Opinion
No. DBDCV 07 5002831 S
July 17, 2009
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY #126
I FACTS PROCEDURAL HISTORY
On June 26, 2007, the plaintiff, Harry Neumann, Jr., commenced this vexatious litigation action against the defendant, Edward Tuccio. The plaintiff filed a revised complaint on July 28, 2008, wherein the plaintiff alleges the following. The plaintiff is a real estate agent for Neumann Real Estate, LLC. The defendant is a developer-builder in the construction industry. On September 6, 2005, the defendant initiated a slander lawsuit against the plaintiff. Prior to serving the complaint on the plaintiff, the defendant had information, from an alleged witness, that the allegations in the complaint were incorrect. Specifically, the plaintiff alleges that the defendant "forwarded a copy of his proposed complaint to Robert Tuccio, Jr., his alleged witness, and received numerous communications from Robert Tuccio, Jr. that the allegations of the complaint were incorrect, and that the statements which were alleged in the complaint to have been made by Harry Neumann, Jr. were never in fact made." Amended Complaint, paragraph 5. Despite this, the defendant proceeded with service of the writ, summons and complaint, which commenced the underlying action. That action went to trial, where the court, Frankel, J., granted the plaintiff's motion for a directed verdict, as the defendant had failed to establish a prima facie case. The plaintiff now brings the present action seeking damages stemming from vexatious litigation.
On March 27, 2008, and again on April 6, 2009, the plaintiff filed a motion to cite in an additional defendant along with a request for leave to amend the complaint and corresponding amended complaint in order to include the defendant's corporation and defendant's attorney, respectively, as defendants in this case. The court denied each motion to cite in. Generally, a properly filed and served amended complaint that is not objected to or acted upon by the court is considered operative pursuant to Practice Book § 10-60(a)(3). Nevertheless, where an amended complaint proposes to add an additional defendant and is not predicated on a successful motion to cite in, as is the case here, the complaint does not become operative because an amended complaint is not the proper vehicle to add a party. See Palazzo v. Delrose, 91 Conn.App. 222, 226, 880 A.2d 169, cert. denied, 276 Conn. 912, 886 A.2d 426 (2005) ("if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted") Powell v. State's Attorney, Superior Court, judicial district of New Haven, Docket No. CV 07 4026234 (June 19, 2008, Bellis, J.) (finding original complaint to be operative where plaintiff used amended complaint to add defendants). Accordingly, the court will treat the July 28, 2008, revised complaint as the operative complaint.
Tuccio v. Newmann, Superior Court, judicial district of Danbury, Docket No. CV 05 5000138 (March 14, 2007, Frankel, J.).
On February 23, 2009, the defendant, represented by his attorney, John R. Williams (Williams), in his individual capacity, filed an answer and raised the special defense of advice of counsel. In response to the special defense, on April 29, 2009, the plaintiff filed a motion to disqualify Williams and his law firm, John R. Williams and Associates, LLC (the law firm), on the ground that Williams and the "attorneys, members, and/or employees" of the law firm will be necessary witnesses to the vexatious litigation action. The defendant did not file a responsive pleading to the motion, but did present oral argument in opposition at short calendar on May 26, 2009.
DISCUSSION
In his motion to disqualify attorney Williams and Williams' law firm, the plaintiff states that both should be prohibited from representing the defendant at trial because Williams and "the attorneys, members, and/or employees" of the firm will be necessary witnesses to the defendant's special defense of advice of counsel. In support of this proposition, the plaintiff cites to Rule 3.7 of the Rules of Professional Conduct, which prohibits an attorney from acting as an advocate at a trial in which he is likely to be a necessary witness, except in limited circumstances. The plaintiff further argues that "Defendant will not suffer substantial hardship because Defendant was aware of the Special Defense from the commencement of this case and chose to delay asserting the Special Defense until this close to trial." Motion to Disqualify, page 3. In opposition, the defendant contends that his counsel should not be disqualified because he would suffer prejudice as a result, he did not use any delaying tactics, and because the plaintiff should have known that the defendant would assert the advice of counsel special defense as it is commonly used in vexatious litigation suits.
"Advice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing." Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978). Once advice of counsel has been raised as a defense, that party has been deemed to waive the attorney-client privilege. See Metropolitan Life Ins. Ca. v. Aetna Casualty Surety Co., 249 Conn. 36, 52-3, 730 A.2d 51 (1999); see also Talcott Mountain Science Center for Student Involvement v. Abington, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 95 0152121 (June 28, 2002, Hodgson, J.) ( CT Page 12165 32 Conn. L. Rptr. 420) (in the vexatious litigation context, the defendant, "by asserting that it brought its suits . . . upon the advice of counsel, has put the substance of that advice squarely at issue and has waived the attorney-client privilege concerning the communications that led to the initiation and continued pursuit of the case").
