in waiver. A defendant in a criminal case cannot take the witness stand for his direct testimony and then invoke his rights against self-incrimination for cross. And there is authority to the effect that the sharing of a confidential communication with one outside the confidential relationship results in permanent waiver of the right of confidence with respect to that communication. That is because the basis for asserting the privilege is thought to have been destroyed by the inconsistent conduct in those circumstances. Conversely, allowing a neighbor to cross one's land once, or allowing children to swim in one's pond on one occasion, does not result in waiver of the owner's right to exclude them in the future.
On these facts, there is no logic to the proposition that Hearst's failure to litigate its right to bar Bernbach from representing Dunbar in the State Human Rights Commission constituted a waiver of the invocation of that right for future Bernbach representations adverse to Hearst. Mr. Bernbach cites no cases that support his argument in this respect.
There is no issue here of estoppel by reason of prejudice to third parties, such as Bernbach's new clients. The plaintiffs in these three actions did not invest in a justified expectation that Mr. Bernbach would be allowed to represent them because he had been permitted to represent Dunbar. Nor is there any unfairness to Mr. Bernbach in requiring him to adhere to his ethical obligations as to these new clients, notwithstanding having permitted him to violate them in the case of Dunbar.
In short, the argument that failure to compel his disqualification in the Dunbar case resulted in waiver of the right to compel his disqualification as to his new clients has no basis in fact, law, or logic.
Nor is there merit to plaintiff Ullrich's argument that Hearst lost the right to disqualify Mr. Bernbach in her case by reason of tardy invocation. Bernbach points out that before moving for his disqualification in Ullrich, Hearst removed the case from state to federal court, filed an answer, and responded to certain discovery requests, and did not raise the question of disqualification with the court until Bernbach requested a conference to discuss discovery. The issue was raised with the court approximately four months after the institution of the action. I recognize that in some circumstances delay in raising the issue can effectively result in a waiver. If a litigant excessively and unnecessarily delays in raising the issue of disqualification, subsequent disqualification can unfairly cripple the opposing party's efforts because the disqualified attorney would have invested large amounts of time and effort that must then be re-duplicated by another attorney. This, however, is not such a case. Even before the litigation was filed, on receipt of Bernbach's letter advising of his representation of Ullrich, Hearst promptly responded that it objected. Once the litigation was instituted, there were deadlines that required the immediate attention of Hearst. It needed to remove the case promptly, failing which the right to remove would have been lost. It needed to answer in order to avoid default. It is true that Hearst might have raised the disqualification issue earlier than it did. But Hearst did not delay for so long a time as to harm plaintiff Ullrich's interests. The litigation was still in its incipient stages when Hearst advised the court it would move for Mr. Bernbach's disqualifications.
Ullrich does not contend that she has made payments to Mr. Bernbach placing her at the disadvantage of having to pay a second time to a new lawyer. (If this were the case, in all likelihood the fairest resolution would be to require Mr. Bernbach to return whatever retainers or fees he had received. Hearst objected promptly to the representation, and it should have been clear to him that, in the face of Hearst's objection, his undertaking the representation was highly questionable.) Bernbach did not seek the court's guidance or ruling, nor, so far as the record appears, did he consult with any ethics committee to seek an opinion on the matter. If Bernbach wanted to assure that his client would not be prejudiced by delay, he could have raised the question with this court at the earliest possible moments without waiting for Hearst's formal motion. Furthermore, for the reasons explained above in connection with Bernbach's representation of Dunbar, even if the court concluded that Hearst's delay in moving for Bernbach's disqualification in Ullrich's case barred it from later seeking that disqualification, this would not bar Hearst from its prompt assertion of the right to disqualify Bernbach in his representation of Tardiff and Sullivan.
* * *
I conclude that Hearst has amply shown that Mr. Bernbach's representation of plaintiffs Ullrich, Tardiff, and Sullivan against Hearst in matters closely related to the subject of his former representation of Hearst raises a clear likelihood of misuse of confidences entrusted to him by Hearst in the attorney-client relationship. Bernbach's new representations, adverse to Hearst, are very substantially related to the subject matter of his prior representation of Hearst. I conclude that Disciplinary Rule 5-108 requires his disqualification.
Defendant's motion to disqualify plaintiffs' counsel is granted. Mr. Bernbach is hereby ordered disqualified from the representation of plaintiffs Ullrich, Tardiff, and Sullivan in these actions against Hearst.
Dated: New York, N.Y.
November 13, 1992
Pierre N. Leval, U.S.D.J.