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Docket Number

C.A. NO. PB 02-2517

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Smart Summary

Written Decision: SILVERSTEIN, J. — May 7, 2003

Factual and Procedural Background

Plaintiffs (including Weetamoe Condominium Association, individual unit owners, and the Weetamoe Conservation Commission) filed this suit against, among others, the Town of Bristol, Toll RI, L.P. ("Toll"), and the Bristol Landing Condominium Association ("Bristol Landing") (C.A. No. PB 02-2517). Approximately ten months after the original complaint, on or about March 10, 2003, Plaintiffs filed a Motion to Disqualify the law firm Adler, Pollock Sheehan, P.C. ("APS") from representing Toll and Bristol Landing. The opinion states that APS has represented Toll and Bristol Landing since the inception of the litigation and during all material times prior to the complaint with respect to the matters alleged in the Complaint. Following briefing and oral argument, the Superior Court (Providence) took the matter under advisement and issued the decision summarized below.

Legal Issues Presented

Whether APS should be disqualified from representing Toll and/or Bristol Landing under the Rhode Island Rules of Professional Conduct (as invoked by Plaintiffs: Rule 1.6, Rule 1.7, Rule 1.9(a), Rule 1.10(a), Rule 2.2 and Rule 3.7) because one or more APS attorneys may be called as witnesses, because APS-drafted documents are in dispute, or because APS may have financial liability (e.g., title binders) related to the litigation.
Whether Plaintiffs have met the heavy burden and high standard of proof required to obtain attorney disqualification in this adversary proceeding.
Whether any claimed conflicts (including asserted representation of individual unit owners who might have claims against Toll) or disclosure of confidential information exist such that disqualification is required.

Arguments of the Parties

Plaintiffs' Arguments

At least one APS attorney is expected to be a witness at trial; discovery indicates that as many as 22 APS attorneys worked on the Bristol Landing project and might be called as witnesses.
Documents drafted and prepared by APS are in dispute in the litigation.
APS appears to have prepared title insurance binders in connection with the project and therefore may have financial liability for the outcome of the case.
A partner of APS allegedly misstated material facts publicly and lobbied public officials during the approval and development process for the Bristol Landing project.
APS also allegedly represents the individual owners of Bristol Landing units, and those owners might have claims against Toll—creating a conflict of interest.
Plaintiffs invoked prior Rhode Island Supreme Court cases and the Rhode Island Rules of Professional Conduct (Rules 1.6, 1.7, 1.9(a), 1.10(a), 2.2, and 3.7) as grounds for disqualification.

The opinion does not contain a detailed summary of specific arguments advanced by APS or other defendants beyond references in the Court's analysis (for example, an unrefuted affidavit contesting that APS issued title binders is noted).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Essex Chemical Corp. v. Hartford Accident Insurance Group, 993 F. Supp. 241 (D.N.J. 1998)	Describes the heavy burden and high standard of proof required for attorney disqualification; referenced for standards governing disqualification motions.	The Court relied on the principle that a moving party seeking disqualification bears a heavy burden and must meet a high standard of proof; the opinion notes Essex applied New Jersey Rules of Professional Conduct, which the Court found substantially similar to Rhode Island's rules.
a number of earlier Rhode Island Supreme Court cases	Earlier authority cited by Plaintiffs for disqualification principles (unnamed in the opinion)	The Court observed that those cases predated the adoption of the Rhode Island Rules of Professional Conduct and therefore focused its analysis on the specific Rules cited by Plaintiffs rather than on those earlier decisions.

Court's Reasoning and Analysis

The Court first observed a general tendency by parties to invoke the Rules of Professional Conduct as tactical weapons to disqualify opposing counsel and emphasized that the Rules are "Rules of Reason" meant primarily for self-policing and disciplinary proceedings. The Court noted that, while courts may disqualify counsel in adversary proceedings, the moving party carries a heavy burden and must satisfy a high standard of proof (citing Essex Chemical).

Turning to the specifics of Plaintiffs' motion, the Court declined to rely on the earlier Rhode Island Supreme Court cases cited by Plaintiffs because those cases predated the adoption of the Rules of Professional Conduct; instead, the Court analyzed Plaintiffs' claims under the particular Rules invoked (1.6, 1.7, 1.9(a), 1.10(a), 2.2 and 3.7).

