Demarco v. Fire Command, Inc., No. 29 73 81 (Jul. 27, 1990)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR REMOVAL AND DISQUALIFICATION Plaintiff, a minority stockholder of defendant Fire Command, Inc., moves that this court remove and disqualify defendants' law firm (Jozus, Tomc Milardo) from further representation in this case, citing Rules 3.7(a) and (b) and CT Page 640 Rule 1.7 of the Code of Professional Conduct.

Plaintiff asserts that Attorney Richard Tomc of said firm will be a necessary witness in the trial of this case; and that said firm has a conflict of interest in that "during the purported sale of the [defendant] Corporation's assets to defendants Kindschi and Ross, Attorney Tomc and Jozus, Tomc and Milardo acted as attorneys for both the Corporation (seller) and for Kindschi and Ross (buyers).

As to plaintiff's claim that Attorney Tomc will be a necessary witness, plaintiff has made no showing that Attorney Tomc's testimony will be "genuinely needed." Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 248-49 (citation omitted). The mere statement that Tomc "will be a necessary witness" does not suffice to support this motion.

As to plaintiff's claim that the firm of Jozus, Tomc and Milardo is precluded from representing defendants in this trial by virtue of a conflict of interest, plaintiff has offered no evidence in support of his allegations.

The right to counsel of one's choice, though not absolute, is a fundamental premise of our adversary system. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 443 (Brennan J., concurring); Burger Burger, Inc. v. Murren, 202 Conn. 660. Moreover, an attorney whose disqualification is sought has a "personal and financial interest" in a disqualification decision. Richardson-Merrell, Inc. v. Koller, supra, at 434. Given the significant interests of defendants and of defendants' counsel impacted by a disqualification decision, mere allegations of conflict do not suffice to support this motion.

Plaintiff's motion is denied.

JOHN T. DOWNEY, JUDGE