Sowell v. DiCara

• Court: Connecticut Court of Appeals
• Writing for the Court: LAVINE, J.
• Citation: Sowell v. DiCara, 161 Conn.App. 102, 127 A.3d 356 (Conn. App. 2015)
• Decision Date: 10 November 2015
• Docket Number: No. 36921.,36921.
• Parties: Julie M. SOWELL v. Deirdre H. DiCARA et al.

161 Conn.App. 102

127 A.3d 356

Julie M. SOWELL

v.Deirdre H. DiCARA et al.

No. 36921.

Appellate Court of Connecticut.

Argued May 12, 2015.

Decided Nov. 10, 2015.

George E. Mendillo, self-represented, the plaintiff in error.

Jeffrey J. Tinley, with whom, on the brief, was Amita P. Rossetti, Waterbury, for the defendants in error (named defendant et al.).

LAVINE, PRESCOTT and ELGO, Js.

LAVINE, J.

This case comes before this court on a writ of error brought by the plaintiff in error, George E. Mendillo, attorney for the plaintiff, Julie M. Sowell. In his writ of error, Mendillo alleges that, during the course of a hearing on an emergency motion for protective order (motion for protective order), the trial court, Hon. Barbara J. Sheedy, judge trial referee, (1) improperly found that he had violated rule 4.2 of the Rules of Professional Conduct as there was no clear and convincing evidence to warrant such a finding, (2) violated his state and federal constitutional rights to due process, and (3) abused its discretion by refusing to let him present testimonial and documentary evidence at the hearing on the motion for protective order.¹ We dismiss the writ of error.

The record discloses the following uncontested facts. The underlying wrongful discharge action (Sowell action) was commenced in the summer of 2012. Sowell filed a revised complaint on August 30, 2013, alleging, in relevant part, that she was a licensed marriage and family therapist who had been employed by the defendant Southbury–Middlebury Youth and Family Services (agency) to provide mental health services to students and youth in the defendant Region 15 School District (Region 15). The revised complaint also alleged that the defendant Deirdre H. DiCara was the executive director of the agency, and the defendant Mary Jane McClay is the chairperson of the agency's board of directors.²

Sowell further alleged that the agency hired her as a counselor in 1997, and that she became the agency's clinical director in 2006. Beginning in 2010, disputes about the agency's management arose between Sowell and DiCara and McClay. Sowell alleged that in late 2011, she reported to the superintendent and members of the Region 15 board of education her suspicions that the agency had violated state laws and regulations. She also alleged that DiCara and McClay created a hostile work environment, and that she experienced severe hypertension requiring her to take a medical leave of absence in early 2012. By letter dated February 21, 2012, Sowell notified the agency that she intended to resign her position as clinical director effective June 30, 2012. On February 25, 2012, Sowell received a letter from the agency terminating her employment effective immediately. Sowell alleged that DiCara and McClay conspired to terminate her employment due to her physical disability and the fact that she had disclosed the agency's violations of law. Sowell's twenty-one count revised complaint alleged various torts, breaches of contract, and statutory violations against each of the defendants and Region 15.

On October 30, 2013, the defendants filed an answer denying the material allegations of the revised complaint and alleged special defenses. The agency also alleged a breach of contract counterclaim that, on information and belief, claimed that on dates when Sowell reported that she was too ill to work at the agency, she engaged in her private counseling practice and was compensated by her private clients for her services. Moreover, Sowell failed to inform the agency that she had engaged in private practice while she was on paid sick leave thereby breaching the covenant of good faith and fair dealing, her duty of loyalty, and her duty of honest and faithful service as an employee of the agency. The agency alleged damages.

