Georgia Hutchinson v. Francis Hutchinson et al. (2013)

RULING ON MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL, # 102

The following facts are undisputed.   The plaintiff, Georgia Hutchinson, has brought this action to quiet title in certain real estate.   The defendant is the estate of her former husband, Severin Hutchinson.   Resolution of this action will depend upon the interpretation of an agreement that was incorporated into the judgment of dissolution of marriage.   In the dissolution of marriage action, Severin Hutchinson was represented by the attorney who now represents the plaintiff in this action.   The defendant seeks to disqualify the plaintiff's attorney from representing the plaintiff.   The defendant argues that because the plaintiff's attorney formerly represented Severin Hutchinson in the dissolution of the marriage, which is a “substantially related matter,” his continued representation of the plaintiff is in violation of rule 1.9 of the Rules of Professional Conduct.

“The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys.”  (Internal quotation marks omitted.)  Daniels v. Alander, 268 Conn. 320, 329, 844 A.2d 182 (2004).   Furthermore, “[t]he trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney.”  Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).  “Disqualification 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.”  (Internal quotation marks omitted.)  Id., 397.

Rule 1.9(a) of the Rules of Professional Conduct governs disqualification of counsel for a conflict of interest relating to a former client.   The rule 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.”  (Emphasis added.)   The “substantially related” test in rule 1.9(a) “has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is ‘patently clear’ or when the issues are ‘identical’ or ‘essentially the same.’  “ (Internal quotation marks omitted.)  Bergeron v. Mackler, supra, 225 Conn. 399.

In the present case, in view of the fact the plaintiff's attorney formerly represented Severin Hutchinson in the action that resulted in the divorce agreement, the interpretation of which is the subject of this quiet title action, the court finds the issues in both actions to be substantially related.   If Severin Hutchinson were alive and the plaintiff brought an action against Severin Hutchinson seeking interpretation of the divorce agreement, there can be no dispute that, under rule 1.9, Severin Hutchinson's former attorney would be disqualified from representing the plaintiff.   Thus, the issue here is whether the reason for disqualification continues after Severin Hutchinson's death.

This issue of a former client's death relative to the prohibition contained in Rule 1.9 appears to be an issue of first impression in Connecticut.   The only state court to address the issue is the Supreme Court of Oregon, in In re Hostetter, 348 Ore. 574, 238 P.3d 13 (2010).   That court held, under circumstances analogous to those of the present case, that the rule may apply even after the death of the former client.¹  In that case, an attorney was charged, inter alia, with violating rule 1.9(a) of Oregon's Rules of Professional Conduct, the relevant portion of which is identical to rule 1.9(a) of Connecticut's Rules of Professional Conduct.   The accused attorney had represented a borrower in a loan transaction, and later, after the former client's death, represented the lender against the estate of the deceased borrower in an action to collect the debt.   Focusing on the language of the rule, the court noted that the wording of the rule focuses on “the interests of the former client” and reasoned that because those interests may survive the death of the client, the rule is applicable if those interests “pertain to the matter in which the lawyer previously represented the former client.”  In re Hostetter, supra, 348 Ore. 584.   The court reasoned that the former client's interests survived her death because those interests, specifically “to minimize her legal debt as much as possible as is reasonable within the bounds of the law,” were those of a debtor and “were represented by her personal representative” following her death.  Id., 589.   Further, because the rule requires that the former client's interests “are materially adverse,” the analysis must focus on whether the former client's interests are materially adverse to the interests of the subsequent client during the subsequent representation.   The court reasoned that the loan transaction and the debt collection were substantially related and that the former client's surviving interests and subsequent client's “interests as debtor and creditor were adverse from the outset.”  Id., 594.   Therefore, the attorney had violated rule 1.9(a).

Similarly, in the present case, the plaintiff's attorney represented the defendant's decedent in a dissolution action and is now representing the plaintiff in a quiet title action.   Both the dissolution action and the quiet title action involve the former client's and the subsequent client's interests in certain real estate.   In accordance with the reasoning in Hostetter discussed above, the former client's interests in the real estate survive the death of the former client because the former client's interest in the real estate at issue continues to be represented by the estate.   Further, as in Hostetter, the interests of the former client and the subsequent client are adverse from the outset, as they were adverse during the dissolution action and continue to be adverse in the present quiet title action.   The defendant has established sufficient cause for disqualification.

Moreover, in addition to the “substantially related” test, our Supreme Court has emphasized the need to take into consideration the competing interests that are involved in the disqualification of an attorney.   The Supreme Court has stated:  “[W]e 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) the defendant's interest in protecting confidential information;  (2) the plaintiff's interest in freely selecting counsel of their choice;  and (3) the public's interest in the scrupulous administration of justice.”  (Citation omitted;  internal quotation marks omitted.)  Bergeron v. Mackler, supra, 225 Conn. 397–98.   The court has considered the plaintiff's interest in freely selecting counsel of their choice.   Here, the issue of disqualification has been promptly raised at the outset of the litigation.   The nature of the litigation, a quiet title action involving the interpretation of a divorce agreement, does not appear to require specialized knowledge on the part of the plaintiff's attorney.   In the exercise of its discretion, the court also concludes that the plaintiff's interest in freely selecting counsel is outweighed by the public's interest in scrupulous administration of justice.

Lastly, the court notes that the defendant also moves to disqualify the plaintiff's attorney based on rule 3.7 of the Rules of Professional Conduct, which states in relevant part:  “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:  (1) The testimony relates to an uncontested issue;  (2) The testimony relates to the nature and value of legal services rendered in the case;  or (3) Disqualification of the lawyer would work substantial hardship on the client.”   The defendant argues that because resolution of the quiet title action will depend upon the interpretation of language in the divorce judgment, a document that the plaintiff's attorney negotiated while representing Severin Hutchinson, the attorney is likely to be called as a witness.   Given the insufficient evidence presented at the hearing in support of this argument, the court is unable to make the determination as to whether the plaintiff's attorney is likely to be a “necessary witness.”

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

Domnarski, J.

FOOTNOTES

FN1. The Journal of the Legal Profession summarized the holding of this case as follows:  “The Oregon Supreme Court held that the death of a lawyer's former client does not necessarily terminate the lawyer's duties under the rule governing former client conflicts of interest.   In a case of first impression in any jurisdiction, the court ruled that Oregon Code of Professional Responsibility Rule 1.9(a), which is nearly identical to Model Rule 1.9(a), applies even where the former client is deceased, provided the former client's interests survive his death and are adverse to the lawyer's current client in the subsequent litigation.”  35 J. Legal Prof. 461, 462–63 (2011)..  FN1. The Journal of the Legal Profession summarized the holding of this case as follows:  “The Oregon Supreme Court held that the death of a lawyer's former client does not necessarily terminate the lawyer's duties under the rule governing former client conflicts of interest.   In a case of first impression in any jurisdiction, the court ruled that Oregon Code of Professional Responsibility Rule 1.9(a), which is nearly identical to Model Rule 1.9(a), applies even where the former client is deceased, provided the former client's interests survive his death and are adverse to the lawyer's current client in the subsequent litigation.”  35 J. Legal Prof. 461, 462–63 (2011).

Domnarski, Edward S., J.