Opinion
No. CV 04-0200626-S
February 14, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL (NO. 160)
This is a lawsuit between adjoining landowners over ownership of a disputed strip of land along the common boundary of their properties. The plaintiff claims, inter alia, ownership of the strip of land by adverse possession. Before the court is the defendant's motion to disqualify plaintiff's counsel, Attorney Stephen E. Nevas, from representing his sister Susan R. Nevas as plaintiff in this case. Defendants claim that Atty. Nevas is likely to be a necessary witness as to contested factual issues at trial and therefore should be disqualified under § 3.7 of the Rules of Professional Conduct and have twice prior to filing this motion, requested in writing that he recuse himself from the case. The plaintiff responds, first, that the motion is premature in that § 3.7 prohibits a lawyer, to whom the rule applies, from acting ". . . as advocate at a trial . . ." but not from representing a party during the pretrial or discovery phases if a civil action, and secondly, that in any event there has been no showing that Atty. Nevas will be a "necessary" witness as to any issue at trial.
§ 3.7 of the Rules of Professional Conduct, Connecticut Practice Book, provides: "(a) a lawyer shall not act as an advocate at a trial at 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 would work a substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in a lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
Letters from defendants' counsel to Atty. Nevas dated May 25, 2004 and August 15, 2005 are attached as exhibits to defendants' memorandum in support of this motion.
The pleadings are not closed in this case. Discovery has yet been completed and the case has not yet been assigned for trial.
The plaintiff also claims that a change in counsel would cause her substantial hardship. The court rejects that claim at this stage of the litigation with the pleadings still open, discovery not complete and no trial assignment date.
Factual Background
The following relevant facts are undisputed. The plaintiff's property has been owned and occupied by members of the Nevas family since about 1938. The plaintiff and her brother, Atty. Stephen Nevas, inherited the property from their mother Lillian G. Nevas in 1999. Atty. Stephen Nevas deeded his interest in the property to the plaintiff in September 1999. In response to a defendant's interrogatory Atty. Stephen Nevas has been identified by the plaintiff as an intended fact witness — along with the plaintiff herself and seven others — as to, among other things, "the configuration and appearance of both properties from the early 1940s to 1999." Atty. Nevas, born in 1938, and his sister the plaintiff Susan Nevas, born in 1939, lived in the house on the Nevas property from birth until they went away to college in the late 1950s, and periodically therafter during school vacations and summers, and then as visitors until their mother's death. Susan Nevas moved back into the house as her primary residence when she became the sole owner in 1999. Stephen Nevas acquired another primary residence in 1964 but continued to visit his mother at the house in question until her death.
Discussion
The applicable rules of ethics for attorneys have for some time required a lawyer, with certain exceptions, to withdraw as counsel for a litigant when a lawyer is also a witness in a case. Connecticut courts in the exercise of their supervisory power over the attorneys practicing before them have not hesitated to enforce those rules by disqualifying a lawyer who will not voluntarily withdraw representation in situations where the applicable rule mandates a withdrawal. Enquire Printing and Publishing Co., Inc. v. O'Reilly, 193 Conn. 370, 376 (1984); State v. Rapuano, 192 Conn. 228, 233 (1984) ("If there is an actual violation or there is a substantial likelihood that a disciplinary rule will be violated, the court may disqualify the attorney." Id.) The predecessor rule to § 3.7 of the current Rules of Professional Conduct was Disciplinary Rule ("DR") 5-102(A) of the pre-1986 Code of Professional Responsibility which required a lawyer to withdraw from the "conduct of the trial" when he ". . . learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client . . .". Under DR 5-102 an attorney who was known to be a likely witness in a case has been disqualified from representing a party even at an early phase of the litigation. See Enquire Printing and Publishing Co., Inc., supra, 193 Conn. at 376, 377. (Application of a Massachusetts attorney to appear pro hac vice for a defendant denied because all parties intended to call him as a witness.). Rule 3.7, however, does not mandate general disqualification of a lawyer likely to be a witness from representation of a party in all phases of a lawsuit. The rule, instead, provides that "[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness." (Emphasis added.) Rule 3.7 (a), Rules of Professional Conduct. It has been held, based on the foregoing language, that Rule 3.7 does not on its face preclude all representation but rather precludes only acting as an advocate at trial. Horgan v. Capozzi, 2004 WL 870882, 36 Conn. L. Rptr. 734, No. CV03-0083020S, Superior Court, judicial district of Ansonia-Milford (March 24, 2004, Robinson, J.), where the court said:
Rule 3.7 does not authorize a court to disqualify an attorney from representing a client. It only allows the court to order that a lawyer be precluded from providing representation at trial if it appears likely that the lawyer will be a necessary witness and if three other exceptions do not apply. Therefore [the party moving to disqualify the opponent's counsel] requests relief not available pursuant to Rule 3.7. Id. at *2.
