Lawrence Facchini v. Kelli M. Russell (2013)

MEMORANDUM OF DECISION RE DISQUALIFICATION OF COUNSEL FOR DEFENDANT

This matter comes to the court on various post-judgment motions.   After a lengthy and contested case history, judgment was entered by the court (Boland, J.) on March 4, 2011.   Plaintiff is presently self-represented;  defendant is represented by Attorney William Bingham.   At the scheduled hearing on the motions on November 14, 2013, it was revealed that Attorney Bingham married his client, the defendant, on October 7, 2013.   In light of Attorney Bingham's relationship and marriage to the defendant, the guardian ad litem, Attorney Brett Fitton, raised the efficacy of Attorney Bingham's continued representation of the defendant.   The plaintiff objected to Attorney Bingham's continued representation of the defendant.   The court ordered Attorney Bingham to brief the issue of whether or not his relationship and marriage to the defendant ethically prevented him from further representing the defendant, particularly in light of Rule 3.7 of the Rule of Professional Conduct, prohibiting a lawyer to act as an advocate at a trial in which he is likely to be a necessary witness.

The court has reviewed Attorney Bingham's Memorandum of Law with Points and Authorities filed November 21, 2013, has considered the arguments advanced by both parties at the hearing, and has researched the applicable law.   The court concludes that under the particular circumstances of this case, Attorney Bingham is disqualified from further representation of the defendant because he is likely to be a necessary witness at trial.

I. Facts and Procedural History

The transcript of ¹

On August 12, 2013, the defendant (through Attorney Savona) filed a motion requesting that the child undergo therapy;  the motion does not identify which child.   On September 9, 2013, the defendant (through Attorney Savona) filed a motion requesting that the minor child—again, unidentified—be appointed an attorney;  the court (Connors, J.) denied the motion without prejudice.   On the same day, Attorney Savona filed a motion to withdraw as defendant's counsel, claiming irretrievable breakdown of the attorney-client relationship.   The court (Connors, J.) granted the motion to withdraw effective October 1, 2013.

On September 9, 2013, Attorney Savona also filed a motion to close the courtroom and to seal the files.   The motion was granted on September 30, 2013 by Judge Connors;  a sealed copy of the transcript of the order is in the court's file.   Consistent with the court's sealing order, various motions have been filed under seal and remain under seal (# 217, # 222, # 227 and # 228).   By special assignment, the file came before this court on November 14, 2013 for hearings on the sealed motions, as well as on the Defendant's Motion for Contempt and on the defendant's Motion for Modification of Custody filed October 8, 2013, in which the defendant mother seeks sole custody of the children.³  The question of Attorney Bingham's potential disqualification was raised at the hearing when the GAL expressed concerns about counsel's relationship with his client, the defendant mother.   In response to the GAL's comments, it was revealed by Attorney Bingham that he and the defendant had married on October 7, 2013.

At the hearing, the guardian ad litem indicated her belief that defense counsel, Attorney Bingham, would be a likely witness at the hearing on the pending motions, and questioned whether he should remain as defendant's counsel.   The court raised its own concern about Attorney Bingham's representation.   Additionally, after learning that Attorney Bingham had recently married the defendant, the plaintiff echoed the concern of the GAL, and requested that Attorney Bingham be disqualified from continued representation of the defendant.   The GAL also indicated that both children had expressed discomfort being in the presence of Attorney Bingham.

Attorney Bingham represented that his marriage to the defendant on October 7, 2013, pre-dated the filing of his appearance in the case.⁴  He also indicated that he recognized that there might be concerns with him representing the defendant, but that he had reviewed the ethical rules and believed that because the attorney-client relationship had not begun until after the two were married, he would be able to remain in the case.   In his brief filed on November 21, 2013, Attorney Bingham also argued that he should be allowed to remain in the case because the defendant is without financial means to hire another attorney, and his disqualification would cause the defendant an undue hardship.

II. Legal Authority

“[W]henever counsel for a client reasonably foresees that he will be called as a witness to testify on a material matter, the proper action is for that attorney to withdraw from the case ․ Where, however, an attorney does not withdraw, a court exercising its supervisory power can ․ disqualify the attorney.” ⁵  (Internal quotation marks omitted.)   Walsh v. Lynch, et al., Judicial District of New London, Docket No. CV 11 6010042 (May 3, 2012, Martin, J.) [53 Conn. L. Rptr. 914], citing Mealer v. Mealer, 50 Conn.Sup. 357, 361, 928 A.2d 631 (2007).  “The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys ․ The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney.”  (Internal citations omitted.)  Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.3d 489, 493 (1993).   Attorney Bingham did not move to withdraw from this case, therefore, the court exercised its supervisory authority to determine whether or not disqualification was required.

