, " Tr ~. L_ '_;' .-,f i :
STATE OF MAINE , ,J'.' ,L,' !./: I SUPERIOR COURT CUMBERLAND, ss. I , '::' • ' ,. ; (:NIL ACTION ,
'l'i1n 'J 1 DOCKET NO. CV-08-219 L , J 1 ,." '1i1 Y ','1/ ,c) j: [I n ~
. , -1
HENRY R. NORING,
Plaintiff ORDER v. SIDNEY P. KILMARTIN,
Defendant
BEFORE THE COURT
Before the court is the defendant Sidney P. Kilmartin's (Defendant
Kilmartin) motion to disqualify plaintiff's counsel, Daniel Lilley (Lilley) and all
other partners and associates of Daniel G. Lilley Law Offices, P.A. (Lilley Law
Offices) from further representation in this matter.
BACKGROUND AND PROCEDURAL HISTORY
This case arises from an incident on October 16, 2007 in which Defendant
Kilmartin allegedly entered the apartment of Plaintiff Henry R. Noring (Noring)
without his permission and attacked Noring in his bed. On January 10, 2008,
Defendant Kilmartin's wife, Deborah Kilmartin (Ms. Kilmartin), contacted Lilley
Law Offices via email seeking legal representation for her husband. The email
described the events leading up to and concerning the event subject to this action
and requested the legal assistance of Lilley. Later that day Lilley responded to
Ms. Kilmartin via email indicating that in order to obtain Lilley's services Ms.
Kilmartin would need to pay at least $15,000.00 as a retention fee. Ms. Kilmartin
did not supply a retainer fee. On February 14, 2008, Ms. Kilmartin claims she
sent a letter totaling ten pages in length to Lilley Law Offices, which gave the history of Defendant Kilmartin's struggles during the years leading up to the
events subject to this action. 1 The letter included statements damaging to
Defendant Kilmartin's defense in the case. According to Ms. Kilmartin, the
information in both emails to Lilley Law Offices was intended to be confidential
and not to be used against Defendant Kilmartin. At no time did Defendant
Kilmartin discuss the potential case with an attorney at Lilley Law Offices, other
than through her e-mail correspondence described above.
On March 6, 2008, Ms. Kilmartin was notified that Lilley Law Offices was
going to represent Noring instead of Defendant Kilmartin. After Noring hired
Lilley, on April 14, 2008, he filed a complaint against Defendant Kilmartin
alleging counts of assault, battery, and intentional infliction of emotional distress.
In the instant motion to disqualify Lilley, Defendant Kilmartin argues that Lilley
and his partners and associates should be disqualified from the representation of
Noring because the firm's receipt of the correspondences from Ms. Kilmartin is
in contravention to the Maine Bar Rules, specifically Rules 3.4(b)1 and
3.6(h)(1)(iv). Defendant Kilmartin contends the decision to represent Noring,
after having received consultation from his wife concerning the case, presents a
conflict of interest.
I Defendant Kilmartin submitted ex parte Exhibits A and B to the court for in camera inspection only to determine the instant motion. Exhibit A includes email correspondences between Ms. Kilmartin and Lilley Law Offices, including the first email Ms. Kilmartin sent to Lilley Law Offices on January 10,2008. Exhibit B is the lO-page letter Ms. Kilmartin purportedly sent on February 14,2008. Although Lilley now denies receiving the February 14 letter, Exhibit A includes an email correspondence, dated March 10, 2008, in which a staff member at Lilley Law Offices acknowledges that Ms. Kilmartin did send a letter to the firm's webmaster dated February 14, 2008.
2 DISCUSSION
1. Standard of Review
Attorney conduct is governed by the Maine Bar Rules. The Bar Rules are
enforced by the Maine Supreme Judicial Court, which has supervisory power
over attorneys. Casco Northern Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995)
(citing Koch v. Koch Indus., 798 F.supp. 1525, 1530 (D. Kan. 1992)). A party
moving to disqualify an attorney has the burden to demonstrate more than mere
speculation that an ethics violation has occurred, but doubts should be resolved
in favor of disqualification. Id. at 859. The court, however, must ensure that
motions to compel disqualification are not used to gain a merely tactical
advantage.Id.
