Opinion
No. FA 04-4100356
June 14, 2007
MEMORANDUM OF DECISION
I. STATEMENT OF THE CASE
Plaintiff filed a Motion to Disqualify, Post Judgment. The matter proceeded to hearing. Both parties were represented by counsel.
II. ISSUES
In this case, does the court have authority, in the first instance, to (1) adjudicate defense counsel's alleged ethical misconduct and; (2) to determine whether he should be disqualified.
III. STATEMENT OF FACTS
Judgment entered dissolving the marriage of the parties on July 7, 2005. Before the dissolution, Attorney Robert Levin, a principal in the firm of Nair Levin, P.C., loaned the defendant $6,000.00. The defendant repaid the loan. After judgment entered in the dissolution action, Attorney Levin provided advances of about $15,000.00 to the defendant drawn on an IOLTA account, but funded by Attorney Levin's personal funds which he transferred into the IOLTA account. At the time of the loan and the other advances, Attorney Levin did not represent the defendant. He understood that the defendant would use the money to satisfy debt to the defendant's mortgage lender. In December 2006, Nair Levin, P.C., filed an appearance on behalf of the defendant.
In a financial affidavit filed on November 1, 2004, the defendant listed a debt of $6,000.00 due to Attorney Levin. In a financial affidavit dated November 10, 2005, the defendant again listed a debt to Attorney Levin in the amount of $6,000.00. Defendant signed a document promising to pay back all advances Attorney Levin made to her after she sold the marital residence. The marital residence has not sold and the balance remains outstanding.
Defendant was arrested on or about March 15, 2007 and retained Attorney Sterling, a member of Nair Levin, to represent her in the criminal case. She signed an agreement to pay for his legal services after the marital residence sells. The marital residence has not sold and the defendant has not paid Nair Levin for legal services.
IV. PRINCIPLES OF LAW
"Any person may file a written complaint alleging attorney misconduct. A grievance panel may, on its own motion, initiate and file a written complaint alleging attorney misconduct. A complaint against an attorney shall be filed with the State-Wide Bar Counsel." C.G.S. § 51-90e. "Each grievance panel shall investigate with the assistance of the grievance counsel assigned to such panel any complaint referred to it by the State-Wide Grievance Committee or State-Wide Bar Counsel to determine whether probable cause exists that the attorney is guilty of misconduct." C.G.S. § 51-90f(a).
V. ANALYSIS
Plaintiff's counsel alleged that Nair Levin provided financial assistance to its own client in connection with pending or contemplated litigation in violation of Rule 1.8(e) of the Rules of Professional Conduct. Plaintiff's counsel did not allege that the course of dealing between the defendant and her counsel constituted a conflict of interest the nature of which compromised or prejudiced the plaintiff's legal position. Plaintiff simply alleged that the loans and advances encouraged the defendant to pursue litigation that she, otherwise, might not pursue. Plaintiff's claims of an ethical violation of this nature, therefore, are brought in the wrong forum. Plaintiff cites Rubenstein v. Statewide Grievance Committee, 2003 WL 21499265 for the proposition that defendant's counsel should be disqualified. Rubenstein is an appeal to the Superior Court of the decision of the Statewide Grievance Committee which adjudicated the alleged violation of Rule 1.8(e).
Rule 1.8(e) of the Rules of Professional Conduct reads, in pertinent part, "A lawyer shall not provide financial assistance on behalf of a client in connection with pending or contemplated litigation . . ."
The Commentary to Rule 1.8 reads, in pertinent part, "Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation."
VI. CONCLUSIONS OF LAW
In this case, the court has no authority, in the first instance, to adjudicate the allegation of ethical misconduct in order to determine if defendant's counsel should be disqualified.
VII. JUDGMENT
The plaintiff's motion is denied.
IT IS SO ORDERED.