Jeff Malich Building and Remodeling v. Matthew Silvilla (2013)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY

The plaintiff in this case seeks the disqualification of the defendant's law firm, O'Connell, Attmore and Morris.   The plaintiff originally sought representation in this action from Attorney Bradley Morris, who declined to represent the plaintiff in this action.   After engaging the services of another attorney to represent his interests in bringing this case, Attorney Morris inappropriately filed an appearance on behalf of the defendant, which was subsequently withdrawn upon the plaintiff's objection.   Attorney Morris then referred the file to the law firm of O'Connell, Attmore and Morris in which his wife, Attorney Julia Bertram Morris, is the managing partner.

In support of the motion, the plaintiff has filed an affidavit setting forth the facts described above, along with additional facts relating to evidence shared in confidence with Attorney Bradley Morris.   The defendant objects to the motion to disqualify and has provided the court with the affidavits of Attorney Julia B. Morris and, her associate handling the file, Steven J. Zakrzewski.   Both deny access to any information concerning Attorney Bradley Morris' prospective client meeting with the plaintiff or knowledge of any confidential information shared with him by the plaintiff at that meeting.

Rule of Professional Conduct § 1.9 is entitled “Duties to Former Clients” and states:  “(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person;  and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9 that is material to the matter;  unless the former client gives informed consent, confirmed in writing.   A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:  (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known;  or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.”

In setting forth the standard and considerations applicable to disqualification cases, the Supreme Court in Bergeron v. Mackler, 225 Conn. 391, 623 A.2d 489 (1993), stated that “[d]isqualification of counsel is a remedy that serves to enforce the lawyer's duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information ․ In disqualification matters, however, we 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 its operations ․ The competing interests at stake in the motion to disqualify, therefore, are:  (1) [a party's] interest in protecting confidential information;  (2) [a party's] interest in freely selecting counsel of their choice;  and (3) the public's interest in the scrupulous administration of justice.  (Citations omitted;  internal quotation marks omitted.)  Id. at 397;  citing Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2 751, 754 (2d Cir.1975).

In applying this rule to specific cases, “[a] party moving for disqualification of an opponent's counsel must meet a high standard of proof ․ [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.”  (Citation omitted;  internal quotation marks omitted.)   Blakemar Construction, LLC v. CRS Engineering, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 04 0412727 (February 10, 2005, Skolnick, J.).

The court concludes that Attorney Bradley Morris had limited exposure to this case during his single prospective client meeting with the plaintiff.   Although Attorney Bradley Morris was nonetheless clearly disqualified from subsequently representing the defendant in this case, his wife's firm should not be disqualified upon the mere allegation or appearance of a conflict, arising from potential access to confidential information.   The court further concludes that, although there was the potential for disclosure of confidential information in this case, there is no evidence indicating that it has occurred.   Moreover, the attorneys representing the defendant have denied any access to or knowledge of confidential information from the plaintiff in this case.   Therefore, based upon these facts and applicable law, the motion is denied.

BY THE COURT

MARK H. TAYLOR, J.

Taylor, Mark H., J.