On December 5, 2013, the agency filed the motion for protective order in which it stated that it was seeking "an emergency hearing and protective order to permanently enjoin ... Mendillo, from having any further contact of any kind with members of the Board of Directors of [the agency] without prior permission of counsel." In the memorandum of law accompanying the motion for protective order, the agency represented that, at all times relevant, the defendants were and are represented by an attorney, Jeffrey J. Tinley, of the law firm of Tinley, Nastri, Renehan & Dost, LLP (Tinley firm).³

The memorandum of law in support of the motion set forth the following facts. On December 2, 2013, Tinley received a letter signed by Mendillo that was dated November 29, 2013.⁴ Attached to that letter were copies of a claim letter that Mendillo had sent directly to members of the agency's board of directors,⁵ but not to DiCara and McClay. In the claim letter, Mendillo suggested that counsel for the agency had filed the counterclaim without authority and that the board members could be individually liable to Sowell. The memorandum of law described the content of the claim letter⁶ and set forth the pertinent portion of article IV of the agency's bylaws.⁷ The memorandum represented that during discovery, the defendants had provided Mendillo with a copy of the agency's bylaws. Moreover, it represented that Mendillo never obtained Tinley's permission to communicate directly with the board of directors.

The memorandum of law identified the defendants and Region 15. It set forth Sowell's employment history with the agency and that she is Mendillo's sister. It also described Sowell's cause of action against the defendants and stated that the agency had been dissolved on December 27, 2012, and was in the process of winding up its affairs.

As to the applicable law, the memorandum of law cited rule 4.2 of the Rules of Professional Conduct, which provides in relevant part: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so...." The agency added that the purpose of rule 4.2"is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is to prevent situations in which a represented party may be taken advantage of by opposing counsel." Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236, 578 A.2d 1075 (1990).

The agency argued that when the client is an organization, those individuals who have managerial responsibility fall within the definition of a client as the term is used in rule 4.2, citing specific language in the official commentary to rule 4.2.⁸ It contended that Mendillo knowingly and wilfully violated rule 4.2 because he knew that the agency was represented by counsel as he had a copy of the agency's bylaws that state that the board of directors manages the agency's business. The agency argued that because Mendillo communicated directly with the members of the board of directors and knowingly requested that they authorize the withdrawal of the agency's counterclaim against Sowell, he had violated rule 4.2.

The agency also cited rule 2.15 of the Code of Judicial Conduct, in support of its motion for a protective order. Rule 2.15(d) provides: "A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action." See Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993) (court has authority to regulate conduct of attorneys and duty to enforce standards regarding their conduct). The memorandum of law concluded that, given Mendillo's direct communication with the board of directors regarding the merits of the agency's counterclaim against Sowell for the purpose of influencing their decision to withdraw it, the agency was entitled to a protective order prohibiting Mendillo from having further unauthorized communication with the board of directors. Significantly, the agency requested only that its motion for protective order be granted; it did not ask the court to sanction Mendillo for communicating with the board of directors.

Sowell filed an objection to the agency's motion for a protective order. In it, she argued that the agency was a dissolved nonprofit nonstock corporation and that the counterclaim was filed without the knowledge or consent of the board of directors. Although Tinley represented the defendants, Sowell argued, he did not represent the board of directors in their individual capacities. She relied on rule 1.13 of the Rules of Professional Conduct to support her argument.

Sowell also argued in her written objection that the board of directors had not authorized Tinley to represent the agency in the Sowell action or to file the counterclaim, which contained false and libelous allegations. In support of her arguments, Sowell relied on portions of McClay's deposition at which McClay testified that she had not communicated with the board of directors since the board last held a meeting in July, 2012.⁹ Sowell, therefore, argued that McClay lacked authority to represent the agency in the Sowell action. Moreover, Sowell argued that a conflict of interest existed between McClay and the board of directors because McClay is a defendant in the Sowell action. In conclusion, Sowell argued that unless Tinley could establish that he was retained to represent the agency by a person who had corporate authority to do so, he lacked standing to proceed with the agency's motion for a protective order. Sowell contended that the only issue with regard to the protective order "is whether the notice claim letter sent by [Mendillo ] to individual members of the [agency's ] board of directors, advising them that theywill be held personally liable to [her ] if the counter-claim filed by [the agency ] is not withdrawn, is prohibited by rule 4.2 of the Rules of Professional Conduct. " (...