UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 16-cv-463-LM Opinion No. 2017 DNH 017 Oak Brook Condominium Owners’ Association, Cheryl Vallee, Perry Vallee, William Quinn Morey, Gerald Dufresne, Christos Klardie, Vickie Grandmaison, Patty Taylor, Betty Mullen, Scott Sample, John Bisson, and Warren Mills
O R D E R
Sanjeev Lath, purporting to act in both his individual
capacity and derivatively, on behalf of Oak Brook Condominium
Owners’ Association (“Oak Brook”), has filed a 16-count amended
complaint that asserts claims against 12 defendants.1 Nine of
those defendants (Oak Brook,2 Cheryl Vallee, Perry Vallee,
William Morey, Christos Klardie, Vickie Grandmaison, Patty
Taylor, Scott Sample, and Warren Mills) are represented by
1 Pending before the court is plaintiff’s motion for leave to file a second amended complaint. The analysis in this order applies with equal force regardless of how the court rules on that motion.
2 In his individual capacity, plaintiff asserts claims against Oak Brook, and on the claims he asserts derivatively, he names Oak Brook as a nominal defendant. Attorney Gary Burt. Defendant John Bisson is represented by
Attorneys Daniel Will and Joshua Wyatt. Before the court are:
(1) plaintiff’s motion to disqualify Attorney Burt; (2) a motion
filed (or joined) by all of the defendants represented by
Attorney Burt (hereinafter “defendants”), asking the court to
strike one of the attachments to plaintiff’s motion to
disqualify Attorney Burt; and (3) plaintiff’s motion to
disqualify Attorneys Will and Wyatt. The two motions to
disqualify have been opposed; the motion to strike is unopposed.
For the reasons that follow, the two motions to disqualify are
denied, and the motion to strike is granted in part and denied
in part.
As noted, this order addresses three motions. Ordinarily,
the court would deal with those motions in chronological order.
But because resolution of defendants’ motion to strike will have
an impact upon the evidence the court will consider when ruling
on plaintiff’s earlier-filed motion to disqualify Attorney Burt,
the court will begin with the motion to strike. Moreover,
because the court may strike matter from a pleading either on
motion made by a party or on its own, see Fed. R. Civ. P. 12(f),
the fact that defendants’ motion to strike was filed by an
attorney that plaintiff seeks to disqualify would create no
impediment to the court reaching the issues defendants raise in
2 their motion to strike, even if it were to disqualify the
attorney who filed it.
I. Motion to Strike
Plaintiff’s motion to disqualify Attorney Burt is supported
by, among other things, an attachment captioned “Notice of
Counsel Conduct.” In the introductory section of that notice,
plaintiff states:
This motion and the annexed memorandum will show cause as to why a Court order is necessary for a discovery protocol, such that the rights of all parties are protected. This memorandum will evidence how Attorney Gary Burt’s conduct is that of a “Rambo” litigator.
Doc. no. 20-2 at 3 (emphasis added). Plaintiff filed his notice
six days after Attorney Burt filed his appearance in this case,
before any discovery had been conducted. Necessarily, the
notice says nothing about how Attorney Burt has conducted
discovery in this case. Rather, it consists of a series of
complaints about Attorney Burt’s actions as opposing counsel in
one or more of the cases that Lath has brought against Oak Brook
in other fora.3 After describing Attorney Burt’s conduct in
those cases, plaintiff explains: “The gravamen of Plaintiff’s
Motion is to prevent a repeat of what has been an ordeal and a
3 Those cases include, at a minimum, three actions in the New Hampshire Superior Court, three before the New Hampshire Commission for Human Rights, and one in the District Division of the New Hampshire Circuit Court. See doc. no. 27-1 at 2.
3 mammoth task, to discover facts in the case.” Id. at 23
(emphasis added). Plaintiff concludes his notice with a prayer
for relief: “GRANT Plaintiff’s request for an Order on
Deposition Protocol.” Id. at 25.
Defendants respond by moving the court to strike
plaintiff’s notice or, in the alternative, to deny his request
for a deposition protocol. Plaintiff has not responded to
defendants’ motion to strike.
