Judith P. Meyer v. Karl L. Meyer (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO DISQUALIFY MOTION # 145

The court has reviewed the evidence submitted in this case and heard the testimony of the witnesses on May 29, 2012.   The court has also read the Memoranda of law submitted by counsel, reviewed the case law and has carefully read Rules 1.9 and 1.18 of the Rules of Professional Conduct.   The court is cognizant of the legal analysis to be apply to the facts, carefully juxtaposing the “lawyer's duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information” with “the client's right freely to choose his counsel” (cite omitted) Bergeron v. Mackler, 225 Conn. 391, 398 (1993).   The law in Connecticut on motions to disqualify compels an examination of the following competing interests:

(1) the defendant's interest in protecting confidential information;  (2)the plaintiffs' interest in freely selecting counsel of their choice;  and(3) the public's interest in the scrupulous administration of justice.  Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 552 A.2d 812 (1987).

Bergeron v. Mackler, 225 Conn. 391, 398 (1993).

Rule 1.18 of the Rules of Professional Conduct specifically delineates duties to prospective clients.   Under said rule no attorney/client relationship is required.   The rule provides, in pertinent part:

(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 ensures, 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) ․

(d) When the lawyer has received disqualifying information as defined in subsection (c), representation is permissible if:  (1) both the affected client and the prospective client have given informed consent, confirmed in writing ․

In this case, there was no informed consent confirmed in writing.   Indeed, written consent is not an issue.   It becomes necessary to examine the facts to determine if the plaintiff communicated information to Attorney Cohen at their July 1999 consultation that “could be significantly harmful” to the plaintiff in the pending litigation.

This court convened a hearing on July 18, 2012 to elicit further testimony relating to information provided by Mrs. Meyer to Attorney Cohen at their July 1999 consultation.   The information provided was generally vague and in no way could be deemed significantly harmful to Mrs. Meyer in the pending litigation.   Indeed, upon cross examination Mrs. Meyer's testimony revealed no information divulged which could be damaging to her.   Mr. Meyer's credible testimony confirmed that he and Mrs. Meyer had discussed their finances, his affairs, their marital problems jointly with a marital therapist.   They also exchanged this information and financial disclosures to their individual counsel in preparation of drafting a post-nuptial agreement.   Mr. Meyer affirmed his strong desire to be represented by Mr. Cohen.

In conclusion, the court finds that no information “significantly harmful” was imparted to Mr. Cohen at the July 1999 consultation.   As such, the balance tips towards Mr. Meyer's right to be represented by counsel of choice.   The motion to disqualify is denied.

MARY LOUISE SCHOFIELD

SUPERIOR COURT JUDGE

Schofield, Marylouise, J.