DocketNumber: No. FA 01 0182766 S
Citation Numbers: 2001 Conn. Super. Ct. 10909
Judges: SHAY, JUDGE.
Filed Date: 8/13/2001
Status: Non-Precedential
Modified Date: 7/5/2016
The wife would have the court apply, in essence, a somewhat objective standard regarding disqualification. Specifically, she advances the argument that where there has been prior representation, and that prior matter involves the finances of the parties, it is presumed that, absent her consent, the continued representation of her husband by Attorney Nemiroff constitutes a breach of a fiduciary relationship from which disqualification automatically flows. The husband, on the other hand, advances the argument that the court is required to balance the right of one party to have counsel of his or her choosing, with the right of the other party to be secure in the belief that their confidences will be preserved and that the prior disclosures will not be used against them.
Rule 1.7 deals with conflict of interest, specifically the duty of loyalty to a client. This is not a hard and fast rule. Specifically, the rule provides that the lawyer shall decline representation of a client where such representation "will be directly adverse to another client." (Emphasis added.) The Commentary to the rule is worth noting, in particular the third paragraph of the first subsection which expands upon the general proposition, and states: "Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's otherresponsibilities." (Emphasis added.) Clearly, the rule presupposes the simultaneous representation of two clients in competing matters. Here, there is no continuing representation in the previous matters, all involving real estate, all presumably concluded long ago.
Rule 1.9 deals with the issue of conflict of interest and a former client. That rule prohibits representation of another person "in the same or a substantially related matter in which that person's interests arematerially adverse to the interests of the former client." (Emphasis added.) Obviously, Attorney Nemiroff is not representing both parties in the pending matrimonial. The question for the court therefore is as follows: a) Is the present action "substantially related" to the prior matters, and if so, b) Are the competing interests materially adverse? The court notes that the issue is not whether the parties are substantially related, but rather it is a question of whether or not thesubject matter is. For if the former were the gravamen by which the issue would be determined, disqualification would almost certainly follow in every case where the same parties are involved. In order to determine whether or not one matter is substantially related to another, the court must look for a common thread or nexus. The previous matters are all real estate matters, and the present matter is a matrimonial matter. On the face of it, this would seem to end the inquiry, however, some other courts that have wrestled with this issue suggest a narrow approach.Cleland v. Cleland,
This court subscribes to a broader approach, in particular because the present action is one for dissolution of marriage. It is well-established in Connecticut that equitable division in a matrimonial matter requires the attorneys to have a "searching dialogue with their client and the parties to make a "full and frank disclosure," of all material assets, including real estate. Billington v. Billington,
Accordingly, upon the facts of this case, where the previous joint representation of husband and wife involved uncomplicated real estate matters, absent a showing that: 1) a confidential disclosure was in fact made by the wife; 2) which by its nature or substance was not required to be disclosed in the matrimonial action; and 3) which if disclosed would prove harmful to the wife in the present action, there are no grounds for disqualification.
Furthermore, this court believes that the administration of justice is served by a common sense application of the rule, in that one party's right to counsel of choice is preserved, the other party has had an opportunity to seek the protection from the disclosure of any confidence, and precious time and resources were not squandered by a feuding spouse choosing to apply a "sour grapes" attack upon the other (i.e., "I can't have him so you can't have him!").
1. That no credible evidence was offered by the plaintiff that she shared any confidence with Attorney Nemiroff or any other attorney in his firm, Fogarty Cohen Selby Nemiroff LLC, which if disclosed would be materially adverse to her in the present action.
CT Page 10913
2. That none of the previous matters in which said law firm represented the parties is the same or a substantially related matter to the present action.
THE COURT
SHAY, J.