Opinion
No. CV 02 78118 S
August 29, 2003
MEMORANDUM OF DECISION
The plaintiff has moved to disqualify Attorney Henry Weatherby as attorney for the defendants claiming that Attorney Weatherby is likely to be a necessary witness in the trial of this case.
At an evidentiary hearing on the motion, the plaintiff presented testimony of Attorney Thomas S. O'Grady who had been the conservator of the estate of Richard E. Stevens. (Richard B. Stevens died on December 22, 2002 and Attorney Thomas Sheridan, administrator of his estate was substituted as plaintiff for Attorney O'Grady).
The amended complaint alleges that Leete-Stevens, Inc. acting though its president, Richard K. Stevens, executed a promissory note to Richard E. Stevens in the amount of $1,006,250 in 1995; that on February 7, 2000, Richard E. Stevens executed an assignment of the note to himself (Richard E. Stevens) and to Richard K. Stevens as joint tenants; that at the time of the assignment, Richard E. Stevens was an incapable person and unduly influenced by Richard K. Stevens (his son); that there was a lack of consideration for the assignment, and that Attorney Weatherby, on or about February 1, 2001 advised Attorney O'Grady, as conservator, that the assignment was a mistake and not in accordance with the parties' intent.
At the hearing Attorney O'Grady testified to that effect and that the assignment would have significant tax consequences and suggesting that the Probate Court be asked to "recharacterize" the assignment to conform to the parties' intent.
No follow-up action was taken however and in February 2002 Attorney O'Grady sued Leete Stevens and Richard K. Stevens claiming the assignment of the note was unlawful for the reasons described.
The issue is whether, under the facts, Attorney Weatherby is likely to be a necessary witness.
Courts generally require the proponent of a motion to disqualify to make a strong showing that the testimony of the attorney is necessary to the prosecution or defense of the action. Times Fiber Comms. v. Trilogy Comms., No. CV 95 0552603S 1996 CT.Sup. 10119. "[T]estimony 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 . . ." Nicholas v. Wilton ZBA, 2001 CT.Sup. 12821, 30 CLR 386 (2001).
The principal issue in this case appears to be the capacity of Richard E. Stevens and the undue influence of Richard K. Stevens. There is no allegation that Attorney Weatherby was involved in the making of the note or its subsequent assignment. That there may have been some unintended tax consequence does not appear to make his testimony, even if admissible, necessary. If it later becomes apparent that his testimony is necessary the matter may be readdressed since co-counsel will presumably remain in the case and, if necessary, conduct further examination without causing delay or prejudice.
The objection to the motion to disqualify is sustained and the motion is denied.
Klaczak, JTR