Opinion
No. FA10-4053743
December 28, 2010
MEMORANDUM OF DECISION
The plaintiff moves to disqualify defendant's counsel and seeks counsel fees to reimburse her for the prosecution of her motion (#102.00, 102.01). Defendant's counsel is Attorney Donna L. Butler of the firm of Murphy, Laudati, Kiel, Butler Rattigan, LLC. There is no dispute that both the plaintiff and her husband did go to Attorney Butler's office to consult with her about the possibility of mediating their anticipated dissolution of marriage action with Attorney Butler to act as the neutral mediator. The dispute develops over what, if any, substantive information was discussed during that consultation and whether such discussions would act to bar the attorney's ability to represent Mr. Hartje against Mrs. Hartje in the litigation.
The plaintiff testified about her recollection of the consultation. She was quite careful in her testimony to recount the events as carefully as possible and was frank when she could not recall a specific detail. She was the only witness called.
Rule 1.12 of The Rules of Professional Conduct covers such a situation as is presently before this court. The Rule states, in pertinent part, "a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally as a . . . mediator . . . unless all parties to the proceeding give informed consent, confirmed in writing."
Based on the testimony of the plaintiff, which the court found to be completely credible, and the representations of Attorney Butler, which were likewise found to be honest and frank, it would appear that the meeting was a consultation and not a mediation session. Nevertheless, it was the plaintiff's very strong perception that she had divulged significant personal information to Attorney Butler regarding her position about a specific asset.
The Preamble to the Rules tell us that although the ultimate authority to regulate the legal profession rests with the courts, our Rules of Professional Conduct are designed to allow the profession to be, to a great extent, a self-governing profession. The ability to be self-governing demands that the public perceive our profession in the highest ethical light and that often requires individual attorneys to act against their own self-interest in declining legal representation when to do otherwise might give the perception of an unethical act. During the brief hearing on the plaintiff's motion, the court heard absolutely no evidence that Attorney Butler acted in anything but a completely ethical manner under the circumstances described. Nevertheless, the plaintiff has honestly perceived that a conflict was created and that perception should be honored over the possible financial loss to the attorney.
The court is also cognizant of the fact that the defendant, Mr. Hartje, has a right to select his counsel of his own choice to represent him in this matter and that a ruling to disqualify his counsel would impact him in that regard. Once again, however, it was his choice to ask his wife to attend the mediation consultation in the first place and he must be bound by the consequences of that choice. It would also be the hope of the court that if this perceived cloud is removed from this case by replacement of defendant's counsel; the parties would be more likely to proceed to a mutual settlement quickly. The instant dispute did arise, after all, from an attempt to at least consider mediation and that indicates a desire to resolve rather than litigate. It is also noted that the plaintiff brought her motion in a very timely manner so that the issue could be decided at the very start of the litigation thereby minimizing the loss of time and effort on the defendant's part.
Having heard the matter, the court ORDERS the motion granted as follows:
1. Attorney Donna L. Butler is disqualified as counsel for the defendant in this matter;
2. She shall refund to the defendant any unused retainer after being allowed to charge her agreed-upon rate for services through and including the short calendar hearing of December 22, 2010;
3. The defendant shall be allowed a reasonable period of time to retain new counsel and for that new counsel to have an additional thirty (30) days from appearing to complete any required discovery that may be currently pending.
4. Plaintiff's request for legal fees is DENIED.
SO ORDERED.