PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES P.L.C.; LORILLARD TOBACCO COMPANY; LIGGETT GROUP, INC.; UNITED STATES TOBACCO COMPANY; HILL AND KNOWLTON, INC.; THE COUNCIL FOR TOBACCO RESEARCH - U.S.A. INC.; and THE TOBACCO INSTITUTE, INC.,

Case Number CV 960072414-S
MARCH 3, 1997

PLAINTIFF'S REPLY MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISQUALIFY COUNSEL

INTRODUCTION

"Motions to disqualify are generally disfavored." Cohen v. Acorn International Ltd., 921 F.Supp. 1062, 1063-64 (S.D.N.Y. 1995); Spence v. Flynt, 816 P.2d 771, 779 (Wyo. 1991), cert. denied, 503 U.S. 984 (1992). "The party moving for disqualification must meet a high standard of proof," Riccitelli v. Riccitelli, No. 317852, 8 Conn. L. Rptr. 300 (Conn. Super. March 10, 1992), and "unethical behavior should not be presumed by the court." Moss v. Coughlin, No. 317082, 13

Conn. L. Rptr. 632 (Conn. Super. April 4, 1995). "The imposition of this higher standard and the call for judicial restraint in granting motions for disqualification is warranted as motions to disqualify are often employed for purely strategic purposes." Riccitelli v. Riccitelli, No. 317852, 8 Conn. L. Rptr. 300 (Conn. Super. March 10, 1992); see also Board of Education of New York City v. Nyquist, 590 F.2d 1241 (2d Cir. 1979). "Because of this potential for abuse, disqualification motions should be subjected to 'particularly strict judicial scrutiny.'" Optyl Eyewear Fashion International v. Style Companies, 760 F.2d 1045, 1050 (9th Cir. 1985); Harker v. Commissioner of Internal Revenue, 82 F.3d 806, 808 (8th Cir. 1996); see also Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22 (7th Cir. 1982).

In the present case, the defendants' motion to disqualify plaintiff's counsel should be denied on multiple grounds, the most fundamental of which is that defendants simply do not have standing to challenge the State's contingent fee agreement on the theory that it violates state appropriations statutes. Indeed, this was precisely the conclusion reached by a Utah court two weeks ago in denying the tobacco companies' motion to disqualify counsel in similar litigation in that state. See Philip Morris, Inc. v. Graham, Case No. 960904948 (Third Judicial District, Salt Lake County, Utah, February 13, 1997)(attached hereto as Exhibit B). Furthermore, as is set forth below and in the plaintiff's two prior briefs on this issue, there is no basis to the defendants' claim that the State's contingent fee agreement with its chosen counsel is in anyway illegal or unethical. Courts in Maryland, Minnesota and, most recently, California [Like the decision in Utah, the decision of the United States District Court for the Northern District of California, denying the defendant tobacco companies' motion to disqualify, was decided recently, on January 22, 1997. See City and County of San Francisco v. Philip Morris, Inc. , No. C 96-2090 DLJ Transcript of Proceedings at p. 20 (N.D. Calif. Jan. 22, 1997) (attached hereto as Exhibit C). It is a significant decision in that it rejected the defendants' due process claim, despite their reliance, as in the present case, on the California Supreme Court's decision in People ex. rel. Clancy v. Superior Court , 705 P.2d 347 (Calif. 1985), cert. denied , 475 U.S. 1121 and 479 U.S. 848 (1986).] have all rejected identical arguments raised by the tobacco companies in those states, and reached the same conclusion that is warranted here-- that the defendants' motion to disqualify plaintiff's counsel should be denied. [See Philip Morris, Inc. v. Parris Glendening , Case No. CG 2829 (Talbot County Circuit Ct., Md, August 8, 1996); State of Minnesota v. Philip Morris, Inc. , No. C1-94-8565 (D. Minn. Nov. 29, 1994); City and County of San Francisco v. Philip Morris, Inc. , No. C 96-2090 DLJ Transcript of Proceedings at p. 20 (N.D. Calif. Jan. 22, 1997) (attached hereto as Exhibit C).]

ARGUMENT

THE DEFENDANTS DO NOT HAVE STANDING TO CHALLENGE THE PLAINTIFF'S CONTINGENT FEE AGREEMENT WITH ITS CHOSEN COUNSEL

In light of the defendants' most recent efforts to ignore standing requirements, it is appropriate to restate the indisputable first principles applicable to standing.

"It is a fundamental principle of law that a plaintiff must have standing for the court to have jurisdiction." Weidenbacher v. Duclos, 234 Conn. 51, 61-62 (1995). As stated by the Connecticut Supreme Court:

Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.

Id. at 62.

In order to establish standing, a party must first prove aggrievement. Hartford Federal Savings and Loan v. Tucker, 13 Conn. App. 239, 245, cert. denied, 207 Conn. 805 (1988). Aggrievement consists of (1) a "specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole," Nader v. Altermatt, 166 Conn. 43, 51 (1974); and (2) a showing that "this specific, personal and legal interest has been specifically and injuriously affected by the challenged action." American Federation of State, County and Municipal Employees v. City of West Haven, No. CV 93-0704841S, 1994 WL 260782 at *5 (Conn. Super. June 2, 1994)(Sheldon, J.). In addition to showing aggrievement, the party must also "show that the interest it seeks to protect is 'arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. at *5, (quoting Planning and Zoning Commission v. Gaal, 9 Conn. App. 538, 543-44 (1987)).

Despite extensive briefing and oral argument on the issue of standing, the defendants have yet to articulate clearly what specific, personal and legal interest they have in the State's use of a contingent fee agreement and how that interest has been specifically and injuriously affected by the State. In an apparent effort to avoid the issue altogether, the defendants assert that they are not required to establish standing because (1) they are defendants; or, alternatively, (2) they have alleged ethical violations by the plaintiff. Neither claim has any merit. Because the defendants are required to establish standing, and because they have totally failed to do so, either as taxpayers or on any other basis, their motion to disqualify plaintiff's counsel must be dismissed insofar as it is based on allegations that the contingent fee agreement is illegal in the absence of a legislative appropriation. To hold otherwise would mean that any party in litigation against the State could challenge the State's expenditures for witness fees, transcripts, travel or any other litigation cost, no matter how minimal the expense, or how irrelevant to the merits of the case. Such a result would squarely conflict with prevailing caselaw and raise the potential for serious abuse of the judicial process.

Defendants Are Required To Show Standing

The defendants' initial contention, that "standing is a plaintiff's problem," see Defs' Supp. Br. at 4 (emphasis in original), and that "defendants do not even need to establish

standing," id. at 1, is absurd. When a defendant makes a claim, whether by motion, as a defense or on appeal, that has not been raised by his opponent, he is the functional equivalent of a plaintiff. Under such circumstances, Connecticut courts have long held that a defendant must establish standing to invoke the court's jurisdiction. See, e.g., State v. Williams, 206 Conn. 203 (1988) (defendant had no standing to challenge the allegedly illegal method by which the witness against him had been granted immunity); State v. Culmo, 43 Conn. Supp. 46 (1993) (defendant's motion to dismiss denied because he had no standing to claim that the statute under which he was being prosecuted was overbroad on its face); Planning and Zoning Commission v. Gaal, 9 Conn. App. 538 (1987) (defendants' appeal dismissed because they lacked standing to challenge the constitutionality of notice requirements of a local ordinance); Gladstone v. Grinnan, 1995 WL 780880 (Conn. Super. Dec. 15, 1995)(defendants lacked standing to object to plaintiff's request for prejudgment interest on grounds that prejudgment interest statute infringed their right of access to court). Indeed, in Harvey v. Harvey, No. FA 900069308, 1996 WL 677261 (Conn. Super. Nov. 13, 1996)(Dranginis, J.), the court denied the defendant's motion to disqualify counsel for the precise reason that the present motion should be denied -- because the defendant lacked standing.

Furthermore, the fact that a defendant has standing to raise one claim does not automatically give him standing to raise other claims, as defendants contend. In United Cable Television Services, Corp. v. DPUC, 235 Conn. 334 (1995), the Connecticut Supreme Court addressed this issue when a cable television company argued that because it was aggrieved by the Department of Public Utility Control's ("DPUC") violation of one statutory provision, it was entitled to judicial review of all of its claims, even in the absence of aggrievement. The Supreme Court squarely rejected the plaintiff's argument, concluding that the plaintiff had standing only to appeal the claim as to which it had established aggrievement and that its appeal as to all other claims would be dismissed for lack of subject matter jurisdiction. Id. at 353-56.

The same rule applies to defendants. In State v. Culmo, 43 Conn. Supp. 46 (1993), the court held that the defendant had standing to move to dismiss the prosecution against him on the grounds that the statute pursuant to which he was being prosecuted was facially vague, but did not have standing to claim that it was overbroad. Id. at 71-74. The fact that the defendant had standing to make one constitutional claim did not give him standing to raise the other claim. See also Gladstone v. Grinnan, 1995 WL 780880 (Conn. Super. Dec. 15, 1995).

