Lisa A. Wildrick et al. v. Martha Kuppe
MEMORANDUM OF DECISION ON MOTION TO DISQUALIFY COUNSEL (# 107) and ADDENDUM (# 111)
Before the court at this time is a motion dated July 13, 2011, and an addendum filed July 25, by which plaintiffs seek an order disqualifying counsel for defendant from representing her in this proceeding. On August 1, 2011, this court afforded both parties a full hearing on the issues involved.
Plaintiffs are Lisa Wildrick and Christopher Vetter–Spellman, respectively the paternal grandmother and biological father of a minor child born in 2004 whose custody they seek in this action. Defendant is the child's mother.
On July 8, 2011, the law firm of Ansell Laben Law Offices, LLC., appeared on behalf of defendant. Attorney Denise Ansell signed the appearance slip, which by its terms purports to limit the appearance thus: “Special Appearance on behalf of Defendant to challenge jurisdiction only 1 .” Attorney Ansell simultaneously filed a motion to dismiss the custody application. That motion is not before the court at this time.
Plaintiffs have two bases for their claim in the instant motion that this law firm may not represent defendant. First, they cite a retainer agreement between Lisa Wildrick and the law firm dated October 30, 2009, which they claim relates to issues that are involved in this custody dispute. That agreement (Exhibit 1), describes the scope of the engagement as “[c]lient hires Attorneys to act as lawyers in connection with making sure client i.e., Martha Kuppe, is safe as she has disappeared under unusual circumstances as we have discussed ․” The agreement is signed by Lisa Wildrick, identified as “CLIENT,” over a signature line under which is written “Lisa Wildrick, for Martha Kuppe.” Obviously, Ms. Kuppe was not available to sign the agreement in her own right. Ms. Wildrick today asserts that she was a “client” under this agreement and that the law firm may not now act in a manner adverse to her. The law firm, on the other hand, contends that only Kuppe was its client, with Wildrick's role limited to that of guarantor of payment.
Plaintiffs' second argument is that the law firm had represented Christopher Vetter–Spellman, along with defendant, in an earlier matter involving the Department of Children and Families which concerned their competence as parents of the minor child whose custody is at issue here. Purportedly members of the law firm learned details from father which were revealed in confidence and which now preclude its representing mother in an action adverse to him.
I. FINDINGS and LEGAL DISCUSSION
This court resolves the factual dispute as to whether or not Lisa Wildrick was a client of the law firm in her favor. The retainer agreement employs the term “client” at least thirteen times. In its first use of the word, in the first paragraph which begins “[c]lient hires Attorneys ․” clearly only Ms. Wildrick could be understood to be the client since the goal of the engagement was to find and confirm the safety of Ms. Kuppe. The very same sentence, however, immediately refers to “․ client i.e., Martha Kuppe ․” Subsequent paragraphs describe as the duties of “client” the payment of fees and expenses which were charged to Ms. Wildrick. Nowhere does the document indicate that her role was confined to the function of a guarantor of payment. Indeed, given her interest in locating a missing person, it is difficult to understand how her role could be thus circumscribed.
As our Supreme Court explained in David M. Somers and Associates, P.C. v. Busch, 283 Conn. 396 (2007), a “contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms”; 283 Conn. 396, 403 (internal quotation marks and citations omitted). Here, two completely opposite opinions have been expressed as to whether Ms. Wildrick was or was not a client of the law firm. From the retainer agreement alone, the answer to that question is not apparent, but meanders in one direction or the other depending upon which provision of the document is under scrutiny. The agreement is, therefore, ambiguous.
This linguistic deficiency is compounded by the unusual and mysterious nature of the representation here—to find a missing adult. Ms. Wildrick's goal may be one shared by Ms. Kuppe if, for instance, she were the victim of foul play. On the other hand, it must have been viewed as possible, at the time the retainer was signed, that Ms. Kuppe would tell Ms. Wildrick and the law firm to mind their own business. In the first instance, both women could properly be understood to be “clients”—an “either/or” dichotomy is not inevitable. The contrary potential, that Ms. Kuppe desired no contact with this plaintiff, should have been obvious enough to lead the law firm to clarify to whom it owed allegiance in such an event and on what basis it was accepting Ms. Wildrick's money to arrive at that determination.
