DOCKET NO: NWH—CV2o-6005937—S
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`SUPERIOR COURT
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`A. MARK GETACHEW, et al.
`
`JUDICIAL DISTRICT OF
`STAMFORD/NORWALK
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`V.
`
`AT NORWALK HOUSING SESSION
`
`L&S INVESTMENTS, LLC, et al
`
`OCTOBER 20, 2020
`
`MEMORANDUM OF DECISION RE:
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`PLAINTIFF8’ MOTION TO DISQUALIFY COUNSEL [#1021
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`The plaintiffs seek to disqualify defendants’ counsel, Attorney Eric Grayson pursuant to
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`Rule 3.7 of the Rules of Professional Conduct, alleging that he is a necessary witness in
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`this matter.
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`This is a residential dispute over repairs alleged as necessary on the premises rented by
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`the plaintiffs. In an escape from New York because of Covid, they claim they quickly
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`negotiated a lease on the perfect property for their family and moved in shortly after
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`finding the premises and without time for a detailed inspection by a professional.
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`Attorney Grayson represented the landlords in the leasing contract and had at least one
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`nineteen minute conversation with one of the plaintiffs discussing the rider to the form
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`Greenwich rental contract during which representations were made as to the property
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`condition. Additionally, Attorney Grayson represents the defendants in a similar separate
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`action in this Court. The plaintiffs claim that these representations were false, or at least
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`uninformed, and they claim that the second action may be relevant to this case. In their
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`Amended Complaint, the plaintiffs claim that they have expended in excess of $44,000 in
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`repair costs because items such as the pool and gas line were not in working order and
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`other disrepair. (Docket Entry #109 at paragraph 38).
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`1
`
`
`
`SUPERIOR COURT
`
`A. MARK GETACHEW, et al.
`
`JUDICIAL DISTRICT OF
`STAMFORD/NORWALK
`
`V.
`
`AT NORWALK HOUSING SESSION
`
`L&S INVESTMENTS, LLC, et al
`
`OCTOBER 20, 2020
`
`MEMORANDUM OF DECISION RE:
`
`PLAINTIFF8’ MOTION TO DISQUALIFY COUNSEL [#1021
`
`The plaintiffs seek to disqualify defendants’ counsel, Attorney Eric Grayson pursuant to
`
`Rule 3.7 of the Rules of Professional Conduct, alleging that he is a necessary witness in
`
`this matter.
`
`This is a residential dispute over repairs alleged as necessary on the premises rented by
`
`the plaintiffs. In an escape from New York because of Covid, they claim they quickly
`
`negotiated a lease on the perfect property for their family and moved in shortly after
`
`finding the premises and without time for a detailed inspection by a professional.
`
`Attorney Grayson represented the landlords in the leasing contract and had at least one
`
`nineteen minute conversation with one of the plaintiffs discussing the rider to the form
`
`Greenwich rental contract during which representations were made as to the property
`
`condition. Additionally, Attorney Grayson represents the defendants in a similar separate
`
`action in this Court. The plaintiffs claim that these representations were false, or at least
`
`uninformed, and they claim that the second action may be relevant to this case. In their
`
`Amended Complaint, the plaintiffs claim that they have expended in excess of $44,000 in
`
`repair costs because items such as the pool and gas line were not in working order and
`
`other disrepair. (Docket Entry #109 at paragraph 38).
`
`1
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`
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`The parties have drafted extensive pleadings and provided the Court with exhibit books.
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`A remote evidentiary hearing was held on October 15, 2020 via Microsoft Teams. The
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`Court has considered all of the evidence provided and the testimony of the plaintiff, A.
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`Mark Getachew, Esq. The Court did not require testimony from other parties in making
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`this decision.
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`“The trial court has the authority to regulate the conduct of attorneys and has a duty to
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`enforce the standards of conduct regarding attorneys.” (Citations omitted.) Bergeron L
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`Mackler 225 Conn. 391, 397 (1993).
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`“In disqualification matters, however, we must be solicitous of a client’s right freely to
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`choose his counsel .
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`.
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`. mindful of the fact that a client whose attorney is disqualified may
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`suffer the loss of time and money in finding new counsel and may lose the benefit of its
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`longtime counsel’s specialized knowledge of its operations. .
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`.
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`. The competing interests at
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`stake in the motion to disqualify, therefore, are: (1) the defendant’s interest in protecting
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`confidential information; (2) the plaintiffs’ interest in freely selecting counsel of their
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`choice; and (3) the public’s interest in the scrupulous administration ofjustice.” (Citations
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`omitted; internal quotation marks omitted.) Bergeron at 397-98.
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`“In view of the strong public policy favoring a party’s right to select its own counsel, the
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`law places the burden of showing that disqualification is required upon the moving party
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`.
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`.
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`.
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`. A party moving for disqualification of an opponent’s counsel must meet a high
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`standard of proof .
`
`.
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`.
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`. [B]efore permitting a party to disqualify an attorney the moving
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`party bears the burden of proving facts which indicate disqualification is necessary. .
