IN RE: Probate Appeals Daniel Kennedy, Jr. v. Dennis Kennedy
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY COUNSEL (# 153)
Dennis Kennedy, has moved that Attorney Daniel Kennedy, III, and his law firm, Heneghan, Kennedy and Doyle be removed as trial counsel for Daniel Kennedy, Jr., a party in these probate appeals on the grounds that a conflict of interest currently exists in their representation of Daniel Kennedy, Jr. Daniel Kennedy, Jr., is a party in each of these proceedings as the Executor of the Estate of Miriam Kennedy, his mother. A review of the files do not indicate that he is a party in these matters in his individual capacity. Dennis Kennedy is Daniel Kennedy, Jr.'s brother. Daniel Kennedy, III, a member of the firms of Heneghan, Kennedy and Doyle is Daniel Kennedy, Jr.'s son and the grandson of Miriam Kennedy and nephew of Dennis Kennedy.
Dennis Kennedy claims that Heneghan, Kennedy and Doyle should be disqualified because it is representing Daniel Kennedy, Jr., in his individual capacity, in a separate lawsuit brought against Dennis Kennedy (Docket No. CV12–6030108). In that lawsuit, Daniel Kennedy claims that Dennis Kennedy acted to his detriment in his role as power of attorney for their mother and tortuously deprived him of an expected future inheritance from his mother. Daniel Kennedy also makes allegations of conversion and statutory theft against Dennis Kennedy.
In addition, Dennis Kennedy claims that Daniel Kennedy, III, should be disqualified because he will be a material witness in these cases.
Dennis Kennedy argues that the representation by the law firm of Daniel Kennedy as executor and individually is a conflict prohibited by the Rules of Professional Conduct § 1.7. The Rule provides: “(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. (b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or the same proceeding before any tribunal; and (4) each affected client gives informed consent, confirmed in writing.” Dennis Kennedy argues that, as the executor of the estate, Daniel Kennedy owes a fiduciary duty to him as beneficiary and that the law firm, by representing Dennis Kennedy both as executor and individually in a lawsuit against him, has a conflict of interest.
“In view of the strong public policy favoring a party's right to select its own counsel, the law places the burden of showing that disqualification is required upon the moving party. See, e.g., Blakemar Construction, LLC v. CRS Engineering, Inc., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV–04 0412727S (February 9, 2005) (Skolnick, J.) (‘A party moving for disqualification of an opponent's counsel must meet a high standard of proof ․ [B]efore 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.’) ․ Deleo v. Kruger, Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. CV–94 0142362S (February 10, 1998) (21 Conn. L. Rptr. 375, 376) (Mintz, J.) (‘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.’) ․' Mettler v. Mettler, 50 Conn.Sup. 357, 362 (Super.Ct.2007) [43 Conn. L. Rptr. 578].” Lucas v. Tine, Superior Court, Judicial District of New Britain at New Britain, Docket No. HHB CV 12–6017039 (Abrams, J., Jan. 31, 2013).
The Court in Smith v. Jordan, 77 Conn. 469, 473 (1904) stated: “In the case at bar, the administrator with the will annexed, who brings the complaint for a construction of the will, was also a claimant under the will to be construed; and the counsel who appeared for him as administrator also appeared for him and his brother as claimants under the will. In doing this in the case at bar, undoubtedly no harm was done or intended; but sound policy forbids such a practice, and ․ counsel who appear for the executor or trustee, in cases brought for the construction of wills, ought not to appear and act for legatees and devisees under the will.” (Citation omitted.) Despite this admonition, there are no cases that this court has found in which counsel was disqualified simply because he represented both an executor of a will and a beneficiary thereunder.
The movant cites Frank v. Frank, Superior Court, Judicial District of Middlesex, Docket No. 66226 (Walsh, J., Dec. 22, 1992) [8 Conn. L. Rptr. 118]. There the court considered the plaintiff's motion to disqualify defendant's counsel on the ground that the representation of defendant, in an appeal from probate, in her fiduciary and individual capacities created a conflict of interest. However there the executrix made a claim for costs of administration payable to her in an amount which was a large portion of the estate, and, on an appeal from the probate court order approving that payment, she was represented in her fiduciary and individual capacity by the same attorney. The court noted that: “In the present case, where counsel represents the defendant in her dual capacity as executrix of the decedent's estate, it is found that the representation of the defendant as a beneficiary of the estate is (or may be) adverse to the interest of an executrix, who acts in a fiduciary role with regard to the decedent's estate.” (Citation omitted.) Id. The court also noted that: “When an attorney represents two clients with adverse interests, it is the attorney's duty to withdraw from the representation ․ As a reasonable extrapolation, this court finds that this rule of law, which applies to two clients with adverse interests, should also apply to one client represented in a dual capacity with adverse interests.” (Internal quotation marks and citations omitted.) Id. The court found “that a conflict of interest arises from the representation of a party in its dual capacity, i.e., as executrix and beneficiary of the decedent's estate. This court orders the disqualification of defendant's counsel in at least one of its representational capacities.”
