Tremont Public Advisors v. Connecticut Resources Recovery Authority (2014)

RULING ON DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL (NO. 111) AND PLAINTIFF'S OBJECTION (NO. 112)

I. Procedural History

The defendant, Connecticut Resource Recovery Authority (CRRA), moves to disqualify the plaintiff's counsel, Murtha Cullina, LLP, pursuant to Rules 1.9, 1.10, 3.7(a) and (b) of the Rules of Professional Conduct on the ground that as a result of the firm's previous representation of the client, the firm has gained confidential information regarding the defendant's finances, development, and private matters that will result in an unfair advantage to the plaintiff in the present action.   The plaintiff counters that Murtha Cullina, LLP, has not represented the defendant since 2002 and that the firm has not represented the defendant regarding the subject matter of this case.   Further, the plaintiff argues that the defendant's claim that an associate from the firm is likely to be called as a witness in this action is unsupported.   The parties presented argument to the court on January 13, 2014.

II. Discussion

A. Applicable Law

“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).  “The 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 ․ 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) the defendant's interest in protecting confidential information;  (2) the plaintiffs' 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., 397–98.

“It is axiomatic that motions to disqualify counsel must be evaluated with extreme caution in light of the client's strong interest in being represented by counsel of his or her choice, and to avoid permitting such motions to be used to gain unfair tactical advantage in a case.”   Hampton v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV–99–594509–S (February 21, 2002, Lavine, J.) (31 Conn. L. Rptr. 479, 480).  “The moving party bears the burden of demonstrating facts that indicate that disqualification is necessary.”  Id.

“Rule 1.9(a) of the Rules of Professional Conduct governs disqualification of counsel for a conflict of interest relating to a former client.”   Bergeron v. Mackler, supra, 225 Conn. 398.  Rule 1.9(a) states:  “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.”  Rules of Professional Conduct 1.9(a).  “Thus, an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation ․ This test 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.’  ․ Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed.”   (Internal quotation marks omitted.)  Bergeron v. Mackler, supra, 398–99.

“Rule 1.10, imputation of conflicts of interest, provides in relevant part:  (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the [disqualified] lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm ․” (Internal quotation marks omitted.)   Sullivan Construction Co., LLC v. Seven Bridges Foundation, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–6005404–S (February 22, 2011, Tobin, J.) [51 Conn. L. Rptr. 517].

“The Connecticut Supreme Court has interpreted [R]ule 3.7 to require an attorney to withdraw ‘if he ․ reasonably foresees that he will be called as a witness to testify on a material matter.’  “ (Emphasis in original.)   Talcott Mountain Science Center for Student Involvement v. Abington Ltd. Partnership, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01–CV–95–0152121–S (June 28, 2002, Hodgson, J.) (32 Conn. L. Rptr. 420, 421).  “An attorney is not absolutely prohibited from testifying on behalf of a client, but should only do so when the testimony concerns a formal matter, or the need for the testimony arises from an exigency not reasonably foreseeable ․ Where, however, an attorney does not withdraw, a court exercising its supervisory power can ․ disqualify the attorney.”  (Citations omitted;  internal quotation marks omitted.)  Enquire Printing & Publishing Co v. O'Reilly, 193 Conn. 370, 376, 477 A.2d 648 (1984).  “[W]hether 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 still 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.”  (Internal quotation marks omitted.)   Roosevelt Building Product Co. v. Morin Corp, Superior Court, judicial district of Litchfield, Docket No. CV–00–0083595–S (September 5, 2001, Cremins, J.) (30 Conn. L. Rptr. 331, 331).

Finally, “[u]nlike Canon 9 under the Code of Professional Responsibility, however, the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety.   Even when Canon 9 was applicable, we rejected the notion that an ‘appearance of impropriety’ was alone a sufficient ground for disqualifying an attorney.   In State v. Jones ... [180 Conn. 443, 429 A.2d 936 (1981) ], we stated that the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases ․ Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney's representation risks violating the Rules of Professional Conduct.”  (Citations omitted;  internal quotation marks omitted.)  American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 726–27, 774 A.2d 220 (2001).

B. Analysis

In the present case, the defendant has not sustained its burden of proof to establish sufficient facts to support its allegations that the plaintiff's counsel should be disqualified pursuant to Rules 1.7, 1.9, 1.10 and 3.7(a) and (b) of the Connecticut Rules of Professional Conduct.   The complaint alleges that the defendant (1) violated General Statutes § 1–101bb (prohibition from retaining a lobbyist), § 22a–268 (engaging in open and competitive bidding for contracts with outside vendors), and § 35–24 et seq. (antitrust act);  (2) failed to file the defendant's own procurement policies;  and (3) illegally awarded a contract to an entity that did not submit the most qualified bid.¹  The defendant's contention that the plaintiff's counsel will violate the aforementioned rules in light of its former representation of the defendant and in the development of the defendant's procurement policies is insufficient for the court to take the drastic step of disqualifying counsel.   Specifically, as the moving party with the burden of proof, the defendant has not established how any information allegedly gained by the plaintiff's counsel in its representation of the defendant in developing the defendant's procurement policies could result in an unfair advantage to the plaintiff in the present action, nor has the defendant made a sufficient showing that the relationship between the firm's representation of the defendant previously and in the present action is patently clear, identical or essentially the same.²

Further, the defendant has not demonstrated that a conflict of interest exists warranting disqualification nor has the defendant offered any evidence as to whether any confidential information known to the plaintiff's counsel in its previous representation of the defendant is in any way substantially related to the current proceedings.   Finally, the defendant has not sufficiently demonstrated that any witnesses from the firm will be called, that such testimony is necessary to the present action, and whether such witnesses would be called to testify on a material matter.

Accordingly, the defendant has failed to meet the high standard of proof necessary to disqualify the plaintiff's counsel in this action.

III. Conclusion

For the foregoing reasons, the court denies the defendant's motion to disqualify the plaintiff's counsel.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. The court notes that this action commenced on March 7, 2013, yet the defendant has waited until November 6, 2013, approximately nine months later, to file the present motion..  FN1. The court notes that this action commenced on March 7, 2013, yet the defendant has waited until November 6, 2013, approximately nine months later, to file the present motion.

FN2. The defendant submits what purports to be the affidavit of Laurie Hunt, the legal services director of the CRRA, in support of its argument.   The court notes that this document was not executed under oath.   Notwithstanding its procedural deficiencies, the court does not find the defendant's affidavit to be persuasive in light of the plaintiff's submission of a duly signed and sworn affidavit of Mark F. Kober, who served as the billing partner for CRRA. Kober states in his affidavit that the plaintiff's counsel “has not represented CRRA on material matter or served as its general counsel since 2002” and “has had no involvement on behalf of CRRA with regard to CRRA's ․ contract [at issue in the present action.]”   Aside from Laurie Hunt's statement, the defendant submits no additional evidence nor offered any witnesses in support of its motion..  FN2. The defendant submits what purports to be the affidavit of Laurie Hunt, the legal services director of the CRRA, in support of its argument.   The court notes that this document was not executed under oath.   Notwithstanding its procedural deficiencies, the court does not find the defendant's affidavit to be persuasive in light of the plaintiff's submission of a duly signed and sworn affidavit of Mark F. Kober, who served as the billing partner for CRRA. Kober states in his affidavit that the plaintiff's counsel “has not represented CRRA on material matter or served as its general counsel since 2002” and “has had no involvement on behalf of CRRA with regard to CRRA's ․ contract [at issue in the present action.]”   Aside from Laurie Hunt's statement, the defendant submits no additional evidence nor offered any witnesses in support of its motion.

Wiese, Peter E., J.