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Fregeau v. Deo8/2/2005
DECISION
Before this Court for decision is a motion filed by plaintiff Ernest Fregeau to disqualify attorney Fain P. Gildea, counsel to defendant Pennsylvania General Insurance Company, in this action for personal injury and uninsured motorist benefits as a result of attorney Gildea's prior representation of him as insurance defense counsel to CGU Insurance Company in an unrelated property damage case. As plaintiff Fregeau has failed to prove that the subject matter of these two cases is substantially related, that the attorney whose disqualification is sought, Fain P. Gildea, is likely to have had access to relevant privileged information in the course of her prior representation of plaintiff Fregeau or that information that she acquired in the course of her prior representation of plaintiff Fregeau would inure to his disadvantage in this case, plaintiff Fregeau's motion to disqualify is denied.
Factual Background and Procedural History
It is undisputed that counsel to defendant Pennsylvania General Insurance Company in the instant case, Fain P. Gildea, represented plaintiff Fregeau and his son in an unrelated case for alleged property damage brought by the former tenants of the plaintiff and his son several years ago. See Defendant's Objection to Plaintiff's Motion to Disqualify at 1. At that time, attorney Gildea was assigned by plaintiff Fregeau's insurer in the prior litigation, CGU Insurance Company, to defend the case. Id. In the instant matter, plaintiff Fregeau has filed suit against defendant Pennsylvania General Insurance Company, claiming that he is entitled to uninsured motorist benefits to cover injuries that he suffered as a result of a motor vehicle accident involving defendants Panua and Marguerite Deo. Id. Defendant Pennsylvania General Insurance Company has retained attorney Gildea and the law firm with which she is associated, Clark, Balboni & Gildea, LLP, to defend against plaintiff's claim. Id. at 1-2.
Plaintiff Fregeau has filed a motion to disqualify attorney Gildea, along with a supporting memorandum and case law. Defendant Pennsylvania General Insurance Company has responded with an objection and has filed a memorandum in support of its position.
Plaintiff Fregeau alleges that Rule 1.9(a) of the Rhode Island Supreme Court Rules of Professional Conduct governs his motion because attorney Gildea's prior representation of him is substantially related to the present action. Plaintiff argues, therefore, that attorney Gildea must be disqualified due to the inherent conflict of interest that is created by her current representation of defendant Pennsylvania General Insurance Company.
Defendant Pennsylvania General Insurance Company responds that the present action and the case that was the subject of defense counsel's prior representation of plaintiff Fregeau are not substantially related. Defendant contends, therefore, that plaintiff Fregeau has failed to meet his burden to show that disqualification is warranted.
Analysis
Article V, Rule 1.9 of the Rhode Island Supreme Court Rules of Professional Conduct, entitled "Conflict of Interest: Former Client" provides, in pertinent part, as follows:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) 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 consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require wit
Page 1 2 3 4 5 Rhode Island Personal Injury Attorneys
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