Ricci v. Terry

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-18-553
NOAH M. RICCI, )
)
Plaintiff )
) ORDER ON DEFENDANTS'
V. ) MOTIONTODISQUALIFY SOU' ..,
) PLAINTIFF'S COUNSEL r11mhtlr/,.,,t;d (}'t-~"i~~kl'4t;:
)
,.,_,. ·,c:..I ,• ,• IsO'tf:
11'/C,
SHARON L. TERRY, JOHN
CAMPBELL and DENISE TERRY, ) JUL 09 2019
)
Defendants. )
RECEIVED
Pending before the Court is Defendants Sharon Terry, John Campbell, and Denise f; /4 f /VI
Terry's motion to disqualify Plaintiff Noah Ricci's counsel, Attorney John Lambert of

Lambert Coffin.' For the following reasons, the motion to disqualify is denied.

I. Back~round

The complaint in this case was filed on December 4, 2018 and seeks removal of

Defendant Sharon Terry ("Ms. Terry") as Trustee of a trust of which Mr. Ricci is a

beneficiary. Defendants filed the instant motion to disqualify Attorney Lambert on March

11, 2019. The motion alleges that in 2000, Attorney Lambert represented Ms. Terry in the

negotiation and execution of a prenuptial agreement between Ms. Terry and the late

Joseph Ricci, father of Plaintiff Noah Ricci.' Defendants argue that as a result of that

representation, Attorney Lambert "holds, and appears in this matter to be taking

improper and unfair advantage of, confidential information concerning Ms. Terry's

personal finances." (Mot. Disqualify 'l[ 3.) Defendants further allege, "[r]ather than

seeking to help the family mediate a resolution, attorney Lambert has employed

1 Mr. Ricci has also filed a motion to file a surreply. The Court denies the motion to disqualify without

considering the surreply, and therefore.the motion to file a surreply will be denied as moot.
2 To clarify, Plaintiff Noah Ricci is Defendant Sharon Terry's stepson.

1 of 6 Plaintiff-John Lambert, Esq.
Defendant-Edward Maccoll, Esq.
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expensive litigation tactics that [will] waste and that have been wasting what he knows

to be Ms. Terry's limited assets." (Mot. Disqualify 'I[ 5.)

In response, Attorney Lambert contends that he never personally represented Ms.

Terry and that during her relationship with Lambert Coffin, she consulted with Attorney

Gary Vogel, who left the firm in 2008. One current Lambert Coffin attorney, Jonathan

Harris, attended a meeting between Attorney Vogel and Ms. Terry, but claims to recall

nothing more than the fact that a prenuptial agreement was discussed; he does not believe

Attorney Vogel actually drafted anything for Ms. Terry. Attorney Lambert further states

that Lambert Coffin no longer has possession of Ms. Terry's file and likely destroyed it in

2007 or 2008.

Further elucidating the factual circumstances, Mr. Ricci states that his father

passed away in 2001, and Mr. Ricci thereafter sued Ms. Terry, challenging Joseph Ricci's

estate plan. Lambert Coffin was not involved in that lawsuit. The parties settled that case

in 2004, entering into contractual obligations with one another and establishing the

Sharon Terry Trust. That contract and trust are the subject of the current litigation.

When Mr. Ricci contacted Attorney Lambert about the current matter in August

of 2018, Attorney Lambert contacted Ms. Terry's counsel, Attorney Edward McColl, to

inform him of Lambert Coffin's prior consultation with Ms. Terry. After indicating that

he would seek a waiver from Ms. Terry to the extent one was necessary, Attorney McColl

replied to Attorney Lambert, "If you can attend mediation (or have someone from your

office handle it) on Sept 19, you're in." (Pl.'s Opp'n to Mot. Disqualify, 'II 15 & Ex. A.) Mr.

Ricci then executed an engagement letter with Lambert Coffin. The mediation was

unsuccessful, and Attorney Lambert has continued to represent Mr. Ricci in the ensuing

litigation.

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Defendants concede they cannot dispute Attorney Lambert's assertion that he was

not personally involved in the 2000 case. Nonetheless, Ms. Terry maintains that she is

uncomfortable with her former law firm representing her stepson in a claim against her.

II. Discussion

Disqualification of an attorney is only appropriate when 1) the movant establishes,

beyond mere speculation, that"continued representation of the nonmoving party by that

party's chosen attorney results in an affirmative violation of a particular ethical rule," and

2) the continued representation would result in actual prejudice to the party seeking

disqualification. Morin v. Me. Educ. Ass'n, 2010 ME 36, 'l['l[ 9-10, 993 A.2d 1097.

A. Violation of Ethical Rules

Defendants allege that Attorney Lambert's representation of Mr. Ricci is a

violation of M.R. Prof. C. 1.9, pertaining to duties to former clients. They first point to

Rule 1.9(a), which provides:

A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.

Contrary to Defendants' assertions, this rule is inapplicable to this case because, as

Defendants concede they cannot dispute, the lawyer who formerly represented Ms. Terry

was Attorney Vogel, not Attorney Lambert.