This case is distinguishable from the situation in Frank. There the court found that “[i]n this case, an ex parte order and decree was entered by the probate court directing the payment of $133,905.90 to the defendant as cost administration. As a result, it substantially depleted the estate of $165,500.00. The beneficiaries under the will are brother and sister, the son and daughter of the decedent. The defendant sister and daughter is also the executrix. There is a conflict.” Id.
As noted above the burden is on the movant to establish facts which require disqualification. He has not done so. While it is found that at the same time that he is executor of the estate, Daniel Kennedy, in his individual capacity, is also suing his brother, Dennis Kennedy, it appears that the suit involves many of the same issues which are raised in these appeals from probate. It does not appear that his positions are in conflict.
Dennis Kennedy also argues that disqualification is warranted because Attorney Daniel Kennedy, III, will be called as a witness in these matters. Rule 3.7 of the Rules of Professional Conduct states: “(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.”
In Matlis v. Probate Appeal, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV 03 0082717 S (Nov. 19, 2004) [38 Conn. L. Rptr. 299], this court discussed attorney disqualification under this rule: “According to the Supreme Court, ‘Rule 3.7 of the Rules of Professional Conduct requires an attorney to withdraw if he or she reasonably foresees that he will be called as a witness to testify on a material matter.’ (Emphasis in original; internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 695, cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed. 909 (1998).
The court must make a factual determination in deciding whether the attorney's testimony is truly necessary. In fact, ‘[a] strong showing that the testimony of the opposing attorney is truly necessary is required before the court may grant a motion to disqualify opposing counsel.’ Somers & Associates v. Kendall, Superior Court, judicial district of Windham at Putnam, Docket No. 064478 (February 23, 2001, Foley J.). ‘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.’ (Internal quotation marks omitted.) Penna v. Margolis, Superior Court, judicial district of New Haven, Docket No. CV 03 0475408S (February 9, 2004, Zoarski, J.). ‘[T]he mere statement that the attorney “will be a necessary party witness” [would] not support [the] motion.’ (Citation omitted; internal quotation marks omitted.) Bopko v. Bopko, Superior Court, judicial district of Waterbury, Docket No. FA98–0149148S (November 8, 2000, West, J.) (28 Conn. L. Rptr. 556).
If the court determines that an attorney's testimony is necessary, then that attorney may not ‘serve as trial counsel because of the difficulties presented in simultaneously testifying and fulfilling such advocacy functions as objecting to questions of opposing counsel and posing questions on cross-examination. Rule 3.7 cures this logistical problem by permitting non-witness lawyers from the same firm to act as trial counsel unless the whole firm must be disqualified pursuant to Rule 1.7.’ Talcott Mountain Science Center for Student Involvement v. Abington, Superior Court, judicial district of Waterbury, Docket No. X01 CV 95 0152121 (June 28, 2002, Hodgson, J.) (32 Conn. L. Rptr. 420). Courts have drawn a distinction between representation and advocacy for purposes of Rule 3.7. Specifically, finding that ‘Rule 3.7 does not, on its face, preclude all representation; rather, it precludes only acting as an advocate at trial.’ (Internal quotation marks omitted.) Id. Thus, ‘Rule 3.7 does not authorize a court to disqualify an attorney from representing a client. It only allows the court to order that a lawyer be precluded from providing representation at trial if it appears likely that the lawyer will be a necessary witness ․’ Horgan v. Capozzi, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 03 0083020S (Mar. 24, 2004, Robinson, J.) (36 Conn. L. Rptr. 734).” Id.
Here there has not been a sufficient showing at this point to establish that it will be necessary for Attorney Daniel Kennedy, III to be a witness at trial. Dennis Kennedy claims that he will be called as a witness to testify as to his own observations, mental impressions and conclusions regarding Miriam Kennedy's competency in later life. However it has not been established that he is the only witness able to do so. In fact, Attorney Kennedy represented to this court that he would have very little evidence to present on such issues since he had only limited contact with his grandmother during the time in question.
Therefore the motion to disqualify is denied.
Jane S. Scholl, J.
Scholl, Jane S., J.