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Ricci v. Terry

Superior Court of Maine, Cumberland

July 9, 2019

NOAH M. RICCI, Plaintiff
v.
SHARON L. TERRY, JOHN CAMPBELL and DENISE TERRY, Defendants,

          ORDER ON DEFENDANTS' MOTION TO DISQUALIFY PLAINTIFFS COUNSEL

          MARYGAY KENNEDY, JUSTICE

         Pending before the Court is Defendants Sharon Terry, John Campbell, and Denise Terry's motion to disqualify Plaintiff Noah Ricci's counsel, Attorney John Lambert of Lambert Coffin.[1] For the following reasons, the motion to disqualify is denied.

         I. Background

         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.[2] Defendants argue that as a result of that representation, Attorney Lambert "holds, and appears in this matter to be raking improper and unfair advantage of, confidential information concerning Ms. Terry's personal finances." (Mot. Disqualify ¶ 3.) Defendants further allege, "[r]ather than seeking to help the family mediate a resolution, attorney Lambert has employed expensive litigation tactics that [will] waste and that have been wasting what he knows to be Ms. Terry's limited assets." (Mot. Disqualify ¶ 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, ¶ 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.

         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, ¶¶ 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 ...


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