Opinion
No. FST CV 08 4014422
September 17, 2008
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY COUNSEL (103.00)
I. Background
In this action, returned to court on July 22, 2008, the plaintiff Kenneth Newlands seeks dissolution of NRT Associates, LLC (NRT) and money damages against the individual defendants, James Thompson and Scott Raissis, who along with Newlands are the members of NRT, each holding a one-third interest in that entity. The complaint alleges that Thompson, NRT's managing member, and Raissis have made improper payments from NRT to another entity, Thompson Raissis Architects Inc., have prevented Newlands from participating in NRT's governance and operations, refused to provide Newlands with any information about NRT's business operations or finances and refused to make payments from NRT to Newlands to which Newlands alleges he is entitled.
Thompson has moved to disqualify the law firm of Zeldes, Needle and Cooper (Firm), and individual attorneys Martin McCann and Douglas Varga from representing Newlands pursuant to Rules 1.9 and 1.10 of the Rules of Professional Conduct governing attorneys admitted to practice in Connecticut.
Rule 1.9 reads:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.10 reads in pertinent part as follows:
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(2) that is material to the matter.
According to the memorandum in support of the motion, Thompson retained Attorney Kevin Kelley of the Firm to represent him in estate planning work "[a]pproximately three years ago" and Attorney McCann "reviewed and assisted" Kelly in this work. Thompson Memorandum, 2. Thompson contends that the Firm possesses "confidential information of Thompson," that McCann "is familiar with such information" and if the plaintiff obtained a judgment against Thompson the Firm would have a "roadmap to his assets." Id., 2-3.
In opposing the motion to disqualify, Newlands submitted the affidavits of Attorney Varga and Attorney McCann and a memorandum of law. Varga's affidavit confirms that Thompson was an estate planning client of the Firm and that according to billing records Attorney Kelley, an associate of the Firm, had spent 19.45 hours on Thompson's matters in 1998 and 1999, and 4.75 hours in 2002 and 2003 with the last work provided in April 2003. Varga states Attorney Kelley left the Firm in April 2004 taking the Thompson estate planning file with him, and that Attorney McCann spent 1.2 hours on Thompson's matters in 1998 in conference with Kelley and reviewing wills drafted by Kelley.
Attorney McCann's affidavit echoes that of Vargas respecting the work he did personally of Thompson's matters. In addition, McCann states that he has no recollection of anything he did for Thompson or any information about Thompson. McCann states, as does Vargas, that the Firm has no information, or records, confidential or otherwise, stemming from its representation of Thompson, except for billing records.
Subsequently, the defendant Thompson filed an affidavit which while stating the Varga and McCann affidavits "are inaccurate" pretty well confirms that the Firm's representation of Thompson ceased in the spring of 2003. The affidavit expresses Thompson's outrage at being "sued by my counsel, when they possess confidential information of mine." Thompson Affidavit, ¶ 7.
II. Discussion
The burden of showing sufficient grounds for the disqualification of an attorney is on the moving party. Several Superior Courts have noted this is a high burden because disqualification is a harsh remedy. See Blakemar Construction v. CRS Engineering. Inc., Superior Court, judicial district of Fairfield, CV 04 04122727 (February 9, 2005, Skolnik, J.); DeLeo v. Kruger, Superior Court, judicial district of Stamford-Norwalk at Stamford (February 10, 1998, Mintz, J.) [21 Conn. L. Rptr. 375]. The interests at stake in a motion to disqualify are (1) the defendant's interests in protecting confidential information, the plaintiff's interest in freely selecting counsel of his choice, and (2) the public interest in the scrupulous administration of justice. Bergeron v. Mackler, 225 Conn. 391, 398 (1993).
In his motion Thompson makes no argument that the estate planning work was the same or substantially related in any fashion to the business dispute that underlies this case. Indeed, NRT was registered as an LLC in October 2004, a year and a half after the last estate planning work was done by the Firm. See Varga Aff., Ex A. Therefore, the court finds no violation of Rule 1.9(a) and (b) or 1.10(b)(1) of the Rules of Professional Conduct.
Thompson contends that the Firm has confidential information in its possession. There is no contention that such information has been used by the Firm or by Attorneys Varga and McCann in the NRT matter. Nevertheless, Thompson appears to argue that disqualification is appropriate "to guard against the danger of inadvertent use of confidential information" citing American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725 cert. denied 257 Conn. 903 (2001) which in turn was quoting from Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975). However, Thompson has offered no description and no facts concerning whether he disclosed confidential information and what the nature of the information was. In Cadle Co. v. Ginsberg, 70 Conn.App. 748, 771-72 (2002) the Appellate Court upheld the denial of a motion to disqualify when there was no specific evidence as to the information in the attorneys hands or its likely effect on the undulying litigation.
So it is in this case. Given the lack of relation between the personal estate planning work of some years ago, and this case involving the quite recent workings of a residential construction and a construction management company, Thompson is required to make a far more detailed evidentiary showing of the nature of the confidential information and its potential use in this case than he has made. Rule 1.9(c) prohibits the "use" or revealing of confidential information. The Firm has, in some detail, denied that it has any such information and asserted the Thompson estate planning file is no longer in its possession. This denial has not been refuted. Even if it was refuted, it is difficult to see how the information would be relevant to the NRT dispute. Thompson's only claim as to how the information might be used is that it would provided a "roadmap to his assets." This is an unconvincing argument because Thompson's assets have no apparent relationship to the merits of the NRT dispute. Moreover, if Newlands is successful in this action and obtains a money judgment the assets of Thompson would have to be disclosed during normal judgment creditor-debtor proceedings. Therefore, this court finds that Rules 1.9(c) and 1.10 do not require disqualification.
III. Conclusion
For the reasons stated above, the motion to disqualify is denied.