work to be disseminated to a wide audience through a variety of media. Joseph Campbell, now deceased, was a world-renowned scholar and a prolific writer, whose works have been read, studied, and admired by many. Campbell's works have not only had a wide readership; they also have had an enormous influence on numerous fields of study. While Campbell himself, were he alive today, might detect in the present litigation echoes of mythic conflicts from ancient stories told and retold, this Court is summoned to a different task: to address the legal merits of Defendants' motion to disqualify Plaintiff's counsel and dismiss the action.
The Court recites only the facts necessary to decide the instant motion. Plaintiff, a banking corporation organized and existing under the laws of the state of Hawaii, is the Trustee of the Joseph Campbell Trust and, in this capacity, the successor in interest to the rights and properties (including the literary and contractual rights and properties) formerly held by Joseph Campbell. Defendant R&V is a corporation organized and existing under the laws of the state of New York, with its principal place of business in New York City. Defendant Seldes, a citizen and resident of New York, is the majority shareholder and president of R&V.
Together, Defendants served as the literary agent for, among others, Campbell and, upon Campbell's death, Plaintiff.
Plaintiff contends, and Defendants do not dispute, that Seldes is an experienced literary agent who, over the years, has negotiated numerous deals directly with attorneys concerning substance and terms and, in so doing, demonstrated a legal sophistication greater than that possessed by the average non-lawyer.
In order to understand the instant action, it is necessary to refer back to a previous litigation brought before this Court in 1989, involving two parties and their respective claims concerning rights to exploit a 1985 television series entitled "Joseph Campbell and the Power of Myth with Bill Moyers." On one side was a group composed of individuals and entities involved in producing and airing the television series (the "Moyers group"), and on the other side was one Stuart L. Brown, M.D., and Mythology, Ltd. (the "Mythology group"). The two parties each claimed the right to exploit the aforementioned television series on the basis of contracts entered into between the respective parties and either Campbell or the Bank. Significantly, the contracts on which each of the parties relies were negotiated, on behalf of Campbell or the Bank, by Defendants.
The Moyers group filed an action seeking a declaratory judgment and Mythology answered and also filed counterclaim against the Moyers group seeking damages. Subsequently, the Moyers group filed a Third-Party Complaint against the Bank, in its role as Trustee of the Joseph Campbell Trust, seeking to be compensated for any damages awarded to the Mythology group. The Bank, in turn, filed a Third-Party Complaint against the Mythology group on the basis of the latter's alleged unauthorized exploitation of certain works by Campbell.
By letter dated April 6, 1990, James C. Campbell, an attorney at Cades Schutte Fleming & Wright ("Cades Schutte"), the Hawaii law firm representing the Bank, asked Seldes to cooperate "in any way [he] could" with lawyers from the firm Kenyon & Kenyon ("Kenyon") -- the Bank's New York counsel -- in connection with the aforementioned. litigation (the "Moyers litigation"). Seldes had already agreed to cooperate with attorneys for both the Moyers group and the Mythology group, as evidenced by affidavits he provided to attorneys for the two parties, in conjunction with the Moyers litigation, prior to receiving the April 6, 1990, letter from James C. Campbell. In the course of providing the requested cooperation, Seldes participated in many phone calls with, and provided a great deal of documentation to, Kenyon attorneys. The nature of this documentation is, however, a matter of some dispute. Plaintiff contends, and presents affidavits to support its contention, that Defendants provided Kenyon attorneys with documentation, selected by Defendants for its purported relevance, over the course of approximately a half-dozen visits to Defendants' offices by Kenyon attorneys; Kenyon attorneys were permitted, on certain occasions, to carry off some of this material for the purposes of photocopying. Plaintiff insists, however, that it was provided only with information related to Defendants' dealings on behalf of Campbell and the Bank -- material Plaintiff claims it was entitled to anyway, since it was the principal on whose behalf Defendants, as agent, had acted.
Defendants' version is, not surprisingly, somewhat different, and is supported by affidavit testimony as well. Defendants assert that Seldes, in his phone conversations with Kenyon attorneys and by permitting Kenyon attorneys full access to all of Defendants' files, divulged secrets and confidential information and documents to Kenyon concerning Defendants' involvement in, and knowledge of, the agreements underlying the Moyers litigation. Defendants claim that Seldes' cooperation was premised on his understanding, based on representations made to him by Kenyon attorneys, that
"they" were all working together; that "they" were all on the same team; that it was "them" against the rest -- with the "they" being the Trust; the Bank; [Cades Schutte]; Kenyon & Kenyon; and Mr. Sedes [sic] and Russell & Volkening.
