Stowell v. Bennet

Stowell v. Bennett (99-240); 169 Vt. 630; 739 A.2d 1210

[Filed 18-Aug-1999]

						
                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-240

                               JUNE TERM, 1999


Arthur Stowell, Sr.	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Chittenden Superior Court
	                               }	                        
Sheila Bennett	                       }
	                               }	DOCKET NO. S1417-98CnC	


             In the above-entitled cause, the Clerk will enter:


       Plaintiff Arthur Stowell, Sr. appeals from an order of the superior
  court granting defendant  Sheila Bennett's motion to disqualify Stowell's
  attorney, Robert Katims.  Stowell contends the  court erred in concluding
  that Katims' former representation of Bennett in an unrelated criminal 
  matter required his disqualification.  We agree and, therefore, reverse.
   	
       The material facts are undisputed.  Stowell and Bennett had previously
  lived together with  their two children in a trailer in Hinesburg.  They
  were not married.  After the parties separated,  Bennett continued to live
  in the trailer with the two children.  In November 1998, Stowell filed  an
  action in superior court to regain possession of the trailer and its
  contents.  He was  represented by Attorney Katims.  Katims had previously
  represented Bennett in an unrelated  criminal matter in district court,
  which was eventually dismissed in 1995.  

       In March 1999, Bennett moved to disqualify Katims from his
  representation of Stowell on  the basis of his previous representation of
  Bennett.  Bennett alleged that Katims was privy to  confidences from the
  prior representation that might be used against her in the current
  litigation,  and that his representation of her former boyfriend gave rise
  to the appearance of impropriety  and lessened her confidence in the legal
  system.  Stowell opposed the motion, arguing that the  current lawsuit was
  entirely unrelated to the previous representation, and that no confidential 
  communications had occurred that might disadvantage Bennett.  Bennett
  subsequently  acknowledged that she had not had any conversations with
  Katims when Stowell was not present.  The trial court granted the motion
  without a formal hearing, citing EC 4-5 and 4-6 of the  Vermont Code of
  Professional Responsibility.  

       Stowell thereupon filed a petition for extraordinary relief with this
  Court under V.R.A.P.  21(b).  We granted the petition, noting that
  petitioner lacked any other adequate avenue of relief  through
  interlocutory appeal or appeal from a final order.
    
       A motion to disqualify counsel is a matter that rests within the sound
  discretion of the trial  court, and its ruling will not be disturbed absent
  an abuse of discretion. See In re Vt. Elec.  Power Producers, Inc., 165 Vt.
  282, 293 (1996).  The propriety of a lawyer representing a party  in a
  lawsuit adverse to the interests of a former client is addressed in EC 4-5
  and EC 4-6 of the  Vermont Code of Professional Responsibility.  EC 4-5
  states, in part, that a "lawyer should not  use information acquired in the
  course of the representation of a client to the disadvantage of the

 

  client .  .  .  .  Care should be exercised by a lawyer to prevent the
  disclosure of the confidences  and secrets of one client to another, and no
  employment should be accepted that might require  such disclosure."  EC 4-6
  in part provides: "The obligation of a lawyer to preserve the  confidences
  and secrets of his client continues after the termination of his
  employment."  

       In In re Themelis, 117 Vt. 19, 23 (1951), this Court observed that an
  attorney "should  refrain from accepting any employment which may require
  him to do anything which will  injuriously affect his former client in any
  matter in which he formerly represented him, and  where he may be called
  upon in his new relation, to use against his former client, any knowledge 
  or information acquired through his former connection."  

       Rule 1.9 of the Vermont Rules of Professional Conduct, which supersede
  the Code of  Professional Responsibility in September 1999, sets forth
  standards governing the representation  of interests adverse to former
  clients in terms substantively similar to Themelis.  Thus, an  attorney
  will be disqualified if he has accepted employment adverse to the interests
  of the former  client "in the same or a substantially related matter." 
  Vermont Rules of Professional Conduct,  Rule 1.9(a); see also State v.
  Crepeault, 167 Vt. 209, 216-17 (1997) (discussing scope of Rule  1.9). 
  Furthermore, an attorney may not use information relating to the former
  representation to  the disadvantage of the former client, except where the
  information has become generally  known, or disclosure is otherwise
  permitted or required by the Rules.  See Vermont Rules of  Professional
  Conduct, Rule 1.9(c).    

