Connecticut Legal Ethics

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100 Comparative Analysis of Connecticut Rule

‰ Primary Connecticut References: CT Rule 1.10
‰ Background References: ABA Model Rule 1.10, Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

1.10:101 Model Rule Comparison

Conn. Rule 1.10 is identical to MR 1.10, except that Section (b) of Conn. Rule 1.10 is not included in Model Rule 1.10

1.10:102 Model Code Comparison

The equivalent Model Code provision is DR 5-105(D), which provided that "[i]f a lawyer is required to decline or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."

1.10.103 Definition of "Firm"

The Comment to Conn. Rule 1.10 explains that Ëthe term ÇfirmÁ includes lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization, or in a legal services organization.... Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.Ó

In State v. Webb, 238 Conn. 389, 680 A.2d 147 (1996), the state filed a motion to disqualify the public defenderÁs office from representing the defendant because the state intended to call a witness who had formerly been employed by the state as a criminologist, yet who was currently employed by the public defenderÁs office. The court held that the defendantÁs trial counsel and the stateÁs witness were not members of a single firm for the purposes of Conn. Rule 1.10.

In Jackson v. Warden, State Prison, 1991 WL 32459, *1 (Conn. Super. Feb. 19, 1991), the court held that public defenders who were in different units, who did not share any information, but who had a common boss, were not in the same ËfirmÓ for the purposes of Conn. Rule 1.10.

Informal Opinion 00-26 (2000) stated that when a lawyer Ëperforms a discrete and designated task, such as a title search for another lawyer, but independently of that lawyer, ... the lawyer performing the service is an independent contractor to the hiring lawyerÓ and the two do not constitute a firm.

Informal Opinion 99-15 (1999), in discussing the definition of a Ëfirm,Ó cited the Comment to Conn. Rule 1.10 in suggesting that the intention of the lawyers is the most important factor in that Ëif lawyers present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the rules.Ó

1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

‰ Primary Connecticut References: CT Rule 1.10(a)
‰ Background References: ABA Model Rule 1.10(a), Other Jurisdictions
‰ Commentary: ABA/BNA ă 51:2001, ALI-LGL ă 123, Wolfram ă 7.6
‰ Connecticut Commentary:

In Fallacaro v. Fallacaro, 1999 WL 241743, *1 (Conn. Super. Apr. 8, 1999), the court granted plaintiffÁs motion to disqualify the defendantÁs counselÁs firm on the basis that such representation constituted a conflict of interest. The firm representing defendant in this marital dissolution action previously represented the plaintiff in a post-marital dissolution matter against his first wife and in another civil matter. The attorney representing defendant had no involvement with the firmÁs earlier representation of the plaintiff, however this did not change the finding that the firm had a conflict. The defendantÁs firm represented an interest adverse to the plaintiff, its former client, the issues of this action were substantially similar to the prior representation, and plaintiff objected to this representation.

In Berkowitz & Balbirer v. M/L Ridgeland Associates, 1997 WL 728899, *1 (Conn. Super. Nov. 14, 1997), the court disqualified defendantÁs attorney and his law firm in this action to collect a legal fee, as defendantÁs attorney had been a partner in the plaintiff law firm while it was performing the work for the defendant, out of which this fee dispute arose.

In Kondysar v. Kondysar, 1996 WL 798741, *1 (Conn. Super. Dec. 3, 1996), the court granted defendantÁs motion to disqualify the law firm representing plaintiff in an action to modify the decree with respect to child custody. Ten years prior to this action, an attorneyÁs firm represented the defendant in a criminal matter that arose out of a domestic violence allegation and in a dissolution action. Sometime thereafter, this attorney became a member of the firm currently representing the plaintiff. The court held that the criminal case in which the attorney represented the defendant was a substantially related matter to the dissolution and motion to change custody, therefore the new firm representing plaintiff was disqualified.

