The opinion of the court was delivered by: SONIA SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
Defendant LeBoeuf, Lamb, Greene & MacRae ("LeBoeuf") moves to disqualify counsel for plaintiff Richard Matthews. Plaintiff's attorneys Frederick R. Dettmer and Karen M. Streisfeld worked formerly as a partner and an associate, respectively, at LeBoeuf. For the reasons discussed below and on the record of oral argument held on June 23, 1995, I deny defendant's motion.
Plaintiff headed LeBoeuf's Managing Clerk's Office from November 1990 through December 1992. In March 1992, LeBoeuf discontinued paying Matthews overtime pay and instead compensated him at a flat rate. In this action, Matthews is asserting claims for unpaid overtime based on alleged violations of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. ("FLSA"), unjust enrichment, and breach of contract.
Matthews is represented in this action by attorneys Dettmer and Streisfeld, of the law office of Frederick R. Dettmer. In 1992, at the time of LeBoeuf's alleged wrongdoing, Dettmer and Streisfeld worked as attorneys at LeBoeuf. LeBoeuf claims that plaintiff's counsel should be disqualified because their representation of Matthews results in various conflicts of interest and violates codes of legal ethics.
On June 23, 1995, I held oral argument on defendant's motion and rejected two of the four arguments raised by LeBoeuf for disqualification. I hereby incorporate by reference my reasons for rejecting those arguments, which reasons appear on the record of the June 23rd conference. In essence I held that defendant's first ground, that Dettmer and Streisfeld's representation would violate the duty of zealous representation as well as the duty to avoid even the appearance of impropriety, was subsumed by LeBoeuf's other three grounds and would not stand alone as a basis for disqualification. I rejected LeBoeuf's second argument about the possibility of a financial conflict of interest between plaintiff and Dettmer because Dettmer's share, as a former partner, of any liability imposed upon LeBoeuf would be de minimis at best. Moreover, Disciplinary Rule ("D.R.") 5-101(a) of the New York Code and ABA Code
view fully disclosed financial conflicts as waiveable, and Matthews has been fully informed of the potential conflict and has chosen to proceed with the representation.
Regarding defendant's remaining arguments for counsel's disqualification, I also ruled that LeBoeuf had not offered sufficient proof to support its third argument, that plaintiff's counsel would be witnesses on material issues in the litigation or that they would testify in a manner prejudicial to their client, and invited further proof on this claim. I further requested supplemental briefs for defendant's fourth argument, that Dettmer and Streisfeld would violate their fiduciary duty to their former employer in their role as counsel for plaintiff. The parties submitted supplemental memoranda of law and supporting affidavits on August 18, 1995; I heard a second oral argument on August 25, 1995.
As I noted at the June 23 oral argument, the Second Circuit generally disfavors disqualification and "has adopted 'a restrained approach' ... which calls for disqualification only upon a finding that the presence of a particular counsel will taint the trial by affecting his or her presentation of a case.... Where a threat of tainting the trial does not exist, therefore, the litigation should proceed, the remedy for unethical conduct lying in the disciplinary machinery of the state and federal bar." Bottaro v. Hatton Assocs., 680 F.2d 895, 896-97 (2d Cir. 1982) (citations omitted). This test is designed to prevent the "wholesale filings of motions for tactical reasons." Id. at 896. The Bottaro court expressly rejected the less rigorous standard for disqualification that "any doubt should be resolved in favor of disqualification." Id.
In order to protect a client's right to freely choose his or her counsel, the Second Circuit requires the movant in a motion for disqualification, who bears the burden of proof, to meet a "high standard of proof" before a lawyer is disqualified. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) (citations omitted); see Clark v. Bank of New York, 801 F. Supp. 1182, 1197 (S.D.N.Y. 1992) (Mukasey, J.).
A motion for disqualification of counsel is a matter addressed to the sound discretion of the trial court. Brooks v. Bates, No. 89 Civ. 44768, 1994 U.S. Dist. LEXIS 4502, at **5-6 (S.D.N.Y. Apr. 4, 1994) (Sotomayor, J.) (citing Fund of Funds, ...