Plaintiff’s notice is unusual, both procedurally and
substantively. As defendants correctly point out, no such form
of pleading is recognized by the Federal Rules of Civil
Procedure (“Federal Rules”). Perhaps for that reason, the
notice was not filed as a freestanding pleading but, rather, as
an attachment to a conventional motion. However, the notice
refers to itself as a motion, and concludes with a prayer for
relief, as a motion would. The court presumes that the hybrid
nature of the notice is what led defendants to move the court,
in the alternative, either to strike the notice or to deny the
relief requested in it. That said, to the extent that
defendants ask the court to strike the notice in its entirety,
their motion is denied, but to the extent they ask the court to
4 strike the request for relief included in the notice, their
motion is granted.
Defendants base their motion to strike on Rule 12(f) of the
Federal Rules, which provides that “[t]he court may strike from
a pleading . . . any redundant, immaterial, impertinent, or
scandalous matter.’” “However, Rule 12(f) ‘motions are narrow
in scope, disfavored in practice, and not calculated readily to
invoke the court’s discretion.” Carney v. Town of Weare, No.
15-cv-291-LM, 2016 WL 320128, at *2 (D.N.H. Jan. 16, 2016)
(quoting Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59 (1st
Cir. 2013); citing Boreri v. Fiat S.P.A., 763 F.2d 17, 23 (1st
Cir. 1985)).
The court agrees with defendants that the factual content
of plaintiff’s notice, i.e., his allegations concerning Attorney
Burt’s conduct in other cases, is immaterial to this case. “To
show that matter is immaterial, defendants must demonstrate that
it has ‘no essential or important relationship to the claim for
relief or the defenses being plead[ed].’” Carney, 2016 WL
320128, at *3 (quoting Petrie v. Elec. Game Card, Inc., 761 F.3d
959, 967 (9th Cir. 2014)). Nothing that Attorney Burt may have
done during the litigation of other cases in other courts has
any relationship to whether he should be disqualified from
representing one or more of the defendants in this case. But
5 because striking matter from a pleading is a drastic and
disfavored remedy, see id. at *2, and because the objectionable
matter in the notice is immaterial but not scandalous, the court
will deny defendants’ request to strike the notice in its
entirety. That said, the court will disregard all of the
immaterial matter in the notice, and will not consider that
matter when ruling on plaintiff’s motion to disqualify Attorney
Burt.
If plaintiff’s notice consisted only of his description of
Attorney Burt’s conduct in other cases, there would be nothing
more to say. But the notice also asks the court for affirmative
relief, in the form of a deposition protocol, and defendants
object specifically to that aspect of plaintiff’s notice. The
court agrees with defendants that plaintiff’s request for a
deposition protocol must be either stricken or denied.
Because plaintiff placed his request for a deposition
protocol in an attachment to a pleading that seeks the
disqualification of Attorney Burt, plaintiff appears to have
violated LR 7.1(a)(1). Rule 7.1(a)(1) provides, in pertinent
part, that “[f]ilers shall not combine multiple motions seeking
separate and distinct relief into a single filing.” It is
difficult to see how the disqualification of Attorney Burt and
the issuance of a deposition protocol would not qualify as
6 separate and distinct forms or relief, and indeed, the notice
that plaintiff attached to his motion to disqualify actually
calls itself a motion. So, attaching the notice to a motion to
disqualify Attorney Burt would certainly appear to violate LR
7.1(a)(1), which would justify striking plaintiff’s request for
a deposition protocol.
However, plaintiff’s request for a discovery protocol could
plausibly be construed as a conditional request that comes into
play only in the event of an unfavorable decision on his motion
to disqualify Attorney Burt. On that reading, a deposition
protocol would not be separate and distinct relief but, rather,
would be an alternative form of relief, intended to address the
same underlying issue as the relief plaintiff seeks in his
motion to disqualify Attorney Burt. Even under that plaintiff-
friendly construction of plaintiff’s notice, the court must
still deny the request for relief stated therein.
As the court has noted, no discovery has yet taken place in
this case, and plaintiff asks this court to order a deposition
protocol based upon Attorney Burt’s conduct in one or more other
cases in the state courts. Obviously, the state courts were or
are the appropriate fora in which to address the conduct
described in plaintiff’s notice. Any number of concerns,
including comity, compel this court to decline plaintiff’s
7 invitation to put Attorney Burt on trial in this case for his
conduct in other cases. The court’s sole concern in this case
is the conduct of discovery in this case. Should any problems
arise during the depositions in this case, those problems may be
addressed in the normal course.
