The opinion of the court was delivered by: Amon, District Judge.
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
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
On April 30, 1990, defendants' present attorneys, Kanterman,
Taub & Breitner (the Kanterman firm) were substituted for the
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.
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.
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' ...