Antoniuk v. Golden

• Court: Superior Court of Maine
• Decided: April 8, 2008
• Docket: YORcv-05-047and07-299
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIYIL ACTION YORK, ss. H~1?OC~E~)~~S.t/~ ! '. ANDREW F. ANTONIUK and ROCKMERE LODGE,

Plaintiffs

v. CY-05-047

ROBERTA GOLDEN,

Defendant ORDERS ON PENDING MOTIONS ROBERTA GOLDEN,

Plaintiff

v. CV-07-299

ROCKlIIERE LODGE, ANDREW F. ANTONIUK, ROBERT BROWN and DOUGLAS FLINT,

Defendants

In CY-05-47 Andrew Antoniuk and Rockmere Lodge, a bed and breakfast inn

located in Ogunquit, filed a complaint in February of 2005 against their neighbor

Roberta Golden regarding a right of way which benefits the plaintiffs. A counterclaim

was filed in which Ms. Golden claimed that the plaintiffs had both overburdened the

easement and interfered with her view easement. This case has been very contentious

resulting in both a finding that Ms. Golden was in contempt and in her brief

incarceration.

In CY-07-299 Ms. Golden has filed her own complaint against Rockmere Lodge,

Mr. Antoniuk and two other defendants seeking damages on several tort theories including defamation, slander of title and trespass. Numerous motions are pending in

both cases.

In CV-05-47 the defendant's motion for a view will be deferred to trial but

tentatively granted subject to the availability of funds to transport jurors and a trial at a

time of year when a view would be helpful.

In CY-05-47 and CV-07-299 the motions to consolidate will be denied. The cases

involve some different parties and are in different stages of pre-trial development.

While there is overlap between the cases the cases will be easier to present to a jury if

kept separate.

Attorney Moulton's motion to withdraw as counsel in CV-05-47 will be granted

by separate order.

In CV-05-47 defendant's motion to sequester witnesses will be granted.

In CY-07-299 defendant's motion to participate in mediation telephonically will

be denied but the parties shall work together to ease the travel burden and expenses of

the parties by choosing a mutually convenient date. If a judicial settlement conference

would be helpful one may be requested.

The only motion that requires more detailed analysis is the motion of Ms. Golden

to require Ms. Driscoll to withdraw as counsel for the plaintiffs in CV-05-47 and for the

defendants in CV-07-299. When CV-05-47 was filed the plaintiffs were represented by

the York firm of Erwin, Ott, Clark,. Orso & Campbell through attorney Gregory Orso. In

September of 2005 attorney Susan Driscoll of the Kennebunk firm of Bergen &

Parkinson, LLC began representing the plaintiffs which was followed by the

withdrawal of Mr. Orso.

In March of 2008 Ms. Golden, representing herself, filed a motion to recuse

plaintiff's attorney in CV-05-47. A similar motion has been filed in CV-07-299. In those

2 motions Ms. Golden seeks an order requiring Ms. Driscoll to withdraw as counsel since

Attorney John Kugler, who formerly represented Ms. Golden, became associated with

Bergen & Parkinson in October of 2006. A review of the relevant bar rule and the

nature of Mr. Kugler's former representation are required.

The key rule is 3.4(d)(i)(ii)(A) which reads, "When a lawyer (Mr. Kugler)

becomes affiliated with a firm (Bergen & Parkinson), the firm shall not accept or

continue representation adverse to a former client (Ms. Golden) of the lawyer, or the

lawyer's previous law firm, without that client's informed written consent, if: (A) Such

representation involves the subject matter of former representation on which the lawyer

personally worked." Ms. Golden has not given her consent while Mr. Kugler was a sole

practitioner.

There is no evidence that Mr. Kugler still has any confidential information about

Ms. Golden that he could share with Ms. Driscoll. Likewise there is absolutely no

suggestion that Mr. Kugler would share such information if it existed. There is no

suggestion that there is anything that Mr. Kugler could tell Ms. Driscoll about this case

or Ms. Golden that Ms. Driscoll has not already learned. Finally, while Ms. Golden

states that she only recently learned that Mr. Kugler had joined Bergen & Parkinson, the

timing of her motion, as trial approached and as a delay was being sought to allow for

the consolidation of the cases, is at least suspect.

Ms. Golden has provided me with a series of documents from 1992 through 1998

dealing with Mr. Kugler's representation of her in her dispute with both her current

adversaries and the prior owners of the Rockrnere property. That representation

involved both the easement benefiting Rockmere and the view easement benefiting Ms.

Golden. While the new cases involve other issues as well, the new cases certainly

3 involve "the subject matter of former representation on which the lawyer (Mr. Kugler)

personally worked."

There are two cases from the Law Court which, while they deal with the

"substantially related to the subject matter of the former representation test" found in

Rule 3.4(d)(l)(i) rather than the "involves the subject matter of former representation"

found in Rule 3.4(d)(l)(ii), are still helpful. Casco Northern Bank v. IBI Associates at 667

A.2d 856, 860-1 (Me. 1995) states what the related rule is designed to protect. The rule

protects expectations of loyalty and appearances as well as actual misuse of confidential

information, of which there is none in this case. IBI Associates involved the separate

sub-rule 3.4(d)(l)(i) which concerns itself with a situation where a lawyer commences

representation "adverse to a former client... if such new representation is (either)

substantially related to the subject matter of the former representation or may involve

the use of confidential information obtained through such former representation." The

rule governing newly affiliated lawyers, such as these cases, involve a slightly different

test. Also see Adam v. Macdonald Page & Co., 644 A.2d 461, 464-5 (Me. 1994).

Since, at the very least, Mr. Kugler's work for Ms. Golden and Ms. Driscoll's

work adverse to Ms. Golden in CV-05-47 both involve the "subject matter of former

representation",Ms. Driscoll may not remain as counsel. The cases will be stayed for 90

days to allow her current clients to obtain new counsel.

The entries are:

In CV-05-47: Defendant's motion for a view is deferred to trial.

Defendant's motion to sequester witnesses is granted.

Defendant's motion to consolidate cases is denied.

Defendant's motion to recuse plaintiff's attorney is granted.

4 In CV-07-299: Plaintiff's motion to consolidate cases is denied.

Defendant's motion to participate in mediation telephonically is denied.

Plaintiff's motion to recuse defendants' attorney is granted.

Dated: April 8, 2008

Q2;~r Justice, Superior Court

IN CV-OS-47:

Susan B. Driscoll. Esq. - PLS Bradley Moulton, Esq. - DEF Mary Womboldt, Esq. (pro hac vice) - DEF

IN CV-07-299:

Roberta A. Golden (pro se) - PL Susan B. Driscoll. Esq. - DEFS