8 Conn. App. 364 | Conn. App. Ct. | 1986
These two appeals present the common issue of whether the trial court may preclude an attorney from representing only himself in litigation before the court. In each case, the court entered an order effectively barring the attorney from doing so. We find error in each appeal.
In the first case, Daniel V. Presnick, who is an attorney, sued Ralph and Rita Esposito for legal fees for services which he rendered to them in another case. Presnick did not sign the summons, but he entered a
In both cases, the court, Fracasse, J., sua sponte ordered Presnick to retain “outside counsel” to represent him. Thereafter, attorney David M. Presnick, who is the brother of Daniel V. Presnick, entered an appearance for Presnick in each case. David M. Presnick had the same office address and business telephone number as Daniel V. Presnick. The court concluded that David M. Presnick and Daniel V. Presnick were associated in the same law firm and, therefore, that Daniel V. Presnick had not complied with the court’s order in each case.
Presnick argues that the trial court improperly barred him from representing himself in these cases by ordering him to retain other counsel. We agree.
We do not believe that there is any current basis in our law for the proposition that an attorney who seeks to represent only himself in litigation may not be per
Disciplinary Rules 5-101 and 5-102
Indeed, the reasons underlying the general rule prohibiting an attorney from testifying in his client’s case do not apply where the attorney is the client. Those reasons have been identified by our Supreme Court in Jennings Co., Inc. v. DiGenova, supra. One reason is
The case of Thresher v. Stonington Savings Bank, 68 Conn. 201, 206, 36 A. 38 (1896), is the sole exception in our state’s jurisprudence to the line of authority which limits the general prohibitory rule to the situation in which the attorney-witness is performing a dual role as counsel for a client and as a material witness in the client’s case. In Thresher, the plaintiff, who was an attorney, sued on a real estate contract to which he was a party. The Supreme Court found no error in the trial court’s judgment in his favor. In dictum, however, the court noted that, although a “party to an action has a right to appear in court and try his own cause” despite the inconvenience it may cause in his examination as a witness; id., 206; “[i]n this case however, the party to the suit was also a practicing attorney at law; and the wholesome rule of professional
We do not believe that this language of Thresher is currently viable law. First, it is clearly dictum, and the court did not suggest that the judgment rendered in the attorney-party’s favor be set aside. Second, it refers to the rule as one merely of “professional etiquette,” rather than of ethical behavior enforceable by barring the attorney from appearing pro se. Third, to the extent that the court in Thresher was using the phrase, “professional etiquette,” as an equivalent to our current code of professional responsibility, it would not control this case because, as we noted above, the current rules regarding an attorney-witness do not reach the situation in which the attorney represents himself. Fourth, our Supreme Court has in recent years not seen fit even to comment on the fact that an attorney represented himself in simultaneous jury and court trials. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 457 A.2d 656 (1983). In that case, Cole, who was an attorney of long standing, represented himself both in the trial court and in the appeal, and that fact was well known to the Justices of the Supreme Court.
There is error on each appeal, the judgments are set aside and the cases are remanded for further proceedings according to law.
In this opinion the other judges concurred.
Presnick claims on appeal that the court reached the conclusion that David M. Presnick and he were associated in the same law firm without a hearing and without any basis. In view of our disposition of these appeals, we need not reach that issue.
The trial court also relied in part on the rule that an attorney may not sign his own writ and summons. See Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847 (1949); Low v. Madison, 135 Conn. 1, 6, 60 A.2d 774 (1948); Doolittle v. Clark, 47 Conn. 316, 317 (1879). In this respect, the court misperceived the record before it in the case in which Presnick was the plaintiff. Our examination of that trial court file indicates that, although Presnick signed the complaint, the action was begun by a summons signed by a different commissioner of the Superior Court, whose name is illegible and is not typewritten on the form JD-CV-1. Thus, we need not discuss whether this defect was waived by the failure of the Espositos timely to raise it. Furthermore, the cases which establish that rule do not go so far as to say that, once an attorney’s action has been properly instituted by a writ and summons signed by another attorney, the plaintiff may not sign the pleadings, such as the complaint, and represent himself in trying the case.
Disciplinary Rules DR 5-101 and DR 5-102 provide: “DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
“(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
“(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought
“(1) If the testimony will relate solely to an uncontested matter.
“(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
“(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
“DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.
“(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101 (B).
“(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”
It maybe that the oft-quoted, unattributed proverb, “He who is his own lawyer has a fool for a client”; McNamara, Ragbag of Legal Quotations, p. 22; will apply to Presnick in these cases. Foolishness, however, has never been considered to be a basis for banishment from the counsel table.