Opinion
No. CV 04 4006511 S
January 28, 2005
MEMORANDUM OF DECISION RE MOTION TO DISQUALIFY
The plaintiff, West Farms Mall, LLC, moves to disqualify the law firm of Robinson Cole, LLP from representing the defendant town of West Hartford. For the reasons given below, the motion is denied.
The plaintiff is a holding company associated with the Taubman Co., which is the principal owner of the Westfarms Mall. During the 1990s, Robinson Cole represented Taubman in matters related to the expansion of the mall. Robinson Cole also represented Taubman in at least two other matters involving the mall — a utility easement and a dispute with nearby residents about odor from mall sewage. All of this work ended approximately by 2000.
In 2002, Robinson Cole reviewed a management agreement for another Taubman property, the Stamford Town Center. The retainer agreement for the Stamford work expressly limited Robinson Cole's role to analysis of the management agreement and excluded any litigation. The retainer agreement stated that Robinson Cole "may continue to represent or may undertake in the future to represent existing or new clients in matters that are not substantially related to our work for you." Dennis J. Hecht, a Taubman vice president, signed the retainer agreement.
Apart from the Westfarms representation in the 1990s and the Stamford Town Center agreement in 2002, Robinson Cole has not performed any other work for Taubman.
The present case concerns the Blue Back Square development in West Hartford Center. Taubman's Washington, D.C. law firm, Schnader, Harrison, Segal Lewis, LLP, hired a New Haven law firm, Susman, Duffy Segaloff, P.C., to gather information about Blue Back in June 2003. The Susman firm first requested Blue Back documents from West Hartford on February 26, 2004. These documents indicated that Robinson Cole represented West Hartford in the issuance of bonds for the development.
On June 16, 2004, a partner at the Schnader firm, Neil Proto, contacted Dwight Merriam, a partner at Robinson Cole who had done work for Taubman on Westfarms and Stamford Town Center. Proto wrote to Merriam that Robinson Cole had a conflict of interest because of the firm's work for Taubman and Taubman's opposition to the Blue Back development. Robinson Cole's managing partner, Eric Daniels, responded to Proto in a June 29, 2004 letter that no conflict existed.
Proto did not respond to Daniels's letter and no one else from the Schnader firm, Susman firm, Taubman or the plaintiff mall contacted Robinson Cole until the mall filed a lawsuit against West Hartford on November 4, 2004. One week later, Roderyck Blake, a Taubman manager responsible for the Westfarms property, requested that Robinson Cole send Taubman all files related to the mall and stated that Taubman would not waive any conflicts arising from Robinson Cole's work on the Blue Back development.
The plaintiff mall filed a motion to disqualify Robinson Cole on January 4, 2005. The court held an evidentiary hearing on the motion from January 10-12, 2005. The mall moves to disqualify on the grounds that Robinson Cole currently represents the mall and has confidential information about Taubman. Robinson Cole responds that it never represented the mall and does not currently represent Taubman. According to Robinson Cole, the earlier work for Taubman is unrelated to the Blue Back development. Furthermore, Robinson Cole argues that the mall waited too long to file the motion to disqualify and instead should have filed a grievance when it learned of Robinson Cole's representation of West Hartford.
"The competing interests at stake in the motion to disqualify . . . are: (1) the [movant's] interest in protecting confidential information; (2) the [nonmovant's] interest in freely selecting counsel of [its] choice; and (3) the public's interest in the scrupulous administration of justice." Bergeron v. Mackler, 225 Conn. 391, 398, 623 A.2d 489 (1993). "The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney." Id., 397.
The court first examines the plaintiff's claim that Robinson Cole currently represents it. "An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." Somma v. Gracey, 15 Conn.App. 371, 379, 544 A.2d 668 (1988). "The formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation." DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).
Although Robinson Cole previously represented only Taubman and not the plaintiff mall, the court treats the plaintiff and all other Taubman entities as anonymous with Taubman for purposes of the motion to disqualify. Robinson Cole had an attorney-client relationship with Taubman during the 1990s with respect to Westfarms, and that relationship appears to have ended by approximately 2000. Blake, the Taubman manager in charge of Westfarms, testified at the evidentiary hearing that he contacted Robinson Cole's lawyers from 1998 to 2000, but had no reason to contact them thereafter. The Stamford Town Center work in 2002 was expressly limited to the review of a specific management agreement.
The court concludes that there is insufficient evidence of a continuing attorney-client relationship during the planning of the Blue Back Square development. The matters for which Taubman hired Robinson Cole ended in 2000 with respect to Westfarms and 2002 with respect to Stamford Town Center. Taubman is thus a former client of Robinson Cole.
