Estep v. Johnson

• Decision Date: 16 October 1974
• Docket Number: Civ. No. N-74-83.
• Citation: 383 F. Supp. 1323
• Court: U.S. District Court — District of Connecticut
• Parties: Deborah ESTEP et al. v. Herbert JOHNSON et al.

383 F. Supp. 1323

Deborah ESTEP et al. v. Herbert JOHNSON et al.

Civ. No. N-74-83.

United States District Court, D. Connecticut.

October 16, 1974.

John R. Williams, New Haven, Conn., for plaintiffs.

Frank M. Grazioso, New Haven, Conn., Robert E. Reilly, Corp. Counsel, West Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON PLAINTIFF ESTEP'S MOTION TO DISQUALIFY

NEWMAN, District Judge.

This motion to disqualify an attorney raises an apparently unresolved question of conflict of interest in the context of an OEO-funded legal services agency. The issue is whether a staff attorney and a member of the agency's board of directors may represent adverse parties in a lawsuit, and if not, what remedy is appropriate.

The motion is made by plaintiff Estep in a suit under 42 U.S.C. § 1983 against police officers and defendants Caccavale and Burr. Caccavale owns the building in which Estep rents an apartment. The complaint alleges that Caccavale and Burr, another tenant, conspired with the police officers to force Estep to vacate her apartment, and that the police officer perpetrated an unlawful search in furtherance of this scheme. Prior to the filing of this suit, Estep sought and secured representation from Attorney Francis X. Dineen in her efforts to resist eviction by Caccavale. Atty. Dineen is a staff attorney with New Haven Legal Assistance Association (L.A.A.), an OEO-funded legal services agency. Atty. Dineen, though not representing Estep in this damage action, still represents her in her landlord-tenant dispute with Caccavale, which has become the subject of a suit in the state courts. In this Civil Rights Act suit, Attorney Frank M. Grazioso, a member of the Board of Directors of L.A.A., has entered an appearance for defendants Caccavale and Burr.

Estep's counsel in this suit contends that Dineen's representation of Estep in the landlord-tenant dispute is so intimately related to the pending suit as to create a conflict of interest between Dineen on one side and Grazioso on the other. He has moved for Grazioso's disqualification. Grazioso concedes that if he were Dineen's law partner, the relationship between the landlord-tenant dispute and the pending suit would disqualify him from acting in a capacity adverse to the interests of plaintiff Estep. He resists the motion, however, contending that an L.A.A. board member is not disqualified from representing interests adverse to those represented by an L.A.A. staff attorney.

The Court accepts the premise of the parties that the case should be considered as if Attys. Dineen and Grazioso were adversaries in the same litigation. They presently represent clients with adverse interests, and the adversity is involved in this suit. In such circumstances the possibility of a conflict of interest or at least its appearance is sufficiently real to make such representation inappropriate. Under the Code of Professional Responsibility, "A lawyer should exercise independent professional judgment on behalf of a client," (Canon 5) and "A lawyer should avoid even the appearance of impropriety." (Canon 9). There is a substantial risk that Dineen's ability to exercise independent professional judgment will appear to be compromised as long as a director of his board represents a client adverse to the interests of Dineen's client. If Estep's claims were settled, it is entirely understandable that she would be suspicious that the board-member role of her adversaries' lawyer gave him some unwarranted advantage over her attorney.

Though the adversary relationship between the clients of the staff attorney and the board member requires some corrective action, the appropriate remedy is not necessarily limited to the latter's withdrawal of his appearance. The remedy should be determined by the nature of the problem that has arisen. If the adverse clients were represented by members of the same law firm, withdrawal from the litigation would be appropriate, Humble Oil & Refining Company et al. v. American Oil Company et al., 224 F.Supp. 909 (E.D. Mo.1963). Cf. W. E. Bassett Company v. H. C. Cook Company et al., 201 F. Supp. 821 (D.Conn.1961). The same result would follow if both attorneys were on the staff of the same legal services agency. Borden v. Borden, 277 A.2d 89 (D.C.App.1971). Those associated together in the practice of law, whether in a traditional law firm or a legal services agency, enjoy an intimate working relationship with each other. Within this relationship an attorney must feel entirely free to consult with his associates, to seek their professional advice, and to share with them the facts of a case on which helpful advice can be given. This opportunity for shared knowledge of a client's affairs lies at the heart of the conflict of interest when associated attorneys represent adverse interests. Of course, in the traditional law firm context there is also the threat to independent action that arises from the economic conflict of interest. See Code of Professional Responsibility, EC 5-21.

The relationship within a legal services agency of board member to staff attorney differs in important respects from the relationship between attorneys within a law firm or within a legal services agency. The critical difference is the absence of a general opportunity for shared knowledge by the board member of the affairs of the staff attorney's client. In outlining ethical considerations governing the operation of legal services agencies, the Committee on Professional Responsibility of the American Bar Association has plainly stated:

Once the attorney of a legal services agency has accepted a client or case of the nature and type sanctioned by board policy, the board must take special precautions not to interfere with its attorney's independent professional judgment in the handling of the matter. ABA Formal Opinion 324, p. 9 (August 9,

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