Bergeron v. Mackler
1993 Conn. LEXIS 103, 225 Conn. 391, 623 A.2d 489 (1993)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The mere appearance of impropriety is not a sufficient basis for disqualifying an attorney from representing a client against a former client. Disqualification is only proper under Rule 1.9 of the Rules of Professional Conduct upon a showing that the current matter is the same as or substantially related to the matter of the former representation.
Facts:
- In 1988, the law firm of Tarlow, Levy & Droney, P.C. (the firm) jointly represented Violet Mackler and her husband, Philip Mackler, in the purchase of a house.
- The firm had no other professional relationship with Violet Mackler but regularly represented Philip Mackler and his businesses, Bell Food Services, Inc. and Bell Amusement, Inc.
- Violet Mackler commenced a marital dissolution action against Philip Mackler.
- During the dissolution proceedings, Violet Mackler subpoenaed three of her husband's business associates—Michael Bergeron, James Downey, and Michail Campbell—to be deposed as witnesses.
- Bergeron, Downey, and Campbell retained the firm to represent them in their capacity as nonparty witnesses in the dissolution action.
- The house purchased in 1988 was a marital asset in the dissolution, but it was not a specific focus of dispute.
- The firm never represented Philip Mackler in the dissolution action itself.
Procedural Posture:
- In the Superior Court during a dissolution action, the defendant, Violet Mackler, filed a motion to disqualify the law firm of Tarlow, Levy & Droney, P.C.
- The motion sought to prevent the firm from representing three nonparty witnesses—Michael Bergeron, James Downey, and Michail Campbell.
- The trial court granted the motion to disqualify the firm.
- The three witnesses (the plaintiffs in error) brought a writ of error to the Supreme Court of Connecticut to review the disqualification order.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the 'appearance of impropriety' alone, without a finding that the current and former representations are substantially related, justify disqualifying an attorney from representing a client?
Opinions:
Majority - Norcott, J.
No. The trial court improperly disqualified the plaintiffs' counsel on the basis of an appearance of impropriety without applying the correct legal standard, which requires an analysis of whether the firm's current representation of the witnesses is substantially related to its prior representation of the defendant. The court's authority to regulate attorney conduct is governed by the Rules of Professional Conduct, which superseded the former Code of Professional Responsibility. Unlike the old code's Canon 9, the current Rules do not include an 'appearance of impropriety' standard. The controlling rule is Rule 1.9, which mandates disqualification only when an attorney represents a new client in 'the same or a substantially related matter' where the new client's interests are 'materially adverse' to the former client. The court has previously held that an 'appearance of impropriety' is 'simply too slender a reed' on which to base a disqualification. The trial court erred by focusing on the defendant's subjective perception that her husband might be controlling the litigation rather than conducting the required objective analysis of the relationship between the two representations. Disqualification standards are meant to protect client confidences, not to restrict a person's choice of counsel based on a litigant's feelings or suspicions.
Analysis:
This decision formally rejects the vague 'appearance of impropriety' standard as an independent basis for attorney disqualification in Connecticut. It solidifies the 'substantial relationship' test under Rule 1.9 as the definitive framework, creating a more objective and predictable standard. The ruling strengthens a client's right to freely choose their counsel by preventing disqualification motions based merely on an opposing party's subjective perceptions or tactical maneuvering. By clarifying that disqualification is a drastic remedy reserved for cases with a clear connection between past and present matters, the court aims to protect the attorney-client relationship from unwarranted disruption.