In sum, to the extent that defendants move to strike
plaintiff’s notice in its entirety, their motion is denied.
But, to the extent that they object to plaintiff’s request for a
deposition protocol, their motion to strike is granted.
II. Motion to Disqualify Attorney Burt
Plaintiff moves to disqualify Attorney Burt on grounds
that: (1) in various state-court actions in which Attorney Burt
was opposing counsel, he took actions with the primary purpose
of embarrassing, delaying, or hindering him, in violation of
Rule 4.4 of the New Hampshire Rules of Professional Conduct (“NH
Conduct Rules”); (2) in those actions, Attorney Burt provided
him with legal advice, in violation of Rule 4.3; and (3) Oak
Brook’s status as both a normal defendant on his individual
claims and the nominal defendant on his derivative claims
creates a concurrent conflict of interest, under Rule 1.7, that
must be remedied by Attorney Burt’s disqualification.
8 The court begins with the applicable legal framework and
then turns to plaintiff’s arguments for disqualifying Attorney
A. The Legal Framework
Under the United States Code, “all courts established by
Act of Congress may from time to time prescribe rules for the
conduct of their business.” 28 U.S.C. § 2071(a). This court
has prescribed rules for the conduct of its business that
provide, in pertinent part:
The Standards for Professional Conduct adopted by this court are the Rules of Professional Conduct as adopted by the New Hampshire Supreme Court, as the same may from time to time be amended by that court, and any standards of conduct set forth in these rules.
LR 83.5, DR-1.
The NH Conduct Rules include provisions that, under certain
circumstances, might require the disqualification of a party’s
opposing counsel. But, as the New Hampshire Supreme Court
(“NHSC”) has explained, in a case involving Rule 1.9(a) of the
NH Conduct Rules:
Disqualification . . . “conflicts with the general policy favoring a party’s right to representation by counsel of choice, and it deprives current clients of an attorney familiar with the particular matter.” Id.; see also McElroy v. Gaffney, 129 N.H. 382, 390 (1987). We must, therefore, seek to ensure that the trust and loyalty owed by lawyers to their clients are not compromised, while preserving the ability of clients to freely engage counsel of their choice.
9 See, e.g., Ramada Franchise v. Hotel of Gainesville, 988 F. Supp. 1460, 1463-64 (N.D. Ga. 1997); Federal Deposit Ins. Corp. v. Amundson, 682 F. Supp. 981, 985 (D. Minn. 1988); In re I Successor Corp., 321 B.R. 640, 647 (Bankr. S.D.N.Y. 2005).
Goodrich v. Goodrich, 158 N.H. 130, 136 (2008) (parallel
citations omitted). Finally, while the NHSC does not appear to
have spoken directly to the question of the burdens and
presumptions that apply to a motion to disqualify, it seems
fairly clear that the burden to demonstrate a conflict of
interest falls to the party seeking to disqualify opposing
counsel. See Galvin v. Specialized Loan Servicing LLC, No. 15-
cv-386-JL, 2015 WL 10097218, at *2 (D.N.H. Dec. 9, 2015), R & R
adopted by 2016 WL 614406 (Feb. 16, 2016) (citing Sullivan Cty.
Reg’l Refuse Disposal Dist. v. Town of Acworth, 141 N.H. 479,
481 (1996); Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1384 (10th
Cir. 1994); Kaselaan & D’Angelo Assocs., Inc. v. D’Angelo, 144
F.R.D. 235, 238 (D.N.J. 1992); Kevlik v. Goldstein, 724 F.2d
844, 851 (1st Cir. 1984)).
1. Rule 4.4(a)
As the court has noted, this case is not the first action
that Lath has brought against Oak Brook. In reliance upon Rule
4.4(a) and LR 83.5, DR-5(a), plaintiff argues that Attorney Burt
should be disqualified in this case because of his conduct
10 during a deposition in a previous action. The court does not
agree.
Rule 4.4(a) provides that “[i]n representing a client, a
lawyer shall not take any action if the lawyer knows or it is
obvious that the action has the primary purpose to embarrass,
delay or burden a third person.” The Local Rules of this court
provide that
[f]or misconduct defined in these rules, and for good cause shown, and after notice and opportunity to be heard, any lawyer admitted or permitted to practice before this court may be disbarred, suspended from practice before this court, or subjected to such other public or private disciplinary action as the circumstances may warrant.
LR 83.5, DR-5(a).
If Lath had thought that Attorney Burt had violated Rule
4.4(a) in some previous action, a question on which this court
offers no opinion, he was surely free to raise that issue in the
action in which the alleged violation took place. And if some
other court had disciplined Attorney Burt for his conduct, and
there is no evidence of any such discipline, then this court
would be in a position to impose reciprocal discipline. See LR
83.5, DR-3. But plaintiff offers no authority for the
proposition that a violation of Rule 4.4(a) in one case provides
a basis for disqualifying the offending attorney in a separate
action, and LR 83-5, DR-5 does not empower this court to impose
11 discipline upon attorneys appearing before it for misconduct in
another forum, absent a disciplinary order from that forum.
2. Rule 4.3
Plaintiff next argues that Attorney Burt should be
disqualified in this case because, in one or more of his
previous cases against Oak Brook, Attorney Burt provided him
with erroneous legal advice, in violation of Rule 4.3. In
support of that argument, he cites his Notice of Counsel
Conduct. In that document, he describes various statements that
Attorney Burt made to him on legal issues during previous
actions that, in plaintiff’s view, misstated the law. Then,
based upon a characterization of those statements as legal
advice, plaintiff asserts that Attorney Burt violated Rule 4.3.
The rule on which plaintiff bases his second argument for
disqualification provides that
[i]n dealing on behalf of a client with a person who is not represented by counsel, . . . [t]he lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
N.H. R. Prof. Conduct 4.3. The court’s analysis of plaintiff’s
Rule 4.4(a) argument applies equally to his Rule 4.3 argument.
Even if Attorney Burt had violated Rule 4.3 in some previous
12 state-court action, his conduct would provide no basis for
discipline in this court absent a disciplinary order from the
state courts of New Hampshire.
3. Rules 1.7 and 1.13
Plaintiff’s most promising argument, and the one to which
he devotes the lion’s share of his memorandum of law, is his
argument that because he is pursuing a derivative action on
behalf of Oak Brook, Attorney Burt’s simultaneous representation
of Oak Brook and its officers and directors creates a
disqualifying conflict of interest. Defendants disagree,
arguing that: (1) the two claims in plaintiff’s amended
complaint that survive their motion to dismiss cannot form the
basis of a derivative action; (2) plaintiff has not filed a
derivative action; (3) plaintiff cannot bring a derivative
action because he is not an Oak Brook shareholder; and (4) even
if plaintiff were an Oak Brook shareholder, his numerous
previous lawsuits against Oak Brook preclude him from bringing a
derivative action on Oak Brook’s behalf. Plaintiff has not
filed a reply to defendants’ objection. In any event, the court
agrees with defendants that plaintiff’s motion should be denied
because he is not an Oak Brook shareholder.
13 In his original complaint in this case, plaintiff sued 11
defendants, including Oak Brook and several of its directors and
officers. The complaint characterized the parties this way:
Plaintiff Lath is a resident at Oak Brook Condominium (“Oak Brook”), and a member of Oak Brook Condominium Owners’ Association, a not for profit corporation organized under the Laws of New Hampshire. The Association which is a Unit Owners’ Association, formed under NH RSA 356-B, as amended, is governed by a Board of [D]irectors . . . whose members are elected during an annual meeting, each year, pursuant to [the] New Hampshire Condominium Act, codified in RSA 356-B and [the New Hampshire] Voluntary Corporations and Associations Act codified in Title XXVII, NH RSA 282.
Doc. no. 1 at ¶ 5.
Plaintiff filed his original complaint in his individual
capacity. After eight of the 11 defendants filed a motion to
dismiss for failure to state a claim upon which relief can be
granted, plaintiff filed an amended complaint in which he added
a new defendant and, for the first time, purported to assert
both individual claims and claims “as a derivative shareholder,
on behalf of the nominal defendant, Oak Brook Condominium
Owners’ Association.” Doc. no. 19 at ¶ 1. He characterized the
parties in the following way:
At all material times hereto, Plaintiff Lath has been and still is a resident of Oak Brook Condominium (“Oak Brook”), and a member of Oak Brook Condominium Owners’ Association, a not for profit corporation, organized under the Laws of New Hampshire and registered with the Secretary of State for the State of New Hampshire as such. . . .