       Assessed in the light of these standards, the record here reveals no
  basis for the  disqualification of Attorney Katims.  First, there is no
  claim, nor any basis for concluding, that  the current action for
  possession of a mobile home is related in any respect to the criminal
  matter  in which Katims formerly represented Bennett.  Furthermore, Bennett
  virtually conceded below  that she had never had any conversations with
  Katims during the criminal case when Stowell was  not present.  Therefore,
  Katims received no "confidential communications" which he might use  to
  Bennett's disadvantage.  See V.R.E. 502(a)(4) ("a communication is
  `confidential' if not  intended to be disclosed to third persons"); State
  v. Martin, 975 P.2d 1020, 1027 (Wash. 1999)  (presence of third party
  during confidential communication generally vitiates privilege).   Although
  courts frequently presume that confidential information was obtained during
  the former  representation, the presumption arises only when the two
  matters were "substantially related."   See Crepeault, 167 Vt. at 216 (once
  substantial relationship is found, court need not inquire into  whether
  attorney in fact received confidential information because such information
  is  presumed).  As noted, there is no claim that the former criminal matter
  was related to the current  lawsuit.

       Notwithstanding the absence of any potential use of confidential
  information to her  disadvantage, Bennett has argued that disqualification
  was justified on the ground that Katims'  representation of her former
  boyfriend undermined her faith in the integrity of the justice system  and
  presented the appearance of impropriety.  The importance of public faith in
  the integrity of  the legal system is not an insignificant consideration. 
  See Crepeault, 167 Vt. at 218 (noting that  integrity of legal process
  "suffers as much from the appearance as the substance of  impropriety"). 
  The Code of Professional Responsibility admonishes generally that a lawyer 
  should "avoid even the appearance of professional impropriety," Canon 9,
  and act "in a manner  that promotes public confidence in the integrity and
  efficiency of the legal system and the legal  profession."  Vermont Code of
  Professional Responsibility, EC 9-2.  Although the new Rules of 
  Professional Conduct do not expressly state that a lawyer should avoid the
  appearance of  impropriety, other courts have concluded that the principle
  continues to apply "because its  meaning pervades the Rules and embodies
  their spirit."  First American Carriers, Inc. v. Kroger  Co., 787 S.W.2d 669, 672 (Ark. 1990).

 

       Even under Canon 9, however, courts have generally rejected the
  argument that an  appearance of impropriety, standing alone, is a
  sufficient ground for disqualification of an  attorney.  See, e.g., Waters
  v. Kemp, 845 F.2d 260, 265 n.12 (11th Cir. 1988); Board of  Education v.
  Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979); Bergeron v, Mackler, 623 A.2d 489, 494 (Conn. 1993).  As the Connecticut Supreme Court has observed, "the
  appearance of  impropriety alone is simply too slender a reed on which to
  rest a disqualification order except in  the rarest of cases."  Bergeron,
  623 A.2d  at 494 (internal quotation marks omitted).  The reason  for this
  reluctance to disqualify an attorney on the basis of appearance alone is
  that the former  client's concerns are not the only interests at stake.  In
  disqualification matters a court must also  be "solicitous of a client's
  right freely to choose his counsel."  Government of India v. Cook  Indus.,
  Inc., 569 F.2d 737, 739 (2d Cir. 1978).  A court must also be "mindful of
  the fact that a  client whose attorney is disqualified may suffer the loss
  of time and money in finding new  counsel," and lose the benefit of
  counsel's familiarity with the case.  Bergeron, 623 A.2d  at 493.
  
       Considered in the light of these competing considerations, we are not
  persuaded that the  disqualification order in this case, where there was no
  indication that the attorney's  representation risked violating any client
  confidences, was justified. 


       Reversed.


	                               BY THE COURT:



	                               _______________________________________
	                               John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice
	
	                               _______________________________________
	                               Denise R. Johnson
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice