Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ______________________________ WASLEY PRODUCTS, INC., ET AL. : : Plaintiffs, : CASE NO. 3:03-cv-383(MRK) : V. : : BARRY LEONARD BULAKITES, : ET AL. : : Defendants. : JUNE 30, 2005 ______________________________: MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISQUALIFY DAY, BERRY & HOWARD, LLP AND ITS ASSOCIATED ATTOREYS I. FACTS. In these consolidated cases, the plaintiffs allege that defendants Barry L. Bulakites, James A. Winslow and Joshua Adams Corporation (collectively the Bulakites Defendants ), as third

party administrators, negligently administered and/or mismanaged certain pension plans. One of their co-defendants, Lincoln Lincoln National ), is

National Insurance Company (hereinafter

represented by attorneys from the law firm of Day, Berry & Howard, LLP.

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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In February 2003, upon being served with the original lawsuit in these consolidated cases, the Bulakites Defendants, through Barry Bulakites, consulted the law firm of Day, Berry & Howard and two of its attorneys1 for purposes of seeking legal representation and a defense. During the course of numerous

telephonic consultations, Mr. Bulakites shared confidential information relating to the allegations in the complaint. addition, Mr. Bulakites forwarded to Day, Berry & Howard a detailed written synopsis of facts, events and opinions, which he prepared, and other related documents. Shortly thereafter, In

the Bulakites Defendants received a proposed retainer agreement from Day, Berry & Howard. In or around late March 2003, Day,

Berry & Howard forwarded another letter, stating that it was unable to represent the Bulakites Defendants due to a perceived conflict between the Bulakites Defendants and Lincoln National.

1

Attorney Glenn Dowd and Attorney Sarah Moore Fass.

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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II.

LEGAL ARGUMENT A. Standard for Disqualification.

In the District of Connecticut, the standard for attorney conduct is set by the Rules of Professional Conduct. Prisco v. Westgate Entertainment, Inc., 799 F. Supp. 266, 268 (D. Conn. 1992). that: [a] lawyer who has formerly represented a client in a matter shall not thereafter: (1) Represent another person in the same or a substantially related matter in which that person s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (2) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known. The moving party s burden is to show that: 1) there was in fact a prior attorney-client relationship; 2) the interests of the current client are adverse to those of the previous client; and 3) the matters involved in the instant case are the same or substantially related to the matters for which the previous client sought representation. Prisco, 799 F. Supp. at 269 Rule 1.9 of the Rules of Professional Conduct states

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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(citing Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983)). Once a court has determined that the matters involved

in the instant case are the same or substantially related to the matters for which the previous client sought representation, irrebuttable presumption [arises] that the former client revealed facts requiring the attorney s disqualification. at 271. Id. an

Information acquired by the lawyer in the course of

representing a client may not be subsequently used by the lawyer to the disadvantage of the client. Commentary (West 2000). Conn. R. Prof. Conduct 1.9

Disqualification of counsel is a

remedy that serves to enforce the lawyer s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information. Silver Chrysler Plymouth, Inc. v.

Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975). B. An attorney-client relationship existed between Day, Berry & Howard and the Bulakites Defendants. [a]n attorney-

For purposes of disqualifying motions,

client relationship is said to exist when the party divulging confidences and secrets to an attorney believes that he is

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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approaching the attorney in a professional capacity with the intent to secure legal advice. Trinity Ambulance Service, Inc.

v. G & L Ambulance Services, Inc., 578 F. Supp. 1280, 1283 (D. Conn. 1984)(citation omitted). Furthermore, the Second Circuit

has recognized that the court need not necessarily find that an attorney-client relationship existed in a traditional sense if

there exist[s] sufficient aspects of an attorney-client relationship for purposes of triggering inquiry into the potential conflict involved in [the attorney s] role as...counsel in [the present] action. Glueck v. Jonathan Logan, The key, of course,

Inc., 653 F.2d 746, 748-49 (2d Cir. 1981).

to whether an attorney/client relationship existed is the intent of the client and whether he reasonably understood the conference to be confidential. 657 (2d Cir. 1988). In connection with this very action, Mr. Bulakites, on behalf of the Bulakites Defendants, consulted with, and sought to be represented by, Day, Berry & Howard. He divulged U.S. v. Dennis, 843 F.2d 652,

confidential information during a series of telephone

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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consultations and written communications with the intent of securing legal advice and with the intent that the communications were confidential and protected by the attorneyclient relationship. For purposes of this motion, there can be

no serious question that sufficient aspects of an attorneyclient relationship existed between the Bulakites Defendants and Day, Berry & Howard. C. The interests of Lincoln National are materially adverse to those of the Bulakites Defendants.