The Somers case goes on to explain that when the language of a contract is ambiguous, the determination of the parties' intent is a question of fact. Footnote 10 to that decision instructs that a court attempting a resolution of such a question of fact may be guided by two separate doctrines of construction which, in this case, conduce towards the same result. First is the doctrine of contra proferentem, whereby ambiguities in a contract are construed against the party who had drafted the contract. “The premise behind the rule is simple. The party who actually does the writing of an instrument will presumably be guided by his own interests and goals in the transaction. He may choose shadings of expression, words more specific or more imprecise, according to the dictates of these interests ․ A further, related rationale for the rule is that since one who speaks or writes, can by exactness of expression more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity are resolved in favor of the latter. Secondly, the attorney-client relationship imposes a fiduciary duty on the attorney characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge skill or expertise and is under a duty to represent the interests of the other. This fiduciary duty is of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith.
Either doctrine warrants this court's concurring in Ms. Wildrick's perception that she has had an attorney-client relationship with the law firm, particularly since the retainer agreement may be construed as acknowledging such a relationship. The law firm will not now be heard to dispute her conclusion.
The second basis for the present motion also requires this court to resolve a factual dispute, this one between the law firm and plaintiff Vetter–Spellman. He testified that Attorney Ansell had counseled him and Ms. Kuppe in the summer of 2008 in connection with an ongoing DCF investigation. Instead of stipulating that such had occurred, Attorney Ansell cross-examined him as though it was obvious he was mistaken or deceitful. The court observed his testimony, and finds him credible and coherent. She then offered the testimony of the firm's other principal, Adam Laben, apparently to rebut this plaintiff's assertions. Mr. Laben instead essentially corroborated plaintiff, acknowledging that while the principal attorney responsible for the DCF matter was Ansell, he was aware that “something happened” and that both Vetter–Spellman and Kuppe were in the firm's office and met with her. It is perplexing to this court how the law firm can now deny the 2008 representation, or its significant overlap with the issues presented in this custody dispute. The court finds that Vetter–Spellman did have an attorney-client relationship with the law firm in 2008 involving subject matter that is closely related to the present case.
At least two of the Rules of Professional Conduct for Attorneys are involved here. Rule 1.7, “Conflict of Interest: Current Clients,” reads thus:
(a) Except as provided in subsection (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
The exception outlined in subparagraph (b) is inapplicable here. The comments to this Rule provide an example of the type of problem presented by this case:
Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client. Similarly, a directly adverse conflict may arise when a lawyer is required to crossexamine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.
Ms. Wildrick's argument that the continued representation by the law firm of Ms. Kuppe violates this Rule is persuasive.
As to Mr. Vetter–Spellman, the applicable rule is 1.9, which reads:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a 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.
Again, the comments to the Rule are helpful in understanding its relevance to the instant motion. “Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.” While an interparental custody dispute is not identical to an investigation by the DCF, the factual issues material to the quality of an individual's parenting which arise in both contexts make them inevitably “substantially related.” The law firm cannot isolate data disclosed to it in 2008 from that which may assist the court in determining the 2011 controversy. Mr. Vetter–Spellman is the intended beneficiary of this Rule, and this court believes the Rule supports the relief sought by his motion.
II. CONCLUSIONS AND ORDER
When a violation of the Rules of Professional Conduct is brought to the court's attention, it is within the court's discretion to respond so as to insure the observance of those Rules and so as to protect the public; Burton v. Mottolese, 267 Conn. 1 (2003). Here, where the evidence clearly and convincingly establishes plaintiffs' factual claims, and the law therefore dictates the inappropriateness of the law firm continuing to represent Ms. Kuppe in these circumstances, the sanction of disqualifying the law firm from that representation is minimal, and yet ought to be sufficient.
Accordingly, it is hereby
1) The motion to disqualify is granted.
2) Defendant shall file an appearance, on her own behalf or through successor counsel, within twenty days of the filing of this memorandum.
3) Any hearing on the pending motion to dismiss shall be stayed until defendant has appeared, or the twenty days allowed for her to do so have expired, whichever earlier occurs.
1. FN1. The filing of a special appearance limited to a challenge of jurisdiction is not permitted under the present rules of practice; see, generally, Chapter 3, Practice Book. However, this detail is not germane to the resolution of the present motion.
Boland, John D., J.