Date: April 9, 1997

Case Nos.: 97-CAA-2 and 97-CAA-9

In The Matter Of:

PAUL BERKMAN
    Complainant

v.

U.S. COAST GUARD ACADEMY
    Respondent

    Complainant has submitted, by original document filed February 3, 1997, a Motion to Disqualify Lieutenant Commander Thomas Lennon (hereinafter Motion) from representing the U.S. Coast Guard Academy in the above-captioned matter. The Motion, supported by the January 30, 1997, handwritten Affidavit of Complainant, factually argues disqualification is appropriate due to the fact that Lieutenant Commander Lennon will be called as a witness in this matter. While the Motion to Disqualify presented factually interesting statements, this Judge was unable to issue a ruling because the Motion was devoid of legal precedent and/or applicable rules of practice.

    Upon request of this Administrative Law Judge and pursuant to this Court's Order dated March 7, 1997, which Order invited Memoranda of Law be submitted by both counsel,¹ Complainant submitted a Memorandum of Law in Support of the Motion to Disqualify (hereinafter Memorandum). Complainant presented this Court with the Connecticut Rules of Professional Conduct, Rules 3.7, 1.6 - 1.9, and 1.16, and citations to the Comments thereon. See Generally, Memorandum at pp. 2-6. Because I find sufficient cause pursuant to Rule 3.7 to disqualify Lieutenant Commander Lennon, the remainder of the Connecticut Rules shall remain undiscussed.²

    This Judge shall pause to note that a court should be especially cautious when considering a motion to disqualify because of the immediate effect disqualification has on a client by separating him from his counsel of choice and because such a motion is often interposed for tactical reasons. See MMR/Wallace Power & Indus. v. Thames Assocs., 764 F. Supp.

    The rule is premised upon the belief that when "a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility..." Rapuano, 471 A.2d at 242 (citations omitted). See Also International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975).³ It has been stated "the ultimate justification for the disqualification rule...was that the public might think that the lawyer is distorting the truth for the sake of his client." Id. at 1294 (Citing 6 Wigmore on Evidence §1911 (3d Ed. 1940)). It would be appropriate at this point, however, to note that a court should not allow a party moving to disqualify to 'smoke out,' or force the withdrawal of the non-movant's counsel, simply by asserting a defense or counter-claim as to which the non-movant bears the burden and testimony of the non-movant's counsel may be relevant. In this regard, see Fast v. Southern Offshore Yachts, 587 F. Supp. 1354 (D.C. Conn. 1984).⁴

    In determining whether to disqualify an attorney when continued representation may result in a violation of a disciplinary rule, a court must balance the risk of violation and its consequences against the non-movant's right to counsel of his choice. If there is an actual violation or there is a substantial likelihood that a disciplinary rule will be violated, the court may disqualify the attorney. Rapuano, 471 A.2d at p. 243.

    Complainant argues that this matter will most likely proceed to hearing. In this case, Complainant states he will call Lieutenant Commander Lennon to testify to (1) Complainant's attitude and behavior, i.e., his emotional state, and (2) the Lieutenant

    By document filed February 4, 1997, the Respondent has opposed Complainant's Motion to Disqualify. Respondent maintains Lieutenant Commander "Lennon has never provided any form of legal advice to [Complainant]; LT Lennon does not have an attorney client relationship with [Complainant]; no one at the Coast Guard Academy Legal office has an attorney client relationship with [Complainant]; the Academy's Legal Office is not available to civilian personnel to receive advice about employment or personal matters." See Respondent's Objection to Complainant's Motion to Disqualify, at p. 3. These arguments are further elucidated in Respondent's correspondence dated April 3, 1997, received in this Office via facsimile on the same date.⁵ See Replacement of Lead Counsel for Respondent, U.S. Coast Guard, at pp. 1-2.

    It is most clear that Complainant has every intention of calling the Lieutenant Commander as a witness in this matter. It is further apparent that the issues on which Complainant intends to interrogate Lieutenant Commander Lennon are material to the Complainant's claims. At least three of the matters,⁶ form the heart of Complainant's consolidated complaints. Complainant argues, and this Judge agrees, that another matter is relevant to damages, if any, to be awarded in this case. In addition, it is of importance to the pending Motion that the arguments submitted reveal the possibility, indeed the likelihood, that Complainant and Lieutenant Commander Lennon might be pitted against one another in a credibility contest on significant issues.⁷

    Not only does the importance of the matters which the Lieutenant Commander will in all likelihood testify on compel this Judge to grant the Motion to Disqualify, but such a result is also supported by the underlying rationale for Rule 3.7. It is noteworthy that, on the one hand, Lieutenant Commander Lennon's appearance as co-counsel nullifies one of the bases in favor of disqualification. For example, Lieutenant Commander Lennon could avoid being in the "unseemly and ineffective position of arguing his own credibility" because lead counsel would be the voice of Respondent at hearing.