Ducharme v. Putnam, 161 Conn. 135 (1971), on which defendants rely, does not support defendants' claim to the contrary. Unlike the defendants in the present case, the defendant in Ducharme was a municipality that, like all municipalities, was prohibited at common law from challenging the legality of legislation enacted by its creator, the State. The court in Ducharme carved out an exception to this obstacle to municipal standing "to allow a municipality, adversely affected by a statute, which is properly in court on a nonconstitutional question to challenge the constitutionality of that statute." Berlin v. Santaguida, 181 Conn. 421, 424 (1980). The plaintiff is aware of no caselaw, and the defendants have cited none, that extends this rule to non-municipal parties. Indeed, the purpose of the Ducharme rule, to enable municipalities to challenge state legislation that they would otherwise never have standing to challenge, is inapplicable to entities such as the present defendants who are not similarly prohibited from challenging the constitutionality of state law. Furthermore, Ducharme held that a municipality properly before the court on a non-constitutional claim could challenge the constitutionality of the statute at issue, but did not hold that a municipality could bring a constitutional claim and simultaneously raise non-constitutional claims for which it would otherwise not have standing. [Indeed, this latter scenario would be contrary to Supreme Court precedent that prohibits a municipality from challenging the constitutionality of a statute in the absence of a related non-constitutional claim. Berlin v. Santaguida , 181 Conn. 421, 424-25 (1980). ] Thus, Ducharme is inapplicable to the present case and does not support the defendants' argument that merely because they have standing to raise their due process claim, they do not need standing to bring their non-constitutional claim. As United Cable and State v. Culmo, supra, make clear, the defendants must establish standing for each of their claims.

The Defendants Cannot Seek Disqualification Of Opposing Counsel For Alleged Violation Of Ethical Rules In The Absence of Standing

The defendants' further contention, that they have standing to seek disqualification of opposing counsel because they are alleging ethical violations, is equally unfounded.

First, it is important to note that the only ethical violation alleged by the defendants with regard to the appropriations issue is a violation of Rule 1.5(c), which provides that a "fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law." Defendants do not contend that paragraph (d) is applicable here and the defendants have pointed to no "other law" that prohibits the use of a contingent fee in this case. In fact, the defendants' argument is not that a contingent fee is prohibited, but rather that the State has violated statutes governing the handling of public funds, which say nothing about contingent fees, by failing to seek a legislative appropriation to pay the contingent fee from the proceeds of the lawsuit. This alleged violation of the appropriations statutes is not a violation of Rule 1.5(c). [The defendants attribute undue significance to the Ninth Circuit's ruling in Jackson v. U.S. , 881 F.2d 707 (9th Cir. 1989), in which the court held that the government defendant had standing to challenge the plaintiff's unethical contingent fee agreement. See Defs' Supp. Br. at 9. Jackson is distinguishable from the present case in that the contingent fee at issue in Jackson was explicitly prohibited by a California statute that disallowed attorneys' fees in excess of a certain percentage of a settlement or judgment. Thus, in Jackson , the contingent fee itself was clearly illegal and unethical, assuming California law applied, whereas in the present case it is not the contingent fee agreement, but the alleged failure to comply with state appropriations statutes that defendants claim is illegal. Furthermore, in Jackson , unlike the present case, the contingent fee agreement was before the court because the court had to determine the propriety of the contingent fee agreement in order to ratify the parties' settlement agreement. As stated by the court: In the specific circumstances of the case before us, judicial ratification of the parties' settlement agreement was essential to the proper conclusion of the case in chief. Therefore, "the district judge was necessarily confronted with passing upon the propriety of the contingent fee agreement." Id . at 710 (citation omitted). ]

Moreover, the alleged violation of an ethical rule is insufficient in itself to confer standing on an opposing party. The Preamble to the Connecticut Rules of Professional Conduct explicitly states that:

[T]he purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.

Preamble, Conn. Rules of Professional Conduct, Practice Book p. 5 (emphasis added). Thus, mere "invocation of [a Rule] does not alone provide standing for an antagonist to seek to disqualify opposing counsel." Dawson v. City of Bartlesville, Oklahoma, 901 F. Supp. 314, 315 (N.D. Okl. 1995); see also Appeal of Infotechnology, Inc., 582 A.2d 215 (Del. Super. 1990)(nonclient litigant lacks standing to enforce technical violation of conflict of interest rule); Smith v. Bateman, 680 So.2d 497 (Fla, 1996) (law firm lacked standing to seek injunction against attorney based on alleged ethics rule violations); cf. Mozzochi v. Beck, 204 Conn.490, 501 n. 8 (1987)(Rules of Professional Conduct do not grant rights to third parties). [The Second Circuit has noted that what constitutes "ethical behavior" on the part of practicing attorneys is often the subject of vigorous debate and thus has expressed a strong preference for allowing the "'comprehensive disciplinary machinery' of the state and federal bar" to remedy alleged ethical violations occurring in the course of litigation. See Armstrong v. McAlpin , 625 F.2d 433, 446 (2d Cir. 1980)(en banc), vacated on other grounds , 449 U.S. 1106 (1981). In Connecticut, the courts have likewise expressed a reluctance to disqualify counsel on ethics grounds. For example, in State v. Jones , 180 Conn. 443, 452-53 (1980), overruled on other grounds , 186 Conn. 547 (1982), substantive holding aff'd , 193 Conn. 70 (1984), the Connecticut Supreme Court concluded that disqualification was not warranted because "the appearance of impropriety alone is 'simply too slender a reed on which to rest a disqualification order except in the rarest of cases.'" (quoting Board of Education v. Nyquist , 590 F.2d 1241, 1247 (2d Cir. 1979).]

In Dawson, supra, the court relied on language of the Oklahoma Rules of Professional Conduct, which was identical to the language of the Connecticut Rules quoted above, in concluding that the plaintiff had no standing to move to disqualify defendants' counsel on conflict of interest grounds. The plaintiff in Dawson did not claim to have been prejudiced by the alleged conflict and the court could find no other basis for standing. In denying the plaintiff's motion to disqualify counsel, the court criticized and refused to follow the Fifth Circuit's ruling in Brown & Williamson v. Daniel International, 563 F.2d 671, 673 (5th Cir. 1977), on which defendants rely, see Defs' Supp. Br. at 6-7, stating that in that circuit "there are virtually no barriers to third-party standing to seek disqualification of opposing counsel." Id. 901 F. Supp. at 315. According to the court, the broad standing permitted by the Fifth Circuit was contrary to the intent of the Oklahoma Rules, as expressed in the official commentary. Id. at 316. Because Connecticut has adopted the same commentary as Oklahoma, the Fifth Circuit's ruling is likewise contrary to the intent of the Connecticut Rules and should not be followed in this state.

The fact that some courts have considered motions for disqualification of counsel without discussing standing does not mean, as defendants suggest, that standing is not required when ethical violations are alleged. Indeed, many courts, including Connecticut courts, have denied motions to disqualify for lack of standing under such circumstances. See, e.g. Kocsis v. Gerencser, No. CV 950375378S, 1997 WL 12147 (Conn. Super. Jan. 3, 1997)(questioning the plaintiff's standing to move to disqualify counsel on conflict of interest grounds); Dawson, supra; In re Infotechnology, supra; Johnson v. Prime Bank, 464 S.E.2d 24, 26 (Ga. 1995); In the Matter of Town & Country Construction Co., Inc., 553 N.Y.S.2d 568 (1990). Furthermore, all of the Connecticut cases cited by defendants in support of their argument, see Defs' Supp. Br.at 6, involved parties who were aggrieved by the ethical violations of their adversaries' counsel. [Both Goldenberg v. Corporate Air Inc ., 189 Conn. 504 (1983), and Knights of Columbus Federal Credit Union v. Salisbury , 3 Conn. App. 201 (1985), on which defendants rely, involved defendants who sought disqualification of another party's attorney on the grounds that the attorney in question had previously represented the defendant, and thus was in a position to share the defendant's confidences with an adversary. Likewise, in Cardwell v. Russo , 40 Conn. Supp. 162 (1984), the defendant sought disqualification of an attorney who planned to call a member of his law firm as a witness at trial, which presented the danger that the witness might be inclined to warp the truth in the interest of his client and to the detriment of the defendant. In all of these cases, unlike the present case, the defendants were aggrieved by the alleged unethical conduct and thus clearly had standing to move for disqualification.] None of these cases suggested that a party could seek disqualification of opposing counsel even in the absence of standing. As the Dawson court concluded, such a holding would be in direct conflict with the explicit intent of the Rules of Professional Conduct.

The Defendants Do Not Have Taxpayer Standing [The argument that defendants lack taxpayer standing applies equally to their claim for disqualification and their request for injunctive relief. ]

The defendants further contend that even if they must satisfy the requirements of standing, they can do so because they are taxpayers. However, given their complete failure to demonstrate any injury resulting from the State's use of a contingent fee agreement, their claim must fail.

