Larion Sayers v. 34 (2012)

MEMORANDUM OF DECISION Re Plaintiff's Motion to Disqualify Summary Judgment Motion and for Permission to File (# 117)

This action comes before the court on a joint motion filed by the plaintiff, the plaintiff's Motion to Disqualify Opposing Counsel and for Permission to File a Motion for Summary Judgment (# 117).   This appeal from probate arises in connection with a will drawn by the plaintiff's mother, which was accepted into probate by the probate court.   The “purported will,” as described by plaintiff, would effectively leave disproportionate shares of his mother's estate to two of the plaintiff's brothers who are also named as defendants herein.   The plaintiff challenges the will on the grounds that the decedent lacked testamentary capacity and also that his two brothers exercised undue influence over the decedent.   The suit was brought by a complaint dated June 3, 2010.

From the commencement of this case until October of 2011, the plaintiff was represented by counsel, but has represented himself since that date.   On December 30, 2011, the plaintiff filed this motion, seeking to disqualify counsel for the defendants.   The motion was filed less than 3 weeks before a firm trial date which had been previously scheduled.

The factual basis for the motion to disqualify, based on the plaintiff's testimony, is as follows.   Shortly after his mother's death in June 2008, the plaintiff received a copy of the will now in dispute.   The copy was sent to him by an unrelated law firm together with some papers requesting his consent to its admission.   Realizing that the scheme of distribution was not to his liking, the plaintiff began considering opposing the will.   To this effect, he spoke with a number of different counsel to evaluate his options.   On the recommendation of an uncle, the plaintiff testified he tried to contact Attorney Ward Mazzucco, a principal in the firm of Chipman, Mazzucco, Land & Pennarola, LLC (the “Mazzucco Law Firm”).   In a telephone call, plaintiff was told Attorney Mazzucco was not in but that he would be speaking with another attorney in the firm, described as a partner.   The plaintiff testified that in the telephone call, which lasted a total of 48 minutes and occurred on June 25, 2008, he spoke with that attorney at length about his situation.   The plaintiff recalls the conversation included discussions of his general situation, what was proposed under the will, some of the strengths and weaknesses of the claims and other relevant considerations.   He was told he might not need representation at the probate court level as there would likely be an appeal by one or more of the dissatisfied parties.   He was told that he could request representation from this firm if proceedings in the probate court became too difficult for him to handle or when an appeal was taken from probate.   Plaintiff did not retain the Mazzucco Law Firm.

There things were apparently left until, at a hearing in probate court, Attorney Pennarola appeared representing the plaintiff's brothers.   The plaintiff recognized the firm name and raised a concern about the disqualification of counsel before the probate judge.   In a motion to disqualify filed in probate court, the plaintiff identified Attorneys Mazzucco and Pennarola as the persons with whom he spoke in the June 2008 telephone conference.   Plaintiff explains today that he mistakenly thought these were the attorneys because he did not have his notes from the conversation or as clear a recollection then of what occurred.   Based on this misinformation, the identified defense counsel, who had no records, notations or recollections of any kind that such a conversation ever took place, opposed the motion to disqualify.   The matter was submitted to the probate court which denied the motion to disqualify.   Ultimately, the issues of testamentary capacity and undue influence were tried before the probate court which decided these adversely to the plaintiff.   This present appeal was taken from those decisions.

The plaintiff testified that subsequent to the hearings in probate court, he uncovered additional information and notes which permitted him to better recall what occurred in the June 2008 phone conversation.   Today, he recalls that he in fact spoke with Attorney Robert Land and not Attorneys Mazzucco or Pennarola.   Plaintiff also produced a phone record showing that in June of 2008, he placed a call to the Mazzucco Law Firm which lasted for 48 minutes.

The defendants in their opposition to the instant motion presented testimony from Attorney Land who testified, in essence, that he does not recall ever having any prior communication, meeting or conversation of any kind with the plaintiff.   Indeed, he does not recall ever having any telephone conversation with anyone about this case.   Moreover, he testified categorically that he has no records, documentation or recollection of ever discussing this matter with the plaintiff and he knows that he has never discussed this case with Attorney Pennarola or any other attorney in the Mazzucco Law Firm.

Attorney Land did describe that from time to time, he does speak with prospective clients about trust and estate matters.   Typically, he gives some general advice in these conversations as to some of the issues and concerns which can arise in these proceedings.   He testified, quite credibly, that while he has no recollection of ever having such communication, he cannot testify categorically that it did not occur.   What he can categorically state is that he has never discussed this matter with any other attorney in his office or has any recollection of any information concerning this plaintiff or this dispute.