2. Conflicts of Interest: Prospective Clients
A conflict of interest occurs where "there is a substantial risk that the
lawyer's representation of one client would be materially and adversely affected
by the lawyer's duties to another current client, to a former client, or to a third
person, or by the lawyer's own interests." M. Bar R. 3.4(b )(1). Pursuant to M. Bar
R. 3.6(h), an attorney may not knowingly disclose or use information that is not
generally known without informed consent, and:
(iv) Is information received from a prospective client, the disclosure of which would be detrimental to a material interest of that prospective client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed.
M. Bar R. 3.6(h)(1)(iv). Rule 3.4 also provides that when an attorney has been
disqualified under one of the rules, "no lawyer affiliated with the lawyer or the
lawyer's firm, may commence or continue such representation." M. Bar R.
3.4(b)(3)(i).
3 The Board of Overseers of the Bar (the Board) has provided guidance on
potential conflicts of interest with respect to prospective clients. The Board
issued an opinion finding "[a] prospective client who consults with a lawyer,
seeking advice and / or representation by thatlawyer is ... a ' client' of that
lawyer" and thus, the confidences of the prospective client must be preserved
and the lawyer may not represent the adverse party. Me. Grievance Comm'n,
Op. No.8 (Apr. 2, 1980). Another opinion set forth by the Board concludes that
"if a lawyer or her staff has obtained secrets or confidential information through .
. . telephone conversations, [from a prospective client], she cannot represent
either party. This conclusion was not altered by the fact the lawyer's staff did
not solicit the information." Me. Grievance Comm'n, Op. No. 156 (Feb. 5, 1997).
The Restatement of the Law Governing Lawyers draws a distinction
benveen the protections afforded to a past client and that provided to a potential
client. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15 cmt. c (2000).
The rules are more relaxed with respect to prospective clients, as "personal
disqualification of a lawyer who deals with a prospective client occurs only when
the subsequent matter presents the opportunity to use information obtained from
the former prospective client that would be 'significantly harmful.'" Id. In such
an instance and absent the prospective client's consent, the lawyer must
withdraw from representation of an adverse party. Id.
3. Representatives of Clients
Plaintiff Noring argues that Defendant Kilmartin's motion to disqualify
Lilley Law Offices from representation should fail because Ms. Kilmartin was not
the potential client and could not speak for Defendant Kilmartin. In response,
Free access — add to your briefcase to read the full text and ask questions with AI
, " Tr ~. L_ '_;' .-,f i :
STATE OF MAINE , ,J'.' ,L,' !./: I SUPERIOR COURT CUMBERLAND, ss. I , '::' • ' ,. ; (:NIL ACTION ,
'l'i1n 'J 1 DOCKET NO. CV-08-219 L , J 1 ,." '1i1 Y ','1/ ,c) j: [I n ~
. , -1
HENRY R. NORING,
Plaintiff ORDER v. SIDNEY P. KILMARTIN,
Defendant
BEFORE THE COURT
Before the court is the defendant Sidney P. Kilmartin's (Defendant
Kilmartin) motion to disqualify plaintiff's counsel, Daniel Lilley (Lilley) and all
other partners and associates of Daniel G. Lilley Law Offices, P.A. (Lilley Law
Offices) from further representation in this matter.
BACKGROUND AND PROCEDURAL HISTORY
This case arises from an incident on October 16, 2007 in which Defendant
Kilmartin allegedly entered the apartment of Plaintiff Henry R. Noring (Noring)
without his permission and attacked Noring in his bed. On January 10, 2008,
Defendant Kilmartin's wife, Deborah Kilmartin (Ms. Kilmartin), contacted Lilley
Law Offices via email seeking legal representation for her husband. The email
described the events leading up to and concerning the event subject to this action
and requested the legal assistance of Lilley. Later that day Lilley responded to
Ms. Kilmartin via email indicating that in order to obtain Lilley's services Ms.
