Opinion
LLICV156012944S
08-30-2019
The BANK OF NEW YORK MELLON fka The Bank of New York, As Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-OH2, Mortgage Pass-Through Certificates, Series 2007-OH2 v. Charles H. FISHER et al.
UNPUBLISHED OPINION
Bentivegna, J.
I
FACTS & PROCEDURAL HISTORY
The plaintiff, the Bank of New York Mellon, filed this action on November 16, 2015, seeking to foreclose upon the home of the defendant, Charles H. Fisher. On November 15, 2016, the defendant filed a notice of service of discovery requests (#177) indicating that he had served the plaintiff with a set of interrogatories and requests for production. On November 23, 2016, the plaintiff filed its objections (#180) to the defendant’s notice of service of discovery requests. On April 8, 2019, the Court, Shaban, J., overruled the objections to several interrogatories, which included interrogatory number one, but sustained the objections as to the majority of the interrogatories. See Order (#180.10). On April 9, 2019, the plaintiff filed a notice of compliance (#262) with the defendant’s discovery request, which included a copy of the plaintiff’s answers to the interrogatories as well as a copy of all documents produced pursuant to the defendant’s request for production. In interrogatory number one, the defendant requested that the plaintiff "[s]tate the identity of all persons who prepared the responses to these interrogatories," to which the plaintiff responded: "This document has been prepared by Attorney Jeffrey M. Knickerbocker." The notice of compliance is signed by Attorney Knickerbocker.
Maria Delourdes Fischer is also a named defendant in this action but she is nonappearing. All references to the defendant will, therefore, be to Charles H. Fisher.
On June 24, 2019, the defendant filed a motion to disqualify (#277) Attorney Knickerbocker, the plaintiff’s counsel. On July 2, 2019, the plaintiff filed its objection (#279) to the defendant’s motion to disqualify. On July 3, 2019, the defendant filed a reply memorandum (#280). On July 15, 2019, the court ordered that the parties appear for an evidentiary hearing on August 5, 2019. See Order (#277.10). The defendant’s motion was heard at the August 5, 2019 civil short calendar.
II
DISCUSSION
"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." (Citations omitted.) Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993). "In disqualification matters ... [the court] 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 [moving party’s] interest in protecting confidential information; (2) the [nonmoving 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.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 725, 774 A.2d 220 (2001).
"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.) Neumann v. Tuccio, Superior Court, judicial district of Danbury, Docket No. CV-07-5002831-S (July 17, 2009, Shaban, J.) (48 Conn.L.Rptr. 298, 298-99).
The defendant moves to disqualify Attorney Knickerbocker from representing the plaintiff on the ground that he created an ethically impermissible conflict of interest, in violation of Rule 3.7 of the Rules of Professional Conduct, by (1) personally responding to the defendant’s discovery requests and (2) signing the document. The defendant further argues that Attorney Knickerbocker has supplied material information which will necessarily be required to be elicited and, as such, it is reasonably foreseeable that the plaintiff’s counsel would be called to testify at trial. The defendant has not submitted any evidence in support of his motion.
Rather, the defendant refers to the plaintiff’s notice of compliance (#262) and attached responses to the defendant’s interrogatories and requests for production. "The court’s ability to take judicial notice of its own files is not subject to question." Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003).
The plaintiff objects, arguing that: (1) there is no oath language contained in the responses to the defendant’s interrogatories so Attorney Knickerbocker could not personally respond to the interrogatories; (2) Attorney Knickerbocker is not a necessary witness because the information provided in the interrogatory responses concerned how and when payments were, how those payments were applied to a loan and the identification of third-party vendors, all of which could be elicited from a corporate witness at trial; (3) Attorney Knickerbocker was required to sign the interrogatory responses as an "other paper" pursuant to Practice Book § 4-2; (4) the disqualification of Attorney Knickerbocker at this time would be prejudicial to the plaintiff given that trial is scheduled for November 13, 2019, and the complexity of this case; and (5) a motion to disqualify is not the proper remedy and if the defendant believes the notice of discovery compliance is insufficient, the appropriate remedy is to file an appropriate discovery motion with the court.
The first, second and fourth arguments were raised by the plaintiff at oral argument.
The defendant responded, arguing that: (1) the plaintiff cites no authority in support of his contention that Practice Book § 4-2 applied to interrogatories; (2) a response to an interrogatory is not a pleading, so it is exempt from signature requirements; and (3) even if the plaintiff’s counsel is required to sign an interrogatory response, Practice Book § 4-2 does not vitiate the language of Practice Book § 13-7, which does not require a signature.
"Whenever 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." (Citations omitted; internal quotation marks omitted.) Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn. 370, 376, 477 A.2d 648 (1984).
Rule 3.7 of the Rules of Professional Conduct provides: "(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (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. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." "Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client. The opposing party has proper objection where the combination of roles may prejudice that party’s rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." Rules of Professional Conduct 3.7, commentary.
"Under Rule 3.7, the first relevant inquiry is whether the attorney whose disqualification is sought is a necessary witness in the matter. A necessary witness is not just someone with relevant information, however, but someone who has material information that no one else can provide. Whether 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 ... A party’s mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony ... There is a dual test for necessity. First the proposed testimony must be relevant and material. Second, it must be unobtainable elsewhere." (Citation omitted; internal quotation marks omitted.) Neumann v. Tuccio, supra, 48 Conn.L.Rptr. 299.
