End-of-life notice: American Legal Ethics Library
As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.
Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.
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Connecticut Legal Ethics
1.9:100 Comparative Analysis of Connecticut Rule
The Conn. Commentary to Rule 1.9 is identical to the Model Rule 1.9 Comments. However, the Conn. Commentary does not include the sections of Model Rule Comments entitled "Lawyers Moving Between Firms" (Comments 3-5), "Confidentiality" (Comments 6-9), and a portion of "Adverse Positions" (Comment 10).
Subsequent adverse representations were addressed under two Code provisions: DR 4- 101 with its obligation to protect a former client's confidences and secrets from disclosure or use by a third party; and Canon 9's admonition to avoid the appearance of impropriety. Also applicable were EC 4-6, which stated that the "obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment;" and Canon 5, which stated that "[a] lawyer should exercise independent professional judgment on behalf of a client." Conn.
1.9:200 Representation Adverse to Interest of Former Client--In General
In Bergeron v. Mackler, 225 Conn. 391, 399, 623 A.2d 489 (1993) the Supreme Court held that the Ësubstantially relatedÓ test has been honed Ëto grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is Çpatently clearÁ or when the issues are ÇidenticalÁ or Çessentially the same.ÁÓ Once a substantial relationship has been demonstrated, Ëreceipt of confidential information that would potentially disadvantage a former client is presumed.Ó
In holding that a matter is substantially related only upon a showing that the relationship between the issues in the prior and present cases is "patently clear," or when the issues are "identical" or "essentially the same," the court in Johnston v. Casey, 2002 WL 1008463, *1 (Conn. Super. Apr. 25, 2002) denied plaintiff's motion to disqualify defendant's law firm. In this case, the plaintiff caretaker of the decedent brought action against the estate. The law firm in question previously represented the plaintiff and a lending institution in a residential real estate closing. At the time of this motion, the firm represented a party with an interest adverse to the plaintiff. The court was unable to find that the attorney's prior representation at the closing prevented his firm from representing his former client's adversary in this litigation because the issues were not identical or essentially the same.
In St. Germain v. St. Germain, 2000 WL 724541, *1 (Conn. Super. May 15, 2000), the court disqualified defendant's counsel because the attorney's law firm had represented the plaintiff within the previous three years in a matter involving confidential information substantially related to the present litigation. However, the court did not disqualify plaintiff's counsel because the attorney had not worked in defendant's counsel's law firm for twelve years and that firm had not been privy to substantially-related confidential information.
In Harriman v. Smith, 2000 WL 487254, *1 (Conn. Super. Apr. 10, 2000), the defendant sought disqualification of plaintiff's attorney in a motor vehicle personal injury matter because the attorney had, ten years prior to this action, represented the defendant in a criminal felony conviction. The court held that these two matters were not substantially related and denied the motion to disqualify the attorney.
Informal Opinion 99-21(1999) held that a firm shall not represent employees, officials, or commissions of a town in matters before the town's Ethics Commission when that firm has, in the past, represented the Ethics Commission, so long as the present representation involves a substantially related matter.
Informal Opinion 94-20 (1994) discussed whether an attorney who previously represented a client in a divorce proceedings could represent his former-client's adversary in a personal injury action. The Committee of Professional Ethics described various "substantial relationship" tests, including whether the factual contexts of the two representations were similar or related or whether the issues were identical or essentially the same. The Committee opined that the proposed representation would not violate Conn. Rule 1.9.
In American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 774 A.2d 220 (2001), the court disqualified defendant's counsel, as the attorney had developed a close relationship with both the plaintiff and defendant over a substantial period of time, concerning the corporation previously owned by both defendant-wife and plaintiff-husband. The relationship between the plaintiff and defendant's attorney entitled the court to presume that this attorney's representation of defendant would disadvantage the plaintiff. Moreover, the court found that disqualifying counsel did not harm defendant's interest in selecting counsel of her own choice because she already had an attorney whom she had freely chosen and who had represented her in the proceedings.
In Jensen v. Jensen, 2001 WL 1028897, *1 (Conn. Super. Aug. 13, 2001), the court denied plaintiff's motion to disqualify the attorney for the defendant husband. The attorney's firm had previously represented both the plaintiff and defendant in matters regarding the negotiation of a residential lease to their prior home, the purchase of their present home, and a matter with the Town of Greenwich regarding a small area of land. At the time of this motion, the attorney represented the defendant in a dissolution of marriage action. The court found that no credible evidence was offered by the plaintiff that she shared any confidence with the attorney or his firm that would be materially adverse to her in the matrimonial action and that none of the previous matters were substantially related to the matrimonial action.
