Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford
MEMORANDUM OF DECISION ON MOTION TO
plaintiff Ruth Jones (the plaintiff or Jones) commenced this
action, returnable December 9, 2014, against Robert L. Deak
(Deak), Moshira Soliman (Soliman), and Imperial Real Estate
Holdings, LLC (Imperial), for money damages and related
relief arising out of an alleged real estate joint venture
between the plaintiff and the defendants. On February 26,
2015, the defendants moved to disqualify the plaintiff's
attorney, John R. Harness, Esq. (Attorney Harness) from
representing her in this action (#135.00). Later that day,
the defendants filed an amended verified motion to disqualify
(#137.00), together with the affidavits of Deak and Soliman
and a memorandum of law in support of their motion. In their
moving papers, the defendants argue that Attorney Harness
must be disqualified because he previously represented the
defendants on matters substantially related to this action,
and he will be a necessary witness at the trial of this
action. On March 6, 2015, the plaintiff objected to the
motion to disqualify (#150.00). The plaintiff filed her own
affidavit and that of Attorney Harness in support of her
objection. The defendants replied to the plaintiff's
objection on March 13, 2015 (#158.00).
parties were before the court on the short calendar on April
20, 2015. The court heard testimony from Deak, Soliman,
Jones, and Attorney Harness and argument from counsel with
respect to the motion to disqualify. The court reserved
decision at the time. By order entered on July 31, 2015
(#135.01), the court denied the defendants' motion to
disqualify (#135.00; #137.00) and sustained the
plaintiff's objection thereto (#150.00).This articulation
follows the court's July 31, 2015 order.
Supreme Court has observed, " [d]isqualification 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 . . . In
disqualification matters, however, we must be solicitous of a
client's right freely to choose his counsel . . . [and]
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 . . .
The competing interests at stake in the motion to disqualify,
therefore, are: (1) the defendant's interest in
protecting confidential information; (2) the plaintiff's
interest in freely selecting counsel of their choice; and (3)
the public's interest in the scrupulous administration of
justice." (Citations omitted; internal quotation marks
omitted.) Bergeron v. Mackler, 225 Conn.
391, 397-98, 623 A.2d 489 (1993). " The party moving for
disqualification bears the burden of proving facts which
indicate that disqualification is necessary . . . The
disqualification of a party's chosen counsel is a harsh
sanction, and an extraordinary remedy which should be
resorted to sparingly." (Internal quotation marks
omitted.) Mettler v. Mettler, 50 Conn.Supp.
357, 362, 928 A.2d 631 [43 Conn. L. Rptr. 578] (2007). "
In determining whether to grant a motion to disqualify, a
factual analysis must be conducted and unethical behavior
should not be presumed by the court." (Internal
quotation marks omitted.) DeLeo v. Kruger,
Superior Court, judicial district of Stamford-Norwalk at
Stamford, Docket No. CV-94-0142362-S (February 10, 1998,
Mintz, J.) (21 Conn. L. Rptr. 375). An appearance of
impropriety is not a sufficient ground for disqualification.
Bergeron v. Mackler, supra, 225 Conn. at
general rule is that only a present or former client has
standing to move to disqualify an attorney on conflict of
interest grounds. " A prerequisite to disqualification
of counsel is the requirement that an attorney-client
relationship existed between the party moving for
disqualification and the lawyer or firm in question."
New England Dairies, Inc. v. Ryan, Superior
Court, judicial district of Hartford/New Britain, Docket No.
CV-98-0578832-S (August 11, 1998, Devlin, J.).See, e.g.,
Northeast Double Disc Grind, LLC v.
Pietrowicz, Superior Court, judicial district of New
Britain, Docket No. CV-12-6018053-S (June 6, 2014 Abrams, J.)
[58 Conn. L. Rptr. 302]; Jimenez v. Allstate
Indemnity Co., Superior Court, judicial district of
Waterbury, Docket No. CV-04-400981-S (May 18, 2005,
Gallagher, J.) (39 Conn. L. Rptr. 359); Kocsis v.
Gerencser, Superior Court, judicial district of New
Haven, Docket No. No. CV-95-0375378-S (January 3, 1997,
defendants seek the disqualification of the plaintiff's
counsel, Attorney Harness, on the grounds that: (i) Attorney
Harness previously represented the defendants in matters
related to the plaintiff's pending action against them;
and (ii) Attorney Harness is a necessary witness in the
proceedings. At the hearing on the motion to disqualify,
Attorney Harness testified that he represented two limited
liability companies-JRL LLC and Catamount Road LLC-during
the time that the defendants claim that he acted as their
counsel, and that he did not represent the defendants.
Attorney Harness also testified that he was counsel for the
plaintiff for about ten to twelve years, and that the
plaintiff was the controlling member of both LLCs. He denied
receiving money from the defendants, or being asked by the
defendants to represent them. He testified that he did not
offer to represent the defendants. Attorney Harness testified
that he never represented to the bank that he was the
defendants' attorney, and that the extent of his
communication with the defendants was limited to email
exchanges regarding offers to purchase the property that his
clients owned and forwarding those offers to the bank.
