Pamela G. Marino v. Joseph A. Marino (2010)

MEMORANDUM OF DECISION

The plaintiff seeks to have Attorney Jennifer L. Grosso of Sarasota, Florida, a member of the Florida Bar, admitted pro hac vice so as to assist her Connecticut counsel with the case.   The Florida attorney is a relative ¹ and, apparently, is willing to provided legal assistance at no cost or perhaps at a reduced cost to the plaintiff.   The plaintiff argues that the legal fees in the matter are growing quickly and the addition of Attorney Grosso's free efforts will help keep future bills down.

The defendant objects.   He argues that Attorney Grosso will be a witness in the trial and that she has already provided the Guardian ad litem (GAL) with a detailed statement stating her opinion of the defendant as a parent.   He indicates that if there is a trial, he will call her as a witness if she submits herself to the jurisdiction of this court by filing an appearance for the plaintiff.   As a witness in the same proceeding in which she is counsel, she could create an ethical conflict for herself under the Rules of Professional Conduct Rule 3.7 “Lawyer as Witness.”   The Rule states that “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness ․” The Rule allows for the situation in which the testimony is very limited and not contested in nature, but that is not the fact pattern in this matter.

The plaintiff focuses her comments on the meaning of the word “necessary” and represents that there is nothing in the anticipated testimony of Attorney Grosso that would not also come from several other family member witnesses;  that Attorney Grosso does not possess any unique information regarding the custody, or any other issue to be determined in this matter.   Regardless, if the defendant calls her as a witness, she will have to testify and that will make her a “necessary” witness under the Rule.

The case law is somewhat limited, but it does set forth some clear guidelines for courts to follow in deciding such cases and can be distilled easily to one sentence:  The right to have counsel of one's own choice, although not absolute, is important enough to require a legitimate state interest before a person can be deprived of that right.  Herrmann v. Summer Plaza Corp., 201 Conn. 263, 268-69 (1986).   See also Enquire Printing & Publishing Co. v. O'Reilly, 193 Conn. 370 (1984).

The instant matter is somewhat different than the majority of such cases.   A denial of plaintiff's motion will not deprive her of her counsel of choice.   It has been made clear to the court that Connecticut counsel is the primary lawyer in this matter.   Attorney Grosso does not possess any unique or special skills in the area of family law;  it is not her primary area of practice.   What she offers is a family connection to the plaintiff, someone with legal knowledge and skill that the plaintiff truly trusts.   She also offers the plaintiff the ability to perform some of the legal work, research, etc. at no or little cost to her.   So while the plaintiff should certainly be allowed to have counsel of her own choice, a negative ruling on this motion would not deny the plaintiff of those special qualities Attorney Grosso might be able to offer.   On the other hand, allowing Attorney Grosso to file an appearance in this matter would set up a serious ethical conflict and the court has a duty to avoid such a situation if it can.   On balance, the better part of discretion is to keep Attorney Grosso's participation on an informal basis.

The Court, having heard the motion, ORDERS that the motion is DENIED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The representation to the court was that Attorney Jennifer L. Grosso of Florida is the plaintiff's sister-in-law..  FN1. The representation to the court was that Attorney Jennifer L. Grosso of Florida is the plaintiff's sister-in-law.

Adelman, Gerard I., J.