterbury (January 19, 1996, Pellegrino, J.) ( 15 Conn. L. Rptr. 610).
Plaintiff's counsel himself raised this fact on May 28, 2006, when he objected to any ruling on the guardian ad litem's request for a payment schedule.
II. Applicable Law
"The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys." (Citations omitted.) Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993); Connecticut National Bank v. Rytman, No. X01-CV 87-0159941, Superior Court, Complex Litigation Docket at Waterbury (May 25, 2001, Hodgson, J.). Disqualification of counsel 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 quotations omitted, internal citations omitted.) Silver Chrysler Plymouth v. Chrysler Motor Corp., Inc., 518 F.2d 751, 754 (2d Cir. 1975).
However, "before permitting a party to disqualify an attorney the moving party bears the burden of proving facts which indicate disqualification is necessary. The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." Close, Jensen Miller v. Lomangino, No. 48419 Superior Court, Judicial district of Tolland at Rockville, (March 10, 1995, Klaczak, J.). The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice." (Citation omitted; internal quotation marks omitted.) Blakemar Construction v. CRS Engineering, Inc., No. 04 0412727, Superior Court, Judicial District of Fairfield at Bridgeport, (February 10, 2005, Skolnick, J.). "Disqualification is both harsh and draconian, and . . . [t]he courts should act very carefully before disqualifying an attorney . . ." Id.
In deciding a motion for 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." Bergeron v. Mackler, 225 Conn. at 397-98; Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978). "[T]he competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant's interest in protecting confidential information; (2) the plaintiffs' interest in freely selecting counsel of their choice; and (3) the public's interest in the scrupulous administration of justice." (Citations omitted, internal quotations omitted.) Bergeron v. Mackler, 225 Conn. at 397-98.
The party moving to disqualify counsel bears the burden of proof that there are wounds for disqualification. Government of India v. Cook Industries, Inc., 569 F.2d at 739 (2d Cir. 1978); Brand v. Matheny, Docket No. 0389922, Superior Court, Judicial District of Hartford/New Britain at Hartford (February 14, 1994, Aurigemma, J.); Cooney Bainer, P.C. v. Milum, No. 0246558, Superior Court, Judicial District of New Haven at Meriden (June 20, 1995, Silbert, J.).
In reviewing the request for disqualification, this court suggests that the issues addressed by the Second Circuit Court of Appeals over thirty-five years ago are problems still faced by all trial judges. As that Court noted in Board of Education of the City of New York, et al v. Nyquist, 590 F.2d 1241 (2nd Cir. 1979)
[W]ith rare exceptions disqualification has been ordered only in essentially two kinds of cases: (1) where an attorney's conflict of interests in violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court's confidence in the vigor of the attorney's representation of his client . . . or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation . . . thus giving his present client an unfair advantage . . . When dealing with ethical principles we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after a painstaking analysis of the facts and precise application of precedent.
(Internal citations omitted, internal quotations omitted, footnotes omitted.) Board of Education of the City of New York, et al v. Nyquist, 590 F.2d at 1246.
In light of the serious consequences of a disqualification motion, some of which include denial of counsel of choice, tactical advantage and delay, disqualification motions are carefully scrutinized.
The Nyquist court bemoaned the fact that the motion before it resulted in a one-year delay of the underlying trial. This court is faced with a virtually identical delay.
The first issue to address is whether the communication involved is protected by an attorney-client privilege. See State v. Jones, 193 Conn. 70, 92, 475 A.2d 1087 (1984).
Now, it is the glory of our profession that its fidelity to its client can be depended on; that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with the absolute assurance that the lawyers tongue is tied from ever disclosing it . . . It is obvious that professional assistance would be of little or no avail to the client unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession. (Citations omitted; internal quotations omitted.)
Goldberg v. Corporate Air, Inc. 189 Conn. 504, 509, 457 A.2d 296 (1983) 457 A.2d 296.
The fact that the communication involved was one between counsel and her client and involved the instant litigation, brings it in the realm of a protected communication. Defendant's counsel was not obligated to provide a detailed description of the conversation at issue. "In order to protect client confidentiality, the party moving for disqualification need not reveal the substance of its communication to the lawyer, for this would defeat the purpose of the disqualification . . . Usually, a showing of the circumstances and subject of the consultation will be enough to demonstrate whether the information was confidential." (Internal quotations omitted; internal citations omitted.) Cole v. Ruidoso Municipal Schools, et al., F.3d 1373, 1384 n. 8 (10th Cir. 1994). Here the communication was protected. The remaining issue is whether disqualification is mandated.
In the motion filed with this court, defendant's counsel suggests that Attorney Chiarelli's conduct violates the ethical prohibition against the appearance of impropriety. The defendant supplies little guidance, however, in determining whether continued representation is prohibited by applicable case law. Critically, this court has not examined the contested tape recording and transcript.
Neither party suggested such action.
In support of her motion defendant's counsel relies upon the protections afforded by the attorney-client privilege. Plaintiff's counsel has not provided any relevant case law, choosing instead to relitigate his motion to recuse and further objecting to the court's denial of his latest request for a continuance.
Merely alleging an ethical violation is not enough. A court cannot apply disqualification rules mechanically. "When dealing with ethical principles . . . [a court] cannot paint with broad strokes. The lines are fine and must be so marked . . . [T]he conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent." (Citations omitted.) Duncan v. Lynch, Pierce, Fenner Smith, 646 F.2d 1020, 1029 (5th Cir. 1981).
