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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

DAVRIC MAINE CORPORATION, Plaintiff v. CRAIG J. RANCOURT, et al., Defendants

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Docket No. 98-238-P-H

MEMORANDUM DECISION ON DEFENDANT'S MOTION TO DETERMINE ISSUE OF DISQUALIFICATION

Defendant William Faucher moves for an order determining whether there is any ground upon which to disqualify the law firm of Berman & Simmons, P.A., or attorney Julian L. Sweet from continuing to represent him in the instant case. Motion of Defendant William Faucher To Determine the Issue of Disqualification ("Faucher Motion") (Docket No. 36). Plaintiff Davric Maine Corporation ("Davric") urges the court to disqualify Berman & Simmons and Sweet. Memorandum in Response to Defendant Faucher's Motion To Determine the Issue of Disqualification ("Plaintiff's Response") (Docket No. 56). For the reasons that follow, I decline to order disqualification.1 I. Applicable Legal Standards Per Local Rule 83.3(d)(2), acts or omissions that violate the Code of Professional

Faucher sought an immediate hearing on his motion, see Faucher Motion at 1; however, I find the parties' papers sufficiently enlightening to rule without need of a hearing. 1

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Responsibility adopted by this court -- which is the Code of Professional Responsibility adopted by the Supreme Judicial Court of Maine as amended from time to time -- "shall constitute misconduct and shall be grounds for discipline . . . ." Section 3.4(d)(1)(i) of the Maine Bar Rules provides: "Except as permitted by this rule, a lawyer shall not commence representation adverse to a former client without that client's informed written consent if such new representation is substantially related to the subject matter of the former representation or may involve the use of confidential information obtained through such former representation." This rule (and others like it) exist primarily to prevent use in the subsequent representation of confidential information obtained in the former. See, e.g., Starlight Sugar Inc. v. Soto, 903 F. Supp. 261, 265 (D. Puerto Rico 1995). The party seeking disqualification bears the burden of proving that confidential information will or may be used adversely to a former client. See, e.g., Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 440 (1st Cir. 1991) (noting in upholding denial of defendant's disqualification motion that defendant had not pointed to any confidential information that attorney obtained); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020, 1028 (5th Cir. 1981) (party seeking disqualification of former counsel bears burden of proving that current and prior representations substantially related), overruled on other grounds by Gibbs v. Paluk, 742 F.2d 181 (5th Cir. 1984); Soto, 903 F. Supp. at 266 (moving party bears burden in motion to disqualify). To the extent that the movant persuades the court that two matters are substantially related, the danger of disclosure of confidences is presumed. Kevlik v. Goldstein, 724 F.2d 844, 85051 (1st Cir. 1984).

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II. Factual Context As a threshold matter Faucher moves to strike the affidavit of Joseph J. Ricci given in connection with this motion on grounds that it was tardily filed without request for leave or offer of any excuse. Defendant William Faucher's Supplement to His Reply Memorandum, etc. (Docket No. 70) at 1. The Ricci affidavit in question was filed with the court on May 13, 1999, thirteen days after the filing of the Plaintiff's Response and three days after the filing of Faucher's reply to that response. Affidavit of Joseph J. Ricci (Docket No. 69); Defendant William Faucher's Reply Memorandum, etc. (Docket No. 68); Plaintiff's Response. I will strike the affidavit, which should have been filed simultaneously with the Plaintiff's Response and for the lateness of which no excuse is offered. See Loc. R. 7(b) ("[a]ny objections [to motions] shall include . . . affidavits and other documents setting forth or evidencing facts on which the objection is based."). The relevant facts are as follows: Davric filed the instant suit on June 24, 1998. Complaint and Demand for Jury Trial (Docket No. 1). Sweet, a member of Berman & Simmons, was retained to represent Faucher in this matter in August 1998. Affidavit of Julian L. Sweet, Esq. ("Sweet Aff.") (Docket No. 37)

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