same allegedly defamatory accusations levelled at him the
previous day. Eckhaus Aff. ¶ 55.
On June 20, 1990 plaintiff resigned from Alfa-Laval.
Thereafter, plaintiff commenced an arbitration proceeding
concerning his rights under his employment contract which is
currently being litigated.*fn2
The complaint in this action alleges that the June 11, 1990
memorandum contains false statements of fact published by
defendant to Wenegrat, Sullivan and Jackson with reckless
disregard for the truth. In opposition to the motion charging
further prosecution would violate the Code of Professional
Responsibility, plaintiff's affidavit outlines what he
believes to be the background for defendant's defamatory
allegations of professional incompetence with respect to the
1. The Jones Site — On January 4, 1990 the operator of a
septic processing facility in Dutchess County, New York ("the
Jones site") which had accepted waste from Alfa-Laval in the
1960's and 1970's notified Alfa-Laval that the site had been
identified by the New York Department of Environmental
Protection and the U.S. Environmental Protection Agency as a
hazardous waste site. Nichols Aff., Exh. A. Thereafter, Eckhaus
retained the law firms of Dewey Ballantine and Whiteman,
Osterman & Hanna to render advice in connection with the Jones
site. Eckhaus Aff. ¶ 12. In June 1990 Eckhaus approved
notification letters sent by Whiteman, Osterman & Hanna to
Alfa-Laval's insurance carriers. Id. ¶¶ 15-16; Nichols Aff.,
Exhs. 2-4. Nichols took issue with the content of these
2. Valarie Rose Termination — Eckhaus responds he was asked
by Jack Adams, Alfa-Laval's vice president in charge of human
resources, to remove documents from personnel files which
Alfa-Laval was required to produce by counsel for Valarie Rose,
a former Alfa-Laval employee, in connection with a
discrimination complaint she had filed with the New Jersey
Division of Human Rights. Eckhaus Aff. ¶¶ 30-31. Eckhaus states
he refused to remove the documents and instructed Adams not to
do so. Id. ¶ 32.
3. Mazza Cheese Company — In December 1989 Alfa-Laval
received complaints from Mazza Cheese Company ("Mazza")
regarding a cheese processing system originally sold by an
Alfa-Laval subsidiary to another company which in turn sold the
machine to Mazza Cheese Company. Eckhaus Aff. ¶ 33. The
original contract of sale was negotiated by Eckhaus'
predecessor, Goran Ohlson, who now works for Alfa-Laval's
parent company in Sweden. Id. ¶ 34. Eckhaus alleges that when
he brought Mazza's apparent threat of a product liability suit
to Nichols' attention, Nichols said, "Since the Swedes screwed
this one up, let them handle it." Id. ¶ 35. Despite this
instruction, Eckhaus reviewed the contract and an opinion
letter from outside counsel but had little active participation
in resolving the matter, other than identifying for Nichols the
express contractual terms exempting Alfa-Laval from liability.
Id. ¶¶ 36-38.
4. TW Cutter Acquisition — Eckhaus retained Paul McGrath,
Esq. and the law firm of Dewey Ballantine to prepare and file
documents relating to Alfa-Laval's acquisition of the TW Cutter
company. Eckhaus states that in preparing the filings he
discovered documents from Sweden showing "a potential
noncompetitive post-acquisition environment." Eckhaus Aff. ¶
25. Eckhaus further responds that Nichols instructed him to
destroy these documents which Eckhaus refused to do. Id. ¶¶
25-26. In June 1990 Nichols is alleged to have instructed
Eckhaus to discontinue using Dewey Ballantine for any purpose.
Id. ¶ 27.
Defendant's motion for summary judgment dismissing the
complaint is grounded solely on the proposition that further
prosecution of this defamation action will require
plaintiff to reveal client "confidences" and "secrets" in
violation of Disciplinary Rule ("DR") 4-101 of the New York
Code of Professional Responsibility.*fn3 There are no issues
of fact in connection with defendant's motion.
Although plaintiff's complaint states a cause of action for
defamation, the law strikes the appropriate balance between
the rights of an attorney to seek compensation for injuries
suffered at the hand of a client and the right of the client
not to be held hostage to an attorney's threat to reveal
confidential information.*fn4 That balance is incorporated in
Disciplinary Rule ("DR") 4-101 of the New York Code of
Professional Responsibility which provides:
A. "Confidence" refers to information protected
by the attorney-client privilege under applicable
law, and "secret" refers to other information
gained in the professional relationship that the
client has requested be held inviolate or the
disclosure of which would be embarrassing or
would likely be detrimental to the client. B.
Except when permitted under DR 4-101(C), a lawyer
shall not knowingly:
1. Reveal a confidence or secret of a client.