The Court considered the interaction of Rule 3.7 (lawyer as witness) with Rule 1.9 (former client) and Rule 1.7 (conflicts of interest). It noted that Rule 3.7(b) permits attorneys in a firm to continue representation even if another attorney in that firm is likely to be called as a witness unless precluded by Rule 1.9 or Rule 1.7. The Court examined Plaintiffs' assertions (possible APS witness testimony, disputed APS-drafted documents, alleged title binder liability, and possible conflicting representation of unit owners) and determined Plaintiffs had not shown facts establishing disqualification under those Rules.

Specifically, the Court found:

No showing that confidential information (Rule 1.6) would be or had been disclosed in a manner warranting disqualification;
No demonstration of a cause of action against APS or Attorney Stolzman;
No demonstration that APS represents any unit owner of Bristol Landing; and
No showing that any adverse parties to APS clients were former clients of APS (so Rule 1.9 was not shown to apply).

Because Plaintiffs failed to meet the heightened burden required to obtain disqualification, the Court concluded the motion could not succeed.

Holding and Implications

Holding: The Court denied Plaintiffs' Motion to Disqualify APS. The core ruling is emphasized below.

DENIED

Implications: As a direct consequence of the decision, APS remains counsel for Toll RI, L.P. and Bristol Landing Condominium Association in this litigation. The Court instructed that an order consistent with this decision be presented by prevailing counsel. The opinion does not state or announce any broader new legal precedent beyond applying the established principle that a movant seeking disqualification must meet a heavy burden and high standard of proof under the Rules of Professional Conduct.

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WEETAMOE CONDOMINIUM ASSOCIATION, LEILANI ALLEN, WILLIAM AND JENNIFER POISSON, WEETAMOE CONSERVATION COMMISSION, Plaintiffs vs. THE TOWN OF BRISTOL, a municipal corporation, by and through its Council Person, Richard Ruggerio, and the Chair of its Planning Board, James Farley, SEACOAST RESIDENTIAL DEVELOPMENT, LLC, Toll RI, L.P., a R.I. limited partnership, BRISTOL LANDING CONDOMINIUM ASSOCIATION, HILLSIDE ASSOCIATES, G.P., MARK F. BEAR AND TERRY H. BEAR, as successors to the Hillside Associates, and THE MOUNT HOPE TRUST, as a Successor to Rudolph Haffenreffer, III Agreement, Defendants/Third-Party Plaintiffs vs. JAMES A. LIDDELL, SEAN N. MARCHIONTE, JON M. AND SUSAN C. FISH, NICHOLAS M. AND LINDA R. DiCIANNI, ASTRA K. STROBEL, GEOFFREY V. AND JUDITH S. HOPPER, DAVID R. CLARK, LOWELL H. AND ASTA G. ROBERTS, MARK ANTHONY AND JENNIFER M. DeWOLF, E. SYBIL SIMON, RONALD W. AND NANCY SLAY, HERMAN AND FLORENCE ALPERT, MICHAEL A. TRANGHESE AND SUSAN HUNTEMANN, SUSAN J. PERRY, and THOMAS D. AND PATRICIA PRENDERGAST, individually as members of the Weetamoe Condominium Association, Third-Party Defendants.

DECISION

SILVERSTEIN, J.

Before the Court for decision is the Plaintiffs' Motion to Disqualify the firm of Adler, Pollock Sheehan, P.C. as attorneys for certain Defendants in this matter. The Motion was filed on or about March 10, 2003, approximately 10 months following the filing of the original complaint herein. Adler, Pollock Sheehan, P.C. (hereinafter referred to as APS) have represented in this litigation Defendant Toll RI, L.P. (hereinafter referred to as Toll) and Defendant Bristol Landing Condominium Association (hereinafter referred to as Bristol Landing) since the inception of the litigation and during all material times prior thereto with respect to the matters which as to these specific Defendants are alleged in the Complaint.

Essentially, Plaintiffs claim, through this Motion, that APS and its lawyers should be precluded from representing Toll and/or Bristol Landing because:

(1) "At least one attorney from the firm of APS is expected to be a witness in these matters" during arguments on the motion. Apparently as the result of discovery, Plaintiffs now assert that not less than 22 lawyers from APS worked on the development of the Bristol Landing project and up to all of them may be called as witnesses by the Plaintiffs.

(2) "Documents drafted and prepared by APS are in dispute in these matters."

(3) "APS appears to have written the title insurance binders in this case and may have a financial liability for the outcome of this case."

( See Plaintiffs' Motion to Disqualify, p. 2)

Plaintiffs' inter alia claim that a partner of APS, in the course of his representation of Toll and certain of its affiliated entities, publicly misstated material facts and privately lobbied public officials all in connection with the approval process and development incident to the Bristol Landing Condominium Project. Plaintiffs, a neighboring condominium association, certain of its members and the Weetamoe Conservation Commission inter alia further seek disqualification of APS on the grounds that it also represents the individual owners of the units which form the membership of Bristol Landing, and that such individual owners may have claims against Toll if all or some of Plaintiffs' averments were found true at trial.

