Andrew Walsh v. Kevin Lynch et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY (# 107)

FACTS

On August 4, 2011, the plaintiff, Andrew Walsh, filed a single count complaint against the defendants, Kevin Lynch, Daniel Lynch, Jr., individually and as trustee, and Daniel Lynch, Sr., alleging legal malpractice.   In the complaint, the plaintiff alleges the following facts.   The defendants were attorneys and maintained an office in West Hartford, Connecticut, at all times relevant to the complaint.   On March 6, 2000, the plaintiff retained the defendants to prosecute and conduct a civil action against Alfred LaPointe for a motor vehicle collision caused by LaPointe.   The defendants agreed to the representation.   On February 15, 2002, the defendants instituted an action on the plaintiff's behalf in the Hartford Superior Court (LaPointe action).   In the LaPointe action, the plaintiff sought monetary damages for personal injuries that he sustained in the collision.   LaPointe died on April 23, 2002, and his counsel filed a suggestion of death on May 6, 2002.   The defendants failed to file a motion to substitute an administrator in the place of the decedent LaPointe within one year as permitted by General Statutes § 52–599.¹  The defendants did not file a motion to substitute until May 19, 2004.   The trial court granted the untimely motion to substitute, and the matter proceeded with Robin Murdock Meggers, administratrix of the estate of LaPointe, as the substituted party.   Additionally, the defendants did not take the necessary steps to preserve and perfect an underinsured motorist claim against the plaintiff's insurance carrier.

The plaintiff further alleges that he sought new counsel in light of significant delays involved in the litigation as well as a lack of communication from the defendants to the plaintiff.   On October 6, 2009, the Lafferty Law Firm, P.C., filed an in lieu appearance for the plaintiff.   At the trial management conference on March 9, 2010, Meggers' counsel indicated that he would be moving for a directed verdict because of the defendants' noncompliance with § 52–599.   The LaPointe action subsequently settled prior to the start of jury selection for less than its settlement value.   The plaintiff alleges that he suffered damages as a result of the defendants' negligence because he was forced to settle the LaPointe action for less than its settlement value, he was forced to settle for less than the policy limits of LaPointe's insurance coverage, and he was precluded from instituting an underinsured claim against his own insurance carrier.

On October 25, 2011, the defendants filed a motion to disqualify the plaintiff's counsel in the present action, Attorney Stacey D. Lafferty, the only attorney in the Lafferty Law Firm, P.C., from representing the plaintiff on the ground that Lafferty is a necessary witness pursuant to rule 3.7(a) of the Rules of Professional Conduct.   The plaintiff filed a memorandum of law in opposition on December 23, 2011, and the defendants filed a reply on December 29, 2011.   The matter was heard at short calendar on January 30, 2012.

DISCUSSION

“[W]henever counsel for a client reasonably foresees that he will be called as a witness to testify on a material matter, the proper action is for that attorney to withdraw from the case ․ Where, however, an attorney does not withdraw, a court exercising its supervisory power can ․ disqualify the attorney.,” (Internal quotation marks omitted.)  Mettler v. Mettler, 50 Conn.Sup. 357, 361, 928 A.2d 631 (2007).  “The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney ․ It is axiomatic that motions to disqualify counsel must be evaluated with extreme caution in light of the client's strong interest in being represented by counsel of his or her choice, and to avoid permitting such motions to be used to gain an unfair tactical advantage in a case ․ The moving party bears the burden of demonstrating facts that indicate that disqualification is necessary.”  (Citations omitted;  internal quotation marks omitted.)   Eastern Federal Bank v. Barclay & Son, LLC, Superior Court, judicial district of New London, Docket No. CV 10 6004110 (August 23, 2011, Devine, J.).

The defendants argue that Lafferty should be disqualified from acting as counsel for the plaintiff pursuant to rule 3.7(a) of the Rules of Professional Conduct because she is a necessary witness.   The defendants argue that Lafferty's testimony is relevant and material because she has firsthand knowledge regarding the settlement negotiations and the reasons why the settlement occurred in the manner that it did.   The defendants argue that her testimony is unobtainable elsewhere because Lafferty has information related to the legal strategies and tactics in settling the LaPointe action as well as the advice and information that Lafferty gave to the plaintiff in light of all the variables of his case.   Further, the defendants argue that disqualification of Lafferty will not work substantial hardship on the plaintiff because the motion was filed shortly after the return date, no discovery has been served and substantial progress has not been made in the present case.

