552 v. Scott Dahnke et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY DEFENDANT'S COUNSEL AND LAW FIRM (106) AND THE OBJECTION TO THE MOTION TO DISQUALIFY (110)

This case came to this court on a motion to disqualify.   The court had an evidentiary hearing, heard from witnesses, reviewed the motions with the law cited therein and listened to the arguments of counsel.

The court has reviewed the underlying complaint in this case.   The claims for relief are seven in nature.   The essential underlying claim is that the right-of-way granted to the defendants has been exceeded by the activities conducted by the defendants.   The easement provided:

“Together with the right, privilege and easement to the grantee, his heirs and assigns of using so much of the lake and Horseshoe Brook as is included in adjoining lands now or formally belonging to the Grantor for boating, skating, bathing, fishing and other like purposes.”

“RESERVING to the Grantor, its successors and assigns, the right, privilege and easement of using so much of said lake and Horseneck Brook as is included in the premises described herein for boating, skating, bathing, fishing and other like purposes, and the right to use any and all of the herein described premises for the purposes of going to and from said lake and said Horseneck Brook.”

Thus, this case is about the rights under an easement.

Essentially, the plaintiff argues that the defendants' lawyer Thomas J. Heagney should be disqualified along with the law firm of Heagney, Lennon and Slane, LLP. The underlying claim is that Attorney Heagney told the Greenwich Inland Wetlands and Watercourses Agency that it was legal for the defendants and that they had a right to remove plants, plant plants and remove a tree stump from the right-of-way area.   The disqualification is claimed under Rule 3.7 of the Connecticut Rules of Professional Conduct.

The claim for disqualification essentially alleges activities at the Inlands, Wetlands and Watercourses Agency of Greenwich.  Paragraph 3.7 of the Rules of Professional Conduct provide that “A lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness.”   In Mettler v. Mettler, 50 Conn.Sup. 357 at 360 [43 Conn. L. Rptr. 578], the court discusses what is a necessary witness.   The court found that a necessary witness is not just someone with relevant information, however, but someone who has material information that no one else can provide.  “Whether a witness ought to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue.   Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary.   Testimony may be relevant and even highly useful but not strictly necessary.   A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence ․ A party's mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony ․ There is a dual test for necessity.   First, the proposed testimony must be relevant and material.   Second, it must be unobtainable elsewhere.' “

This court heard the testimony and finds that the testimony is clearly available through all of the witnesses that were called during the hearing, not just the attorney.   The question of whether it is relevant and material, is an inquiry to be made at a later hearing.   The court finds that it is irrelevant as to what happened with the Inland Wetlands and Watercourses Agency in a complaint about the enforceability of a right-of-way or easement.   Therefore, this testimony this court finds, would be irrelevant to the underlying right-of-way case.

The court in Mettler further goes on to discuss that in view of the strong public policy favoring a party's right to select its own counsel, the law places the burden of showing that disqualification is required upon the moving party.   The court goes on further to say “[B]efore permitting a party to disqualify an attorney, the moving party bears the burden of proving facts which indicate disqualification is necessary.   The courts should act very carefully before disqualifying an attorney and negating the right of a client to be represented by counsel of choice.”   The court goes on further to say “The disqualification of a party's chosen counsel is a harsh sanction, and an extraordinary remedy which should be resorted to sparingly ․”

This court denies the Motion to Disqualify, finding the testimony of Attorney Heagney is not necessary in the underlying case concerning the right-of-way.   The court further finds that in balancing the equities, the defendant is entitled to have counsel of their own choice.   This is not the case where a former client claims his attorney should be disqualified from appearing for someone else with adverse interests, where the court should carefully review those issues.   This is a case where an unfair advantage could be obtained if the counsel were disqualified and new counsel were required to appear and be brought up to the current status of the case.

In this case, it is clear that another lawyer in the firm may act as an advocate even if attorney Heagney is called as a witness.

It is clear from the testimony of all of the witnesses that the discussions by Attorney Heagney with all of them, were minimal.   Michael Chambers testified that when he was presented with the deed containing the right-of-way, he turned it over to the legal department.

The Motion to Disqualify is denied, and the Objection thereto is sustained.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.