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HERR v. UNION LOCAL 306

August 9, 1996

RANDOLPH HERR, Plaintiff, against UNION LOCAL 306, MOTION PICTURE PROJECTIONISTS, VIDEO TECHNICIANS AND ALLIED CRAFTS, I.A.T.S.E., Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Defendant Union Local 306 ("Local 306" or "the Union") moves to disqualify Merrick J. Brodsky ("Brodsky") as counsel to Plaintiff Randolph Herr ("Herr"). For the reasons discussed below, the motion is denied.

 I. Factual Background1

 The events that prompted this motion occurred at three separate monthly meetings of Local 306 in June, September and October 1992. Herr claims that the Union violated § 301 of the Labor Management Reporting Act ("LMRA"), 29 U.S.C. § 185, by breaching its duty of fair representation after Herr was discharged from his job as a movie projectionist by Cineplex Odeon Corporation. *fn2" Herr also claims that Local 306 violated § 101 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411, by interfering with Herr's presentation of his case to the union membership at the meetings in question, and by improperly adjourning the June 1992 meeting.

 The Union argues that Brodsky's personal knowledge and involvement in this matter require his withdrawal from this litigation. The Union contends that Brodsky should be disqualified because 1) he ought to testify on Herr's behalf, and 2) his firsthand knowledge of the events in question will impermissibly taint trial proceedings.

 II. Legal Standard

 Motions to disqualify counsel are viewed with disfavor in this Circuit See e.g., Cohen v. Acorn Int'l Ltd., 921 F. Supp. 1062, 1063-64 (S.D.N.Y. 1995); Complaint of Maritima Aragua, S.A., 847 F. Supp. 1177, 1179 (S.D.N.Y.1994); Clark v. Bank of New York, 801 F. Supp. 1182, 1197 (S.D.N.Y. 1992). Such motions often are made to delay proceedings or to harass the opposing party. Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir. 1983); Board of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). For these reasons, "motions to disqualify counsel should be subjected to heightened scrutiny." Agee v. Paramount Communications, Inc., 853 F. Supp. 778 (S.D.N.Y. 1994). The movant bears a heavy burden when it seeks to deprive the opposing party of its choice of counsel. Evans, 715 F.2d at 794.

 The New York Code of Professional Responsibility ("Code") Provides that

 
if, after undertaking employment in . . . pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client, the lawyer shall withdraw as an advocate . . . , except that the lawyer may continue as an advocate and may testify in the circumstances enumerated in DR 5-101(B)(1) through (4). *fn3"

 Code of Professional Responsibility DR 5-102(A), N.Y. Jud. Law App. (McKinney 1992). While these rules are not binding upon the court, they nevertheless provide "guidance on issues of professional conduct." Paretti v. Cavalier Label Co., 722 F. Supp. 985, 986 (S.D.N.Y. 1989); see also J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357, 1359-60 (2d Cir. 1975) (Gurfein, J., concurring). Further, the Code should "not be mechanically applied when disqualification is raised in litigation." S & S Hotel Ventures v. 777 S.H. Corp., 69 N.Y.2d 437, 444 (1987).

 The standard is clear that an attorney should be disqualified if he "ought" to testify on behalf of his client. However, "disqualification may be required only when it is likely that the testimony to be given by the witness is necessary." S & S Hotel, 69 N.Y.2d at 445-46; see also J.P. Foley, 523 F.2d at 1359. "A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence." S & S Hotel, 69 N.Y.2d at 446. A lawyer need not withdraw as counsel if it is "unlikely that he will be ...


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