When a former client moves to disqualify an attorney for a conflict of interest, rule 1.9 of the Rules of Professional Conduct applies: "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 . . ." The comment to rule 1.9 states: "The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question."
As to the substantially related standard of rule 1.9(1), "[the] test has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is patently clear or when the issues are identical or essentially the same." (Internal quotation marks omitted.) Bergeron v. Mackler, supra, 225 Conn. 399.
The plaintiff relies on Colorpix Systems of America v. Broan Mfg. Co., 131 F.Sup.2d 331 (D.Conn. 2001) to support its contention that a substantial relationship exists between Robinson Cole's prior representation of Taubman and Robinson Cole's current representation of West Hartford. In Colorpix, a federal court disqualified Robinson Cole from representing a plaintiff insurance company in a fire subrogation case because Robinson Cole had previously represented the defendant's parent company in a similar case. The court found that both cases involved allegations of defective electrical fans or heating and cooling units. In the case presently before this court, however, there is no such identity of claims.
Applying rule 1.9(1), the court finds that Robinson Cole's work for Taubman is not substantially related to Robinson Cole's work for West Hartford on the Blue Back project. The plaintiff mall has not shown that the relationship between the issues in each case is patently clear. Robinson Cole assisted the Westfarms Mall with its expansion, a utility easement and a dispute about sewage. Robinson Cole assisted the Stamford Town Center with a management agreement. The Blue Back project, by contrast, concerns the development of shops and housing in West Hartford Center. Whether retail establishments in the Blue Back development eventually compete with Westfarms does not bear on the relationship between Robinson Cole's previous representation of Taubman and its current representation of West Hartford.
As to the prohibition in rule 1.9(2) against using information to the disadvantage of a former client, "[o]nce a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed." Bergeron v. Mackler, supra, 225 Conn. 399. There is no presumption, however, when there is an insubstantial relationship between the prior and the present representation. The former client must show that counsel obtained confidential information in a prior case and that that information is likely to be used to the former client's disadvantage in the present case. For example, in Cadle Co. v. Ginsberg, 70 Conn.App. 748, 770-72, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002), the Appellate Court affirmed a trial court's finding that a former client had produced insufficient evidence of the confidential information disclosed in the prior case and its likely effect in the present case.
The court finds that the plaintiff mall has not provided enough evidence on which to conclude that Robinson Cole has confidential information likely to be used to the plaintiff's disadvantage. The plaintiff makes the generalized claim that Robinson Cole obtained confidential business and financial information about Taubman when Robinson Cole worked on the Westfarms and Stamford Town Center matters. During the evidentiary hearing, the plaintiff displayed thirty-seven boxes of files accumulated by Robinson Cole during its representation of Taubman. The plaintiff's exhibits, however, add little weight to its expansive claims about Robinson Cole's knowledge and the likelihood that that knowledge will disadvantage the plaintiff in the present case. The exhibits consist mainly of some billing records and internal law firm memoranda about Robinson Cole's work on Westfarms in the 1990s. The plaintiff has not demonstrated how Robinson Cole could be able to use any confidential information in these exhibits to the plaintiff's disadvantage in advising West Hartford on the Blue Back development.
Similarly, the testimony elicited at the evidentiary hearing does not assist the plaintiff in its claim. Blake, the Westfarms manager, testified that Robinson Cole had had access to Westfarms leases and that it would be disadvantageous to Taubman if competitors learned about the content of those leases. In the present case, however, Robinson Cole represents West Hartford, not the retail establishments that may be built in the Blue Back project. Robinson Cole's possible knowledge about Westfarms leases is irrelevant to its representation of West Hartford and there is thus no likelihood that Taubman will be disadvantaged.
Finally, the court agrees with Robinson Cole that the plaintiff's delay in taking action against Robinson Cole weighs against granting the motion to disqualify. Although the court can understand a reluctance on the part of the plaintiff to file a grievance against Robinson Cole, the plaintiff's behavior upon learning of Robinson Cole's representation of West Hartford suggests that the plaintiff was not seriously concerned. The Susman firm representing Taubman knew about Robinson Cole's involvement in the Blue Back project in February or March 2004. Attorney Proto of the Schnader firm representing Taubman took no action after Robinson Cole informed him in late June 2004 that no conflict of interest existed. Taubman manager Blake did not demand the return of Robinson Cole's files until November 11, 2004, one week after the plaintiff mall filed its lawsuit against West Hartford. Taken together, these facts support Robinson Cole's depiction of the motion to disqualify as little more than a litigation tactic.
The motion to disqualify is accordingly denied. So ordered.
Kevin E. Booth, J.