14 The Association, which is a Unit Owners’ Association, formed under NH RSA 292 and NH RSA 356-B, as amended, and deemed as a “condominium management association” by the Internal Revenue Service (26 U.S.C. 528). Oak Brook is governed by a Board of [D]irectors . . . , whose members are statutorily required to be elected, during an annual meeting or otherwise, each year, pursuant to [the] New Hampshire Condominium Act, codified in RSA 356-B and [the New Hampshire] Voluntary Corporations and Associations Act codified in Title XXVII, NH RSA 292.
Id. at ¶¶ 17-18.
In support of his motion to disqualify Attorney Burt,
plaintiff states that “[t]his instant action is a shareholder
derivative action, in part,” doc. no. 20-1 at 3, and then he
develops an argument based upon Rule 1.7, which pertains to
concurrent conflicts of interest, and Rule 1.13, which pertains
to a lawyer’s representation of an organization. His basic
premise is that Attorney Burt must be disqualified, or at the
very least, defendants Grandmaison, Sample, Morey, Cheryl
Vallee, Perry Vallee, Klardie, and Taylor4 should be ordered to
retain separate counsel, because Attorney Burt cannot offer
conflict-free joint representation to both nominal defendant Oak
Brook and the individual defendants who are officers or
directors of Oak Brook. Plaintiff’s argument fails for one
4 The court presumes that plaintiff’s omission of defendant Mills from this list is a mere oversight.
15 simple reason: he is not a shareholder in Oak Brook, and as a
consequence, he has failed to demonstrate a necessary
prerequisite for filing a derivative action.
As the court has noted, plaintiff alleges that Oak Brook
was formed pursuant to RSA chapter 292, which governs voluntary
corporations and associations. Under the heading “Capital
Structure,” chapter 292 provides that a voluntary “corporation
may generate funds through . . . [the] [i]ssuance of membership
certificates or stock certificates, or both, in the
corporation.” RSA 292:8, I. While a voluntary corporation such
as Oak Brook may generate funds through the sale of stock, it is
not required to do so and, according to Article V of Oak Brook’s
Articles of Agreement, “[t]he Association shall have no capital
stock.” Doc. no. 37-5 at 2 (emphasis added). If Oak Brook has
no capital stock then, necessarily, plaintiff is not a
shareholder. If plaintiff is not a shareholder in Oak Brook,
then he cannot bring a derivative action on its behalf, given
that a derivative action is one in which a “shareholder [of a
corporation] acts as the nominal plaintiff in a cause of action
against persons who have allegedly wronged the corporation.”
Durham v. Durham, 151 N.H. 757, 760 (2005) (citing Palmer v.
U.S. Sav. Bank of Am., 131 N.H. 433, 438 (1989)) (emphasis
added).
16 Moreover, even if Oak Brook were a stock-issuing voluntary
corporation, and plaintiff were an Oak Brook shareholder, it is
not at all clear that a derivative action would be available.
Oak Brook is an RSA chapter 292 voluntary corporation. The
statutory provisions pertaining to derivative actions appear in
RSA 293-A, which is New Hampshire’s Business Corporation Act.
And plaintiff, who carries the burden on the issue of
disqualification, has provided no authority for the proposition
that a chapter 293-A derivative action is available to a
shareholder in a chapter 292 voluntary corporation. So, the
court cannot say with certainty that a chapter 293-A derivative
action is available to plaintiff in the first instance, even if
he is an Oak Brook shareholder. But, in any event, before a
shareholder may commence a chapter 293-A derivative action, he
must make a written demand on the corporation. See RSA
293-A:7.42(1). Plaintiff does not allege that he has ever made
the required demand on Oak Brook. So, even if Oak Brook were
subject to derivative actions in the first place, plaintiff in
this case has failed to satisfy a necessary prerequisite for
commencing such an action.