The Connecticut Supreme Court has repeatedly held that status as a taxpayer does not automatically confer standing to challenge alleged improprieties in government conduct. Sadloski v. Manchester, 235 Conn. 637, 647 (1995); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549 (1980); Bassett v. Desmond, 140 Conn. 426, 430 (1953). To establish standing, the taxpayer must also demonstrate that "he has suffered a pecuniary or other direct loss in that capacity." Unisys Corporation v. Department of Labor, 220 Conn 689, 695 (1991)(quoting Cassidy v. Waterbury, 130 Conn. 237, 245 (1943); see also Hiland v. Ives, 28 Conn. Supp. 243, 246 (1966) (it is not "sufficient for [the taxpayer] to show that the alleged conduct is illegal unless he can also show that the illegal conduct has caused or will cause him a pecuniary or other direct loss as a taxpayer"). [The Connecticut courts have held municipal taxpayers to a less stringent standard that requires a taxpayer to "prove that the transaction involved will probably 'result, directly or indirectly, in an increase in his taxes or would, in some other fashion, cause him irreparable injury.'" American-Republican, Inc. v. Waterbury , 183 Conn. 523, 526 (1981). Although, as noted in plaintiff's main brief, a superior court in Nania v. Borges , 41 Conn. Supp. 90, 94 (1988), concluded that this same standard applied to state taxpayers, the Connecticut Supreme Court in Unisys Corporation v. Department of Labor , 220 Conn 689, 695 (1991), subsequent to the Nania decision, applied the more stringent standard, requiring direct loss, to a state taxpayer. Even if the municipal standard is applied, however, the defendants in this case do not have standing because they have failed to demonstrate that the State's contingent fee agreement will probably result, directly or indirectly, in an increase in their taxes or otherwise cause them irreparable injury.] "[S]uch a loss may not be based on argument, conjecture or hypothesis." Nania v. Borges, 41 Conn. Supp. 90, 95 (1988).

In the present case, the defendants have failed to demonstrate that they will suffer any pecuniary or other direct loss as a result of the State's use of a contingent fee agreement. All of their claims of possible tax increase, pecuniary loss, and other "tangible injury," are unfounded and based on pure conjecture, which is insufficient to establish standing. See Nania, 41 Conn. Supp. at 95; Enama v. Weicker, No. CV94-0046563S, 1994 WL 282165 at *7 (Conn. Super. June 13, 1994)(attached hereto in Exhibit D).

The Contingent Fee Contract Will Not Increase The Defendants' Taxes

First and foremost, the defendants have failed to demonstrate that the Agreement will in any way increase their taxes. As is discussed in the plaintiff's main brief, nothing in the terms of the Agreement obligates the General Assembly to appropriate any funds to pay plaintiff's counsel. See Plaintiff's Br. at 9-10. At most, the Agreement provides that the Attorney General will petition the General Assembly for funding under certain circumstances, although, even if such an appropriation is sought, there is no guarantee that it will be approved. Indeed, all parties to the Agreement acknowledge that "the Attorney General has no authority to require or otherwise obligate the General Assembly to make such an appropriation and such a decision is within the sole discretion of the General Assembly." See Exhibit A, §§3.7, 3.8 and 3.9. Because nothing in the Agreement requires an appropriation of public funds, there is no basis for assuming that it will increase the defendants' taxes.

Furthermore, because the State's private counsel have contractually agreed to these provisions, which explicitly govern the terms of their payment even in the event that they are discharged by the Attorney General prior to settlement or judgment, see Exhibit A, §4.3, and because they have further agreed that the Attorney General has the right to terminate the Agreement and the services of counsel retained thereunder at any time, for any reason, and that such termination "shall not be a breach of contract," see Exhibit A, §4.1, there is no basis for the defendants' claim that their taxes could be increased if private counsel were discharged and thereafter brought a quantum meruit claim against the State. When there is an express agreement governing payment upon termination of the agreement, as there is in this case, the express terms of the agreement apply in the event of termination and the quantum meruit theory does not apply. See Perlmutter v. Johnson, 6 Conn. App. 292 (1986), cert. denied, 479 U.S. 1035 (1987); Burns v. Koellmer, 11 Conn. App. 375, 385 (1987)("[u]njust enrichment and quantum meruit are forms of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties"); Gilbert v. Edmondson, 388 S.E.2d 713, 714 (Ga. 1989)(attorney not entitled to recover in quantum meruit where agreement between the parties explicitly provided terms of compensation to be paid in event of termination); Standley v. Egbert, 267 A.2d 365, 368 (D.C. 1970)(architect could not recover in quantum meruit for work not subject to compensation under the express terms of the termination clause because "quantum meruit is not applicable when

compensation of the parties is covered by an express written contract"); Krupnick and Associates, Inc. v. Hellmich, 378 S.W.2d 562 (Mo. 1964). [As stated by the court in Gilbert v. Edmondson , 388 S.E.2d 713, 714 (Ga. 1989) in rejecting the attorney's quantum meruit claim based on the language of the termination clause in that case: "[T]here cannot be an express and implied contract for the same thing existing at the same time between the same parties. It is only when the parties themselves do not expressly agree, that the law interposes and raises a promise." "[O]ne is estopped to recover on quantum meruit where there exists an express agreement." (citations omitted).]

The defendants' further contention that their taxes will likely increase because the Attorney General requested and was denied a $200,000 appropriation for the present case is unpersuasive and irrelevant. The fact that there are costs associated with this litigation has absolutely no bearing on the propriety of the contingent fee agreement. If taxes were to increase in order to pay the costs of this suit, it would not be because of the contingent fee agreement. The costs could hypothetically increase taxes even if there were no agreement. Indeed, the contingent agreement actually reduces the possibility of such an increase because it provides that private counsel will advance up to $100,000 per calendar year to pay disbursements for expenses and costs resulting from the litigation. See Exhibit A, §3.5. [The defendants' reference to the Ohio Attorney General's statement that litigation against the tobacco industry would unduly burden the State of Ohio is irrelevant to the present case in which the State of Connecticut has entered into the contingent fee agreement specifically to avoid unduly burdening state taxpayers with the cost of this suit. It should be noted that, to date, twenty-two states, San Francisco, Los Angeles, New York City, Erie County New York and the Lieutenant Governor of Alabama have brought litigation against the tobacco industry.]

Finally, the defendants have failed to establish how any hypothetical tax increase, even if it did occur, would affect them differently than any other state taxpayer. A claim based on a potential tax increase that is identical to a claim that each and every taxpayer in the state would likewise be capable of making is not a particularized injury sufficient to confer standing. Double I Limited Partnership v. Glastonbury, 14 Conn. App. 77, 81, cert. denied, 208 Conn. 802 (1988); Nania v. Borges, 41 Conn. Supp. 90, 96 (1988); see also Philip Morris, Inc. v. Graham, Case No. 960904948, slip op. at 3 (Third Judicial District, Salt Lake County, Utah, February 13, 1997) (concluding that the tobacco companies lacked standing to disqualify Utah's private counsel, in part because any increased taxes they might incur would not be unique to the tobacco companies, but rather would extend to all taxpayers)(attached hereto as Exhibit B).

The Defendants Have Not Made A Colorable Claim Of Pecuniary Loss

Although the defendants cannot establish taxpayer standing on the grounds that the contingent fee agreement will increase their taxes, they nonetheless contend that they have taxpayer standing because they will suffer pecuniary loss if the State prevails and is awarded attorneys' fees. See Defs' Supp. Br. at 20-21 and 18-19. Specifically, the defendants argue that, based on Steiger v. J.S. Builders, Inc., 39 Conn. App. 32 (1995), the court must consider twelve factors in determining an appropriate attorneys' fee award under CUTPA, including whether the negotiated fee was fixed or contingent. Because the defendants have located one case, Carr v. Town of Bridgewater, No. CV 860043633S, 1991 WL 57802 (Conn. Super. Apr. 9, 1991), in which the court enhanced a lodestar figure by 20%, based in part on the

contingent nature of the agreed upon fee, the defendants contend they could be subject to similar pecuniary loss due to the contingent fee in this case. Carr, however, is no longer good law.

The decision in Carr was based on prevailing United States Supreme Court precedent at the time that suggested, but did not decisively determine, that enhancement of a lodestar was permissible to reflect the risk of nonpayment that is inherent in a contingent fee agreement. See Carr, 1991 WL 57802 at *12 (citing Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 483 U.S. 711 (1987)). In 1992, after Carr was decided, the Supreme Court squarely addressed the issue of enhancement in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638 (1992), and concluded that attorneys' fees awarded pursuant to federal fee-shifting statutes should not be enhanced to reflect the risk of nonpayment inherent in a contingent fee agreement. According to the Court, enhancement of such awards duplicates factors already subsumed in the lodestar, [As stated by the Court: The risk of loss in a particular case (and, therefore, the attorney's contingent risk) is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits. The second factor, however, is ordinarily reflected in the lodestar--either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so. Taking account of it again through lodestar enhancement amounts to double counting. City of Burlington v. Dague , 505 U.S. at 562-63 (citations omitted).] encourages the bringing of nonmeritorious suits, compensates the attorneys for nonprevailing claims, and causes undesirable satellite litigation. Id. at 562-66. [It should further be noted that the twelve factors to be taken into consideration in awarding attorneys fees under CUTPA are guidelines, not requirements. Nothing in Steiger or any other case cited by the defendants requires that an attorneys' fee award under CUTPA must be enhanced if the agreed upon fee was contingent. Indeed, the Steiger court explicitly qualified its reference to the nature of the fee by citing a federal district court decision, Clark v. American Marine Corp. , 320 F. Supp. 709, 711 (E.D. La. 1970), aff'd , 437 F.2d 959 (5th Cir. 1971), which emphasized that "[s]uch arrangements [whether the fee was fixed or contingent] should not determine the court's decision. The criterion for the court is not what the parties agreed but what is reasonable." Id. at 38 n.5.] Given this Supreme Court precedent, coupled with the fact that the court has broad discretion over the amount of any attorneys' fees awarded, the possibility that the plaintiff in the present case will receive an enhanced attorneys' fee award, based on the contingent nature of its fee agreement, is not only highly speculative, but also highly unlikely.