Kilmartin would need to pay at least $15,000.00 as a retention fee. Ms. Kilmartin
did not supply a retainer fee. On February 14, 2008, Ms. Kilmartin claims she
sent a letter totaling ten pages in length to Lilley Law Offices, which gave the history of Defendant Kilmartin's struggles during the years leading up to the
events subject to this action. 1 The letter included statements damaging to
Defendant Kilmartin's defense in the case. According to Ms. Kilmartin, the
information in both emails to Lilley Law Offices was intended to be confidential
and not to be used against Defendant Kilmartin. At no time did Defendant
Kilmartin discuss the potential case with an attorney at Lilley Law Offices, other
than through her e-mail correspondence described above.
On March 6, 2008, Ms. Kilmartin was notified that Lilley Law Offices was
going to represent Noring instead of Defendant Kilmartin. After Noring hired
Lilley, on April 14, 2008, he filed a complaint against Defendant Kilmartin
alleging counts of assault, battery, and intentional infliction of emotional distress.
In the instant motion to disqualify Lilley, Defendant Kilmartin argues that Lilley
and his partners and associates should be disqualified from the representation of
Noring because the firm's receipt of the correspondences from Ms. Kilmartin is
in contravention to the Maine Bar Rules, specifically Rules 3.4(b)1 and
3.6(h)(1)(iv). Defendant Kilmartin contends the decision to represent Noring,
after having received consultation from his wife concerning the case, presents a
conflict of interest.
I Defendant Kilmartin submitted ex parte Exhibits A and B to the court for in camera inspection only to determine the instant motion. Exhibit A includes email correspondences between Ms. Kilmartin and Lilley Law Offices, including the first email Ms. Kilmartin sent to Lilley Law Offices on January 10,2008. Exhibit B is the lO-page letter Ms. Kilmartin purportedly sent on February 14,2008. Although Lilley now denies receiving the February 14 letter, Exhibit A includes an email correspondence, dated March 10, 2008, in which a staff member at Lilley Law Offices acknowledges that Ms. Kilmartin did send a letter to the firm's webmaster dated February 14, 2008.
2 DISCUSSION
1. Standard of Review
Attorney conduct is governed by the Maine Bar Rules. The Bar Rules are
enforced by the Maine Supreme Judicial Court, which has supervisory power
over attorneys. Casco Northern Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995)
(citing Koch v. Koch Indus., 798 F.supp. 1525, 1530 (D. Kan. 1992)). A party
moving to disqualify an attorney has the burden to demonstrate more than mere
speculation that an ethics violation has occurred, but doubts should be resolved
in favor of disqualification. Id. at 859. The court, however, must ensure that
motions to compel disqualification are not used to gain a merely tactical
advantage.Id.
2. Conflicts of Interest: Prospective Clients
A conflict of interest occurs where "there is a substantial risk that the
lawyer's representation of one client would be materially and adversely affected
by the lawyer's duties to another current client, to a former client, or to a third
person, or by the lawyer's own interests." M. Bar R. 3.4(b )(1). Pursuant to M. Bar
R. 3.6(h), an attorney may not knowingly disclose or use information that is not
generally known without informed consent, and:
(iv) Is information received from a prospective client, the disclosure of which would be detrimental to a material interest of that prospective client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed.
M. Bar R. 3.6(h)(1)(iv). Rule 3.4 also provides that when an attorney has been
disqualified under one of the rules, "no lawyer affiliated with the lawyer or the
lawyer's firm, may commence or continue such representation." M. Bar R.
3.4(b)(3)(i).
3 The Board of Overseers of the Bar (the Board) has provided guidance on
potential conflicts of interest with respect to prospective clients. The Board
issued an opinion finding "[a] prospective client who consults with a lawyer,
seeking advice and / or representation by thatlawyer is ... a ' client' of that
lawyer" and thus, the confidences of the prospective client must be preserved
and the lawyer may not represent the adverse party. Me. Grievance Comm'n,
Op. No.8 (Apr. 2, 1980). Another opinion set forth by the Board concludes that
"if a lawyer or her staff has obtained secrets or confidential information through .