Rule 1.9 does not require parties to be strict opponents in order for them to have adverse interests. See Conn. R. Prof. Conduct 1.9. See also Rella v. North Atlantic Marine, Ltd., No. 2CV8573, 2004 WL 2480409 (S.D.N.Y. Nov. 3, 2004)(where the interests of co-defendants were necessarily found adverse for purposes of disqualifying a law firm based on a conflict of interest); and In re Chan, 271 F. Supp. 2d 539, 543 n.4 (S.D.N.Y. June 19, 2003)(where after the court found that a criminal defense attorney s conduct in communicating with a represented co-defendant warranted censure, the court noted that

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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co-defendants often (perhaps more often than not) have adverse interests ). All that is required is that the interests of the

current client be materially adverse to those of the previous client. Prisco, 799 F. Supp. at 269. In Rella, different counsel was representing two codefendants in a property damage action. 2004 WL 2480409 at *1. The co-defendants did not have a joint defense agreement, presented independent defenses, and brought counterclaims against each other. Id. A member of the law firm representing

one of the co-defendants left that office to begin working for the law firm representing the other co-defendant. Id. Counsel

filed a motion to disqualify that firm on the grounds that since their former attorney worked on the same matter concerning discovery and strategic decisions about the strengths and weaknesses of their client s case, a conflict of interest existed. Id. at *2. The court granted the motion, necessarily

finding that the co-defendants were adverse parties, and stated that disqualification will be ordered when the attorney is

potentially in a position to use client confidences to the

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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advantage of the present client.

Id. at *7-8 (internal

quotation marks omitted; citation omitted). In the present cases, the commonality of interests between the Bulakites Defendants and Lincoln National ends with their respective labels as interest at stake. defendants. Each party has a distinct

They are not cooperating in any joint

defense effort, they are presenting defenses independent from one another, and they could, at any time, attempt to thrust liability onto the other in efforts to avoid or minimize their own liability. At a minimum, Day, Berry & Howard is in the

unworkable position of having former client confidences to the advantage of its present client. See Rella, 2004 WL 2480409 at *7-8. The Bulakites Defendants and Lincoln National, therefore,

have interests which are materially adverse to one another. D. Day, Berry & Howard s current representation of Lincoln National involves the same matter for which the Bulakites Defendants sought representation.

Rule 1.9 of the Rules of Professional Conduct states that counsel should be disqualified if the representation of an adverse party is in the same or a substantially related matter

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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as that of the prior representation.

In this case, Day, Berry &

Howard s confidential communications and relationship with the Bulakites Defendants involved the very lawsuit in which its current client, Lincoln National, is being represented. there is an irrebuttable presumption that the Bulakites Defendants revealed facts requiring Day, Berry & Howard s disqualification. See Prisco, 799 F. Supp at 271. There is no Thus,

need to show that the former client actually did reveal any confidences, or whether the attorney indeed will use such information to the former client s disadvantage. Id. The firm

and all of its attorneys are presumed to have gained confidential information potentially adverse to the defendants. See Conn. R. Prof. Conduct 1.10 (imputes disqualification of one member of a law firm to all other lawyers in the firm).

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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III. CONCLUSION. Based on the foregoing, the Bulakites Defendants respectfully request that their Motion to Disqualify Day, Berry & Howard, LLP and its Associated Attorneys be granted. Respectfully submitted, THE BULAKITES DEFENDANTS

BY: ____________________________ STEVEN J. ERRANTE, ESQ. Fed. Bar No. ct04292

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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CERTIFICATION I hereby certify that a copy of the foregoing was mailed on June 30, 2005 to all counsel and pro se parties of record via the United States Postal Service, postage prepaid, as follows: Joseph V. Meaney, Jr., Esq. Cranmore, Fitzgerald & Meaney 49 Wethersfield Avenue Hartford, CT 06114 Telephone: 860-522-9100 Facsimile: 860-522-3379 Ian O. Smith, Esq. Thomas G. Moukawsher, Esq. Moukawsher & Walsh Capitol Place 21 Oak Street, Ste. 209 Hartford, CT 06106 Telephone: 860-278-7000 Facsimile: 860-548-1740 Bryan D. Short, Esq. Deborah S. Freeman Sara Simeonidies, Esq. Bingham & McCutchen One State Street Hartford, CT 06103 Telephone: 860-240-2972 Facsimile: 860-240-2818

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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Albert Zakarian, Esq. Eric L. Sussman, Esq. Victoria Woodin Chavey, Esq. Day, Berry & Howard CityPlace 185 Asylum Street Hartford, CT 06103 Telephone: 860-275-0290 Facsimile: 860-275-0343 Jean Elizabeth Tomasco, Esq. Theodore J. Tucci, Esq. Robinson & Cole 280 Trumbull Street Hartford, CT 06103 Telephone: 860-275-8323 Facsimile: 860-275-8299

____________________________ Steven J. Errante, Esq.

LYNCH, TRAUB, KEEFE AND ERRANTE, P. C. ATTORNEYS AT LAW 52 TRUMBULL STREET P.O. BOX 1612 NEW HAVEN, CONNECTICUT 06506-1612 TELEPHONE (203) 787-0275 FACSIMILE (203) 782-0278
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