With rare exception, an attorney is disqualified from serving as an advocate in a case in which he will likely be called to testify as a necessary witness.  Rule 3.7 of the Rules of Professional Conduct governs disqualification of counsel under such circumstances.   In relevant part, Rule 3.7 states:  “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;  ․ (3) Disqualification of the lawyer would work substantial hardship on the client.”

Attorney Bingham argues that he is not likely to be a necessary witness and, therefore, should not be disqualified from the case.   The court does not agree.  “There is a dual test for necessity.   First the proposed testimony must be relevant and material.   Second, it must be unobtainable elsewhere.”   Walsh v. Lynch, supra, citing Neumann v. Tuccio, Superior Court, Judicial District of Danbury, Docket No. CV 07 5002831 (July 17, 2009, Shaban, J.) [48 Conn. L. Rptr. 298].⁶  Attorney Bingham is likely to be a necessary witness regarding relevant and material evidence related both to the defendant's contempt motion and to the defendant's motion to modify custody.

Attorney Bingham is now in the position of being the spouse of a party in a highly disputed and contested post-judgment custody battle.   He is also the step-father of the children who are at the heart of the battle.   It is likely that one of the parties, or the newly appointed attorney for the children,⁷ will seek the testimony of Attorney Bingham on the issue of the best interest of the children.⁸  “The best interests of the child has been generally defined as a measure of a child's well-being, which includes his physical (and material) needs, his emotional (and psychological) needs, his intellectual and moral needs.”  (Internal citations omitted.)  In re Tayquon H., 76 Conn.App. 693, 704, 821 A.2d 796 (2003).   As spouse of the children's mother, and step-father to the children, Attorney Bingham is in a unique position to provide testimony regarding the children's well-being and needs.

This case has historically involved, and continues to involve, contentious litigation between the parties regarding the utmost serious issues of custody of their two minor children, and visitation/access with the children.   Although Attorney Bingham argues that the issues before the court are not contested, the record—including motions filed under seal—demonstrate something quite different.   The defendant mother has filed contempt motions alleging that the plaintiff father has refused to allow her access to the children, in contravention of the court orders.   Additionally, the defendant filed a motion to modify custody, in which she seeks sole custody of the children.   The plaintiff, to whom the court awarded sole custody in 2011, objects to the defendant's request for a custody modification.   Furthermore, the defendant alleges certain acts of wrongdoing by the plaintiff, which the plaintiff vehemently denies.   The allegations go to the heart of the custody and access issues, and the question of the best interest of the children.⁹

Attorney Bingham is in the unique position, as the spouse of the defendant mother and as a member of her household, to present testimony on the question of the best interest of the children.   In addition, Attorney Bingham now has a new role as step-father to the children.   His testimony as spouse of the defendant mother and step-father to the children is not obtainable elsewhere.   Additionally, many of the allegations raised in the defendant's Amendment to Motion for Contempt occurred in the midst of the time of the marriage.   It is likely that Attorney Bingham will be called to testify regarding those allegations, and his testimony is not obtainable elsewhere.

Lastly, Attorney Bingham argues that to disqualify him as defendant's counsel would cause a severe hardship to the defendant as she would have no counsel representing her because she is unable to afford to hire counsel.   Although the court is empathetic to the difficulties of self-represented parties in understanding the legal system, the court also notes that the defendant has been involved in legal proceedings related to her children and the plaintiff for approximately five years.

The record indicates that the defendant worked previously in the nursing field.   To perform within this field, one is required to possess a certain minimal intellect.   Additionally, before this court, the defendant appeared bright and was articulate, demonstrating a strong ability to voice her own concerns and speak up for herself.   Indeed, Attorney Bingham assisted the defendant on November 14, 2013 with filing motions as a self-represented litigant in order for the defendant to be allowed to speak on her own behalf in court.   Finally, Attorney Bingham filed his appearance in the case on October 21, 2013, serving as counsel of record for only three weeks before the conflict was revealed.   Although the court is not unsympathetic to the defendant's concerns, the court finds—based on the particular facts and circumstances of this case—that disqualification of Attorney Bingham does not result in a substantial hardship as contemplated by Rule 3.7.

III. Conclusion

The court concludes, after due consideration of the facts and circumstances of this case, and the applicable law, that Attorney Bingham is likely to be a necessary witness in this matter, and is disqualified from continued representation of the defendant.

Goodrow, J.

FOOTNOTES

FN1. On March 28, 2011, after finding that the defendant had an earning capacity of a net weekly wage of $560.00, the court (Boland, J.) ordered the defendant to pay child support to the plaintiff in the amount of $139.00 per week.   The support orders were later modified by the magistrate court..  FN1. On March 28, 2011, after finding that the defendant had an earning capacity of a net weekly wage of $560.00, the court (Boland, J.) ordered the defendant to pay child support to the plaintiff in the amount of $139.00 per week.   The support orders were later modified by the magistrate court.

