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SOCIETY FOR GOOD WILL TO RETARDED CHILDREN

February 21, 1979

SOCIETY FOR GOOD WILL TO RETARDED CHILDREN, INC., et al., Plaintiffs,
v.
Hugh L. CAREY et al., Defendants



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

This is an action on behalf of residents of the Suffolk Developmental Center, a New York State institution for the mentally retarded. They seek better treatment.

 Defendants move to compel plaintiffs' counsel, Murray B. Schneps, to withdraw on the ground that his membership on the Review Panel established by the court to monitor implementation of the consent decree in NYSARC, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y.1975), creates an appearance of impropriety, unfairness to defendants, and is unethical. The motion must be denied. There is no good reason to deprive the parties, the courts, and the public of the assistance of this member of the bar.

 I.

 In NYSARC, Judge Judd held that mentally retarded persons confined at Willowbrook, a State institution in Staten Island, were entitled to improved care. See 357 F. Supp. 752 (E.D.N.Y.1973). The parties to that litigation entered into a detailed consent decree. It established a Review Panel of seven members: two representing and chosen by the defendants; three representing and chosen by the plaintiffs; and two "neutral" experts. The Panel was given extensive power to supervise decree implementation. See NYSARC, Inc. v. Carey, 596 F.2d 27, 29-34 (2d Cir. 1979) (describing history of NYSARC litigation and implementation of consent decree). For example, it was to (1) hire staff members; (2) be provided with adequate support staff and facilities, with compensation of its members to be charged to the State; (3) review bimonthly reports from Willowbrook staff; (4) have access to all Willowbrook facilities and personnel; (5) conduct any necessary inquiries; (6) make, by majority vote, recommendations to defendants, with individual members free to make informal suggestions; (7) resolve, by majority vote, disputes as to decree interpretation and implementation, with such resolution having binding effect absent objection by one of the parties, in which case the court would decide the issue; (8) establish appropriate formal and informal hearing procedures in order to carry out its duties; (9) hold meetings at which all concerned parties could make suggestions; and (10) report periodically to the court. The work of the Review Panel is not yet completed; it continues to supervise implementation of the 1975 decree.

 Mr. Schneps, for his daughter, a resident at Willowbrook, had been a named plaintiff in NYSARC. He had utilized his legal skills actively in assisting the attorneys prosecuting that action, and was designated by plaintiffs as one of their original representatives on the Panel. All parties concede that he has served and continues to serve on the Panel as an effective and vigorous advocate of the NYSARC plaintiffs' rights.

 The litigation before this court, in which Mr. Schneps represents plaintiffs as counsel, seeks to secure for residents at the Suffolk Center the rights afforded Willowbrook residents in the NYSARC litigation. Plaintiffs here seek to represent a class of all Suffolk Center residents except those covered by the NYSARC decree. With the exception of defendant Sutherland, Acting Director of the Center, the defendants in this litigation are state officials subject to that decree; they have worked with the Panel. In addition, because some members of the Willowbrook class have apparently been transferred to the Suffolk Center in the process of decree implementation and are entitled to its protections, the Review Panel has discussed with state officials conditions at the Center affecting NYSARC class members.

 II.

 Governing Legal Standard

 Motions to disqualify opposing counsel are disfavored. Disqualification has a serious and immediate adverse effect by denying the client his choice of counsel. In cases of real ethical violations, there is available comprehensive independent disciplinary machinery to deal with them. Moreover, the courts recognize that disqualification motions are often interposed for tactical reasons; even where brought in good faith, they result in delay and add to litigation costs. See Board of Education of the City of New York v. Nyquist, 590 F.2d 1241 (2d Cir. 1979). In ruling on such motions, the court must "weigh . . . the needs of efficient judicial administration against the potential advantage of immediate preventive measures," Id. at 1246. "[Unless] an attorney's conduct tends to "taint the underlying trial' . . . by disturbing the balance of the presentations" in the ongoing litigation, the court should be "quite hesitant to disqualify an attorney." Id.

 As the Nyquist court noted, normally these dilatory motions should be granted only where: (1) an attorney's conflict of interest undermines confidence in his or her ability to fully represent a client; or (2) an attorney may be in a position to use privileged information concerning the adversary obtained through prior representation, thus giving the present client an unfair advantage. See id. at 1245-1246; See also Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225 (2d Cir. 1977); Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978).

 The possibility that an attorney's representation in a given case may give rise to an "appearance of impropriety" is not enough to disqualify. Specific facts must point to a marked danger that the perceived evil either prejudice to the attorney's client, or to an adversary will result. See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 370 F. Supp. 581 (E.D.N.Y. 1973), Aff'd, 518 F.2d 751 (2d Cir. 1975). Where "there is no claim that the trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases." Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).

 Only where a former government attorney seeks to represent private clients on matters for which he or she had responsibility while in public employ does dicta suggest that appearance of impropriety alone may sometimes result in attorney disqualification. See, e.g., General Motors Corp. v. City of New York, 501 F.2d 639, 649 (2d Cir. 1974). Disqualified attorneys "have usually been" former government prosecutors. Handelman v. Weiss, 368 F. Supp. 258, 262-63 (S.D.N.Y.1973). But even in this very sensitive area, where the concern is to avoid " "the manifest possibility that . . . (a former government lawyer's) action as a public legal official might be influenced (or open to the charge that it had been influenced) by the hope of later being employed privately to Uphold or Upset what he had done,' " General Motors Corp. v. City of New York, supra, 501 F.2d at 649 (citing A.B.A. Comm. on Professional Ethics, Opinions, No. 37 (1931)) (emphasis in original), the courts have been loathe to disqualify counsel unless he or she had "substantial responsibility" for the related case or subject matter while in government employ, or unless representation would give rise to a concrete possibility of prejudice to the client, or to an adversary. Compare General Motors Corp. v. City of New York, supra, 501 F.2d at 651-52; Handelman v. Weiss, supra, 368 F. Supp. at 263-64 (attorneys disqualified), With Woods v. Covington County Bank, 537 F.2d 804 (5th Cir. 1976); United States v. Standard Oil Co. (N.J.), 136 F. Supp. 345 (S.D.N.Y.1955) (attorneys not disqualified).

 This case presents an issue of apparent first impression: under what circumstances will an attorney who provides assistance to the courts, the parties, and the public by aiding in the management and implementation of a complex equitable decree outlining constitutionally mandated reform in a governmental institution, be disqualified from representing a client in subsequent litigation which concerns similar governmental institutions and may involve substantially identical governmental officials as defendants? Posed in this context, a disqualification motion raises concerns not present in the usual former government attorney, conflict of interest or prejudice to a litigant situation: not only must the court be sensitive to the rights of the specific parties before it, but it must also consider the effect any disqualification rule might have on the ability of the judiciary to call on attorneys as experts to aid in resolving complex systemic disputes. This latter concern surely falls, along with concern for delay in litigation, within the "needs of efficient judicial administration" that must be weighed against the possible "advantage of immediate preventive measures" in considering disqualification motions. See Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).

 Recent years have witnessed what Professor Chayes has aptly described as the onset of "public law" litigation, requiring courts to use new techniques and to rely on ad hoc special agents and agencies. In such suits,

 
(the) party structure is sprawling and amorphous, subject to change over the course of the litigation. The traditional adversary relationship is suffused and intermixed with negotiation and mediating processes at every point. The judge is the dominant figure in organizing and guiding the case, and he draws for support not only on the parties and their counsel, but on a wide range of outsiders masters, experts, and oversight personnel. Most important, the trial judge has increasingly become the creator and manager of complex forms of ongoing relief ...

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