The special defense was filed on February 23, 2009, and the matter had been scheduled for trial on May 12, 2009, but was then continued to August 11, 2009.
"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 [defendant's] interest in protecting confidential information; (2) the [defendant'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." (Internal quotation marks omitted.) Chaiklin v. Bacon, Superior Court, judicial district of Hartford, Docket No. CV 99 0590439 (June 30, 2000, Rubinow, J.). "[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." (Internal quotation marks omitted.) David M. Somers Associates, P.C. v. Kendall, Superior Court, judicial district of Windham at Putnam, Docket No. 064478 (February 23, 2001, Foley, J.).
A DISQUALIFICATION OF THE INDIVIDUAL ATTORNEY
Connecticut's Rules of Professional Conduct address the issue of disqualification of a party's counsel. Rule 3.7(a) provides: "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." Pursuant to Rule 3.7, "[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." (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996). "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).
"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." Quinebaug Valley Engineers Assn., Inc. v. Colchester Fish and Game Club, Superior Court, judicial district of New London at Norwich, Docket No. CV 08 4008053 (July 25, 2008, Abrams, J.).
"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." (Internal quotation marks omitted.) Id.
Attorney Williams' testimony is clearly relevant and material, and therefore satisfies the first element of "necessity." The defense of advice of counsel is a matter of central importance to the determination of a vexatious litigation claim. The testimony the plaintiff seeks to elicit regards the advice and information Williams gave the defendant, including strategy and tactics discussed between them for the prosecution of the action against Neumann. This testimony is not informal or insubstantial, but rather, it is decidedly relevant and material. See, e.g., Fredericks v. Fortin, Superior Court, judicial district of New Haven, Docket No. CV 89 282910 (December 30, 1994, Hadden, J.) [ 13 Conn. L. Rptr. 234] (noting that the attorney "was the only attorney present, and since the evidence will concern what he did and said, he is a necessary witness"). In fact, the testimony regarding Williams' advice to Tuccio may very well be dispositive of the case.
A court may hold an evidentiary hearing to determine what facts the attorney knows and whether they are necessary to the disposition of the matter. See Patchell v. Automobile Ins. Co., Superior Court, judicial district of New Haven at New Haven, Docket No. 368147 (August 30, 1994, Hartmere, J.). In this case, such a hearing is unnecessary because Williams' knowledge of the nature of the advice and information provided to the defendant in the underlying case is apparent and undisputed by the defendant. Cf. Jean v. Angle, Superior Court, judicial district of Fairfield, Docket No. CV 06 4016486 (May 1, 2008, Arnold, J.) (evidentiary hearing, pursuant to a motion to disqualify, was required to determine whom the attorney represented in the sale of a limousine company, and material matters regarding the purchase transaction of the limousine company and financial payments to the parties, as that information was not readily apparent from the pleadings and motions).
With regard to the second element, the defendant argues that the testimony is obtainable elsewhere, as the defendant himself can testify as to what advice or information was given by Williams. This argument is unpersuasive.
A factual situation that is extraordinarily similar to the present matter is found in Talcott Mountain Science Center for Student Involvement v. Abington, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 95 0152121 (June 28, 2002, Hodgson, J.) ( 32 Conn. L. Rptr. 420). In that case, the plaintiff brought a vexatious litigation action against the defendants, who raised the special defense of advice of counsel. The plaintiff then sought to disqualify the defendants' attorney. The defendants argued that the testimony sought was obtainable from the defendants themselves, and, therefore, the attorney's testimony was not necessary. In determining whether the testimony was available elsewhere, and, therefore, necessary, the court noted that "fairness required that the plaintiff be able to present the testimony of the other witnesses with knowledge of the facts that relate to this special defense, namely, the lawyers who allegedly gave the advice that there was probable cause to bring an action." Id., 421. Ultimately, the court found that "there are no equivalent alternative witnesses to the facts alleged in the defendants' special defense and that the named lawyers are necessary witnesses. The lawyers are likely necessary witnesses on the issue of what information [the defendant] provided in seeking legal advice and what motivations it articulated as the reasons for bringing suit or pursuing the suit in a particular way." Id., 422.