The bottom line is this. Plaintiff’s motion to disqualify
Attorney Burt is based on the premise that his, i.e.,
plaintiff’s, ability to prosecute a derivative action on behalf
17 of nominal defendant Oak Brook is compromised by Attorney Burt’s
duty of loyalty to the individual defendants who are officers or
directors of Oak Brook. But because plaintiff has failed to
carry his burden of showing that he is a shareholder with
standing to pursue a derivative action, he cannot establish the
premise on which he bases his argument for disqualification.
Thus, his argument fails, and his motion to disqualify Attorney
Burt is denied.
III. Motion to Disqualify Attorneys Will and Wyatt
Plaintiff also moves to disqualify defendant John Bisson’s
attorneys, Daniel Will and Joshua Wyatt, on grounds that: (1)
they both have a conflict of interest, because their law firm,
Devine Millimet & Branch, P.A. (“Devine”), once represented Oak
Brook; and (2) attorneys from Devine may be called on to testify
at the trial of this matter.
A. Background
In August 1983, the signers of the Oak Bridge Articles of
Agreement met in the offices of Devine, Millimet, Stahl &
Branch, where they signed the agreement. Lath purchased a unit
in the Oak Brook condominium in August 2013. He initiated this
action in October 2016, and filed his amended complaint in early
November. About two weeks later, Attorneys Will and Wyatt filed
appearances in this case as counsel for Bisson.
18 B. Discussion
In his motion, plaintiff invokes two separate substantive
rules, one dealing with a lawyer’s duties to former clients
(Rule 1.9), the other dealing with the lawyer as a witness (Rule
3.7). The court considers each ground for disqualification in
turn.
1. Rule 1.9
Based upon an assertion that Oak Brook was represented by
Devine in 1983, when it was formed, plaintiff claims that
Attorneys Will and Wyatt, who are now associated with Devine,
must be disqualified because “[t]he information gained by
[Devine] during the representation of Oak Brook Condominium
Owners’ Association may be used against Lath as a member of this
Association.” Doc. no. 37-1 at 5-6. The court does not agree.
Plaintiff bases his request for disqualification on a rule
he articulates in the following way:
Rule 1.8(c) of [the] NH Rules of Professional Conduct further states, “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.”
Doc. no. 37-1 at 5. The court begins by noting that Rule 1.8 is
composed of specific rules pertaining to conflicts of interest
involving current clients, and Rule 1.8(c) pertains to gifts
19 from clients to lawyers. The court presumes that plaintiff’s
reference to Rule 1.8(c) is a typographical error, and that he
intended to refer to Rule 1.9, which governs a lawyer’s duties
to former clients.
If that is indeed the case, there is an additional problem.
The “rule” that plaintiff purports to quote is actually an
amalgam, composed of language drawn and/or paraphrased from Rule
1.9(a) and Rule 1.9(c)(1). As between those two rules, Rule
1.9(c) appears to be the more applicable, and the court presumes
that plaintiff intended to rest his request for disqualification
on Rule 1.9(c). According to that rule:
A lawyer . . . whose present . . . firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
N.H. R. Prof. Conduct 1.9(c).
Having identified the applicable legal principles, the
court turns to the merits of plaintiff’s motion to disqualify
Attorneys Will and Wyatt. To begin, plaintiff has not
demonstrated that Devine ever represented Oak Brook. All he has
20 shown is that the Oak Brook Articles of Agreement were signed in
Devine’s office. But before those Articles were signed, Oak
Brook did not exist and, necessarily, could not have had an
attorney. The most that may reasonably be inferred from the
location of the meeting where the Articles were signed is that
one of the signatories was a client of a Devine attorney. That
is not enough to establish an attorney/client relationship
between Oak Brook and any Devine attorney.5 That alone is enough
to sink plaintiff’s claim that Attorneys Will and Wyatt are
representing Bisson in this case under a disqualifying conflict
of interest. But there is more.
Even if Devine did once represent Oak Brook, plaintiff has
failed to explain how Devine’s representation of Oak Brook could
possibly make him a former client who could be disadvantaged if
Attorneys Will and Wyatt were to use information that Devine
learned from its representation of Oak Brook in 1983. Rule
5 Moreover, plaintiff appears to conflate representation of a signatory to the agreement with representation of the association formed by the agreement:
Devine Millimet and Branch has represented the “signers of the Article of agreement” in 1983. (See Ex-4). There was an Attorney-Client relationship between Devine, Millimet and Branch, P.A. and Oak Brook Condominium Owners’ Association in 1983. (See Ex-4).