Allegations of Government Misconduct Are Insufficient To Establish Standing In The Absence of Injury

The defendants' third and final argument on taxpayer standing is that even if they cannot establish injury, they nonetheless are entitled to taxpayer standing because they are alleging the illegal or ultra vires use of tax funds. See Defs' Supp. Br. at. 24-29. Most of the cases relied on by the defendants, however, are old cases involving the allegedly illegal use of tax revenues. Arguably, such cases involve at least some injury to the taxpayer because they are based on the rationale that town revenues illegally expended "must, when wanted for other purposes, be supplied by a tax on inhabitants." City of New London v. Brainard, 22 Conn. 552, 556 (1853); see also Manufacturers Association of Connecticut, Inc. v. Administrator, 20 Conn. Supp. 108, 111-12 (1956)("such a case is based upon the taxpayer's equitable interest in the public fund and his liability to replenish the public treasury in the event of a misapplication of funds"). The contingent fees at issue in this case, however, are not tax revenues and thus the rationale for the cases cited by the defendants, that defendants will have to repay these funds if they are misspent, is inapplicable here.

Moreover, current Connecticut Supreme Court precedent rejects the argument that simply alleging misuse of public funds is sufficient to confer taxpayer standing, and instead requires the taxpayer to show more specific injury.

A key Connecticut Supreme Court case on this issue is Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn 541 (1980). In that case, the defendant volunteer fire company was making a profit selling and servicing fire prevention equipment and, in so doing, engaged in "contracts for the purchase and subsequent sale of fire extinguishers, creating debts against it to be paid in the future." Id. at 543. The plaintiff taxpayer brought a declaratory judgment action, claiming that he was a taxpayer, that the fire company's activities were illegal, and that his fire district property taxes had "by necessity and permissible inference, been used in the conduct of said unauthorized business by the ...[defendant] Fire Company." Id. at 550. The Supreme Court rejected this argument, holding that the taxpayer lacked standing because "[t]here must be more alleged than the mere use by a municipality of revenues for an improper purpose in order to confer standing upon a taxpayer who seeks to challenge such action." Id. at 551 (emphasis added). See also Sadloski v. Manchester, 235 Conn. 637, 647 (1995)("[i]t is not enough for the plaintiff to show that her tax dollars have contributed to the challenged project,...the plaintiff must prove that the project has directly or indirectly increased her taxes or, in some other fashion, caused her irreparable injury in her capacity as a taxpayer").

The Supreme Court's decision in Alarm Applications Co. reflects what has been its position for more than fifty years -- that a taxpayer does not have standing to challenge alleged government misconduct in the absence of injury in the form of "pecuniary or other direct loss." See Cassidy v. Waterbury, 130 Conn. 237, 245 (1943); Belford v. New Haven, 170 Conn. 46 (1975), overruled on other grounds, 184 Conn. 51, 57 n.7 (1981); Highgate Condominium Association v. Watertown Fire District, 210 Conn. 6, 15 (1989); Unisys Corporation v. Department of Labor, 220 Conn 689, 695 (1991). In fact, Cassidy, supra, like the present case, involved a challenge to a government entity's failure to obtain an appropriation that was allegedly required by law. In that case, the taxpayer claimed that a city board of police commissioners had no authority to contract for the purchase of parking meters without first obtaining an appropriation and seeking competitive bids. Given the lack of evidence of any injury to the taxpayer, the court denied the relief sought, emphasizing that "a taxpayer is not entitled to an injunction restraining such illegal conduct as the plaintiff claims unless he has suffered a pecuniary or other direct loss in that capacity." Id. 130 Conn. at 245. [The superior court has likewise applied this principle to deny standing in a case involving an alleged violation of appropriations statutes. See Enama v. Weicker , No. CV94-0046563S, 1994 WL 282165 (Conn. Super. June 13, 1994) (plaintiff taxpayers lacked standing to challenge alleged misappropriation of public funds to pay for the so-called "guns for goods" program in the absence of colorable claim of injury).]

To the extent that older cases cited by the defendants hold otherwise, they should not be followed, even if they have not been expressly overruled, given the clear status of current Supreme Court law to the contrary. "It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether or not such prior decisions are mentioned and commented on or not." State v. Dukes, 209 Conn. 98, 110 (1988). Indeed, Bassett v. Desmond, 140 Conn. 426 (1953), the only even vaguely modern Supreme Court case relied upon by the defendants for the proposition that allegations of government misuse of taxpayer funds are sufficient to confer taxpayer standing, has recently been rejected by a lower court as no longer good law. See Garrett v. City of Bridgeport, No. 321664, __ CaseBase__ (Conn. Super. March 27, 1995) (attached hereto in Exhibit C). With reference to the Bassett court's holding that a taxpayer had standing to challenge a town's illegal use of tax revenue to pay for a painting contract, the court in Garrett stated:

This language and this holding stand in stark contrast with the case law which follows Bassett. Specifically, the second holding in Bassett, finding taxpayer standing, is inconsistent with the test for such standing restated in Sadloski v. Manchester, 228 Conn. 83, and with the statement in Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. [at] 551, that "[t]here must be more alleged than the mere use by a municipality of revenues for an improper purpose in order to confer standing upon a taxpayer who seeks to challenge such action."

Id. slip op. at 3. Accordingly, the court in Garrett held that the plaintiff taxpayer had no standing to enjoin a nonbinding referendum that he claimed was unauthorized, even though "taxpayer monies from the general fund of the city of Bridgeport may have been expended in preparation for the referendum on casino gaming and may continue to be expended for that purpose, [because] the plaintiff has not proven that these expenditures will directly or indirectly increase his taxes or that he has been caused some other irreparable injury in his capacity as a taxpayer." Id. [The defendants also rely on several lower court rulings that should not be followed to the extent that they are inconsistent with Connecticut Supreme Court precedent. In particular, the defendants reliance on Murray v. Egan , 28 Conn. Supp. 204, 209 (1969), is misplaced because Murray was based on the second holding in Bassett , and thus is no longer good law. Mills v. Pettit , No. 0057933, 1992 WL 139741 (Conn. Super. June 10, 1992), is internally inconsistent because it purports to rely on Highgate Condominium Association v. Watertown Fire District , 210 Conn. 6, 15 (1989), but then ignores the requirement in Highgate that injury must be shown to establish standing. Because Mills conflicts with the very precedent on which it is based, it should not be followed.] The same rule applies in the present case and compels the conclusion that, given the absence of any showing of injury, the defendants have not satisfied the requirements for taxpayer standing.

Defendants Have No Interest In The State's Fee Arrangements With Its Chosen Counsel That Falls Within The "Zone of Interests" Protected By The Statutory And Constitutional Provisions At Issue.

The defendants further contend that even if they do not have taxpayer standing, they nonetheless have standing because "this motion addresses the core 'zone of interests' addressed by the statutes and constitutional provisions at stake." Defs' Supp. Br. at 14. The defendants' conclusory argument, however, fails to articulate any interest of the defendants that has been "specifically and injuriously affected" by the State's use of a contingent fee agreement or explain how that interest falls within "the zone of interests to be protected or regulated" by the statutes and constitutional provisions governing appropriations. See American Federation of State, County and Municipal Employees v. City of West Haven, No. CV 93-0704841S, 1994 WL 260782, at *5 (Conn. Super. June 2, 1994)(Sheldon, J.)(noting that aggrievement requires proof of a "specific, personal and legal interest in the subject matter" that has been "specifically and injuriously affected by the challenged action").

As discussed above with regard to taxpayer standing, the defendants have failed to prove that they have suffered or will probably suffer any pecuniary or other direct loss as a result of the State's use of a contingency fee agreement without a legislative appropriation. Apparently the defendants contention is that, even in the absence of such loss, they have a specific, personal and legal interest "in not being prosecuted under an illegal contract that violates the state's appropriation laws, violates the state code of ethics, and creates impermissible conflicts of interest," and that this interest has been injuriously affected by the State's use of a contingent fee contract. See Defs' Supp. Br. at 16. However, "[a] 'professed concern for obedience to law and the just disposition of every judicial or administrative proceeding' is inadequate to establish such a specific, personal and legal interest." West Haven, 1994 WL at *5 (quoting Nader v. Altermatt, 166 Conn. 43, 55 (1974)). What the defendants are really complaining about is the State's commencement of this action against them. However, the defendants cannot show that but for the challenged contingent fee agreement, the State would not have brought this action. Indeed, as the Attorney General made clear at oral argument, the State would have initiated and maintained this action against the defendants even in the absence of a contingent fee agreement and private counsel. See Oral Argument on Motion to Disqualify, State v. Philip Morris, No. CV96 0072414 (Conn. Super. Jan. 21, 1997) ("Transcript") at 69, 95. The agreement is an attempt to achieve a more "even playing field," see Plaintiff's Br. at 2, but is not the cause of this litigation.