Similarly, in Hogan v. Magana, Superior Court, judicial district of Hartford, Docket No. H-1304 (May 9, 2006, Bentivegna, J.), the defendant intended to offer the plaintiff's attorney's testimony regarding the parties' discussions, including their telephone conversations, in which the plaintiff's attorney participated. The court found that the attorney had "relevant knowledge of the conversations at issue" and that his knowledge "was not obtainable elsewhere," even though the parties were also able to testify to the conversations. Id.
In the present matter, the defendant's special defense states in full: "The defendant instituted his civil action relying in good faith on the advice of counsel, given after a full and fair statement of all facts within his knowledge or which he was charged with knowing." This assertion does not establish the existence of any other individual who would be able to testify to the truth of the special defense, aside from the defendant himself, and Williams. Given the expertise an attorney has over a lay witness in answering questions relative to decisions regarding legal procedure, theory and technique, it is unlikely that the defendant could completely relay the same depth of information, analysis and advice as could be presented by Williams. Moreover, in light of Talcott and Hogan, the defendant's ability to testify as to the advice Williams gave him, and the information he gave Williams, does not render Williams' testimony as evidence that is obtainable elsewhere. Accordingly, Williams' testimony is necessary to shed full light on material matters regarding his representation of the defendant in the underlying case and fairness dictates that the plaintiff should be able to present Williams' testimony at trial given the special defense that has been raised.
As the plaintiff has demonstrated that attorney Williams' testimony is both relevant and necessary, the court concludes that he is a necessary witness who may be disqualified from representing the defendant as an advocate at trial pursuant to Rule 3.7, subject to the three exceptions set forth therein. The defendant argues, however, that his counsel should not be disqualified because the circumstances satisfy the exception in Rule 3.7(a)(3), that "[d]isqualification of the lawyer would work substantial hardship on the client." The court disagrees with the defendant's contention.
The commentary to Rule 3.7 states that in considering a request for disqualification "a balancing is required between the interests of the client and those of the opposing party." The commentary further states that it "is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness." The defendant argues that, even though he did not raise his advice of counsel defense until February of 2009, the plaintiff should have foreseen that the defendant would assert the special defense before it was raised, as advice of counsel is a common defense to a vexatious litigation suit. Thus, the defendant argues that the nearness of the trial date makes disqualification unduly prejudicial.
Plaintiff's counsel cannot be expected to act by delving into the mind of opposing counsel to glean what defenses he might be contemplating or considering. An appropriate response by the plaintiff, through pleading or otherwise, can only be made by receiving and reviewing what pleadings have been filed with the court — not by guessing as to what conceivably could be filed. Essentially, the defendant takes the position that the plaintiff is required to read the defendant's counsel's mind and to act before being required to do so. While plaintiff's counsel may have had knowledge that advice of counsel existed as a potential special defense, he would not have had any knowledge as to whether the defendant would pursue that defense until it was affirmatively raised in the pleadings. Furthermore, if the court is to take the defendant's argument at face value, the defendant also has had the knowledge of the existence and potential application of the special defense and could have acted to file the defense much earlier in the proceedings, thereby protecting himself from any potential prejudice that could result from the filing of a motion to disqualify. Rule 3.7, however, does not require such prescience and foresight by the parties.
In addition, this is not a case in which prohibition of an attorney from acting as an advocate at trial would cause the client to suffer the hardship of retaining replacement representation immediately before or at the time of trial. For example, in A R Magliocco, LLC v. Tighe, Superior Court, judicial district of New Haven, Docket No. CV 05 4006944 S (June 12, 2006, Devlin, J.), the court concluded that the defendants would suffer substantial hardship it if granted the plaintiff's motion to disqualify which was filed on the day the matter was scheduled for trial. Similarly, in Murray v. Murray, Superior Court, judicial district of Hartford, Docket No. CV 02 0820216 (June 16, 2003, Shapiro, J.) ( 35 Conn. L. Rptr. 103), the court found that disqualification of defense counsel would be unfairly prejudicial where, despite knowing that the appearing attorney may be a witness months before the trial date, the movant did not raise the issue until the date of trial.
In contrast to A R Magliocco, LLC v. Tighe and Murray v. Murray, in this case, the plaintiff did not unreasonably delay filing the motion to disqualify. Moreover, the fact that the issue of disqualification has been addressed by the court merely four weeks before the trial date is, at least in part, the result of defendant's own delay in waiting to raise the special defense. By doing so, the defendant has effectively created the very hardship he now claims would be prejudicial to him. Finally, because the court has not disqualified the law firm; see infra; the defendant should have minimal difficulty retaining new counsel to represent him at trial.