Informal Opinion 98-20 (1998) stated that Conn. Rule 1.10(a) expressly precludes any lawyer associated in a firm from representing a client when any other lawyer in the firm would be precluded from doing so under Rule 1.9, even if the lawyer could be insulated from information obtained through prior representation by means of a ËChinese Wall.Ó

Informal Opinion 94-10 (1994) discussed the situation of two firms that planned to merge. The first firm had, in the past, represented a woman in a personal injury suit and the second firm, at the present time, had represented the womanÁs husband in their pending divorce action. The Committee on Professional Ethics instructed the firms that Ëcare should be taken to fully disclose the relationship among the firms to the parties and steps taken to ensure that no information gleaned from the previous representation of the wife might be somehow used to her disadvantage.Ó

Informal Opinion 90-22 (1990) discussed a firmÁs representation of a creditor against a Chief Financial Officer of a company that a new associate and his prior firm represented in the companyÁs bankruptcy proceeding. The Committee on Professional Ethics instructed that representation would be improper if (a) the new suit involves Ëthe same or a substantially related matterÓ as the prior representation in the bankruptcy matter; (b) the interests of the Chief Financial Officer or the corporation are materially adverse to those of the prospective client; and (c) in the course of his work on the bankruptcy matter, your associate acquired confidential information that is both protected by Rule 1.6 or 1.9(2) and material to the matter at hand.Ó

1.10:300 Removing Imputation by Screening

‰ Primary Connecticut References: CT Rule 1.10
‰ Background References: ABA Model Rule 1.10, Other Jurisdictions
‰ Commentary: ABA/BNA ă 51:2001, ALI-LGL ă 124, Wolfram ă 7.6
‰ Connecticut Commentary:

In Rivera v. Chicago Pneumatic Tool Co., 1991 WL 151892, *1 (Conn. Super. Aug. 5, 1991), the court discussed whether the ËChinese Wall,Ó or screening mechanism, proposed by the plaintiffs was sufficient under the facts of the case to prevent disclosure of confidential and privileged information. In that case, a paralegal employed at plaintiffÁs counselÁs law firm had previously been employed by defendantÁs counselÁs law firm, for which she was extensively involved in the defense of similar product liability law suits. The court affirmed previous holdings that the Conn. Rule 1.10 does not apply to support staff.

Informal Opinion 01-16 (2001) concerned a plaintiffÁs personal injury law firm that hired an attorney previously associated with a firm that did defendantsÁ personal injury litigation. The Committee on Professional Ethics held that satisfying Rule 1.10(b) required a factual inquiry into the following issues:

1. Did the defendantÁs personal injury firm represent, while the attorney was employed there, defendants whose interests were materially adverse to those of plaintiffs represented by the plaintiffsÁ firm in the same or a substantially related matter?

2. Did the attorney, while employed by the defendantsÁ firm, acquire information about those defendant that is protected by Rules 1.6 and 1.9(2) that is material to the cases?

If the answers to both questions were Ëyes,Ó then Conn. Rule 1.10(b) required the plaintiffsÁ firm to cease representing the parties involved in the litigation in which the attorney was previously involved. However, the disqualification could be waived, under Conn. Rule 1.10(d), by the affected clients under the conditions stated in Conn. Rule 1.7.

1.10:400 Disqualification of Firm After Disqualified Lawyer Departs

‰ Primary Connecticut References: CT Rule 1.10(b)
‰ Background References: ABA Model Rule 1.10(b), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

In Davis v. Estate of Susan S. Pearson, 1991 WL 158033, *1 (Conn. Super. Aug. 7, 1991), the court denied plaintiffÁs motion to disqualify a law firm from representing defendant. Plaintiff raised this motion because the will of Susan S. Pearson was prepared and executed by a partner of the defendantÁs law firm and because a former partner of the law firm drafted plaintiffÁs will. The defendantÁs firm countered that the former partner who drafted plaintiffÁs will had not been with the firm for almost five years, and that plaintiffÁs motion was an inappropriate tactical move as the firm had represented the defendant for three years and plaintiff had never before objected.

1.10:500 Client Consent

‰ Primary Connecticut References: CT Rule 1.10(c)
‰ Background References: ABA Model Rule 1.10(c), Other Jurisdictions
‰ Commentary:
‰ Connecticut Commentary:

Informal Opinion 95-26 (1995) instructed an attorney and his firm that their proposed representation in defense of a bank against the attorneyÁs former clientÁs pending civil action was prohibited by Rules 1.9 and 1.10, unless the client gave informed consent and waiver.