The rationale for the limited "at trial" prohibition of representation by an attorney-witness has been delineated in terms unique to trial practice:
An attorney who is a necessary witness at trial cannot serve as trial counsel because of the difficulties presented in simultaneously testifying and fulfilling such advocacy functions as objecting to questions of opposing counsel and posing questions on cross examination." Talcott Mountain Service Center for Student Involvement v. Abbington Limited Partnership, 2002 Conn.Sup. 8062, 32 CLR 420, No. X01 CV95-0152121, Superior Court, Complex Litigation Docket at Waterbury, (June 28, 2000, Hodgson, J.) (Two lawyers disqualified from acting as trial counsel because they would be necessary witnesses.)
Recognizing that there is contrary Superior Court authority, the court nonetheless will follow the reasoning of the Horgan v. Cappozzi decision, supra, because it is based on the clear import of the language of Rule 3.7. In using the "advocate at trial" language in promulgating Rule 3.7, the judges of the Superior Court would obviously have known the exact meaning of those words and could not have meant to prohibit an attorney-witness from representing a client in pretrial and discovery proceedings. The motion to disqualify Attorney Nevas is therefore prematurely filed and will be denied without prejudice to being renewed at the time of trial.
In Williams v. Barber, 2003 WL 22390077, 35 Conn. L. Rptr. 587, No. CV-030480338 (October 3, 2003, Pittman, J.), cited by defendant, the court at an early stage of the proceedings (during a hearing on a motion for prejudgment remedy at the outset of the litigation) did disqualify an attorney from representing the plaintiff in the case upon a finding that the attorney would be a necessary witness, without any discussion of the "advocate at a trial" language of Rule 3.7.
The plaintiff also asks the court to find, as an alternative ground for denial of the motion, that Atty. Nevas in any event would not be a "necessary" witness at trial because the plaintiff herself and other disclosed fact witnesses will be available to testify as to the same contested issues relating the claim of adverse possession of the strip of land claimed by the plaintiff. The court declines that invitation. Discovery in the case is still in progress. Nothing has been said in the moving or opposing papers about the substance of the anticipated testimony of the several non-party witnesses. The plaintiff herself could become disabled or otherwise unavailable to testify, in which event Atty. Nevas would very likely be the key witness for the plaintiff. Just as the motion to disqualify is premature, so is the request for a finding that counsel's testimony is unnecessary. If Atty. Nevas does decide at the time of trial to offer his testimony, he should withdraw as trial counsel for the plaintiff in which event Rule 3.7(b) would permit another attorney in the same firm to take over as trial counsel. When discovery is complete and a trial date has been assigned, if the defendant feels that Atty. Nevas will be a necessary witness and Atty. Nevas disagrees and will not withdraw voluntarily, the defendant may renew his motion to disqualify.
Order
The defendant's Motion to Disqualify Plaintiff's Counsel is denied without prejudice to being renewed at the time of trial.