Defendants further rely on Rule l.9(c), which provides, in relevant part: "A lawyer

whose present . . . firm has formerly represented a client in a matter shall not

thereafter" use or reveal confidences or secrets of the former client. Because this

subsection more broadly encompasses not just the individual attorney who formerly

represented the client, but the entire firm, Attorney Lambert is subject to this subsection.

a
However, Defendants have not made showing that anyone at Lambert Coffin possesses

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confidences or secrets, much less that anyone has revealed confidences or secrets.

Attorney Lambert's representations that the lead attorney on the 2000 case left the firm

over a decade ago, Ms. Terry's file was likely destroyed over a decade ago, and Attorney

Harris only sat in on a single meeting nearly 20 years ago and recalls very little about that

meeting, all suggest that Attorney Lambert does not possess, and therefore has not used,

Ms. Terry's confidences or secrets.

Also relevant is M.R. Prof. C. 1.lO(b), pertaining to imputation of conflicts-of­

interest, which states:

When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially
adverse to those of a client represented by the formerly associated lawyer
and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by
Rules 1.6 and 1.9(c) [(i.e., confidential information)] that is
material to the matter.

The parties have devoted significant effort to arguing that the 2000 prenuptial agreement

is or is not substantially related to the current litigation. Borrowing from Rule 1.9, matters

are substantially related "if they involve the same transaction or legal dispute or if there

otherwise is a substantial risk that confidential factual information as would normally

have been obtained in the prior representation would materially advance the client's

position in the subsequent matter." M.R. Prof. C. 1.9(d). Comment 3 to Rule 1.9 provides,

for example, that a lawyer who represented a businessperson and thereby learned

extensive private financial information could not later represent the person's spouse in a

divorce. This example is arguably comparable to the present case, but Defendants have

nonetheless failed to clearly articulate how any information Lambert Coffin may have

obtained in the 2000 consultation is relevant to this case. Moreover, Comment 3 also notes

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that "[i]nformation acquired in a prior representation may have been rendered obsolete

by the passage of time, a circumstance that may be relevant in determining whether two

representations are substantially related." The connection between 1) Ms. Terry's

financial circumstances nearly 20 years ago and 2) her administration of a trust and

alleged breach of a contract that were not even in existence when she entered into the

prenuptial agreement, is far from clear.

Moreover, as discussed above, Defendants have not demonstrated that any lawyer

at Lambert Coffin possesses confidential information material to this matter. According

to Attorney Lambert, the only attorney in his firm who might have confidential

information about Ms. Terry is Attorney Harris; given his minimal participation in Ms.

Terry's case and the length of time that has passed since she consulted with Lambert

Coffin, the possibility that Attorney Harris now possesses material confidential

information is very remote.
In sum, Defendants' allegation that Attorney Lambert's representation of Mr. Ricci

is an ethical violation amounts to little more than speculation that an attorney at Lambert

Coffin might possess confidential information about her that is being used in this

litigation. Such speculation falls short of the requirement that she demonstrate an

"affirmative violation of a particular ethical rule." Morin, 2010 ME 36, 'l[ 9, 993 A.2d 1097.

B. Prejudice to Ms. Terry

In order to establish prejudice, the movant "must point to specific, identifiable

harm she will suffer in the litigation by opposing counsel's continued representation" of

the nonmoving party. Morin, 2010 ME 36, 'l[ 10, 993 A.2d 1097. The only allegation

Defendants have made to support this prong of the Morin analysis is that by filing a

lawsuit rather than resolving this matter at mediation, Attorney Lambert has taken

advantage of his knowledge of Ms. Terry's limited financial resources. In so claiming,

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Defendants have provided nothing more than a "mere general allegation that Attorney

Lambert has some confidential information and relevant information he gathered in the

previous relationship," which is insufficient to show prejudice. Id. Moreover, it is far

more likely that Attorney Lambert filed this lawsuit not to take advantage of Ms. Terry,

but simply because the parties were unable to resolve this matter at mediation, which is

an entirely predictable step that any attorney would take under such circumstances.

Defendants' prejudice argument also falls short of the showing required by the Law

Court in Morin.

Based on Defendants' assertions! the Court finds there has been no violation of

either M.R. Prof. C 1.9 or 1.10, and as such, Defendants have failed to adequately

articulate any prejudice they will suffer by Attorney Lambert's continued representation

of Mr. Ricci. This motion therefore must be denied.

III. Conclusion

For the foregoing reasons, Defendants' motion to disqualify Plaintiff's counsel is

DENIED. Plaintiff's motion to file a surreply is DENIED as moot.

A scheduling order will issue in due course. Briefing will resume on the pending

motion to compel arbitration. Any memorandum in opposition to the motion to compel

arbitration is due within 21 days from the date of this Order. Any reply memorandum is

due within 7 days after the filing of the memorandum in opposition.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

Dated: _I)_.,,_,__/CJ-'-+-'--!/-F--9_
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Entered on the Docket: 01p~D ,7Ff'
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