NOAH M. RICCI, Plaintiff
SHARON L. TERRY, JOHN CAMPBELL and DENISE TERRY, Defendants,
ORDER ON DEFENDANTS' MOTION TO DISQUALIFY
MARYGAY KENNEDY, JUSTICE
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. For the following reasons, the motion to
disqualify is denied.
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 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.)
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.
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
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
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
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.
Violation of Ethical Rules
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),
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.
to Defendants' assertions, this rule is inapplicable to
this case because, as Defendants concede they cannot dispute,
the lawyer who formerly represented ...