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`.
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`2
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`.The courts should act very carefully before disqualifying an attorney and negating the
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`right of a client to be represented by counsel of choice.” (Internal citations and quotation
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`marks omitted.) Trails of Courage.
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`Inc. v. Markwell,
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`(Order on Motion for
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`Disqualification, Superior Court, Judicial District of Danbury, Docket No. DBD—CV19—
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`6030475, July 9, 2019, J. D’Andrea).
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`Rule 3.7 of the Rules of PLil’essionall Conduct provideszv“(a) A lawyer shall not act as
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`advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) The
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`testimony relates to an uncontested issue; (2) The testimony relates to the nature and
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`value of legal services rendered in the case; or (3) Disqualification of the lawyer would
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`work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in
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`which another lawyer in the lawyer’s firm is likely to be called as a witness unless
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`precluded from doing so by Rule 1.7 or Rule 1.9.”
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`The Official Commentary to Rule 3.7, provides, in part: “The tribunal has proper
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`objection when the trier of fact may be confused or misled by a lawyer serving as both
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`advocate and witness. The opposing party has proper objection where the combination
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`of roles-may prejudice that party’s rights in the litigation. .
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`.
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`. To protect the tribunal,
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`subsection (a) prohibits a lawyer from simultaneously serving as an advocate and
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`necessary witness except in those circumstances specified in subsections (a)(1) through
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`(a) (3).”
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`
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`“The Rules of Professional Conduct establish the guidelines for our determination of
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`what constitutes a conflict of interest .
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`.
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`.
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`. We have interpreted [R]ule 3.7 to require an
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`attorney to withdraw if he or she reasonablyforesees that [they] will be called as a witness
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`to testify on a material matter .
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`.
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`.
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`.” (Citation omitted; emphasis in original; internal
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`quotation marks omitted.) State v. Crespo, 246 Conn. 665, 685 n.14, (1998).
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`Will Attorney Grayson be a necessary witness in this matter?
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`“A necessary witness is not just someone with relevant information, however, but
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`someone who has material information that no one else can provide. Whether a witness
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`ought to testify is not alone determined by the fact that he has relevant knowledge or was
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`involved in the transaction at issue. Disqualification may be required only when it is likely
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`that the testimony to be given by the witness is necessary. Testimony may be relevant and
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`even highly useful but still not strictly necessary. A finding of necessity takes into account
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`such factors as the significance of the matters, weight of the testimony and availability of
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`other evidence. .
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`.
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`. A party’s mere declaration of an intention to call opposing counsel as
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`a witness is an insufficient basis for disqualification even if that counsel could give
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`relevant testimony. .
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`.
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`. There is a dual test for necessity. First the proposed testimony
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`must be relevant and material. Second, it must be unobtainable elsewhere.” (Emphasis
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`omitted; internal quotation marks omitted.) DiNardo Seaside Tower. LLC v. Sikorslq
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`Aircraft Corp, 153 Conn. App. 10, 49 (2014).
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`In the present matter, this Court finds that the plaintiffs have failed to meet their burden
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`of indicating that the disqualification of Attorney Grayson is required or that he will be a
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`4
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`necessary witness at trial. His testimony would largely be centered upon representations
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`he made regarding habitability of the premises and conditions of the pool on the day
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`before the plaintiffs took occupancy of the premises. Mr. Getachew claims that he relied
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`more heavily on the passing statements of Attorney Grayson in making his decision to
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`execute the lease than he did on similar statements made by the listing agent and non—
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`licensed handymen that inspected the premises who would have actual knowledge of the
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`premises. Even so,
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`if Attorney Grayson’s testimony regarding his statements were
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`relevant and material, it is not testimony unobtainable elsewhere as one of the plaintiffs,
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`Mr. Getachew, himself, was on the other side of the conversation and can testify as to the
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`conversation at trial - as he did at this hearing. Also, Mr. Getachew has previous working
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`knowledge of pools and spas that Attorney Grayson lacks.
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`Further, exception (a)(1) applies to this matter as it does not appear that the testimony
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`from Mr. Getachew regarding the conversation is contested. The real issue in this matter
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`is the amount expended for alleged repairs — not whether there was an actual need for
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`those repairs or if the pool, spa and gas lines were in a state of disrepair when the plaintiffs
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`took possession rather than whether the plaintiffs only rented this property solely on the
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`brief statements of Attorney Grayson. The Prayer for Relief still requesting a judicial
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`declaration that the plaintiffs can purchase the property does not manifest a regret by the
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`plaintiffs for entering into this lease as they still must covet the property. The language of
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`the lease and rider will speak for themselves at trial.
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`As the testimony regarding the conversations and representations of Attorney Grayson
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`are easily obtainable from a witness that does not even need to be subpoenaed, the Court
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`cannot conclude that Attorney Grayson would be a necessary witness to this matter at
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`trial pursuant to the language of Rule 3.7. Therefore, this Court finds that there are
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`inadequate grounds for disqualifying him from representing the defendants at trial.
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