As noted above, the special defense was filed on February 23, 2009.
Under the circumstances of this case, the court finds that Williams is a necessary witness and that prohibiting him from representing the defendant at trial would not cause the defendant to suffer undue hardship or prejudice. Accordingly, the plaintiff's motion to disqualify Williams is granted.
B DISQUALIFICATION OF THE ENTIRE FIRM
The plaintiff also argues that disqualification of Williams alone is insufficient and therefore seeks disqualification of Williams' entire law firm. At oral argument, Williams asserted that he appeared in the underlying matter in his personal capacity, and that his firm did not make any appearance. This assertion was not contested and Williams' appearance filed with court on July 3, 2007, so reflects.
Rule 3.7(b) provides: "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." Under previous rules, "if one member of a firm had to testify, all members of the firm were disqualified." Johnston v. Casey, Superior Court, judicial district of New London, Docket No. 557021 (April 25, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 74). "Rule 3.7(b) eliminates the blanket imputed disqualification which previously existed . . . It is no longer mandatory for a lawyer, upon discovering she must testify on behalf of a client, to seek the services of another attorney and withdraw from the case. If either the lawyer-advocate or the lawyer-witness (both of the same law firm) has a conflict of interest pursuant to Rule 1.7 (General Conflict) or Rule 1.9 (Former Client) the lawyer-advocate may be precluded from the representation under Rule 1.10. However, absent those specific conflict situations, even if a lawyer is called to testify, another lawyer from the firm may now try the case." (Citations omitted; internal quotation marks omitted.) Id., 74-75.
Rule 1.10 provides that "(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 Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." Rules 1.7 and 1.9 are not material to the issue currently before the court.
In the present case, neither party has addressed Rule 3.7(b) in any detail. It is clear, however, that there are no allegations that the law firm ever represented the plaintiff at any point in time, and, therefore, preclusion under Rule 1.9, which governs conflicts between current and former clients, would not be appropriate. Similarly, Rule 1.7 does not apply to the present case, as Rule 1.7 only "applies to conflicts of interest between two present clients . . ." (Emphasis in original.) Beckenstein Enterprises v. Smith, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080437 (March 28, 2003, Sferrazza, J.) [ 34 Conn. L. Rptr. 459]; see also Talcott Mountain Science Center for Student Involvement v. Abington, supra, 32 Conn. L. Rptr. 422 ("[u]nder the approach to disqualification now mandated in Rule 3.7(b) and 1.7(b), the reason for disqualification of an entire law firm is a conflict between the client's position and the lawyer's or the law firm's responsibilities to another client or its own interests in the matter at issue").
Although there exists a possibility, particularly before a jury, that the firm's participation as trial counsel in a case in which the trial counsel's colleagues are witnesses will raise skepticism, courts have found this concern to be an insufficient ground for disqualifying a firm. "A trier of fact might well adjust the weight to be given to testimony elicited from one . . . lawyer from another . . . lawyer [from the same law firm]. Since Rule 3.7 has been amended to permit counsel from the same firm as the attorney-witness to serve as trial counsel, it does not appear that this disadvantage can be viewed as substantial enough to require disqualification of the law firm as a whole." Talcott Mountain Science Center for Student Involvement v. Abington, supra, 32 Conn. L. Rptr. 420, 422. See also Voruganti v. Voruganti, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 03 0198611 (Apr. 15, 2009, Malone, J.) [ 47 Conn. L. Rptr. 543] ("the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases"). The commentary to Rule 3.7 is similarly dismissive of this contention, stating: "Because the tribunal is not likely to be misled when a lawyer acts as advocate in a trial in which another lawyer in the lawyer's firm will testify as a necessary witness, subsection (b) permits the lawyer to do so except in situations involving a conflict of interest."
There has been no showing by the plaintiff that there has been, or is, a conflict between the defendant's position and the lawyers' or the law firm's responsibilities to some other client or its own interests in the matter at issue. In that the plaintiff has failed to supply the court with sufficient reason to disqualify the law firm of John R. Williams and Associates, LLC from this matter, it declines to do.
CONCLUSION
For the foregoing reasons, the motion to disqualify attorney John R. Williams from serving as defendant's counsel in the pending trial is granted. The motion to disqualify all other attorneys, members and/or employees of the law firm of John R. Williams and Associates, LLC is denied.