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BAIRD v. HILTON HOTEL CORP.

February 28, 1991

ALLAN BAIRD AND LENORE BAIRD, PLAINTIFFS,
v.
HILTON HOTEL CORPORATION AND PALMER HOUSE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Amon, District Judge.

MEMORANDUM AND ORDER

INTRODUCTION

By Order to Show Cause dated December 14, 1990, defendants moved for an order disqualifying plaintiffs' counsel on the ground that an attorney who was previously associated with defendants' former counsel Bivona & Cohen (the Bivona firm) and who represented the defendants in the discovery phase of this case, is now employed by plaintiffs' law firm, Katz, Katz & Bleifer, P.C. (the Katz firm).

For the reasons set forth below, defendants' motion is granted.

BACKGROUND

The facts surrounding this motion generally are not disputed. Candice Pluchino personally participated in the defense of this matter on behalf of defendants while employed by the Bivona firm, including the drafting of discovery responses and appearances at the depositions of both plaintiff Allan Baird and an employee of defendant Hilton Hotel Corporation on November 11, 1988 and January 25, 1989, respectively. Ms. Pluchino was subsequently employed by the Katz firm in September 1989. The Katz firm was a seven-member law firm when Ms. Pluchino was hired and presently consists of nine attorneys.

On April 30, 1990, defendants' present attorneys, Kanterman, Taub & Breitner (the Kanterman firm) were substituted for the Bivona firm.

On December 12, 1990, five days before the jury was to be selected for trial, Glen Pewarski of the Kanterman firm noticed Ms. Pluchino's name on the letterhead of the Katz firm and connected her name with the name appearing on the deposition transcripts. On December 14, 1990, defendants moved by order to show cause to disqualify plaintiffs' counsel.

On December 17, 1990, the court heard argument on the motion and testimony from Ms. Pluchino. Ms. Pluchino conceded her direct involvement in the case on behalf of the defendants while at the Bivona firm. She testified, however, that she has had no dealings with the instant action while at the Katz firm. She stated that the lawyers at her firm who were representing plaintiffs were aware of her previous representation of defendants and did not discuss the case with her. She additionally noted that precautions had been taken to insure that she had no access to files and correspondence pertaining to the case. Ms. Pluchino testified that she believed that the Bivona firm had been aware of her employment by plaintiffs' firm since approximately November 1989 and had never objected.

Based on Ms. Pluchino's testimony and plaintiffs' argument that disqualification was barred by laches, I directed defendants to contact the Bivona firm concerning its knowledge of Ms. Pluchino's change of firms. Although the attorney who supervised the case at the Bivona firm declined to supply defendants with an affidavit, he did inform defendants that he learned of Ms. Pluchino's employment with the Katz firm sometime after she left the Bivona firm in August 1989. He further informed defendants that the Katz firm never formally notified him of Ms. Pluchino's employment at that firm.

DISCUSSION

It is not disputed that Ms. Pluchino is disqualified from representing plaintiffs in this case. Defendants were clients of Ms. Pluchino when she was employed at the Bivona firm, the subject matter of the prior representation and the issues in the present lawsuit are identical, and Ms. Pluchino, having taken key depositions in this case while at the Bivona firm, was likely to have had access to relevant privileged information while representing defendants. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); United States Football League v. Nat'l Football League, 605 F. Supp. 1448, 1452 (S.D.N.Y. 1985).

What is disputed is (1) whether Ms. Pluchino's disqualification requires disqualification of the entire Katz firm and (2) if so, whether defendants' ...


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