Heidi Gruss–Ververis v. Adam R. DeHaven (2012)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION TO DISQUALIFY COUNSEL

Factual background

The parties were divorced in the state of Massachusetts on March 26, 2009.   Thereafter, the judgment of divorce was modified to allow the plaintiff mother to relocate to the state of Connecticut.   The parties are presently engaged in a hotly contested custody and visitation dispute which may very well turn on whether or not it is determined that the father had inappropriate sexual contact with the minor child, who is 3–1/2 years old.   There presently exists a restraining order against the father.   There is in place a Guardian ad litem for the minor child and a psychological evaluation of the entire family is under way.   During a court hearing before the undersigned on March 28, 2012, the defendant's current wife testified that she has been present at, and a participant in, nearly all consultations between the defendant and his attorney, William Burns.   Soon thereafter, Attorney Burns merged his practice with Attorney Frank Bartlett.   Thereafter, the plaintiff filed this motion to disqualify both counsel claiming that Attorney Burns is a necessary witness to what is now non-privileged communication between the defendant and his attorney.   The plaintiff argues that the attorney is a necessary witness because the defendant could claim the Fifth Amendment privilege and his wife could claim spousal privilege and refuse to testify.

Legal discussion

The trial court has the authority to regulate the conduct of attorneys, including the inherent power to disqualify attorneys in order to preserve the integrity of the adversarial process.  Bergeron v. Mackler, 225 Conn. 391, 397 (1993).   The trial court has broad discretion to determine whether there exists a conflict that would warrant disqualification of an attorney.

While the Rules of Professional Conduct, the ABA's Code of Professional Responsibility and state disciplinary rules provide guidance in connection with a motion to disqualify, “such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification.”   Since the authority to disqualify an attorney stems from the Court's inherent supervisory authority, case law and precedent constitute the binding authority on disqualification issues.   In disqualification matters, the court 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 the facts of this case.   The competing interests at stake in the motion to disqualify, therefore, are:  (1) one's interest in protecting confidential information;  (2) one's interest in freely selecting counsel of their choice;  and (3) the public's interest in the scrupulous administration of justice.  (Citations and internal quotation marks omitted.)  Bergeron v. Mackler, 225 Conn. at 397–98.   When deciding whether to disqualify counsel, a court must balance the need to maintain the highest standards of the profession against a client's right freely to choose his counsel.   Courts are reluctant to grant such motions because they have an immediate adverse effect on the client by separating him from counsel of his choice.   Additionally, motions to disqualify inevitably result in delay and added expense.   Thus, courts require a high standard of proof on the part of the party seeking to disqualify an opposing party's counsel.

It should be noted, in this instance, that Attorney Bartlett only filed his appearance on April 12, 2012, as a result of having merged his practice with that of Attorney Burns whose deposition is now sought.   Attorney Burns only entered his appearance on November 14, 2011.  “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 unfair tactical advantage in a case.”   Hampton v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV 99 594509 (February 21, 2002, Lavine, J.) (31 Conn. L. Rptr. 479, 480), citing American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725, 774 A.2d 220 (2001).  “The moving party bears the burden of demonstrating facts that indicate that disqualification is necessary.”   Hampton v. Spencer, supra, 480.

The court must determine whether or not counsel for the defendant is a necessary witness in further proceedings.   The court in State v. Gordon, 197 Conn. 413 (1985), determined that a criminal defendant's wife who regularly attended the attorney-client conferences had rendered those consultations non-privileged as they were no longer confidential.   In the instant case, the wife could refuse to testify as to what was discussed during these consultations.

There are two distinct marital privileges.   The first protects communications between spouses made during the course of the marriage which were intended to be private.   See, State v. Christian, 267 Conn. 710 (2004);  Baeder v. Fourth of July Celebration, judicial district of Hartford, Docket No. CV 04 5000893 (Tanzer, J. January 24, 2007) (42 Conn. L. Rptr. 744).   See also, Colin C. Tait & Eliot D. Prescott, Tait's Handbook of Connecticut Evidence § 5.33 et seq. (4th Ed.2008).   The second privilege is called the testimonial privilege.   The Supreme Court has recognized that at common law a privilege existed in civil litigation which could be invoked to preclude one spouse testifying against the other.  Spitz's Appeal, 56 Conn. 184 (1887) (holding that the privilege did not apply when husband and wife had conflicting interests or were opposing parties).   Although the appellate courts have been silent on the issue since Spitz, the superior court has repeatedly recognized the privilege.   Baeder v. Fourth of July Celebration, judicial district of Hartford, Docket No. CV 04 5000893 (Tanzer, J. January 24, 2007) (42 Conn. L. Rptr. 744);  Attorneys Title and Abstract Company, Inc. v. Esposito, judicial district of Fairfield, Docket No. CV 04 0410913 (Dewey, J. February 2, 2005);  Breadadventures, Inc. v. Mrvic, judicial district of Stamford–Norwalk, at Stamford, Docket No. CV 000180681 (Adams, J. February 22, 2002) [31 Conn. L. Rptr. 468];  Chandler v. Cardiothoracic and Vascular Group, P.C., Superior Court, judicial district of Waterbury at Waterbury, CV 94014618 (November 18, 1998) (Sheldon, J.) (23 Conn. L. Rptr. 372);  DeGruttola v. Britt, Superior Court, judicial district of Hartford–New Britain at Hartford, FA 95 0551058 (January 2, 1996) (Barall, J.) (15 Conn. L. Rptr. 586).

Under these circumstances, the defendant wife could clearly elect to not testify and the defendant could assert his Fifth Amendment privileges against self-incrimination.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to disqualify is granted.

Shluger, J.

Shluger, Kenneth L., J.