The plaintiff counters that Lafferty should not be disqualified from acting as his counsel in the present action because Lafferty's testimony is not necessary or relevant and may be obtained elsewhere.   The plaintiff argues that the relevant strategy from the LaPointe action is the strategy of Meggars' counsel in waiting until the trial management conference to suggest his intention to move for a directed verdict.   The plaintiff argues that much of the legal malpractice action involves the legal issue of whether Meggars' counsel was accurate in stating that he would be successful on a motion for directed verdict.   The plaintiff argues that this determination would have to be made by the court.   The plaintiff also argues that the defendants have failed to meet their burden of showing that the information they seek is unobtainable elsewhere because Meggars' counsel is an available witness, and the discussions between the plaintiff and Lafferty are protected by the attorney-client privilege.   The plaintiff argues that defendants never state an intention to call Lafferty as a witness.   Further, the plaintiff argues that Lafferty's disqualification will be a substantial hardship on the plaintiff and Lafferty as both are personally and financially invested in having Lafferty act as counsel in this litigation.

In response to the plaintiff's arguments, the defendants argue that it is inherent in bringing a motion to disqualify that they intend to call Lafferty as a witness.   The defendants argue that the legal malpractice action involves more than the court's determination that a motion for directed verdict would have been successful in the LaPointe action;  the present case also involves “an analysis into the overall value of the plaintiff's claims, the impact that this [potential directed verdict] motion had on those claims, and whether this impact caused the plaintiff's damages.”   The defendants argue that Meggars' counsel is not an available witness because his testimony is most likely subject to attorney-client privilege and the work-product doctrine, whereas the plaintiff has waived any privilege by putting his communications with counsel at issue by bringing the present action.   Moreover, the defendants argue that Meggars' counsel could not testify to as to the overall strength of the plaintiff's case, the merits of the motion for directed verdict, the best strategy to employ in response to the potential motion and whether the potential motion was the true reason for the settlement.   The defendants argue that resolution of the present action involves an examination of the advice given by Lafferty to the plaintiff and whether the plaintiff took her advice.

Rule 3.7(a) of the Rules of Professional Conduct provides:  “A lawyer shall not act as an 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.”  “Under Rule 3.7, the first relevant inquiry is whether the attorney whose disqualification is sought is a necessary witness in the matter.   A necessary witness is not just someone with relevant information, however, but someone who has material information that no one else can provide.”  (Internal quotation marks omitted.)  Neumann v. Tuccio, Superior Court, judicial district of Danbury, Docket No. CV 07 5002831 (July 17, 2009, Shaban, J.) (48 Conn. L. Rptr. 298, 299).  “There is a dual test for necessity.   First the proposed testimony must be relevant and material.   Second, it must be unobtainable elsewhere.”  (Internal quotation marks omitted.)  Id. “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 0475408 (February 9, 2004, Zoarski, J.T.R.).

In Neumann v. Tuccio, supra, 48 Conn. L. Rptr. 298, the plaintiff commenced a vexatious litigation suit against the defendant, and the defendant raised the special defense of advice of counsel.   The plaintiff moved to disqualify the defendant's attorney and members of the attorney's law firm from acting as counsel in the vexatious litigation suit on the ground that they would be necessary witnesses to the defendant's special defense.  Id. The court, Shaban, J., granted the plaintiff's motion to disqualify the defendant's individual attorney.  Id., 300–01.²  The court held that the attorney's “testimony is necessary to shed full light on material matters regarding his representation of the defendant in the underlying case and fairness dictates that the plaintiff should be able to present [the attorney's] testimony at trial given the special defense that has been raised.”  Id., 300.   The attorney's testimony is necessary especially “[g]iven the expertise an attorney has over a lay witness in answering questions relative to discussions regarding legal procedure, theory and techniques, it is unlikely that the defendant could completely relay the same depth of information, analysis and advice as could be presented by [the attorney].   Moreover ․ the defendant's ability to testify as to the advice [his attorney] gave him, and the information that he gave [to the attorney] does not render [the attorney's] testimony as evidence that is obtainable elsewhere.”  Id.