Even if the defendants have an interest in not being sued that has been injuriously affected by the State's use of a contingent fee agreement, their interest is not even arguably within the zone of interests sought to be protected by the constitutional and statutory provisions concerning the handling of public money that they allege the State has violated. As stated by this Court, "'[a]pplying this [zone of interests] doctrine to challenges of official government action or inaction, the relevant question [is] not...simply whether the official or agency violated the law, but rather whether the official or agency violated any duty to the plaintiff.' This inquiry, in turn, requires an examination of the function and purpose of the specific constitutional or legal provision involved." American Federation of State, County and Municipal Employees v. City of West Haven, No. CV 93-0704841S, 1994 WL 260782 at *6 (Conn. Super. June 2, 1994)(Sheldon, J.)(quoting Planning and Zoning Commission v. Gaal, 9 Conn. App. 538, 543-44 (1987)(quoting L. Tribe, American Constitutional Law at 97-98)).

The statutory and constitutional provisions that the defendants claim the State has violated involve the deposit of State money, its handling by the Treasurer, and prohibitions against agency expenditures in excess of specific appropriations. [The specific constitutional and statutory provisions at issue are Conn. Gen. Stat.§§3-17, 4-32, 4-86, 4-98, 4-100 and 35-32a, and Conn. Const. Art. 4, §22.] The purpose of these provisions is to enable the State to account for its resources and maintain a budget by requiring state officers and agencies to adhere to certain procedures when dealing with budgeted funds. Unlike the statute at issue in West Haven, which addressed the precise issue being challenged by the plaintiffs in that case, nothing in these provisions even mentions contingent fee agreements or attorneys' fees. [In American Federation of State, County and Municipal Employees v. City of West Haven , No. CV 93-0704841S, 1994 WL 260782 ( Conn. Super. June 2, 1994), on which defendants rely, the statute at issue granted extraordinary fiscal powers, including collective bargaining power, to a city board of finance review. This court held that the plaintiff union had standing to challenge the statute because the union's interest in collective bargaining was within the zone of interests regulated by the statute. This court further noted, however, that "[h]ad the General Assembly confined its actions to enacting special legislation restructuring the City's government or otherwise delimiting its powers and prerogatives without specifically addressing collective bargaining, it might fairly be said that any incidental effects such changes might have had on the Union would be too indirect or insignificant to bring the Union or its members within the 'zone of interests' affected by the text of the constitutional provision." Id . at *6. In the present case, the statutes at issue do not address fee agreements at all and thus any incidental effects they may have on the defendants are too indirect and insignificant to bring the defendants within the "zone of interests" of these statutory provisions.] Nor do these provisions evidence any legislative intent to create a duty on the part of the State, its agencies or its officers to the defendant tobacco companies. In the absence of such a duty, the defendants' interest is not within the zone of interests sought to be protected by the statutes at issue and accordingly cannot be the basis for standing to bring this motion.

Defendants Cannot Establish Standing Based On An Unfounded Claim That The State's Use Of A Contingent Fee Agreement Would Otherwise Be Unreviewable

The defendants' final claim with regard to standing is the unfounded contention that if they do not have standing to seek judicial review of the State's contingent fee agreement, then the agreement will be effectively unreviewable. This is patently untrue.

Unlike the situation in Mills v. Pettit, No. 0057933, 1992 WL 139741 (Conn. Super. June 10, 1992), on which defendants rely, [In Mills , the court found that there was no possibility of review of a Town Board of Selectmen's resolution to eliminate a police captain's position and pay him almost $15,000 in severance pay and medical benefits, other than by waiting until the next election and voting the Board out of office. ] in this case multiple entities could seek review of the State's contingent fee agreement and the Attorney General's authority to enter into this agreement on behalf of the State. In addition to the parties to the present agreement, who could clearly seek judicial review, the State Auditors have the authority to audit the books and accounts of the Attorney

General's office as frequently as they deem necessary and, if they discover any past or contemplated "unauthorized, illegal, irregular or unsafe handling or expenditure of state funds or any breakdown in the safekeeping of any resources of the state," have not only the authority, but the obligation, to report to the Governor, the State Comptroller, and the legislative Program Review and Investigations Committee. See Conn. Gen. Stat. §2-90 (c) and (e).

Furthermore, the General Assembly is clearly in a position to review the use of contingent fee agreements by state agencies and, if it so chooses, to enact legislation to change the current practice. Indeed, the Utah court, in holding that the tobacco companies' did not have standing to disqualify the Utah Attorney General's private counsel, addressed this precise issue and concluded that the matter would more appropriately be handled by the legislature in that state. As stated by the court:

The third issue is whether the issue is likely to be raised at all absent this particular plaintiff being allowed to do so. Recognizing that others share an interest in whether the Attorney General may use contingent fees, the issue does not belong solely to the plaintiffs. Knowing that the legislature has the power to prohibit or restrict contingent fee arrangements, it is unlikely that the issue will be ignored absent the plaintiffs. It is arguably more appropriate for the legislative branch of government to determine the appropriate limits on state resource allocations. In our governmental framework, the State's Constitution places the ultimate purse strings in the hands of the legislative branch of government. The issue of contingent fees could suitably be addressed by the legislature. In addition, the Utah Supreme Court has directed that courts "will not entertain grievances that are more appropriately directed to the legislative and executive branches of state government." That is clearly the case in this matter. The issue will not be mooted by failing to grant standing to the plaintiffs.

Philip Morris, Inc. v. Graham, Case No. 960904948, slip op. at 8 (Third Judicial District, Salt Lake County, Utah, February 13, 1997)(Exhibit B). The same argument applies equally well to the present case and compels the same conclusion here. Accordingly, the defendants' motion should be denied for lack of standing to

the extent that it is based on the claim that the State cannot enter into a contingent fee agreement in the absence of a legislative appropriation.

THE DEFENDANTS' CHALLENGE TO THE STATE'S RETENTION OF PRIVATE COUNSEL PURSUANT TO THE CONTINGENT FEE AGREEMENT IS NOT RIPE FOR ADJUDICATION

The defendants' motion to disqualify plaintiff's counsel is fundamentally flawed not only because the defendants lack standing, but also because it is not ripe for adjudication, at least insofar as it is based on the State's alleged need to seek a legislative appropriation in order to compensate its counsel on a contingent fee basis.

The ripeness of a claim is equated with its justiciability. Balletti v. Pappas, No. 328962, 1991 WL 40441 at *3 (Conn. Super. Mar. 15, 1991). "Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute...; (2) that the interests of the parties be adverse...; (3) that the matter in controversy be capable of being adjudicated by judicial power...; and (4) that the determination of the controversy will result in practical relief to the complainant." Pelligrino v. O'Neill, 193 Conn. 670, 674 (1984), cert. denied, 469 U.S. 875 (1984). In the present case, the defendants' claim is not ripe because, at the very least, it fails to satisfy the first or the fourth of these factors.

First, the defendants' claim is not ripe because, as of the present time, there is no controversy. Although the defendants contend there is a controversy because they have an interest in not being sued pursuant to an allegedly illegal agreement, the provisions on which the defendants rely are not relevant until there is a recovery. In the absence of any recovery, the State Treasurer has nothing to deposit, the General Assembly has nothing to appropriate and the State has no liability to its private counsel. Only when, and if, there is a recovery could there possibly be a controversy as to whether private counsel can be paid a contingent fee without a legislative appropriation, assuming private counsel are still involved in the case at that time. Until then, the issue is purely hypothetical.

Furthermore, the defendants' claim fails to satisfy the fourth requirement for justiciability in that there is no resolution of this dispute that will result in practical relief to the defendants. As the Utah court stated in dismissing multiple counts of the tobacco companies' preemptive suit against the State of Utah:

Disallowing a contingent fee does not, in itself, legally prevent the state from filing suit against the Tobacco companies. As a legal matter, the State's right to maintain the lawsuit would survive, whatever this court's ruling. The State would be free to exercise alternative funding options in order to pursue its claims.

Philip Morris, Inc. v. Graham, Case No. 960904948, slip op. at 5-6 (Third Judicial District, Salt Lake County, Utah, February 13, 1997)(Exhibit B). The same argument applies here. Even if plaintiff's counsel were disqualified and the contingent fee agreement were declared void, such a result would in no way provide any relief to the defendants because they would still be subject to this lawsuit. See Transcript (1/21/97) at 69 and 95.

USE OF CONTINGENT FEE COUNSEL DOES NOT CREATE AN IMPERMISSIBLE CONFLICT OF INTEREST

The defendants' principal basis for disqualification of the private attorneys assisting the Attorney General is that those counsel have a personal interest in the suit by virtue of their contingent fee agreement. The defendants rely on Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987), to argue that the Attorney General's use of outside counsel for assistance violates the defendants' due process rights. (Defs' Supp. Br. at 56). [Young carefully did not decide whether the prosecution at issue there was a violation of the defendant's due process rights. 481 U.S. at 809 n21. See Sassower v. Sheriff of Westchester County , 824 F.2d 184, 191 (2d Cir. 1987).] However, Young does not apply in the instant case, and in fact, is contrary to defendants' position.

Young involved the appointment of a private prosecutor to prosecute a criminal contempt against an alleged violator of a civil injunction. The appointed prosecutor was also the attorney for the party in whose favor the injunction ran. The Supreme Court held that the appointment was improper since the conflict of interest there presented was too great to be tolerable.

