Timothy Maillet v. Michele Maillet (2011)

MEMORANDUM OF DECISION

This matter is an action for dissolution of marriage.   Before the court are the plaintiff's motions to disqualify defendant's attorney and his objection to the defendant's motions and “other filings” by the defendant's attorney on the grounds that he should be disqualified.   For reasons hereinafter set forth, the plaintiff's motion to disqualify is denied and his objection to the defendant's motions on the grounds of attorney disqualification is denied.

The plaintiff, Timothy Maillet, attempted to make an appointment with Attorney John Febboriello.   He states that he was “turned over” to Attorney Steven Levy by the receptionist.   However, it was Attorney Levy's secretary who made the appointment for the plaintiff to see Attorney Levy. Plaintiff then spent an hour with Attorney Levy during which time he disclosed financial information as well as information concerning the marriage.   Attorney Levy gave him advice.   He did not hire Attorney Levy to represent him.   The intake information which Attorney Levy retained in a file is confidential and hidden in an undisclosed location.   Information given to Attorney Levy was not shared with Attorney Febboriello or with any employee of Attorney Febboriello.

Attorney Levy and Attorney Febboriello have offices in the same building.   Attorney Febboriello's office is on the second floor.   His associate is Attorney Sarah Ouellette.   Attorney Levy practices with Attorney William Conti, and their offices are located on the first floor.   The attorneys share a library which is located on the second floor.   They share a receptionist and a maintenance man, but they do not share any other employees.   They do not have access to each other's computer systems or documents.

“The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys ․ Since October 1986, the conduct of attorneys has been regulated also by the Rules of Professional Conduct, which were approved by the judges of the Superior Court and which superseded the Code of Professional Responsibility.”  (Internal citations omitted;  internal quotation marks omitted.)  Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).   Rule 1.9(a) provides as follows:  “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.”  “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.”  225 Conn. at 398.

“Disqualification 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 ․ The competing interests at stake in the motion to disqualify, therefore, are:  (1) the [movant's] interest in protecting confidential information;  (2) the [opposing party's] interest in freely selecting counsel of [the party's] choice;  and (3) the public's interest in the scrupulous administration of justice ․ Only if 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.”  (Internal citations omitted;  internal quotation marks omitted.)  225 Conn. at 399–400.  “Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney's representation risks violating the Rules of Professional Conduct.”   225 Conn. At 400–01.

Applying the test for disqualification to the instant case, the court finds that no confidential information concerning the plaintiff was disclosed to Attorney Febboriello.   Moreover, the safeguards for keeping information about clients and prospective clients confidential are reasonable.   Notwithstanding the plaintiff's mistaken beliefs, there was never a relationship between Attorney Febboriello and the plaintiff.   The defendant has a right to choose her attorney.   Therefore, the motion to disqualify Attorney Febboriello is denied.

BY THE COURT,

Gallagher, J.

Gallagher, Elizabeth A., J.