Defs.' Mem. Law Supp. Mot. Disqualify Opposing Counsel at 6-7.
Plaintiff denies any such representations, and contends that in fact Defendants were in a precarious position, since each side in the Moyers litigation was basing its case on a contract negotiated with Defendants on behalf of Campbell. Defendants, Plaintiff asserts, provided such information -- and only such information -- as they were obliged, as Defendants' agent, to provide: all documents generated on Campbell's (or Plaintiff's) behalf. Likewise, Plaintiff adds, Defendants provided such documents, for the same reason and with the same limited scope, to the Mythology group. Plaintiff contends, however, that attorneys for the Bank as well as for the Mythology group were forced to resort to subpoenas in order to obtain any other relevant documents from Defendants.
On September 10, 1990, pursuant to a subpoena, Seldes was deposed by attorneys involved in the Moyers litigation. Seldes appeared without counsel. The transcript of the deposition reflects that Seldes was apprised of his right to be represented by counsel at the deposition, but nonetheless resolved to continue the deposition. During the course of the deposition, attorneys for each of the represented parties, at different times, objected to certain questions put to Seldes on the ground of attorney-client privilege. Defendants point to the fact that Kenyon attorneys so objected to support their claim that the Kenyon attorneys represented Seldes as well as the Bank.
Plaintiff notes that while Kenyon did in fact so object, so too did the attorneys for each of the other represented parties.
It is uncontroverted that Kenyon attorneys did not direct Seldes not to answer any questions, and, moreover, during the course of the deposition, even when attorneys for each of the represented parties explained to Seldes his right to have an attorney present, Seldes never expressed a belief that he was represented by Kenyon.
In late January 1991, James C. Campbell wrote to Karen Uyemura, a Bank administrator, who in turn wrote to Defendants requesting that Defendants agree to waive the statute of limitations as to any claims the Bank might have against them. Defendants refused. Subsequently, the instant action was filed. Defendants claim that in a March 19, 1991, phone call, a Kenyon attorney assured Seldes that the Bank had no intention of serving the Complaint on Defendants, and that the filing of the Complaint was only a legal technicality. From March 1991 until May 1991, Defendants continued to cooperate with Kenyon attorneys in conjunction with both the Moyers litigation and a lucrative publishing agreement being negotiated between the Bank and HarperCollins. In May 1991, the Mythology group filed counterclaims against the Bank in the Moyers litigation, and, shortly thereafter, Plaintiff served the Complaint in the instant action on Defendants.
Defendants contend that Plaintiff's attorneys, Kenyon, have violated Canons 4, 5, and 9 of the New York Code of Professional Responsibility ("Code"), and therefore, should be disqualified from representing Plaintiff in the instant action. Defendants contend, specifically, that Kenyon has violated DR 4-101(A) & (B), DR 5-105(A)-(C), DR 5-108, and DR 5-109 (as well as Canon 9). The Court believes that Judge Mukasey accurately and succinctly stated the law of this Circuit with regard to motions for disqualification of counsel in Bennett Silvershein Assocs. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991):
Motions to disqualify opposing counsel are viewed with disfavor in this Circuit because they are often interposed for tactical reasons and result in unnecessary delay. The Second Circuit has indeed been loathe to separate a client from his chosen attorney. The delay and additional expense created by substitution of counsel is a factor to which [the Second Circuit] has attached considerable significance. Thus, although doubts should be resolved in favor of disqualification, the party seeking disqualification must carry a heavy burden, and must meet a high standard of proof before a lawyer is disqualified.
Id. at 802 (citations, quotation marks, and ellipses omitted) (quoting and citing numerous Second Circuit and Southern District cases).
Two aspects of Defendants' motion are easily disposed of in favor of Plaintiff. First, DR 5-109 is not applicable to the instant action. DR 5-109 addresses a situation wherein a conflict arises between the interests of an organization that an attorney is representing and a "director, officer, employee, member, shareholder, or other constituent" of the organization. See N.Y. Code of Professional Responsibility DR 5-109 (1992). Defendants were never employees or otherwise "constituents" of Campbell or the Bank. Defendants' role was that of an agent acting on behalf of a principal, a role that does not implicate the rights and responsibilities which arise in the relationships enumerated in the illustrative list in DR 5-109. Second, Canon 9, standing alone, cannot be a ground for disqualifying Kenyon. Canon 9 admonishes attorneys to avoid even the appearance of impropriety. The law in this Circuit is clear, however, that Canon 9
should not be used promiscuously as a convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules.