ten years previously, had met one time with an attorney, did not retain him, and never had another contact with him.
In the present case it would be reasonable for the Callimanopulos representatives to assume that, in meeting with the attorneys from WFW Jersey (NY), they were meeting with individuals who were obligated to respect their confidences, if any were in fact disclosed.
The Movants have suggested a separate ground for disqualification of Hill Rivkins through its prior representation of a company allegedly related to Callimanopulos, Pegasus Petroleum Ltd., and/or Pegasus Petroleum Corporation ("Pegasus"). (Baldwin Further Aff. at P 11.) Baldwin asserts that Hill Rivkins attorneys Sanford E. Balick, Patrick V. Martin, and others worked for Pegasus and thereby obtained confidential information. (Baldwin Further Aff. PP 12-13; Baldwin Supp. Aff. P 4.)
Relationship between Representations and Access to Relevant Information
The movants must show that there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present suit and that the adverse party's counsel had access to relevant privileged information.
With regard to Hill Rivkins' possible prior representation of Pegasus, the TRADE RESOLVE Defendants face a heightened burden to show that representation of a party that is not a defendant but is rather a company allegedly related to a defendant is grounds for disqualification. See Hartford Accident & Indem., 721 F. Supp. at 539. They rely chiefly on Don King Productions, Inc. v. Harlow, 1988 WL 12896 (S.D.N.Y. Oct. 18, 1988), to help them meet this burden.
In Don King, the entities that the challenged law firm previously represented had the right to designate two of the defendants' five directors. They were also limited partners with a fifteen percent interest in one of the defendants. These facts indicated that the prior client's interests were affected by the suit, and they therefore had the right to prevent the use of confidences given to their prior attorneys in the present litigation, even though they themselves were not parties.
The Movants state only that "Pegasus Petroleum and/or Pegasus Petroleum Ltd. is part of the 'Callimanopulos Group of Companies.'" No information is supplied regarding the relationship between Pegasus and any of the TRADE RESOLVE Defendants, or how Pegasus' interests could be affected by the present litigation. Although they assert that Hill Rivkins gained access to confidential information in the course of this representation, they have not met their burden of showing how this information was relevant to the present action. These assertions fall far below the showing required to disqualify an attorney that allegedly represented, not a present defendant, but a defendant's related entity.
Neither have the Movants satisfied their burden of demonstrating that WFW's previous representation of Callimanopulos' interests was "substantially related" to the present matters.
The "substantial relation" test is strictly applied in this Circuit, and requires the moving party to demonstrate that the relationship between the two actions is "patently clear" or that the actions are "identical" or "essentially the same." Bennett, 776 F. Supp. at 803 (quoting Government of India v. Cook Indus., Inc., 569 F.2d 737, 740 (2d Cir. 1978); Clark, 801 F. Supp. 1182 at 1198. While Preston of WFW U.K. acknowledges that he previously advised Baldwin of Brokerage & Management Corp, he claims that this was completely unrelated to the present action. In addition, in the New York meetings among Baldwin and various WFW attorneys, WFW asserts that only general matters related to the Oil Pollution Act of 1990, citizenship, and taxes were imparted, and that they obtained no confidential information relating to the TRADE RESOLVE Defendants at this meetings. Overall, WFW asserts that none of its prior representations were related to the present action, and that it has no confidential information related to the TRADE RESOLVE Defendants or the instant action.
The Movants have failed to meet their high burden of proof that either the prior representation of Callimanopulos interests by WFW U.K., or the conversations between WFW attorneys and Callimanopulos' representatives in New York were substantially related to the present action or that WFW or Hill Rivkins had access to relevant privileged information. Cf. Clark, 801 F. Supp. at 1198 (representation in unrelated transactions insufficient for disqualification of counsel). This motion is, therefore, denied without prejudice to a new motion for disqualification as additional information becomes available.
For the reasons stated above, the motion to disqualify WFW and Hill Rivkins from representing plaintiffs and claimants in these consolidated actions is denied.
It is so ordered.
New York, N. Y.
April 5, 1994
ROBERT W. SWEET
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