In determining when an attorney should be disqualified for an appearance of impropriety: (1) the trial court must find some "specifically identifiable appearance of improper conduct" and (2) the court must "find that the likelihood of public suspicion or obloquy outweighs the social interest which will be served by a lawyer's continued participation in a particular case." Woods v. Covington County Bank, 537 F.2d 804, 812 813 n. 12 (5th Cir. 1976).
Disqualification of counsel is a remedy that is sometimes used to guard against the danger of inadvertent use of confidential information. (Citation omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725, 774 A.2d 220 (2001). Generally, however, "the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases . . . Although considering the appearance of impropriety may be part of the inherent power of the court to regulate 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." (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. at 399-400.
Plaintiff's counsel is not accused of divulging the confidences of his client or of committing any other "specifically identifiable impropriety." See In re Paradyne Corporation, 803 F.2d 604 (11th Cir. 1986); United States v. Hobson, 672 F.2d 825 (11th Cir. 1982).
Disciplinary rules, although instructive, do not govern disqualification motions. See Armstrong v. McAlpin, 625 F.2d 433, 446 n. 26 (2d Cir. 1980). "[U]nless an attorney's conduct tends to `taint the underlying trial,' by disturbing the balance of the presentations in one of the two ways indicated above, courts should be quite hesitant to disqualify an attorney . . . The attorney is the client's choice. Disqualification is wasteful and time-consuming. Only where the attorney's unprofessional conduct may affect the outcome of the case is there any necessity to nip it in the bud. Otherwise conventional disciplinary machinery should be used and, if this is inadequate, the organized bar must assume the burden of making it effective as a deterrent." Nyquist, 590 F.2d at 1247-48. The alleged misconduct must be egregious. Koller by Koller v. Richardson-Merrell, 737 F.2d 1038, 1055-56 (D.C. Cir. 1984).
Case law indicates the limits of this concept. See United States v. Voight, 89 F.3d 1050 (3rd Cir. 1996), and the cases cited therein. Furthermore, there is a difference between active encouragement and passive tolerance of improprieties. See United States v. Marshank, 777 F.Sup. 1507 (N.D.Cal. 1991). There must be substantial prejudice.
For an example of egregious conduct see United States v. Fayer, 523 F.2d 61 (2d Cir. 1975); United States v. Madsen, 148 F.Sup. 625 (D. Alaska 1957).
"In determining whether an attorney must be disqualified, a court may hold an evidentiary hearing." (Citations omitted; internal quotations omitted.). Patchell v. Automobile Insurance Co., No. 368147, Superior Court, Judicial District of New Haven at New Haven (August, 30, 1994, Hartmere, J.). In the present case there was an opportunity to present evidence, but the opportunity was not taken. The current state of the pleadings and the lack of an evidentiary hearing militate against the motion to disqualify. See Salyer et al. v. Carey et al., No. X08 CV 04 4003396 S, Superior Court, Judicial District of Stamford-Norwalk Complex Litigation Docket at Stamford (March 29, 2005, Adams, J.). Although disqualification is not warranted based on the present record, the defendant is not without a remedy. "Information subject to the attorney-client privileges of individual witnesses can be protected from dissemination at trial by allowing the witnesses themselves to claim the privilege in response to specific questions . . . [T]he inability of defense counsel to use privileged information would not more impair their representation than would their knowledge of any other information inadmissible as evidence." (Citations omitted.) In re Paradyne Corporation, 803 F.2d 604, 610 n. 14 (11th Cir. 1986). Additional sanctions could include preclusion of the improperly obtained documents, monetary sanctions, and, if egregious conduct continues, disqualification of the offending attorney. Carroll v. Carroll, No. FA-99-0090676-S 2003 Ct.Sup. 7480-a, Superior Court, Judicial District of Middletown (June 10, 2003, Aurigemma, J.) ( 35 Conn. L. Rptr. 10). There could be protective orders, or even, if necessary, by post-trial contempt without needlessly delaying proceedings on the merits and depriving a party of its chosen counsel. Koller by Koller v. Richardson-Merrell, 737 F.2d at 1061-63.
In a prior proceeding, the trial judge ordered plaintiff's counsel to surrender all copies and transcriptions of the communication at issue. Those orders remain in full force and effect.
Although the plaintiff suggests that the information is necessary and relevant, the fact that information is relevant or even crucial does not require that a trial court abandon the rules of evidentiary privileges. See Falco v. Institute of Living, 254 Conn. 321, 757 A.2d 571 (2000); Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 757 A.2d 14 (2000).
The court is fully aware of the concerns voiced by the defendant. As noted in Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980):
A rule that concentrates on the threat of taint fails to correct all possible ethical conflicts. In adopting this approach, we do not denigrate the importance of ethical conduct by attorneys practicing in this courthouse or elsewhere, and we applaud the efforts of the organized bar to educate its members as to their ethical obligations. However, absent a threat of taint to the trial, we continue to believe that possible ethical conflicts surfacing during a litigation are generally better addressed by the "comprehensive disciplinary machinery" of the state and federal bar, see Nyquist, supra, 590 F.2d at 1246, or possibly by legislation. While there may be unusual situations where the "appearance of impropriety" alone is sufficient to warrant disqualification, we are satisfied that this is not such a case.
The defendant has not met the requisite standard of proof. Accordingly, for the foregoing reasons, the defendant's motion to disqualify is denied without prejudice.