During oral argument, counsel for defendant quite forthrightly stated that the defendants cannot really challenge the claim that some conversation was had by the plaintiff with someone at the Mazzucco Law Firm. The defendants do have concerns however, with the timing of this motion.   It comes long after proceedings before the probate judge and without any appeal of the decision by the probate court denying the motion to disqualify.   The motion also comes on the eve of trial in this matter.   Defense counsel wish to protect their clients' legitimate interest in retaining the counsel of their choice and avoiding the considerable expense, delay and inconvenience of having new counsel come in and reacquaint themselves with all the issues in this case.

Based on what was largely uncontested testimony, this court finds as follows.

On or about June 25, 2008, the plaintiff had a conversation of approximately 40 minutes with one attorney within the Mazzucco Law Firm. During this conversation, the plaintiff discussed some aspects of his overall situation and the issues which gave rise to the dispute currently the subject of this appeal from probate.   It does not appear however that anyone at the Mazzucco Law Firm was retained or that there exist today any notes, records or other documents reflecting such discussion with the plaintiff.   It does not appear that Attorney Land or anyone else at the Mazzucco Law Firm has a present recollection of any conversation occurring or the content of any conversation.   There is no evidence that information constituting a secret or confidence of the plaintiff was ever told to Attorney Land, or that any information disclosed in the single phone conversation in 2008 has been recalled or communicated to any of the attorneys involved in this action.   The court finds that Attorney Land has had not played any role in the actual defense or representation of these defendants and has not had any communication, involvement or exchange of information with counsel involved in the representation of the defendants.   The court has found there is no credible basis on which to demonstrate any actual prejudice to date on the part of the defendant as a result of the communication he describes as the basis for this motion.   Finally, and most importantly, the court finds that the plaintiff has failed to prove that Attorney Land received information in this phone call that could be significantly harmful to the plaintiff in the present litigation.

Additionally, the court discussed with the plaintiff with the issue of delay.   The plaintiff testified that during the period he was represented by counsel in this appeal from probate, he was assured by such counsel that a motion to disqualify opposing counsel should not be made until the time of trial.   He testified that he now believes this information was incorrect.   He does not explain or address otherwise the substantial delay in the filing of this motion.   He does not explain why he sought disqualification promptly in the probate court, yet waited 18 months here.

The court also asked the plaintiff if he had any reason to believe the content of what he had discussed in June of 2008 was ever used by defendants' counsel.   Plaintiff's response was that he had heard some comments from his brothers, the defendants, that his financial ability to pursue the case was limited and other comments, all of which were matters he had discussed with his own retained counsel.   The plaintiff did not identify anything he thought had been disclosed by defendants' counsel.

“The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys.”  (Citation omitted.)  Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993);  See also American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 724, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d. 192 (2001).   In exercising this function, the trial court has broad discretion to determine if disqualification is warranted.   Disqualification of counsel has been called “a harsh sanction, and an extraordinary remedy which should be resorted to sparingly.”   Delco v. Kruger, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV04 04122727 (February 10, 1998, Mintz, J.) (21 Conn. L. Rptr. 375).   The burden of proof also rests on the party seeking disqualification.   Jawor v. Jawor, Superior Court, judicial district of New Haven, Docket No. FA 08 04029598 (May 28, 2008, Frazzini, J.).

In situations where an attorney-client relationship had previously existed, Rule 1.9(a) of the Rules of Professional Conduct flatly prohibits subsequent representation adverse to the former client in the same or any substantially related matter, absent informed, written consent.   This clear prohibition rests upon the presumption that in the prior representation confidential information was received by counsel potentially disadvantageous to the former client.   See American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn.App. at 726.   Where as here, no attorney-client relationship was ever formed, the applicable rule is Rule 1.18.   This rule provides, in pertinent part, as follows:

Rule 1.18 Duties to Prospective Client,

(a) A person who discusses or communicates with a lawyer concerning the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to subsection (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in subsection (d).  If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in subsection (d).

Subsection (b) of Rule 1.18 operates as a blanket prohibition on the use of any information acquired in the consultation about possible representation, except as otherwise allowed in the rules.   Subsection (c), however, only prohibits representation adverse to the prospective client conditionally, that is “If the lawyer received information from the prospective client that could be significantly harmful to that person ․” See Comment (6), ABA Comments to Model Rule 1.18;  Capital Property Associates, LP v. Capital City Economic Development Authority, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV04 4001923 (May 5, 2006, Sferrazza, J.) (41 Conn. L. Rptr. 382).

