Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. Deak

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

April 25, 2016

Ruth Jones
v.
Robert L. Deak et al Opinion No. 133482

          MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY

          HELLER, J.

         The 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).

         The 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.

         I

         As our 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 399.

         The 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, Corradino, J.).

         The 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[1]-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.

         II

         Courts 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).[2] 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.

         III

         As a 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).

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.