Nicholas Holmes v. Carolyn Holmes (2014)

MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY PLAINTIFF'S ATTORNEY (# 128)

PROCEDURAL HISTORY

This matter comes before the court on a series of post-judgment motions concerning custody and visitation and related financial issues.   The plaintiff, Nicholas Holmes, is represented by Attorney Michelle Holmes.¹  Michelle Holmes is the sister of the plaintiff.   The defendant mother is represented by Attorney Frank Romeo.

Defendant mother filed a Motion to Disqualify Plaintiff's Attorney dated September 16, 2013 and an objection thereto was filed on October 22, 2013, the date the matter was scheduled on the calendar.   After hearing, the court, Olear J., ordered that “the court shall defer ruling on the Motion to Disqualify Plaintiff's Attorney until such time as Attorney Holmes may become a witness in this matter.”

On January 6, 2014, the defendant mother, through counsel, noticed the deposition of Attorney Holmes.   Although the deposition has not yet occurred, the court, Olear, J., ordered the deposition to occur within 60 days of February 4, 2014.

On February 11, 2014 the defendant mother again renewed her request through a Motion to Disqualify Plaintiff's Attorney.   The defendant alleges, inter alia, that Attorney Holmes is the sister of the plaintiff and aunt of the two minor children at issue in the matter.   He further alleges that Attorney Holmes continues to have direct contact with the minor children and that issues surrounding the litigation may have been discussed with the minor children.   Attorney Romeo intends to take the deposition of Attorney Holmes.

The matter was argued before the court on March 5, 2013.   Both attorneys were present.   The plaintiff filed an Objection on March 6, 2014.   Although the Objection was not timely filed, the court has considered the merits of the Objection in rendering its decision.

LEGAL ARGUMENT

“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 (1993).

Rule 3.7 of the Rules of Professional Conduct governs the disqualification of an attorney who is likely to be called as a witness.   Specifically, the rule provides in relevant part:

Rule 3.7 Lawyer as Witness

(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.

Attorney Holmes argues that the fact that she was never called as a witness in the underlying dissolution action and that the guardian ad litem has recently issued recommendations in this matter without having interviewed her makes her unlikely to be called as a witness.   She further states that to disqualify her as attorney for her brother would place an undue burden on him as he is “having a very difficult time financially.”

The court is not persuaded.   Attorney Holmes skirts the issue that her deposition has been noticed and that Attorney Romeo will depose her as soon as a mutually date can be agreed upon.   She introduced no evidence at oral argument relative to her brother's financial status and his alleged inability to afford legal counsel.

Attorney Holmes has been placed in a position of likely being a witness on the contested custody issues in this matter.   Her representation of her plaintiff-brother does not fall within the acceptable parameters set forth in Rule 3.7 of the Rules of Professional Conduct, and therefore, she is disqualified from continued representation of the plaintiff.

The Motion to Disqualify Plaintiff's Attorney (# 128) is granted.

SO ORDERED.

BY THE COURT,

Ficeto, J.

FOOTNOTES

FN1. Attorney Holmes did not represent her brother in the underlying dissolution action..  FN1. Attorney Holmes did not represent her brother in the underlying dissolution action.

Ficeto, Anna M., J.