Courts have typically granted motions to disqualify an attorney pursuant to Rule 3.7 of the Professional Rules of Conduct where in vexatious litigation or legal malpractice claims, the special defense of advice of counsel is raised or where an attorney participated in the formation of an oral contract. Neumann v. Tuccio, supra, 48 Conn.L.Rptr. 298 (advice of counsel); Hogan v. Magana, Superior Court, judicial district of Hartford, Docket No. HDSP-134296 (May 9, 2006, Bentivegna, J.) (defendant’s attorney handled closing and participated in two telephone conversations when parties negotiated oral contract); Talcott Mountain Science Center for Student Involvement v. Abington L.P., 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) (vexatious litigation); 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) (legal malpractice). In an outlier case, one court granted a motion to disqualify an attorney who was a codefendant, counsel for ten defendants and a potential witness because that unique status resulted in conflicts of interest in violation of Rules 1.7(b) and 3.7(a) of the Rules of Professional Conduct. Mascia v. Faulkner, Superior Court, judicial district of New Haven, Docket No. 349036 (July 5, 1994, Fracasse, J.) (12 Conn.L.Rptr. 122).
Even if a motion to disqualify pursuant to Rule 3.7 is granted, counsel is only disqualified from advocating at trial. See Rules of Professional Conduct 3.7; Talcott Mountain Science Center for Student Involvement v. Abington L.P., 32 Conn.L.Rptr. 423 ("It is appropriate to look to the words of Rule 3.7 itself, which describe a limited, not a total disqualification, and to contrast the limited language to the expansive language in other provisions of the Rules of Professional Conduct to determine the intent of the judges of the Superior Court in enacting them").
Practice Book § 4-2 provides in relevant part: "(a) Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name. A party who is not represented by an attorney shall sign his or her pleadings and other papers. The name of the attorney or party who signs such document shall be legibly typed or printed beneath the signature." Practice Book § 13-7 provides in relevant part: "(b) All answers to interrogatories shall: (1) repeat immediately before each answer the interrogatory being answered; and (2) be signed by the person making them." Practice Book § 7-6 provides in relevant part: "No document in any case shall be filed by the clerk unless it has been signed by counsel or a self-represented party ..." "Of course, the canons of statutory construction apply to the Practice Book rules ..." Rolfe v. New Britain General Hospital, 47 Conn.Supp. 296, 305, 790 A.2d 1194 (2001). "Where ... more than one [Practice Book section] is involved, [courts] presume that the [Judges of the Superior Court] intended them to be read together to create a harmonious body of law ... and [courts] construe the [sections], if at all possible, to avoid conflict between them." (Internal quotation marks omitted.) State v. Garcia, 108 Conn.App. 533, 550-51, 949 A.2d 499 (canon of statutory construction modified to fit present case), cert. denied, 289 Conn. 916, 957 A.2d 880 (2008).
Practice Book § 13-14 provides in relevant part: "(a) If any party has failed to answer interrogatories or to answer them fairly ... or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require."
As to whether Attorney Knickerbocker was required to sign the responses to the defendant’s interrogatories, Practice Book § 4-2 could not be clearer that both pleadings and other papers must be signed by an attorney of record in the attorney’s individual name when the attorney represents a party. It is a given that a response to an interrogatory is not a pleading. See Practice Book § 10-6 (setting forth exclusive list of pleadings).
Nevertheless, the defendant argues that there is no precedent for the proposition that an attorney must sign a response to an interrogatory and, even if there is, Practice Book § 4-2 does not vitiate the language in Practice Book § 13-7, which does not require signatures on interrogatory responses. These arguments merit two brief responses. First, independent research has revealed no Connecticut case that interprets whether Practice Book § 4-2 requires an attorney to sign an interrogatory response. This is unsurprising given the clear mandate that an attorney must sign all other papers if they are to be filed. Practice Book § 4-2(a). Indeed, the clerk is not permitted to file a document if it is not signed, regardless of what it is. Practice Book § 7-6. Here, the plaintiff filed the responses as part of its notice of compliance, which, therefore, required Attorney Knickerbocker’s signature.
As to the defendant’s alternative argument, courts will construe the provisions of the Practice Book in harmony with one another and avoid conflicting interpretations if at all possible. State v. Garcia, supra, 108 Conn.App. 550-51; Rolfe v. New Britain General Hospital, supra, 47 Conn.Supp. 305. Practice Book § 4-2(a) does not undermine the requirements in Practice Book § 13-7. Indeed, both sections can be read in harmony and require a party responding to interrogatories to repeat the interrogatory being answered before the answer, have the person making the interrogatory sign the document and counsel for the party must sign the document if it will be filed in court. See Practice Book § § 4-2(a), 13-7. The defendant’s arguments as to the signature requirement are unpersuasive. In terms of discovery noncompliance, such issues are typically addressed through a motion to compel or order of compliance. See Practice Book § 13-14.
The party moving to disqualify opposing counsel bears the burden of proof. Klein v. Bridgeport Hospital, 50 Conn.Supp. 160, 166 (2006). The defendant has failed to show that the disqualification of Attorney Knickerbocker as counsel for the plaintiff is necessary. Accordingly, the defendant has failed to meet his high burden of proof. Neumann v. Tuccio, supra, 48 Conn.L.Rptr. 298.
III
CONCLUSION
For the foregoing reasons, the defendant’s motion for disqualification (#277) is denied, and the plaintiff’s objection to the motion to disqualify counsel (#279) is sustained.
So ordered.