Attorney Harness testified that he would not have considered
representing the defendants because he was already counsel
for the property owners. The court credits the testimony of
Attorney Harness and finds that no attorney-client
relationship existed between the defendants and Attorney
Harness. Therefore, the defendants do not have standing to
seek to disqualify Attorney Harness from representing the
plaintiff in this action, absent a showing of the limited
exception discussed below.
have permitted a party who is not a present or former client
to seek to disqualify opposing counsel where attorney-client
confidentiality has been breached or a similar ethical
violation has occurred. See, e.g., Goldenberg v.
Corporate Air, Inc., 189 Conn. 504, 507-08, 457 A.2d
296 (1983), overruled in part by Burger and Burger, Inc.
v. Murren, 202 Conn. 660, 522 A.2d 812 (1987)
(disqualifying defendant's attorney who had consulted
with former in-house attorney for co-defendant's
insurer). See also E. Surette, Standing of Person,
Other than Former Client, to Seek Disqualification of
Attorney in Civil Action, 72 A.L.R. 6th (2012), and
cases cited therein. " [T]he circumstance under which an
opposing party may invoke the claim of a conflict of interest
is limited. Only '[w]here the conflict is such as clearly
to call in question the fair or efficient administration of
justice' may opposing counsel properly raise the
question." Jones v. Jones, Superior
Court, judicial district of Stamford/Norwalk, Docket No.
FA-99-0173261-S (Oct. 1, 2003, Winslow, J.) (35Conn. L. Rptr.
563) (quoting Rules of Professional Conduct R. 1.7,
commentary). See also 2284 Corp., Inc. v.
Wentworth Contractors Group, Ltd., Superior Court,
judicial district of Fairfield, Docket No. CV-01-3815408-S
(June 28, 2002, Gallagher, J.)(denying defendant's motion
to disqualify plaintiff's attorney where defendant was
unable to establish a prior attorney-client relationship with
plaintiff's attorney); DeLeo v. Kruger,
supra, Superior Court, Docket No. CV-94-0142362-S (21
Conn. L. Rptr. 375) (court declined to automatically assume
that defendant's counsel was improperly using information
obtained from plaintiff's former attorney to defend
action); Prime Equities, Inc. v. DiScala,
Superior Court, judicial district of Stamford-Norwalk, Docket
No. CV-94-0141542-S (March 28, 1995, Lewis, J.) (where
defendants failed to establish that they were former clients
of law firm, or show any substantial relationship between
them and law firm, held that law firm had not obtained any
confidential information regarding defendants and that
disqualification of law firm would unfairly prejudice
plaintiffs' right to choose counsel).
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,
225 Conn. at 400. The defendants have not demonstrated that
any information they shared with Attorney Harness was
privileged or is being used improperly to aid in the
prosecution of this action.
second ground to disqualify Attorney Harness from
representing the plaintiff in this action, the defendants
claim that Attorney Harness is likely to be a witness at the
trial of this action. Rule 3.7 of the Rules of Professional
Conduct provides in pertinent part that " (a) A lawyer
shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless: (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." Rules of Professional Conduct
R. 3.7. " [W]henever counsel for a client reasonably
foresees that he will be called as a witness to testify on a
material matter, the proper action is for that attorney to
withdraw from the case . . . Where, however, an attorney does
not withdraw, a court exercising its supervisory power can
enforce the mandate of DR 5-102(A) [now Rule 3.7] and
disqualify the attorney." (Citations omitted; internal
quotation marks omitted.) Enquire Printing & Publishing
Co. v. O'Reilly, 193 Conn. 370, 376, 477
A.2d 648 (1984).
Under Rule 3.7, the first relevant inquiry is whether the
attorney whose disqualification is sought is a necessary
witness in the matter. A necessary witness is not just
someone with relevant information, however, but someone who
has material information that no one else can provide."
Mettler v. Mettler, 50 Conn.Supp. 357, 360,
928 A.2d 631 (2007) (43 Conn. L. Rptr. 578). " 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 . . . A party's mere declaration of an
intention to call opposing counsel as a witness is an
insufficient basis for disqualification even if that counsel
could give relevant testimony . . . There is a dual test for
'necessity.' First the proposed testimony must be
relevant and material. Second, it must be unobtainable
elsewhere." (Citations omitted; internal quotation marks
omitted.) Tropical Suntan Centers, Inc. v.
Salvati, Superior Court, judicial district of
Ansonia-Milford at Milford, Docket No. CV-90-031092-S (April
12, 1990, Meadow, J.)(1 Conn. L. Rptr. 497).
defendant has failed to show that any proposed testimony of
Attorney Harness will be " relevant and material"
and " unobtainable elsewhere." There is no basis
for the court to conclude that Attorney Harness is a
necessary witness in the trial of this action and ...