Rule 4.2 In Connecticut

The Connecticut Supreme Court affirmed a lower court judgment in a declaratory judgment action brought by an attorney against opposing counsel in a wrongful discharge action.

The attorney sought to challenge the trial court’s application of Rule 4.2

At a hearing held on December 12, 2013, the trial court, Hon. Barbara J. Sheedy, judge trial referee, granted Youth Services’ motion for an emergency protective order (protective order) on the basis of the court’s finding that the plaintiff had violated rule 4.2 of the Rules of Professional Conduct by communicating directly with certain ‘‘putative’’ members of Youth Services’ board of directors regarding the merits of a counterclaim that counsel for Youth Services had filed against Sowell at McClay’s direction.  Although Judge Sheedy did not order any sanctions against the plaintiff, the protective order enjoined him from further contact of any kind with members of Youth Services’ board of directors without prior permission from the law firm.

Here

we agree with the defendants that the present case is nonjusticiable because no practical relief is available to the plaintiff insofar as the allegations in the declaratory judgment complaint demonstrate that it is nothing more than a collateral attack on the protective order imposed by the trial court, Sheedy, J., in the Sowell action, and upheld by the Appellate Court in Sowell v. DiCara, supra, 161 Conn. App. 102. Although the plaintiff alleges in his declaratory judgment complaint that a court decision would provide guidance to members of the bar with respect to their ‘‘future conduct,’’ that allegation is nothing more than a request for an advisory opinion, insofar as none of the allegations therein identifies a dispute beyond that considered by the Appellate Court in Sowell. Put differently, the remainder of the allegations in the complaint unmistakably indicate that this case is a collateral challenge to the prior Appellate Court decision in Sowell concerning the plaintiff’s previous violation of rule 4.2 of the Rules of Professional Conduct, rather than an action seeking guidance as to the application or vitality of principles from that decision with respect to a different set of facts. Thus, to entertain this declaratory judgment action would violate § 51-197f, which renders the Appellate Court’s decision final insofar as the plaintiff has had his opportunity to seek review by a petition for certification to appeal. Cf. Presnick v. Santoro, 832 F. Supp. 521, 529–30 (D. Conn. 1993) (dismissing claim seeking to enjoin Supe-rior Court chief clerk from enforcing judgment or to force Appellate Court to hear dismissed appeal because, in addition to Rooker-Feldman9 abstention, ‘‘[n]othing has been alleged here that would prevent the plaintiff from appealing the order dismissing his appeal by certification to the Connecticut Supreme Court pursuant to . . . § 51-197f, or, thereafter, to the United States Supreme Court itself’’). Given the finality of the Appellate Court’s judgment in Sowell, the trial court simply had no authority to afford the plaintiff relief by disturbing it in this collateral proceeding, rendering the present case nonjusticiable.

The link appears not to work. The case is

GEORGE E. MENDILLO v. TINLEY, RENEHAN & DOST, LLP, ET AL. (SC 19923)

(Mike Frisch)