In the present case, Lafferty has firsthand knowledge regarding the settlement negotiations and the effect that these negotiations had on the plaintiff's decision to settle.   This information is both relevant and material to a legal malpractice action that is based on the plaintiff's decision to settle for allegedly less than the value of his claims.  “In general, the plaintiff in an attorney malpractice action must establish:  (1) the existence of an attorney-client relationship;  (2) the attorney's wrongful act or omission;  (3) causation;  and (4) damages.”  (Internal quotation marks omitted.)  Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012).  “As to causation:  In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent.   This traditional method of presenting the merits of the underlying action is often called the case-within-a-case.”  (Internal quotation marks omitted.)  Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009).   Consequently, the plaintiff will have to establish that the defendants' failure to file timely a motion to substitute caused the plaintiff's damages.   This will require testimony from Lafferty as to the strength of the plaintiff's case and the reasons why the decision to settle was made, not simply a determination by the court that a motion for directed verdict would have been successful in the LaPointe action.   Her testimony is necessary to shed full light on the material issues in the present malpractice action.   See Neumann v. Tuccio, supra, 48 Conn. L. Rptr. 300.

Furthermore, Lafferty's testimony is unobtainable elsewhere because Lafferty has the knowledge, ability and expertise to answer questions regarding the legal strategy employed in deciding to settle the LaPointe action in light of all the variables, such as the strength of the plaintiff's case based on his injuries and the potential motion for directed verdict.   Lafferty has the ability to testify as to the discussion with Meggers' counsel, her strategy in light of those discussions and her advice to the plaintiff.   The plaintiff may also testify as to the advice of Lafferty and his decision to settle the LaPointe action, but that does not render Lafferty's testimony as obtainable elsewhere.   See Neumann v. Tuccio, supra, 48 Conn. L. Rptr. 300.   Additionally, Meggars' counsel would not be able to testify as to the discussions between the plaintiff and Lafferty, nor would Meggars' counsel be able to testify as to the reasons the plaintiff chose to settle.   Accordingly, Lafferty's testimony is unobtainable elsewhere as she is the only individual who can testify as to her assessment of the plaintiff's case in light of the potential motion for directed verdict and the overall strength of the plaintiff's case.

Further, the court agrees with the defendants that the disqualification of Lafferty as counsel will not work substantial hardship on the plaintiff pursuant to rule 3.7(a)(3) because the present action is in the early stages.   The motion to disqualify was filed approximately two months after the return date, the defendants indicated that no discovery had yet been served and the case has not been set for trial.   See Penna v. Margolis, supra, Superior Court, Docket No. CV 03 0475408 (finding no substantial hardship when motion to disqualify was filed five months after the action was commenced and finding that there was sufficient time for another attorney to become familiar with the case before trial).   There is sufficient time for the plaintiff to obtain new counsel and for the new counsel to become familiar with the case before trial.   The defendants therefore have met their burden of demonstrating that Lafferty is a necessary witness, and their motion to disqualify must be granted.

CONCLUSION

Based on the foregoing reasons, the defendants' motion to disqualify is granted.

Martin, J.

FOOTNOTES

FN1. General Statutes § 52–599(b) provides in relevant part:  “A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent ․ If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”.  FN1. General Statutes § 52–599(b) provides in relevant part:  “A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent ․ If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant's death, may apply to the court in which the action is pending for an order to substitute the decedent's executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed.”

FN2. The court denied the motion to disqualify the entire firm as the defendant's attorney appeared in his individual capacity and the firm did not file an appearance in the underlying matter.  Neumann v. Tuccio, supra, 48 Conn. L. Rptr. 301.   The court held that the plaintiff failed to supply the court with a sufficient reason to disqualify the entire firm because he had made no showing that there was a conflict.  Id..  FN2. The court denied the motion to disqualify the entire firm as the defendant's attorney appeared in his individual capacity and the firm did not file an appearance in the underlying matter.  Neumann v. Tuccio, supra, 48 Conn. L. Rptr. 301.   The court held that the plaintiff failed to supply the court with a sufficient reason to disqualify the entire firm because he had made no showing that there was a conflict.  Id.

Martin, Robert A., J.