First, Young only applies in criminal prosecutions. 481 U.S. 809-14. The instant action is not a criminal prosecution, nor akin to one. See Plaintiff's Supp. Br. at 36-37.

Second, the conflict at issue in Young was deemed intolerable because dual allegiance was ethically required. Young was entirely premised upon the appointed prosecutor's legally imposed requirement that he serve both the interests of his private client and the public's interest in criminal prosecution.

Furthermore, such conduct would violate the ABA ethical provisions, since the attorney could not discharge the obligation of undivided loyalty to both clients where both have a direct interest. The government's interest is in dispassionate assessment of the propriety of criminal charges for affronts to the Judiciary. The private party's interest is in obtaining the benefit's of the court order. While these concerns sometimes may be congruent, sometimes they may not.

481 U.S. at 805.

The Court explicitly noted that not all potential conflicts would disqualify a prosecutor. Reiterating its holding in Marshall v. Jerrico, Inc., 446 U.S. 238,248-52 (1980), the Court admonished that prosecutors are not to be held to "as stringent a standard of disinterest as judges" and that one should not "find a conflict of interest in situations where potential for conflict on the part of a judge might have been intolerable." 481 U.S. at 807. It is only in the situation where an actual conflict requires a prosecutor to forego his allegiance to the public interest that the Court found the risk intolerable. The Court held that:

In a case where a prosecutor represents an interested party, however, the ethics of the legal profession require that an interest other than the Government's be taken into account. Given this inherent conflict in roles, there is no need to speculate whether the prosecutor will be subject to extraneous influence.

481 U.S. at 807 (emphasis in original).

In this case, the counsel hired by the Attorney General are not in a position of being required to serve two masters. They are ethically bound to serve only one -- the Attorney General. Thus, the impermissible conflict that was of concern in Young is not at issue here.

Third, even with the existing conflict in Young, the Supreme Court would allow the private counsel to assist a disinterested prosecutor, so long as the conflicted attorney is not in control of the prosecution. 481 U.S. at 806 n.17. The courts since Young have held that even significant participation in the prosecution by the attorney's representing the private party does not require disqualification so long as a disinterested prosecutor controls the prosecution. Faulder v. Johnson, 81 F.3d 515, 517-18 (5th Cir. ), cert. denied, 65 U.S.L.W. 3369 (1996); East v. Scott, 55 F. 3d 996, 999-1001 (5th Cir. 1995); FTC v. American National Cellular, 868 F.2d 315, 318-20 (9th Cir. 1989); Person v. Miller, 854 F.2d 656, 662-64 (4th Cir. ), cert. denied, 489 U.S. 1011 (1988). In such a circumstance, the conflict of the private attorney is not vicariously attributed to the disinterested prosecutor. Rather, the prosecutor's disinterest alleviates any concerns about improper influences in the prosecutorial function. A fortiori, using outside counsel to assist in the litigation of a civil action, where the outside counsel have no ethical duty to serve private interests, does not require disqualification.

People v. Eubanks, 927 P.2d 310 (Cal. 1996), on which defendants rely, is likewise inapposite to the present case. Contrary to defendants assertions, the court in Eubanks did not

find disqualification appropriate merely upon a finding that a conflict existed. Rather, the court reiterated again and again that a conflict "warrants recusal only if so grave as to render it unlikely that defendant will receive fair treatment" and that "the likelihood that the defendant will not receive a fair trial must be real and must rise to the level of a likelihood of unfairness." Id. at 317. Disqualification is not warranted just because "district attorney's further participation in prosecution would be unseemly, would appear improper, or would tend to reduce public confidence in the impartiality and integrity of the judicial system." Id. The Court made clear that the "District Attorney is not disqualified simply because, in an effort to overcome budgetary restraints, he or she has accepted assistance from the public in investigating or prosecuting a crime." Id. at 320. Moreover, "That the prosecutor may have been able to proceed further or more quickly against defendants with [the victim's] assistance than without would not, by itself, constitute unfair treatment." Id.. at 322. [In Eubanks , the California Supreme Court did not hold that disqualification was required. Rather, after recounting the peculiar facts that the trial court had before it, the Court merely held "we cannot say, as a matter of law, [the trial court] would have abused its discretion in finding the conflict so grave as to render fair treatment of the defendants ... unlikely". 927 P.2d at 323. In that case, the prosecutor "request[ed] the victim's assistance to satisfy a monetary debt already incurred." Id . at 322-23. Moreover, the trial court assessed the prosecutor's case as "factually weak." Id . at 323. The trial court thought that this combination of facts created prejudice to the defendants -- that is that the prosecutor would feel a greater obligation to continue a weak prosecution for a victim that had bailed him out of a monetary debt than he would for a victim that made no such payment. No similar sense of obligation flows from the contingent fee agreement. Contingent fee counsel have provided no benefit to the Attorney General for which the Attorney General has not compensated them in the Agreement. See discussion in text, infra at page 35.] For these same reasons, other courts have not permitted disqualification of a prosecutor absent a showing of prejudice to the criminal defendant. See, e.g., State v. Bunkley, 202 Conn. 629, 654 (1987); United States v. Rosnow, 977 F.2d 399, 411 (8th 1992), cert. denied sub nom, Dewey v. United States, 507 U.S. 990 (1993); In re Grand Jury Subpoena of Rochon, 873 F.2d 170, 176 (7th Cir. 1989); United States v. Hart, 779 F. Supp 883, 896 (E.D. Mich. 1991).

Defendants' last gasp argument is that the Attorney General himself is somehow conflicted by "his understandable solicitude to protect private counsel's interests." (Defs' Supp. Br. at 60). Defendants rely principally on Low v. Madison, 135 Conn. 1 (1948), to bootstrap their position that "solicitude" for private counsel requires disqualification. While Low v. Madison sanctions disqualification of quasi-judicial officers on the basis of personal as well as financial conflicts, that doctrine does not sweep nearly as broadly as defendants would like. In Low, the court found that a zoning official should be disqualified where the official's actions would provide a financial benefit to the official's wife even though there was no evidence that the financial benefit would flow to the official. The court found that the official had a conflict arising out of a "natural sentiment of the family." 135 Conn. at 9.

The "natural sentiment" to assist one's wife cannot in any way be compared to the defendants' illogical claim of "solicitude" by the Attorney General for the State's private attorneys in this case. The Supreme Court has refused to carry Low to this extreme even with regard to quasi-judicial officers. "The impermissible interest asserted must be realistic and more than remote." Petrokowski v. Norwich Free Academy, 199 Conn. 231, 236 (1986). Courts routinely refuse disqualification of

quasi-judicial officers where the alleged conflict is remote, tenuous or speculative. E.g., Jutkowitz v. Department of Health Services, 220 Conn. 86, 99-100 (1991) (adjudicator's business relationship with complaining witness too tenuous for disqualification); Ghent v. Zoning Commission, 220 Conn. 584, 594-95 (1991) (desire for personal or political aggrandizement not the "kind of personal interest proscribed); Petrowski v. Norwich Free Academy, 199 Conn. at 242-43 (membership in same law firm that represented school from which teacher was terminated too remote to disqualify from adjudicating appropriateness of termination); Anderson v. Zoning Commission, 157 Conn. 285, 292 (business relationship with applicant's attorney insufficient to warrant disqualification of zoning official); Local 530 AFSCME v. City of New Haven, 9 Conn. App. 260, 271 (1986) (gratefulness to appointing official "too remote and nebulous" for disqualification). [The two post- Low cases cited by the defendants (def. sup. mem. at 63) do not support defendants' position. In Brunswick v. Inland Wetlands Commission , 29 Conn. App. 634, 639-40 (1992), the Appellate Court deemed disqualification warranted based upon a direct opportunity for personal financial gain to the zoning official. No such opportunity for the Attorney General exists here, and defendants have not even alleged that the Attorney General is in the position to reap personal financial gain. The other case, Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority , 192 Conn. 638, cert. denied , 469 U.S. 932 1984, actually recognizes the limitations on the Low principles. Id . at 650-51. In that case the Court held that disqualification was not warranted where the official was an officer of a corporation affected by the assessment at issue. The Court held that disqualification was inappropriate merely because it was possible for the corporation to be benefited. Disqualification of the official would have required showing that the official's actions actually provided a financial benefit to the corporation. ]

Likewise, defendants' reliance on Schweiker v. McClure, 456 U.S. 188 (1982), to support the contention that an interest as remote as "solicitude" for private counsel can support disqualification is in error. Again, Schweiker v. McClure involved quasi-judicial officers, not prosecutors. Even considering the higher standards for these types of officials, See Marshall v. Jerrico, 446 U.S. 238, 242-43, and n.2 (1980), the Court found that hearing officials were not disqualified due to their relationship with the insurance carriers whose decisions they were reviewing. Conflicts "for reasons of psychology [or] institutional loyalty...require substantiation before they can provide a foundation " for disqualification. 456 U.S. at 196 n.10.