Doc. no. 37-1 at 4.
21 1.9(c) protects an attorney’s former clients from that
attorney’s use of their confidential information. Plaintiff
does not claim that any Devine attorney ever represented him.
He only claims that Devine represented Oak Brook in 1983,
approximately 30 years before he purchased his unit. Thus, even
if it could plausibly be argued that Oak Brook’s attorney is
Lath’s attorney, by virtue of Lath’s status as an Oak Brook unit
owner, Devine’s representation of Oak Brook in 1983 could not
possibly have placed any of Lath’s confidential information in
the hands of Devine. For this additional reason, plaintiff’s
claim of a disqualifying conflict of interest lacks merit.
2. Rule 3.7
Plaintiff also argues that Attorneys Will and Wyatt must be
disqualified from defending Bisson for the following reason:
Attorney Burt for the [Oak Brook] Board members has challenged the very fact, that Lath is a shareholder. Devine, Millimet and Branch P.A. may be called to testify during the trial, as the Professional Association who represented Oak Brook Condominium Owners’ Association, where this law firm was instrumental to bring the Association to its very existence.
. . . .
. . . Devine, Millimet and Branch P.A. may be called to testify on behalf of the Association.
Doc. no. 37-1 at 5, 6. Again, the court disagrees.
22 For his second claim, plaintiff relies on the following
rule regarding lawyers as witnesses:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work unreasonable hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
N.H. R. Prof. Conduct 3.7.
As noted, plaintiff asserts that Oak Brook may call Devine
to testify on its behalf. Plaintiff does not identify any
particular Devine lawyer that Oak Brook “is likely” to call as a
“necessary witness.” Nor does plaintiff assert any factual
basis to support a belief that either Attorney Will or Wyatt is
likely to be a “necessary witness” in the trial. Thus, Rule
3.7(a) is off the table, and Attorneys Will and Wyatt are
subject to disqualification only if Rule 3.7(b) applies.
The American Bar Association Model Code Comments, which are
appended to the NH Conduct Rules, describe the operation of Rule
3.7(b) this way:
23 Paragraph (b) provides that a lawyer is not disqualified from serving as an advocate because a lawyer with whom the lawyer is associated in a firm is precluded from doing so by paragraph (a). If, however, the testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from representing the client in the matter, other lawyers in the firm will be precluded from representing the client by Rule 1.10 unless the client gives informed consent under the conditions stated in Rule 1.7.
N.H. R. Prof. Conduct 3.7, 2004 ABA Model Code cmt. [7].
Again, plaintiff does not say that it is likely that Oak
Brook will call a Devine lawyer; he says only that Oak Brook may
call a Devine lawyer. In the court’s view, the odds are much
lower than that. According to plaintiff, Oak Brook may call a
Devine lawyer to give evidence to establish that he is not an
Oak Brook shareholder. However, as the court has noted, Oak
Brook’s Articles of Agreement specifically provide that Oak
Brook has no capital stock. If Oak Brook has no capital stock,
then there are no shares for plaintiff or anyone else to hold.
Thus, it is highly unlikely that Oak Brook would ever call a
Devine lawyer to testify that Lath is not an Oak Brook
shareholder; that fact is already demonstrated by evidence that
plaintiff has produced himself.
To sum up, plaintiff has given the court no reason to
disqualify Attorneys Will and Wyatt from representing Bisson in
24 this action. Accordingly, plaintiff’s motion to disqualify them
is denied.
IV. Conclusion
For the reasons detailed above, plaintiff’s motion to
disqualify Attorney Burt, document no. 20, is denied;
defendants’ motion to strike plaintiff’s Notice of Counsel
Conduct, document no. 28, is granted in part and denied in part;
and plaintiff’s motion to disqualify Attorneys Will and Wyatt,
document no. 37, is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
January 30, 2017
cc: Gary M. Burt, Esq. Gerard Dufresne, pro se Sanjeev Lath, pro se Sabin R. Maxwell, Esq. Daniel E. Will, Esq. Joshua M. Wyatt, Esq.