. . telephone conversations, [from a prospective client], she cannot represent
either party. This conclusion was not altered by the fact the lawyer's staff did
not solicit the information." Me. Grievance Comm'n, Op. No. 156 (Feb. 5, 1997).
The Restatement of the Law Governing Lawyers draws a distinction
benveen the protections afforded to a past client and that provided to a potential
client. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15 cmt. c (2000).
The rules are more relaxed with respect to prospective clients, as "personal
disqualification of a lawyer who deals with a prospective client occurs only when
the subsequent matter presents the opportunity to use information obtained from
the former prospective client that would be 'significantly harmful.'" Id. In such
an instance and absent the prospective client's consent, the lawyer must
withdraw from representation of an adverse party. Id.
3. Representatives of Clients
Plaintiff Noring argues that Defendant Kilmartin's motion to disqualify
Lilley Law Offices from representation should fail because Ms. Kilmartin was not
the potential client and could not speak for Defendant Kilmartin. In response,
Defendant Kilmartin counters that Ms. Kilmartin was acting as Defendant
4 Kilmartin's representative when she sent the January 10 and February 14, 2008
correspondences to Lilley Law Offices seeking representation for her husband.
Because she was acting as his representative, the communication deserves the
same protection under Maine Bar Rules 3.4(b)1 and 3.6(h)(l)(iv).
By way of analogy, the rules pertaining to the lawyer-client privilege
provide guidance regarding third parties acting as representatives for clients
within legal representation. Rule 502 of the Maine Rules of Evidence defines a
"representative of the client" as "one having authority to obtain professional legal
services, or to act on advice rendered pursuant thereto, on behalf of the client."
M.R. Evid. 502(a)(l). The Restatement provides that in order for communication
to be privileged "a client need not personally seek legal assistance, but may
appoint a third person to do so as the client's agent." RESTATEMENT (THIRD) OF
THE LAW GOVERNING LAWYERS § 70 cmt. e. A person is a confidential agent for
communication if "the person's participation is reasonably necessary to facilitate
the client's communication with a lawyer or another privileged person and if the
client reasonably believes that the person will hold the communication in
confidence." fd. Factors that may be relevant in determining whether a third
person is an agent for communication include (1) the relationship between the
client and the asserted agent; (2) the nature of the communication; and (3) the
client's need for the third person's presence to communicate effectively with the
lawyer. fd.
Ms. Kilmartin was acting on Defendant Kilmartin's behalf when she
contacted Lilley Law Oftices. In her emails to Lilley Law Ottices she discusses
the case and the surrounding circumstances at length and requests
representation for her husband. It is unlikely that Ms. Kilmartin would have
5 shared potentially damaging information if she did not have the expectation the
information would be kept confidential. Acting as a representative of a potential
client, Ms. Kilmartin reasonably believed Lilley Law Offices would hold the
communication in confidence.
The alleged communications create the appearance of a conflict, which
may materially and adversely affect Defendant Kilmartin's case. Such doubts
shall be resolved in favor of Lilley Law Offices' disqualification. See Casco
Northern Bank, 667 A.2d at 859. The continued involvement by Lilley Law Offices
risks an appearance of impropriety too substantial to allow the firm to continue
to represent Noring.
CONCLUSION
The court hereby grants Defendant Kilmartin's motion to disqualify and
Plaintiff Noring must retain alternate counselor advise the clerk he will
represent himself within 30 days. Exhibits A and B submitted by the defendant
for in camera review shall remain sealed to protect Defendant Kilmartin's
confidentiality.
DATE: May 14, 2009 / y~e A. \,yheeler, Justice
6 IF COURTS and County Box 287 ine 04112-0287
JOHN FLYNN ESQ DANIEL LILLEY ESQ DANIEL G LILLEY LAW OFFICE PO BOX 4803 PORTLAND ME 04112
F COURTS 3nd County 30x 287 ine 04112-0287
THOMAS MARJERISON ESQ ~ NORMAN HANSON & DETROY PO BOX 4600 PORTLAND ME 04112-4600