Elisa MacLay et al. v. JJ LLC (2011)

MEMORANDUM OF DECISION

The defendant has moved to disqualify the plaintiffs' attorney, the firm of Belkin, Burden, Wenig & Goldman (“the firm”), on the grounds that one of the members of the firm, Aaron Shmulewitz, has provided and continues to provide legal representation to Rita Salzman who is the mother of Jeffrey Salzman who in turn is the sole owner of JJ Salzman, LLC, the defendant.   The case is based on a multi-count complaint which seeks injunctive and related relief concerning the use of a parcel of land which serves residential uses in Westport.   Ms. Salzman is and has been during all relevant times president of “The Dorchester” which is a residential cooperative apartment house in New York City. The memorandum in support of the motion asserts that Ms. Salzman will be a witness in the trial of this case and confidential information that she imparted to Mr. Shmulewitz during his engagement as attorney for the cooperative apartment could be used against her in cross examination, thus creating a conflict of interest.   Of critical importance is the fact that the attorney-client relationship which existed between Ms. Salzman and Mr. Schmulewitz was limited entirely to her capacity as president and member of the board of directors of “The Dorchester.”

In the evidentiary hearing Ms. Salzman established that during the course of the representation, Mr. Schmulewitz rendered legal advice concerning four matters which arose during the performance of her duties as a representative of “The Dorchester.”   These matters included (i) an accusation by a cooperative shareholder that Ms. Salzman was anti-Semitic in the discriminatory manner in which she and the board handled an application for admission to the cooperative, (ii) a generalized allegation of fiscal management in the performance of her duties, (iii) a charge of nepotism over the involvement of a family member in the business of The Dorchester, and (iv) allocation of responsibility for the extermination of bed bugs as between The Dorchester and its shareholders.   Ms. Salzman testified within the context of these four matters that she shared with Mr. Schmulewitz what the court would characterize as her personal state of mind in that she was “upset” and reacted to “an attack on my character.”   She believes that she divulged her feelings in confidence to Attorney Schmulewitz within the protective arm of the attorney-client privilege.   She is concerned that these disclosures would be used against her in the trial of this case when she is cross-examined by a member of the firm.   Ms. Salzman has requested that the firm withdraw from the case but that request was declined by the firm.   Additionally, defendant argues in its memorandum that as a result of the interaction between the two parties the firm has learned of Ms. Salzman's “assets and idiosyncrasies.”   The court notes the absence of any evidence concerning Ms. Salzman's assets or idiosyncrasies, if any.   In fact, Ms. Salzman expressed nothing but vague unspecified fears.

The defendant claims violation of Rules 1.7 and 1.9 of the Rules of Professional Conduct.  Rule 1.7 clearly applies to a “concurrent conflict of interest” and unless there is a present attorney-client relationship it has no applicability.   The court infers from the evidence that the engagement has been terminated and so the court concludes that there is no attorney-client relationship at this time.   This is buttressed by the fact that the defendant's analysis as presented both in its memorandum of law and its oral argument has been predicated entirely on Rule 1.9 which, of course, deals with “Duties To Former Clients.”

Rule 1.9 provides as follows. (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(a) that is material to the matter;  unless the former client gives informed consent, confirmed in writing.  (C) A lawyer has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter and 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.”

It is well settled that the party moving to disqualify opposing counsel bears the burden of proof.  Klein v. Bridgeport Hospital, 50 Conn.Sup. 160, 166 (2006).   There must be a substantive likelihood that a Rule of Professional Conduct will be violated.  State v. Rapuano, 192 Conn. 228, 332 (1984).

The general rule which governs the application of Rule 1.9 is that:  “Rule 1.9(a) expresses the same standard that we had applied under the Code of Professional Responsibility when a claim of disqualification based on prior representation arose.   Thus, an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation.”  State v. Jones, supra, 449.   This test “has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is ‘patently clear’ or when the issues are ‘identical’ or ‘essentially the same.’   Government of India v. Cook Industries, Inc., [supra, 739–40],” id.;   see also State v. Bunkley, 202 Conn. 629, 652 (1987).   Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed.  Goldenberg v. Corporate Air, Inc., supra, 512;  State v. Jones, supra, 450.”   (Alternative citations omitted.)  (Emphasis added.)  Bergeron v. Mackler, 225 Conn. 391, 398–99 (1993).

The commentary to this rule expands its scope to include within the meaning of “substantially related,” “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.”   The commentary goes on to state:  “In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation;  on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation.”

Finally, with respect to adjudication of the issue, the commentary provides the following guidance for the court.  “A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would for ordinary practice be learned by a lawyer providing such services.”

With regard to the first quoted commentary, the court notes that while the Restatement has adopted this expansive interpretation (Law Governing Lawyers, Restatement 3d. § 132 at 380–81), it has not yet been embraced at the appellate level in this state.

The second prong of the rule 1.9 application is that the representation of the current client not be “materially adverse to the interests of the former client.”

Applying these principles to the facts of this case produces the following.   First, at no time did the firm or any of its members provide legal representation to Rita Salzman in any capacity except as a representative of The Dorchester.   Indeed, Ms. Salzman never claimed that any of the advice was given to her in her personal or individual capacity.   All of the legal advice furnished, though implicating her character and value systems, related solely to The Dorchester's business and not her own.   She failed to mention that she disclosed any of her strengths or weaknesses, successes or failures, financial condition or inner secrets, assets or idiosyncracies.   On the contrary, she disclosed no information that could conceivably be used against her in the current litigation.   See, Burgos v. Gianakakos, 23 Conn. L. Rptr. 439 (1998).

The second commentary which relates to an organizational client requires not only that the attorney gain specific facts in the prior representation but also that they be relevant to the matter in question.   Thus, even if any such specific facts were obtained (which they were not) from Ms. Salzman which were personal in nature they were clearly not relevant to this action involving the use of a piece of Connecticut property.

Because the court has found (a) that current counsel never represented Ms. Salzman in her individual capacity, (b) that there is no substantial relationship between the present case and counsel's prior representation of Ms. Salzman in a representative capacity;  (c) no confidential factual information was divulged which could materially advance the plaintiffs' position, there is no need to balance the plaintiffs' interest in freely selecting counsel of their choice or to assess the need to protect the public interest in the scrupulous administration of justice.  Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn.App. 201, 204 (1985).

The motion to disqualify is denied.

BY THE COURT

A.W. MOTTOLESE, J.T.R.

Mottolese, A. William, J.T.R.