HURLEY, JUDGE TRIAL REFEREE.
On May 13, 2004, the plaintiffs, Commercial Advantage Real Estate, LLC (Advantage) and Michael McCulley (McCulley), filed a four-count revised complaint alleging, inter alia, that the defendant, Cove Investment, LLC (Cove), breached its contractual obligation to make payments to the plaintiffs pursuant to a property management agreement. On August 10, 2004, the defendant, represented by attorney Richard Simonson of the law firm, Irving, Dubicki Camassar, LLP, filed an answer, special defenses and counterclaim in response to the plaintiffs' revised complaint.
On November 26, 2004, the plaintiffs filed a motion to disqualify counsel for the defendant asserting that the Rules of Professional Conduct 1.7, 1.9 and 1.10 bar the defendant's counsel from advocating the present matter because attorney Charles Irving of the law firm, Irving, Dubicki Camassar, LLP, had previously represented McCulley. More specifically, the plaintiffs assert that Irving represented McCulley in a collection proceeding and gained intimate knowledge about private, confidential and economically sensitive information concerning McCulley's business interests and practices.
On December 7, 2004, the defendant filed an objection to the motion to disqualify counsel and argued that the plaintiff cited no specific conflict of interest nor identified any conflict of interest sufficient to justify disqualification of counsel. The defendant argues further that any representation between living and McCulley occurred several years prior to the present action, and that the previous representation concerning a collection proceeding has nothing to do with the present breach of contract action. Moreover, the defendant argues that the law firm representing him is no longer named Irving, Dubicki Camassar LLC, but is now named Dubicki, Camassar Simonson, LLC, and CT Page 11559 Irving is no longer affiliated with this law firm. Defendant's counsel asserts that he has never reviewed the file in which Irving represented McCulley, he has never consulted with Irving about McCulley's personal financial matters, he has no knowledge of any financial details concerning McCulley, and that he has no access and seeks no access to the file. Moreover, defendant's counsel asserts that the file has been removed from the law firm and, if the file exists, is in the possession of Irving.
DISCUSSION
"The trial court has the authority to regulate the conduct of attorneys and has a duty to enforce the standards of conduct regarding attorneys . . . The trial court has broad discretion to determine whether there exists a conflict of interest that would warrant disqualification of an attorney . . . Disqualification of counsel is a remedy that serves to enforce the lawyer's duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information . . . In disqualification matters, however, we 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 . . . The competing interests at stake in the motion to disqualify, therefore, are: (1) the defendant's interest in protecting confidential information; (2) the plaintiffs' interest in freely selecting counsel of their choice; and (3) the public's interest in the scrupulous administration of justice." (Citations omitted; internal quotation marks omitted.) Bergeron v. Mackler, 225 Conn. 391, 397-98, 623 A.2d 489 (1993).
Moreover, "the appearance of impropriety alone is simply too slender a reed on which to rest a disqualification order except in the rarest of cases . . . Although considering the appearance of impropriety may he part of the inherent power of the court to regulate conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney's representation risks violating the Rules of Professional Conduct." (Citations omitted; internal quotation marks omitted.) Id., 399-400. "Another factor to consider is [t]he length of time which elapses between the claimed adverse representations." (Internal quotation marks omitted.) Blumberg Associates v. Wentworth, Superior Court, judicial district of Hartford, Docket No. CV 01 0808688 (December 12, 2001, Hennessey, CT Page 11560 J.) ( 31 Conn. L. Rptr. 129, 130).
"A party moving for disqualification of an opponent's counsel must meet a high standard of proof . . . [B]efore 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." (Citation omitted; internal quotation marks omitted.) Blakemar Construction v. CRS Engineering, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 0412727 (February 10, 2005, Skolnick, J.). "Disqualification is both harsh and draconian, and . . . [t]he courts should act very carefully before disqualifying an attorney . . ." Id.
"Rules 1.7 and 1.9 deal with conflict of interest situations, one concurrent and the other successive representation. Rule 1.7 applies to situations wherein representation of one client `will be directly adverse' or `materially limited' by the attorney's `responsibilities to another client or to a third person, or by the lawyer's own interests.' Rule [1.9] prohibits successive representation if the interests of a current client `are materially adverse to the interests of the former client' and the two matters of client representation are `the same' or `substantially related.'" Davis v. Estate of Pearson, Superior Court, judicial district of New Haven, Docket No. 266586 (August 7, 1991, Dorsey, J.) ( 6 C.S.C.R. 812) ( 4 Conn. L. Rptr. 407).
Rule 1.10 provides, in relevant part, that: "When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless: (1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) Any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(2) that is material to the matter."
In the present case, the plaintiffs simply assert in their motion to disqualify counsel that Irving, an attorney formerly with the law firm Irving, Dubicki Camassar, LLP, now Dubicki, Camassar Simonson, LLC, represented McCulley in a collection proceeding and gained intimate knowledge of McCulley's private, confidential and economically sensitive information concerning CT Page 11561 McCulley's business interests. The defendant's counsel, Simonson, argues that Irving is no longer affiliated with the law firm, that he does not have any information concerning the prior representation conducted by living for McCulley, nor does he have access to any file, nor does he seek to gain access to any file that contains information about Irving's representation of McCulley. Moreover, said file is not housed with, nor is possessed by Dubicki, Camassar Simonson, LLC, and said file, if in existence, is in the possession of Irving.
Without more specific evidence as to what information Simonson has in his possession, disqualification is not warranted. As discussed above, the mere appearance of impropriety alone is not enough to invoke the harsh imposition of disqualification. The party moving for disqualification has a high standard of proof to show why disqualification is necessary. Here, the plaintiffs' mere assertion that Simonson and/or his firm have confidential information derived from the representation conducted by Irving is not enough. In light of Simonson's contentions that Irving is no longer with the law firm, that he has no confidential information, and has never consulted with Irving about his previous representation of McCulley, and that Irving possesses the file, the plaintiff's allegations, without more, do not warrant disqualification. See St. Germain v. St. Germain, Superior Court, judicial district of Windham at Putnam, Docket No. FA 00 0062662 (May 15, 2000) (where the court denied the defendant's motion to disqualify because, inter alia, the defendant did not allege that he divulged confidential information to opposing attorney); Blakemar Construction v. CRS Engineering, Inc., supra, Superior Court, Docket No. CV 04 0412727 (where court found that a mere statement that attorney will be a necessary witness does not support a motion to disqualify counsel.).
Moreover, to disqualify an attorney under Rule 1.9 or Rule 1.10 the plaintiffs must show that the issues involved in the current representation are substantially related to those involved in the prior representation. See Blumberg Associates v. Wentworth, supra, 31 Conn. L. Rptr. 130-31 (where the court denied a motion to disqualify counsel because, inter alia, the movant did not establish that the prior representation and the current representation were substantially related, and the relationship between the prior and current issues was not so patently clear). In the present case, the plaintiffs have failed to provide evidence showing the similarities between Irving's prior CT Page 11562 representation of McCulley in a collection proceeding and the current matter sounding in breach of contract.
For all the foregoing reasons, the plaintiff's motion to disqualify defendant's counsel is denied.
D. Michael Hurley Judge Trial Referee
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