Even where representation would be barred under (c), Rule 1.18(d) can allow representation if an “ethical wall,” is created:

(d) When the lawyer has received disqualifying information as defined in subsection (c), representation is permissible if:  ․ (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client;  and

(i) the disqualified lawyer is timely screened from any participation in the matter;  and

(ii) written notice is promptly given to the prospective client.

In applying and enforcing these ethical provisions, the court must still be mindful that more than the interests of the former client or prospective client are involved.  “In disqualification matters, however, we must be solicitous of a client's right freely to choose his counsel ․ mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and may lose the benefit of its longtime counsel's specialized knowledge of its operations ․ The competing interests at stake in the motion to disqualify, therefore, are:  (1) the defendant's interest in protecting confidential information;  (2) the plaintiff['s] interest in freely selecting counsel of [his or her] choice;  and (3) the public's interest in the scrupulous administration of justice.”  (Citations omitted;  internal quotation marks omitted.)  Bergeron v. Mackler, supra, 225 Conn. 397–98;  see also American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn.App. 725.

Given the findings made previously by the court, it is clear that Rule 1.18 is the applicable standard.   In the absence of any finding that the plaintiff disclosed information which could be significantly harmful, the court declines to order disqualification.¹  By the same token, the plaintiff is entitled to know that, going forward, he will be protected from any possible use of information he disclosed to Attorney Land.

Accordingly, it is the order of the court that the motion to disqualify defense counsel is denied in part and granted in part.   The court will not order disqualification of counsel under the circumstances before this court as it finds such would be unjust and unnecessary to protect all involved.   The court does order that forthwith Attorney Land shall be ordered not to participate in any regard in this action.   He is not to have communication with any other attorney in the firm with the regard to any aspect of this matter and shall not be given access to, or review, any of the pleadings, correspondence, depositions, statements or any work papers contained in or directed toward the file in this proceeding.   Further, he shall not discuss with any attorney at the Mazzucco Law Firm, any law, facts, circumstances or other issue pertaining to this case.   All correspondence and communications, documents, pleadings of record are to be circulated and filed in a manner such as to avoid any possible disclosure to with Attorney Land. Additionally, all file folders and sub file folders with this file or with regard to this dispute shall be labeled as follows.  “Confidential and subject to court order.”   Additionally, defense counsel is ordered that in the event there is any violation of this order whether intentional, accidental or inadvertent, they shall report same in writing to the plaintiff within five days of that date.

The Motion for Permission to File for Summary Judgment.

The plaintiff has also sought leave of court to file a motion for summary judgment.   This motion was filed on December 30, 2011, long after the case had been set down for trial on January 19, 2012.   This action is an appeal from probate and concerns the admission of a 2006 will executed by the plaintiff's mother.   The pleadings identify the challenges to the will are lack of testamentary capacity and the exercise of undue influence by other family members.   Typically, these are uniquely factual issues difficult to resolve based on affidavits or documentary evidence.

When asked by the court if the motion was ready to be filed, if permission were granted, the plaintiff advised it was not.   When asked how the plaintiff would show the absence of a genuine dispute on these issues entitling him to judgment, the plaintiff advised that the will contained clear spelling errors such that the decedent would never have executed the will.

The plaintiff has failed to demonstrate any basis on which the court should further delay trial on the merits and the request for leave to file for summary judgment is denied.

William J. Wenzel, J.

FOOTNOTES

FN1. Even if the plaintiff had identified such potential information, the court would likely decline to order disqualification for two reasons.   First, this motion was filed just before trial was to commence, the delay in presenting it to the court was due entirely to the plaintiff.   Second, the ethical screen allowed under Rule 1.18(d) can be tailored here to fit the situation, to comply with Rule 1.18(b) and minimize any risk of any disclosure of information provided to Attorney Land in 2008.   While normally the option of an ethical screen under Rule 1.18(d) is adopted much earlier, here, there is no evidence the plaintiff will be prejudiced by the delay in realization an ethical screen might be needed..  FN1. Even if the plaintiff had identified such potential information, the court would likely decline to order disqualification for two reasons.   First, this motion was filed just before trial was to commence, the delay in presenting it to the court was due entirely to the plaintiff.   Second, the ethical screen allowed under Rule 1.18(d) can be tailored here to fit the situation, to comply with Rule 1.18(b) and minimize any risk of any disclosure of information provided to Attorney Land in 2008.   While normally the option of an ethical screen under Rule 1.18(d) is adopted much earlier, here, there is no evidence the plaintiff will be prejudiced by the delay in realization an ethical screen might be needed.

Wenzel, William J., J.