    On the other hand, two significant bases in favor of disqualification remain. First, it remains that the public might think that the lawyer is distorting the truth for the sake of his client even when the attorney appears as co-counsel. Second, it remains that the Lieutenant Commander is impeachable for interest because he will remain as co-counsel.

    This Judge has also considered the resultant prejudice Respondent may suffer due to its attorney's disqualification. The general rule is that motions to disqualify counsel filed shortly before trial and after much discovery has been conducted work great prejudice on the

    The matter at hand similarly demonstrates a lack of prejudice. Counsel for Respondent filed his notice of appearance on December 19, 1996. On January 31, 1997, this court ordered discovery be postponed until such time as Respondent's Motion for Summary Decision was decided.⁸ The Motion for Summary Judgment was denied on March 7, 1997, and an order issued informing the parties that discovery would continue to be postponed pending resolution of the Motion to Disqualify. It is, therefore, apparent that little to no discovery has taken place in this matter.    

Accordingly, Complainant's Motion to Disqualify Lieutenant Commander Lennon from appearing as Respondent's counsel in the above-captioned matter is hereby GRANTED. It is anticipated that the Lieutenant Commander shall notify the Respondent of same and advise that a Notice of Appearance should be entered by Mr. William G. Haskin, assuming Mr. Haskin shall assume the role of sole counsel.

    Both parties are hereby NOTIFIED that discovery shall resume as of Monday, April 28, 1997. This date shall allow time for this Judge to rule upon Respondent's Motion to Dismiss and it shall allow time for Respondent to select counsel and enter a Notice of Appearance.

    Complainant is hereby NOTIFIED that he has an outstanding responsibility to produce to this Judge, with copy to Respondent, a properly numbered and lettered affidavit of Complainant, the content of which should otherwise remain exactly the same. In this regard, Complainant should refer to this Court's Order Denying Respondent's Motion for Summary Decision and Notice on Complainant's Motion to Disqualify dated March 7, 1997, at footnote 1.

      DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:jw:ln

¹Despite this invitation, Respondent did not submit any legal memorandum in opposition to Complainant's Motion. Rather, Respondent relies upon argument in its Objection to Complainant's Motion to Disqualify. This Objection is discussed infra, at p. 3.

²Rules 1.6 - 1.9 address the situation where an attorney is or might be presented with a conflict of interest.

³The Flanzer court was considering an analogous Disciplinary Rule, DR 5-101 and 5-102.

⁴The Fast court, like that in Flanzer, was considering DR 5-102.

⁵This document, entitled Replacement of Lead Counsel for Respondent, U.S. Coast Guard, indicates that while Lieutenant Commander Lennon shall remain on this case as co-counsel, Mr. William G. Haskin shall assume the role of lead counsel. Lieutenant Commander Lennon, who has indicated he will no longer occupy his current position as of June 23, 1997, submitted this document upon request from representative of this Court. It was believed that the inevitable reassignment of this matter could simply be stepped up in time, rendering the pending Motion moot. Upon receipt of this notification of replacement and Lieutenant Commander's intention to remain as co-counsel, it is evident that Complainant's reasons for seeking disqualification retain their validity.

⁶These are the matters of Lieutenant Commander Lennon's knowledge of and/or participation in Complainant's Notice of Proposed Removal, removal of Complainant's signature authority, and removal of Complainant from the position of the Academy's Environmental Engineer.

⁷For example, Complainant attests he informed Lieutenant Lennon that his supervisors were threatening and harassing him on at least two occasions, see Complainant's Affidavit of January 30, 1997, at para. 6, and Lieutenant Commander Lennon states he never engaged in a conversation with Complainant except to inform Complainant that he could not provide him with legal advice. See Replacement of Lead Counsel for Respondent, U.S. Coast Guard, at p. 1.

⁸Discovery was postponed pending that Motion because counsel for Complainant objected to communicating ex parte with Lieutenant Commander Lennon, a possible witness.