Plaintiffs tell us that under the circumstances APS must be disqualified, not only as a result of a number of decisions by our state Supreme Court, but also pursuant to provisions of Rhode Island Supreme Court Rules with specific reference to Rules of Professional Conduct; Rule 1.6 Confidentiality of Information, Rule 1.7 Conflict of Interest: General Rule, Rule 1.9(a) Conflict of Interest: Former Client, Rule 1.10(a) Imputed Disqualification: General Rule, Rule 2.2 Intermediary and Rule 3.7 Lawyers as Witnesses.

Following full briefing of the issues raised by Plaintiffs and extensive oral arguments of the parties, this Court took the matter under consideration. The Court notes at the outset an increasing tendency by counsel to invoke a claim of a breach of Rules of Professional Conduct in connection with contentious matters. Oft times it appears to the Court that the rules are used as a sword to preclude a parties' choice of counsel in litigation so as to attempt to gain a perceived tactical advantage rather than as a shield against inappropriate conduct where such conduct might inure to the detriment of the moving party in the dispute as well as to public perception of the legal profession as a whole.

The Rules of Professional Conduct are, as we are told in the "scope" section, Rules of Reason. The framers of the rules seeming to recognize the potential for abuse of the rules in many varying ways have provided in the first instance that the rules should be self-policing. Simply put, counsel is directed and required to insure their own conformity to the provisions thereof. To the extent that there are transgressions, the provisions for disciplinary proceedings can lead to sanctions up to and including the loss of the privilege of practicing law. In addition, courts have on proper motion in adversary proceedings, from time to time, disqualified attorneys from representing parties in particular matters before the court. In order to obtain disqualification of counsel, a moving party carries a heavy burden and must satisfy a high standard of proof. See Essex Chemical Corp. v. Hartford Accident Insurance Group, 993 F. Supp. 241 (D.N.J. 1998).

Applying New Jersey's Rules of Professional Conduct which are substantially similar to the Rules of Professional Conduct as adopted in Rhode Island.

With the foregoing firmly in mind, the Court now turns to the question as to have Plaintiffs carried their burden and have they presented a high standard of proof so as to show a violation by APS of any of the enumerated grounds set forth in Plaintiffs' Motion.

Plaintiffs rely on a number of earlier Rhode Island Supreme Court cases as grounds for the demanded disqualification. As to those cases, it is sufficient to note that all predated the adoption by our Supreme Court of the Rules of Professional Conduct. Accordingly, the Court will focus its analysis on Plaintiffs' claims with respect to the specific rules cited by Plaintiffs.

Plaintiffs refer to Rule 1.6 dealing with confidentiality of information apparently in connection with their professed intention to call Attorney Stolzman, and perhaps other APS attorneys, as witnesses during trial. Of necessity, the Court must juxtapose Rule 3.7 with reference to subparagraph (b) which, except as there limited, permits attorneys in a firm to represent parties in litigation even if another attorney in that firm is likely to be called as a witness unless precluded by Rule 1.9, not here applicable, or by Rule 1.7. Plaintiffs seem to suggest that Attorney Stolzman, and maybe the firm itself, have a disqualifying interest in the case by reason of either (1) their issuance of title binders (an unrefuted affidavit indicates otherwise) or (2) claims which their clients may have against them or perhaps claims which might be asserted by Plaintiffs against the firm essentially on the same grounds as Plaintiffs complain against Toll and/or Bristol Landing in the complaint. The Court is satisfied that Plaintiffs have failed to satisfy, at this point, the especially high burden imposed on a party who after suggesting that it will call as a witness counsel for an opposing party thereafter seeks disqualification of that counsel on those grounds. In the case at bar, Plaintiffs have failed to affirmatively demonstrate disqualification factors to any standard much less the heightened burden imposed upon them as referred to supra.

There has been no showing of confidential information. There has been no showing of any cause of action against APS or indeed as against Attorney Stolzman. There has been no demonstration that APS represents any unit owner of the Bristol Landing Condominium. There has been no showing that any of the adverse parties to APS clients herein are former clients of that firm.

This Court holds that at this time Plaintiffs have totally failed to satisfy their burden and their Motion accordingly should be denied.

An order consistent herewith shall be presented by prevailing counsel.

WEETMOE CONDOMINIUM ASS'N v. TOWN OF BRISTOL, 02-2517 (2003)