Stephen Czarnecki v. Mitchell Lasky et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY (# 127) AND OBJECTION THERETO (# 131)

This case comes to this court as a motion to disqualify counsel.   The parties filed the motion and objection and legal support for the motions.   In addition, the court conducted an evidentiary hearing and heard witnesses concerning the matter, and matters were marked as full exhibits for the court's review.

The defendant's motion to disqualify requests that the law firm of Gregory and Adams be disqualified pursuant to the Rules of Professional Conduct 1.7 Conflict of Interest—Current Clients and Rule 1.9—Duties to Former Clients.   The defendants Mitchell Lasky and Iris Lasky seek to disqualify the plaintiff's counsel Gregory and Adams, essentially based on an alleged conflict of interest, because Attorney Healy assisted the Laskys in the preparation of their variance application in 2005.

All of the facts stated hereinafter “are found by the court.”   The court finds that Mr. Czarnecki's claims do not concern or involve the variance.   They involve the claim that the Laskys wilfully trespassed in locating their pool partially on their property and caused damage.   The parties agree that the Laskys did not give Attorney Healy any confidential information, nor did he acquire any.   The court finds that the affidavit of J. Casey Healy, which is pleading 132 has been proven by the testimony of Attorney Healy.

The Law Firm of Gregory and Adams has spent 250 hours or more on this case.   Approximately 50 hours has been spent by Attorney Healy on the case.

The court finds that the advice provided the Laskys by Attorney Healy was concerning regulation, and therefore was a part of the regulatory process.   It is clear from the testimony of both Mr. Lasky and Mr. Healy, that the time spent on the Z.B.A. case was approximately one and one-half hours, during which time papers were prepared as set forth in the exhibits.   It is also clear that the Laskys processed their application themselves before the Zoning Board of Appeals.   The Zoning Board of Appeals granted the variance.   They had requested a two-foot variance, but the Board gave it 10–foot variance.   Thereafter, the problems began during construction which was the installation process, which was something that Attorney Healy was clearly not involved in.

It does further appear that when the Czarneckis approached the Adams Law Firm to represent them, the Adams Law Firm reviewed internally the request.   They checked to see if it was a conflict, and determined it was not.   Thereafter, this lawsuit was commenced in 2010.   The Laskys first Attorney Gary Oberst asked the Adams firm to withdraw, and they declined finding that there was no conflict and no basis for withdrawal.   The Lasky's second Attorney, Peter Olsen, made the same request by letter dated June 30, 2010.   Again, Gregory and Adams declined citing the same basis.   The case was returned to this court on June 8, 2010.   On March 5, 2013, the Motion to Disqualify was filed as Pleading 127.   That means that there were 26 matters of motion activity or orders on this file prior to that time.   The court in considering this matter, has determined that this motion should have been made sooner.   The case is scheduled for a February 6, 2014 Trial Management Conference.   It is scheduled for a court trial on March 10, 2014.

In balancing the equities, the court finds that it would be a substantial hardship to Mr. Lasky, based on the time he has expended and the dollars paid to find someone else to enter into this case.

There is a concern by the Laskys that they will have to call Mr. Healy as a witness in the case which will cause problems.   Attorney Healy has already testified in this case, and his testimony is part of the record and can be introduced without further testimony.

The lawyers do not disagree on the law.  Bergeron v. Mackler, 225 Conn. 391, 398 (1993), sets forth the standard of review.   The court has to balance the defendant's interest in protecting confidential information, the plaintiff's interest in freely selecting counsel of their choice, and the public's interest in the scrupulous administration of justice.

This court finds that there was no confidential information to be protected.   The court finds that the plaintiff should be able to select counsel of their choice.   In this case, the court has reviewed the facts and determines that there is no violation of the administration of justice.

The defendants have failed to satisfy their heavy burden to show that disqualification is warranted because, there is no conflict of interest, no confidential information was disclosed or could be revealed, and that the motion was untimely and prejudicial to the plaintiff.

The claim is also made that Attorney Healy may be called to testify and there is a discussion concerning Rule 3.7(a) and (b) of the Rules of Professional Conduct.   The requirement there, is that the witness be necessary.   This court does not find Casey a necessary witness, but certainly a potential witness, because the variance is public record.   In addition, there is no confidential information.   The information would be background.   The Czarneckis would have a substantial hardship as was previously set forth.   Also, the court notes that Attorney Healy did testify in this matter, and the testimony went smoothly and essentially without major objection.

For all the foregoing reasons, the Motion to Disqualified is denied and the Objection Thereto is sustained.

SO ORDERED.

HON. EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

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