FN2. The case was litigated for over two years prior to Judge Boland's final orders of March 4, 2011;  the litigation included allegations by both parties of what can best be described as inappropriate and abusive behavior towards each other..  FN2. The case was litigated for over two years prior to Judge Boland's final orders of March 4, 2011;  the litigation included allegations by both parties of what can best be described as inappropriate and abusive behavior towards each other.

FN3. Ms. Russell's Proposed Orders filed on November 14, 2013 by Attorney Bingham request that the mother be awarded joint custody pending certain proposed evaluations..  FN3. Ms. Russell's Proposed Orders filed on November 14, 2013 by Attorney Bingham request that the mother be awarded joint custody pending certain proposed evaluations.

FN4. The record reflects that Attorney Bingham filed his appearance on October 21, 2013..  FN4. The record reflects that Attorney Bingham filed his appearance on October 21, 2013.

FN5. Attorney Bingham did not move to withdraw from the case.   He represented to the court that he had researched the ethical issues and felt he could remain in the case due to the fact that he filed his appearance in the case after he married the defendant.   During the initial colloquy with the court, Attorney Bingham did not raise the Rule 3.7 concern, which was raised sua sponte by the court after the morning recess..  FN5. Attorney Bingham did not move to withdraw from the case.   He represented to the court that he had researched the ethical issues and felt he could remain in the case due to the fact that he filed his appearance in the case after he married the defendant.   During the initial colloquy with the court, Attorney Bingham did not raise the Rule 3.7 concern, which was raised sua sponte by the court after the morning recess.

FN6. In his brief, Attorney Bingham relies heavily on the case of Mettler v. Mettler, supra, to support his position.   The court in Mettler determined that disqualification of the attorney was not necessary because the evidence about which the attorney might testify was also available through other witnesses.   Here, no such witnesses exist, therefore, the Mettler case does not lend support for Attorney Bingham's position..  FN6. In his brief, Attorney Bingham relies heavily on the case of Mettler v. Mettler, supra, to support his position.   The court in Mettler determined that disqualification of the attorney was not necessary because the evidence about which the attorney might testify was also available through other witnesses.   Here, no such witnesses exist, therefore, the Mettler case does not lend support for Attorney Bingham's position.

FN7. On November 14, 2013, at the urging of both parties, the court appointed an attorney to represent the legal interests of the children..  FN7. On November 14, 2013, at the urging of both parties, the court appointed an attorney to represent the legal interests of the children.

FN8. Attorney Bingham has raised the claim that he could not testify in this case based on the attorney-client privilege and/or the spousal privilege.   The court makes no ruling regarding the claim of either privilege.   The only question before the court presently is whether Rule 3.7 prevents Attorney Bingham from further representing the defendant..  FN8. Attorney Bingham has raised the claim that he could not testify in this case based on the attorney-client privilege and/or the spousal privilege.   The court makes no ruling regarding the claim of either privilege.   The only question before the court presently is whether Rule 3.7 prevents Attorney Bingham from further representing the defendant.

FN9. Defendant's Amendment to Motion for Contempt filed by Attorney Bingham on November 7, 2013 includes allegations that the plaintiff engaged in a course of conduct which intentionally thwarted the defendant's ability to see the children.   The dates of the alleged behavior by the plaintiff were between September 27, 2013 and November 8, 2013, although the Amendment is dated November 7, 2013.   The Amendment alleges various acts of misconduct by the Plaintiff, including allowing his family members to intentionally hide Kendra, removing Giovanni from school prior to pick-up time, absconding with Gionvanni in defiance of the school's instructions, and intentionally keeping Giovanni from school so that he would not be available for the defendant's access time.   Other motions filed by the defendant through Attorney Bingham contained similar allegations against the plaintiff, which the plaintiff denies..  FN9. Defendant's Amendment to Motion for Contempt filed by Attorney Bingham on November 7, 2013 includes allegations that the plaintiff engaged in a course of conduct which intentionally thwarted the defendant's ability to see the children.   The dates of the alleged behavior by the plaintiff were between September 27, 2013 and November 8, 2013, although the Amendment is dated November 7, 2013.   The Amendment alleges various acts of misconduct by the Plaintiff, including allowing his family members to intentionally hide Kendra, removing Giovanni from school prior to pick-up time, absconding with Gionvanni in defiance of the school's instructions, and intentionally keeping Giovanni from school so that he would not be available for the defendant's access time.   Other motions filed by the defendant through Attorney Bingham contained similar allegations against the plaintiff, which the plaintiff denies.

Goodrow, Karen, J.