A glaring flaw in defendants' position is that the defendants are unable to articulate even a cognizable conflict of the Attorney General. Apparently defendants contend that the Attorney General will forsake his obligations and dedication to the public interest in favor of relieving the risk of non-payment inherent in the contingent fee contract voluntarily entered into by private counsel. Not only is there not a shred of evidence that would indicate the possibility of such an abdication of responsibility, but the defendants' notion defies logic. The risk that private counsel may never receive compensation is precisely the risk that they have voluntarily undertaken, and it is the very risk that the Attorney General has compensated them for in the contingent fee agreement. The prospect of receiving a percentage of monies that may be awarded is the consideration for undertaking the risk that the suit may fail to provide a monetary judgment. Having thus already compensated the private counsel for the risk of non-payment, the Attorney General has no special "solicitude" for private counsel if that eventuality occurs.

Because the Attorney General controls the litigation, and because the Attorney General has no disqualifying personal interest, disqualification is inappropriate even if this were a criminal proceeding. A fortiori, disqualification is inappropriate in this civil action.

PLAINTIFF'S RESPONSE TO ADDITIONAL POINTS RAISED IN THE DEFENDANTS' SUPPLEMENTAL MEMORANDUM AS TO WHICH THE COURT INVITED BRIEFING

The following arguments are addressed in response to discrete issues raised in the defendants' supplemental memorandum as to which the court invited briefing.

The State Is Entitled To Retain The Net Proceeds Of The Litigation

In support of their argument that any funds recovered in this lawsuit would belong to the State, the defendants argue that a judgment for attorneys' fees in this action would be awarded to the plaintiff, State of Connecticut. See Defs' Supp. Br. at 32-33. Plaintiff does not quarrel with that axiomatic proposition. [An award to the state of attorneys' fees may include compensation for the work performed both by employees of the Attorney General's office and private counsel. (See pl. sup. mem. at 42). The amount awarded for compensation for the work of private counsel is not limited by the amount that the Agreement requires be paid to private counsel. A "reasonable" attorneys' fee award can be made to the State in excess of the amount to which the private attorneys are entitled under the Agreement. See Blanchard v. Bergeron , 489 U.S. 87, 93-94 (1989). Indeed, a party's contractual agreement with its lawyers determines what must be paid to the lawyers, not the award of attorneys' fees. Venegas v. Mitchell , 495 U.S. 82 (1990). The fact that the state may retain the portion of the award in excess of the amount it is obligated to pay its attorneys does not alter the conclusion that what the state is entitled to is the net proceeds from the lawsuit, after payment of the costs of collection. ] But that is an entirely different question than whether the constitution or statutes prohibit payment of the amount due private counsel under the Agreement. Plaintiff respectfully refers the Court to its previous memoranda on this issue. See Plaintiff's Br. at 17-28 and Plaintiff's Supp. Br. at 20-27.

Interpretation OF CONN. GEN. STAT. SEC. 35-32a REQUIRES A READING OF THE WHOLE STATUTORY SCHEME

The defendants argue that the word "recover" in Conn. Gen. Stat. §35-34, and the word "recovery" in Conn. Gen. Stat. §35-32a, have the same meaning. According to the defendants, the term "recovery" in Section 35-32a cannot refer only to the portion of an "award" that the State is not obligated to pay private counsel, but rather must refer, like the term "recover" in Section 35-34, to all funds which may be awarded to the State for attorneys' fees under the antitrust claims. In making this argument, however, defendants rely upon cases that hold that where the same words are used in a statute two or more times, they ordinarily will be given the same meaning. (Defs' Supp. Br. at 34). First, the use of this statutory construction tool is not absolute, only "ordinarily", not always, applying. ["No one invariable rule of statutory construction is controlling." Carpentieri-Waddington, Inc. v. Commissioner of Revenue Services , 231 Conn. 355, 362 (1994). Indeed, identical terms used in the same statute are not always construed identically. E.g. , Dewsnup v. Timm , 502 U.S. 410, 416-17 (1992); Greenwood Trust Co. v. Massachusetts , 971 F.2d 818, 830 n.10 (1992), cert. denied , 506 U.S. 1052 (1993); Vanscoter v. Sullivan , 920 F.2d 1441, 1448 (9th Cir. 1990). ] Moreover, Conn. Gen. Stat. § 35-32a and Conn. Gen. Stat. § 35-34 and 35 do not use the same words. Sections 35-34 and 35-35 use the word "recover" and Conn. Gen. Stat. § 35-32a uses the word "recovery". Thus, resort to the statutory construction maxim concerning same words is not dispositive.

Rather, it is appropriate to read the statutory scheme as a whole, using the purposes of the scheme and the legislative history of the statute at issue as an interpretive guide. "The fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature." Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618,

622 (1994). To that end the Court must look to the "purpose and legislative history of the statute in question", Id., keeping in mind that "remedial statute[s] ... must be liberally construed in favor of those whom the legislature intended to benefit." Id. at 623. Accord Connecticut Bank & Trust v. Winters, 225 Conn.146, 158 (1993) ([C]ourt must construe [statute] in accordance with the statute's background and purpose..."); McMahon v. Aetna Life and Casualty Co., 42 Conn. App. 225, 228-29, cert. denied, 239 Conn. 916 (1996) (Statutory interpretation should promote, not frustate, remedial objectives of the legislature).

Plaintiff's Supplemental Brief at 40 -49, sets out both the statutory scheme context and the legislative history of Conn. Gen. Stat. § 35-32a. The Connecticut Antitrust Act is a remedial statute evincing a strong policy in favor of vigorous enforcement by the Attorney General. (pl. sup. mem at 40-43) The purpose of Conn. Gen. Stat. § 35-32a was to facilitate, not retard such enforcement. In passing Public Act 85-410, the legislature merely intended to provide direct appropriations for in-house lawyers and to abolish the Revolving Fund. The Act simply required that the moneys that had been being deposited into the Revolving Fund would from then on be deposited into the General Fund. Prior to 1985, moneys paid to outside counsel by contingent fee or court award were not deposited in the Antitrust Revolving Fund. Nonetheless, all moneys awarded to the State for attorneys fees in excess of that which was to be paid to outside counsel was to be deposited in the Revolving Fund, and after 1985, into the General Fund. Since fees of outside counsel were not funds that were deposited in the Revolving Fund, the passage of Conn. Gen. Stat. § 35-32a had no effect on the method that had previously been used to pay such fees.

The history of the Antitrust Revolving Fund makes clear that successive Attorneys General hired outside counsel paid by contingent fees or court awards both prior to the enactment of the Fund and during its existence. Neither the creation nor abolition of the Fund was intended in any way to affect this practice. In context, Section 35-32a cannot be read to extinguish the historical and long-standing practice of paying private counsel through the proceeds of the lawsuit.

THE CONTINGENT ADVANCEMENT OF COSTS BY PRIVATE COUNSEL IS NOT PROHIBITED BY ANY LIMITATIONS OF THE ACCEPTANCE OF GIFTS

Defendants argue that the contingent advancement of some monies for costs is prohibited by limitations on the Attorney General's authority to accept gifts on behalf of the State. (def. sup. mem. at 50-52). This argument is specious. First, the advancement of costs on a contingent basis is not a gift.

"A gift is the transfer of property without consideration." Guinan's Appeal, 70 Conn. 342, 347, 39 A. 482. To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee.

Kriedel v. Krampitz, 137 Conn. 532, 534 (1951). Thus, payment of costs by private counsel which are to be reimbursed out of proceeds of the lawsuit is not a gift. [In this respect the advancement of costs is no different than the advancement of attorney services. Both are supported by the consideration of contingent payment. Neither is a gift.]

Moreover, even if the contingent payment of costs was a gift to the State, the defendants could suffer no harm from any alleged irregularities in its receipt. While defendants cite Conn. Gen. Stat. § 4-32 and 35-32a (1) for the proposition that gifts are to be deposited into the General Fund, they fail to address Conn. Gen. Stat. § 4-31a(a). That section provides:

Any gift, contribution, income from trust funds, or other aid from any private source or from the federal government ... shall be entered upon the records of the general fund in the manner prescribed by the secretary of the office of policy and management. When so recorded, such amounts shall be deemed to be appropriated to the purposes of such gift, contribution or other aid and shall be allotted in accordance with law.

(emphasis supplied).

Thus, if the procedures that defendants deem appropriate were followed, the monies would be available precisely for the purposes for which they are currently being used. The defendants suffer no harm. Therefore, not only do the defendants have no standing to raise this argument, but they can point to no prejudice that could form the basis of any disqualification.

THE ATTORNEY GENERAL IS A CONSTITUTIONAL OFFICER WITH COMMON LAW AND STATUTORY POWERS WHICH CONFER ON HIM THE POWER TO DIRECT AND CONTROL LITIGATION, INCLUDING ITS RESOLUTION

Defendants posit that the Attorney General has sharply circumscribed authority and "possess[es] no power to compromise claims," because the Attorney General is a subordinate executive officer with no constitutional powers. See Defs' Supp. Br. at 42-50. However, the Attorney General is not just a subordinate statutory state official. He is a constitutional officer elected by the people of the state and answerable to them. See Conn. Const. Amend. I; Commission on Special Revenues v. FOIC, 174 Conn. 308, 318 (1978) ("As a constitutional executive officer of the state ... [the Attorney General] has also been entrusted with broad duties as its chief civil law officer...."). The Attorney General's clients are "the people of the State." Commission on Special Revenues v. FOIC, 174 Conn. at 319.

