Opinion
No. CV 03-040 14 75 S
June 8, 2005
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY DEFENDANTS' COUNSEL
Before the court is the plaintiff's motion to disqualify defendants' counsel on the ground that there exists a conflict of interest as a result of the attorney's prior representation of the defendant partnership, Family Dental Group — Clinton Associates.
On March 26, 2003, the plaintiff, Steven Schwartz, filed a ten-count complaint against the defendants, Family Dental Group, P.C. (Epstein's P.C.), Peter Munk, D.D.S. (Munk) and Family Dental Group — Clinton Associates (Clinton Associates). In the complaint, the plaintiff alleges breach of partnership agreement, wrongful disassociation, wrongful dissolution of partnership, wrongful termination, illegal meeting, bad faith, civil conspiracy, breach of covenant of good faith and fair dealing, violation of General Statutes § 42-110b(a), breach of fiduciary duty, unjust enrichment and detrimental reliance. The defendants filed an answer on September 5, 2003.
Kenneth Epstein, D.D.S. is the president and sole member.
Family Dental Group, P.C., Peter Munk, D.D.S. and Steven Schwartz, D.D.S. were the original partners prior to the alleged wrongful disassociation of the plaintiff.
On April 4, 2005, the plaintiff moved to disqualify the defendants' counsel, Cohen and Wolf, P.C. (Cohen and Wolf), alleging a conflict of interest grounded in Rules of Professional Conduct 1.7(a) and 1.9 and submitted a memorandum of law. The plaintiff submitted three documents to the court on May 2, 2005, during arguments on the short calendar to support his allegation of a conflict of interest: (1) an uncertified partial copy of the transcript of the deposition of Kenneth Epstein taken on March 21, 2005, (2) a partial copy of a billing statement from Cohen and Wolf, addressed to Family Dental Group — Clinton Associates, L.L.C. c/o Kenneth Epstein, D.D.S. and dated March 11, 2003, and (3) a copy of an email from David M. Levine (dlevine@cohenandwolf.com) to "sam" on December 5, 2002. The defendants filed an objection to the plaintiff's motion to disqualify on April 14, 2005. The plaintiff filed a reply on April 22, 2005, further alleging a violation of the commentary of rule 1.13. The matter was heard on the short calendar on May 2, 2005.
Rule 1.7(a) provides: "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents after consultation."
Rule 1.9 provides: "A lawyer who has formerly represented a client in a matter shall not thereafter: (1) Represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (2) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known."
"The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court . . . [There is accorded] wide discretion to a trial court's ruling on a motion for disqualification of counsel for conflict of interest . . ." (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 724, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). "Before 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." (Emphasis in original; internal quotation marks omitted.) 2284 Corp., Inc. v. Wentworth Contractors Group, Ltd, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 03815408 (June 27, 2002, Gallagher, J.). "It is axiomatic that motions to disqualify counsel must be evaluated with extreme caution in light of the client's strong interest in being represented by counsel of his or her choice, and to avoid permitting such motions to be used to gain unfair tactical advantage in a case." Hampton v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV 99 594509 (February 21, 2002, Lavine, J.) ( 31 Conn. L. Rptr. 479).
The plaintiff argues that the defendants' counsel has a conflict of interest with the plaintiff and should, therefore, be disqualified from representing the defendants in the present case. The defendants counter that there is no conflict of interest sufficient to warrant disqualification of Cohen and Wolf.
"[A]n attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation." (Internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, supra, 62 Conn.App. 726; see Rules of Professional Conduct 1.9. "A lawyer shall not represent a client if the representation of that client would be directly adverse to another client . . ." Rules of Professional Conduct 4.7(a). The plaintiff, however, does not allege that he was formerly or is currently a client of Cohen and Wolf; rather, the plaintiff alleges that Cohen and Wolf represented Clinton Associates, while at the same time representing a partner, Epstein's P.C., who is attempting to destroy that partnership. Both Clinton Associates and Epstein's P.C. are defendants in this action and do not currently have any adverse interests. Even if Clinton Associates is a former or current client of Cohen and Wolf, the commentary to rule 1.13 explains that "constituents of an organizational client" ("officers, directors, employees, and shareholders") are not "clients of the lawyer." Consequently, the plaintiff was never represented by Cohen and Wolf during the time that they represented Clinton Associates since the plaintiff is a shareholder of Clinton Associates and never sought Cohen and Wolf's representation as an individual. "[A] lawyer for an organization may also represent a principal officer or major shareholder." Rules of Professional Conduct 1.13, commentary. The defendants Munk and Epstein's P.C. are each one-third partners of the organization. Therefore, it is proper for Cohen and Wolf to represent all three of the defendants in the present case.
Rules of Professional Conduct 1.13 governs the relationship between an attorney and an organizational client, including corporations and partnerships.
"[T]he competing interests at stake in a determination regarding the disqualification of an attorney are: (1) the [plaintiff's] interest in protecting confidential information [and] (2) the [defendant's] interest in freely selecting counsel of [his or her] choice, and (3) the public's interest in the scrupulous administration of justice." (Internal quotation marks omitted.) Crone v. Gill, 250 Conn. 476, 484, 736 A.2d 131 (1999). 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." (Citation omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993). The plaintiff is not and has not been a client of Cohen and Wolf, so the plaintiff does not have an interest in protecting any confidential information that could be used to the benefit of the defendants in the present case. The defendants, however, do have an interest in being able to choose freely whom they would like to have represent them in the present case and to have their counsel be the same counsel that they have relied upon in the past.
"The moving party bears the burden of demonstrating facts that indicate that disqualification is necessary." Hampton v. Spencer, supra, 31 Conn. L. Rptr. 479. The plaintiff has failed to sustain its burden of demonstrating the need for disqualification.
For the foregoing reasons, the plaintiff's motion to disqualify the defendants' counsel is denied.
SKOLNICK, J.