## Facts

- Edward Tuccio previously sued Harry Neumann for slander.
- Neumann alleged that, before Tuccio served the slander complaint, Tuccio received communications from Robert Tuccio, Jr. indicating that the complaint’s slander allegations were incorrect and that the claimed statements by Neumann were not made.
- The slander case proceeded to trial, and the court granted a directed verdict for Neumann because Tuccio failed to make out a prima facie case.
- Neumann then sued Tuccio for vexatious litigation based on the allegedly baseless slander action.
- In the vexatious-litigation case, Tuccio asserted an advice-of-counsel defense, contending that he acted in good faith reliance on counsel’s advice when bringing and pursuing the slander claim.
- Neumann moved to disqualify Tuccio’s attorney, John R. Williams, arguing that Williams was likely to be a necessary witness concerning what Tuccio told Williams, what advice Williams gave, and whether Tuccio reasonably relied on that advice.

## Issues

1. Whether the court should disqualify defendant’s trial counsel under the advocate-witness rule (Rule 3.7) because the defendant raised an advice-of-counsel defense in a vexatious-litigation action.

## Decision

- The court denied the motion to disqualify John R. Williams.
- The court treated disqualification as a severe remedy and placed a heavy burden on the party seeking it.
- The court concluded that Neumann had not shown Williams was “likely to be a necessary witness” within the meaning of Rule 3.7.
- The court reasoned that the facts tied to the advice-of-counsel defense (what Tuccio knew, what he disclosed, and what he relied on) could be developed through Tuccio’s own testimony, testimony from other witnesses (including percipient witnesses from the underlying events), and documents from the prior slander case.
- Because alternative sources of proof were available, any need for Williams’s testimony was not shown to be noncumulative or unavailable by other means.
- The case continued with Williams remaining as counsel for Tuccio; the ruling addressed only disqualification and did not decide the merits of the vexatious-litigation claim.

## Legal Principles

- Vexatious litigation generally requires proof that the prior action terminated in the plaintiff’s favor and that the defendant initiated or continued the prior action without probable cause and with malice or an improper purpose.
- Advice of counsel may defeat vexatious-litigation liability when the defendant fully and fairly disclosed the material facts to counsel and then relied on counsel’s advice in good faith.
- Under Rule 3.7 (lawyer as witness), a lawyer may not act as trial advocate when the lawyer is likely to be a necessary witness, subject to limited exceptions.
- A lawyer is a “necessary witness” only when the lawyer’s testimony is material and cannot reasonably be obtained from other sources; testimony that would be cumulative or merely helpful is not enough.
- Disqualification motions are disfavored because they can be used tactically and can deprive a party of chosen counsel; courts require a strong showing that the rule applies and that disqualification is needed for a fair trial.

## Conclusion

In Neumann v. Tuccio, the Connecticut Superior Court denied a motion to disqualify the defendant’s lawyer in a vexatious-litigation suit, holding that the plaintiff did not meet the burden of showing the lawyer was a necessary witness under Rule 3.7 merely because the defendant asserted an advice-of-counsel defense, particularly where the same subjects could be proved through the defendant, other witnesses, and documents from the earlier slander case.


Neumann v. Tuccio, 2009 WL 2506357 (2009)