The Attorney General's responsibility is not limited to serving or representing the particular interests of State agencies ... but embraces serving or representing the broader interests of the State.... If the Attorney General is to have the unqualified role of chief legal officer of the State, he or she must be able to direct the legal affairs of the State..."

Id. at 320 quoting Environmental Protection Agency v. Pollution Control Board, 372 N.E. 2d 50, 53 (Ill. 1977).

The Attorney General's powers and duties spring from the common law and are enhanced by statute. [Conn. Gen. Stat. § 3-125 sets out in broad terms expansive authority to the Attorney General. Defendants attempt to use section 3-125 as a limitation on the authority to contract on a contingent fee basis. At page 44 of their Supplemental Memorandum, defendants posit that, according to their rendition of the Attorney General's oral argument before the court, Section 3-125 limits the hiring of assistant attorneys general except by appropriated funds. From that self-crafted premise, defendants then argue that the authority to "procure such assistance as he may require" must also be limited to the use of appropriated funds. Defendants' underlying premise, however, is wrong. The requirement of hiring assistant attorneys general with appropriated funds is not a limitation placed on the hiring by section 3-125. Rather it is the State Personnel Act and the state ethics statutes that place limitations on how state employees may be paid. Those limitations do not apply to the hiring of the contractors at issue here. Section 3-125 itself contains no constraints on the manner of hiring outside assistance. Defendants similarly wrongly rely on the Attorney General's opinion regarding Governor Weiker's agreement with the Mashuntucket Pequot Indians. That opinion places no additional limitations on the authority of the Attorney General. As discussed in plaintiff's previous briefs, the contingent fee contract is not an unlawful appropriation of state monies. See Plaintiff's Br. at 17-29; Plaintiff's Supp. Br. at 20-27. Thus the contingent fee agreement is not ''a contract within the province of the legislature only". ] Indeed, the Connecticut Supreme Court has long recognized that the Attorney General has "common law powers, which can only be taken away by the clear terms of the statute." State v. Keena, 64 Conn. 212, 216 (1894). [Originally, the civil and criminal common law powers and duties of the Attorney General belonged to the State's Attorney. In 1897, The General Assembly established the first Attorney General, thus dividing the historic powers of the English Attorney General into a civil domain governed by the Attorney General and a criminal domain governed by the State's Attorney. See Conn. Gen. Stat. § 3-125.] That common law authority is the "power and duty to exercise common law powers appertaining to the office of the Attorney General, so far as applicable to our system of jurisprudence." Id. at 215. Such powers arise from the historical powers of the English Attorney General. Id. at 214.

After reviewing the powers of Attorneys General in the various states derived from these same historical powers of the English Attorney General, the Delaware Supreme Court concluded:

In England the office is of ancient origin. It was vested by the common law with a great variety of duties. The Attorney General was the law officer of the Crown, and its only legal representative in the courts.... The powers and duties of the office of Attorney General are so numerous and varied that neither the framers of our several constitutions nor the legislatures have ever undertaken exhaustively to enumerate them, and where not defined by statute those powers and duties must be sought for in the common law.... The authorities substantially agree that, in addition to those conferred upon it by statute, the office is clothed with all of the powers and duties pertaining thereto at common law; and as chief law officer of the State, the Attorney General, in the absence of express legislative restriction to the contrary, may exercise all such power and authority as the public interests may from time to time require. In short, the Attorney General's powers are as broad as the common law unless restricted or modified by statute.

Darling Apt. Co. v. Springer, 22 A.2d 397, 403 (Del. 1941) (citations omitted).

The Attorney General's common law authority as the unqualified civil law officer of the state has been consistently recognized by the Connecticut courts. See, Commission on Special Revenues v. FOIC, 174 Conn. 308, 318-20 (1978). State v. Bull Investment Group, Inc., 32 Conn. Sup. 279, 292 (1974); Lieberman v. Board of Tax Review, No. 76065, Judicial District of Stamford at Stamford, slip op. at 10-13 (Conn. Super. Ct. Jan. 24, 1986) (Mem. of Decision on Motion to Dismiss)(copy attached in Exhibit D). Lieberman v. Rogers, 40 Conn. Sup. 116 (1984).

Once a matter is within the Attorney General's magistracy, it is the Attorney General's responsibility to decide the best course. As stated by the Connecticut Supreme Court, "[i]f the Attorney General is to have the unqualified role of chief legal officer of the State, he or she must be able to direct the legal affairs of the State..." Commission on Special Revenues v. FOIC, 174 Conn. at 320 (quoting Environmental Protection Agency v. Pollution Control Board, 372 N.E. 2d 50, 53 (Ill. 1977)).

A necessary power of the Attorney General in directing the legal affairs of the State is the power to control the disposition of litigation entrusted to him, including the power of dismissal or compromise. At any given time, the Attorney General is entrusted to represent the public interest in thousands of court cases. At the end of fiscal year 1995-96, the Attorney General's office had 25,964 court cases pending. During that fiscal year, the Attorney General completed 21,800 court cases. Digest of Administrative Reports to the Governor, Volume L, at 32 (November 1996)(attached hereto as Exhibit E). It is the Attorney General's responsibility to handle and resolve these cases in the public interest, either through full litigation, dismissal, discontinuance or compromise. The Attorney General's office is called upon daily to make such decisions during pre-trials, trials and settlement conferences. That is the common law and statutory duty and authority of his office.

Other state courts have found that the power to control the disposition of cases entrusted to the Attorney General is a core power of the Attorney General's role as chief legal officer of the State.

The Attorney General has authority to bring lawsuits ... and to assume and control the prosecution thereof in the state's best interest. It must logically follow that he has authority to compromise and dismiss the suit.... As an incident to the dominion the Attorney General possesses over every suit instituted in his official capacity, he has the power to dismiss, abandon, discontinue, or compromise suits brought by him either

with or without a stipulation by the other party and to make disposition of such suits as he deems best for the interest of the state.

State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813, 818 (Okl. 1973). Accord State ex rel. Carmichael v. Jones, 41 So.2d 280, 284-85 (Ala. 1949) ("[T]he Attorney General, as the chief law officer of the state, was fully empowered to make any bona fide disposition of the cause as in his judgment might be deemed to be to the best interest of the state...."); State v. Finch, 280 P. 910, 912 (Kan. 1929) ("Attorney General has power ... to make any disposition of the state's litigation that he deems for its best interests; for instance he may abandon, discontinue, dismiss, or compromise it."); Secretary of Admin. & Finance v. Attorney General , 326 N.E. 2d 334 (Mass. 1975); Lyle v Luna, 338 P.2d 1060, (N.M. 1959); Cooley v. South Carolina Tax Commission, 28 S.E. 2d 445, 450-51(S.C. 1943). Indeed, other states have held that the Attorney General can control the resolution of a matter within his authority even when other members of the executive branch object. E.g., Feeney v. Commonwealth, 366 N.E. 2d 1262, 1266 (Mass. 1977); see also Superintendent of Ins. v. Attorney General, 558 A.2d 1197 (Maine 1989). Thus, contrary to the defendants' claims, the authority of the Attorney General to compromise matters in litigation is a core power of the Attorney General. The Attorney General's common law powers "can only be taken away by the clear terms of the statute." State v. Keena, 64 Conn. 212, 216 (1894). [The legislature has repeatedly recognized the function of the Attorney General in this area in granting other executive officers the authority to compromise claims. See e.g. , Conn. Gen. Stat. § 3-7 (limiting the governor's ability to authorize compromises only upon Attorney General's recommendation); Conn. Gen. Stat. § 12-125 (requiring Attorney General's consent to compromise certain municipal taxes); Conn. Gen. Stat. § 13a-144 (requiring Attorney General's approval for Commissioner of Transportation to settle negligence action); Conn. Gen. Stat. § 17b-79 (requiring Attorney General's advice and consent for compromise of amount due under mortgage lien).]

What is at issue in this case, however, is not the Attorney General's power to settle claims, but rather his broad common law and statutory authority "to direct the legal affairs of the State...." Commission on Special Revenues v. FOIC, 174 Conn. at 320. Because the Attorney General's decision that private counsel should be hired in this case on a contingent fee basis to augment the resources of his office and fully protect the interests of the State is not only consistent with his statutory authority to procure such assistance as he shall require, but also in complete compliance with all constitutional, statutory and ethical requirements, the defendants' motion to disqualify the State's private counsel should be denied.

CONCLUSION

For all of the foregoing reasons, and all the reasons set forth in the plaintiff's prior Memoranda, the defendants' Motion to Disqualify Counsel or for other relief with respect to the contingent fee agreement should be denied.

PLAINTIFF

STATE OF CONNECTICUT

BY: ______________________________

RICHARD BLUMENTHAL

ATTORNEY GENERAL

JURIS No. 403804

P.O. BOX 120

HARTFORD, CT 06141-0120

TEl: (860) 566-2026

JANE R. ROSENBERG

WILLIAM M. RUBENSTEIN

ELIOT D. PRESCOTT

STEPHEN R. PARK

ASSISTANT ATTORNEYS

GENERAL

110 SHERMAN STREET

HARTFORD, CT 06105

TEL: (860) 566-5374

CERTIFICATION

I hereby certify that a copy of the foregoing has been hand delivered or mailed first-class, postage prepaid, on this 3rd day of March, 1997, in accordance with the Master Service List.

______________________________

Stephen R. Park

Assistant Attorney General

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