In denying a motion to disqualify defendant's counsel, the court in Connecticut National Bank v. Rytman, 2001 WL 686836,*1 (Conn. Super. May 25, 2001) held that "[a] conflict of interest based on prior attorney-client relationship exists only if the moving party establishe[s] that the attorney has since accepted employment that is 'adverse to the interest of a former client on a matter substantially related to the prior litigation.'" Where the issues in the past and the present representations are not substantially similar, disqualification is warranted only if the former client establishes conveyance to the lawyer of actual information that could be used against it in the present matter in violation of 1.9(2).
Formal Opinion No. 21 (1999) stated that representation of a passenger in a suit for personal injury against the operator of the vehicle, after the attorney had represented both the operator and his passenger, would be unprofessional in light of the difficulties in obtaining an informed consent from the parties, the issue of divided loyalty, and damage to public confidence in the Bar.
Informal Opinion 97-26 (1997) concluded that a firm that represented the plaintiff in a remodeling contract, but who previously represented the defendant in a home purchase, did not violate Rule 1.9(1). However, the firm's representation would violate Rule 1.9(2) if the firm used information about the former client in a way adverse to his interests in the present litigation.
Informal Opinion 95-16 (1995) concluded that an attorney, who previously provided legal services for a corporation, must abide by Rule 1.9 in representing any client in a matter materially adverse to the corporation and substantially related to a matter in which he has represented the corporation.
1.9:230 Relevance of "Appearance of Impropriety" Standard [see also 1.7:230]
In Bergeron v. Mackler, 225 Conn. 391, 399, 623 A.2d 489 (1993) the Supreme Court held that appearance of impropriety does not, standing alone, suffice to disqualify an attorney.
In Dileina Taverna, Inc. v. Norwalk Improvements, 2000 WL 1913711,*1 (Conn. Super. Dec. 4, 2000), the plaintiff filed a motion to disqualify the law firm representing the defendant because that firm previously represented the plaintiff in connection with an application for a variance before the Norwalk Zoning Board of Appeals. The current representation of the defendant related to zoning issues regarding the development of defendant's property. In holding that the mere appearance of impropriety would not stand to disqualify an attorney, the court denied plaintiff's motion to disqualify because there was no substantial relationship between the issues involved in the prior and present representation.
1.9:300 Client of Lawyer's Former Firm
In Scribner v. AIU Insurance Co., 1996 WL 634290, *1 (Conn. Super. Oct. 22, 1996), the court denied plaintiff's motion to disqualify defendant's attorney because the attorney's former law firm represented the plaintiff in a prior negligent action resulting from a motor vehicle accident and a prior product liability case. The court denied the motion after finding that: the attorney did not obtain confidential information deriving from his prior firm's previous representation of the plaintiff; the attorney himself had not represented plaintiff; a substantial relationship did not exist and had never existed between the attorney and the plaintiff; and the plaintiff would not be adversely affected if the attorney continued to represent the defendant.
1.9:320 Former Government Lawyer or Officer [see 1.11:200]
In Nickolas v. Wilton Zoning Board of Appeals, 2001 WL 1200339, *1 (Conn. Super. Sept. 14, 2001), the defendant moved to disqualify plaintiff's attorney. The attorney formerly represented the defendant, as town counsel, in connection with the same property and same issue involved in the present case. The court noted that the defendant did not allege that any confidential information was divulged to the attorney and that twenty-six years had passed since the attorney authored an opinion letter for the defendant, at a time when the town was not in an adversarial position with respect to the subject property. Furthermore, fifteen years had passed since the attorney severed his relationship with the defendant and the public's interest would not be compromised by the attorney's continued representation of the defendant. In short, the plaintiff's interest in free selection of counsel outweighed the defendant's interest in protecting confidential information. For these reasons, the court denied defendant's motion to disqualify plaintiff's attorney.
Informal Opinion 94-32 (1994) concluded that an attorney who previously represented a municipality as town attorney may represent a taxpayer in an action against the municipality because the attorney was no longer representing the town and was not representing his present client against his former client in the same matter.
1.9:400 Use or Disclosure of Former Client's Confidences
Informal Opinion 00-2 (2000) held that whether an attorney was required to withdraw from his representation of the plaintiff in a pending personal injury matter depended on his retention of information (in memory or documented) from representation of the defendant ten years prior in a criminal charge. The attorney must satisfy that he did not gain any information from the previous representation that could be relevant to the pending litigation; and should such information exist, he is unable to use it without first obtaining the defendant's consent.
Informal Opinion 97-26 (1997) discussed a situation where a law firm represented client A in forming its business entity, later in connection with an automobile accident and in this action. The firm previously represented client B for the purchase of a new home, the sale of a former home and for estate planning. This action arose regarding a dispute over remodeling work completed on the home purchased by former client B. The Committee opined that the firm would be at risk of violating Conn. Rule 1.9 if it were to use certain information relating to its former representation of client B against client B in the present dispute, because the firm had information regarding client B that was not "generally known."