Thus, the court finds that the first prong of the Evans test has been met by the defendant's attorneys.
B. Substantial Relationship
In defining the "substantial relationship" test, the Second Circuit has set forth a clear standard. Disqualification should be granted "upon a showing that the relationship between the issues in the prior and present cases is 'patently clear'. . . [or] when the issues involved have been 'identical' or 'essentially the same.'" Government of India, 569 F.2d at 739-40 (citing Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754-56 (2d Cir. 1975); NCK Organization, Ltd. v. Bregman, 542 F.2d 128, 135-36 (2d Cir. 1976) (concurring opinion); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Emle Indust., Inc. v. Patentex, Inc., 478 F.2d 562, 572; Motor Mart, Inc. v. Saab Motors, Inc., 359 F. Supp. 156, 158 (S.D.N.Y. 1973)).
There is little doubt that the 1981 action and the current action are essentially the same. First, the case at bar involves similar issues and similar claims. The 1981 case involved a multi-piece rim, just as the present case. Furthermore, both cases involve personal injuries and are based on negligence, strict product liability, and failure to warn theories. Specifically, both cases involve claims which assert that the multi-piece wheel was defectively designed and capable of explosively separating under pressure.
Second, the factual allegations and strategies used to defend those allegations are essentially universal in all multi-piece rim litigation. As pointed out by Susan T. Dwyer, Esq. at oral argument, one of the main arguments in all multi-piece rim litigation is that a single piece rim is a safer alternative to a multi-piece rim. (Tr. Oral Argument, May 9, 1996, at 10). Undoubtedly, this was argued in the 1981 trial and will be argued in the case at bar.
Third, many of the same witnesses, including defendant's expert witnesses, who appeared in the 1981 action will appear in the case at bar. Thus, the very same individuals who were prepared by Poissant in 1981 will be called to testify in the present case. Consequently, the same strategies and confidences that were imparted upon Poissant through those witnesses will exist in the present case.
Thus, the subject matter of the 1981 litigation is substantially similar to the case at bar and the second prong of the Evans test has also been met.
C. Privileged Information
The final prong of the Evans test involves a determination of whether or not the attorney involved in the prior case had access to confidences or other privileged information. "Except when permitted by DR 4-101(C), a lawyer shall not knowingly ... reveal a confidence or secret of a client [or] use a confidence or secret of a client to the disadvantage of the client." N.Y. Jud. Law § DR 4-101B (McKinney 1992)); Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 236 (2d Cir. 1977). "Moreover, the court need not, indeed cannot, inquire whether the lawyer did, in fact, receive confidential information during his previous employment . . . [but] where 'it can reasonably be said that in the course of the former representation the attorney might have acquired the information related to the subject matter of his subsequent representation,' it is the court's duty to order the attorney disqualified." Emle Indus., Inc., 478 F.2d at 571 (emphasis in original) (quoting T.C. Theater Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953)).
At this point, it should be clear the Poissant certainly had access to privileged information and confidences of Firestone during the 1981 litigation. As discussed earlier, the Firestone multi-piece rim litigation has been ongoing for more than thirty years and the issues and trial strategies have remained the same. Poissant acquired detailed knowledge of confidences, trial strategies, expert information, and documentary evidence through his representation of the defendant in 1981. Thus, the final prong of the Evans test has been met.
While the court is sensitive to the desire of a client to be represented by the attorney of his or her choosing, it cannot in good ethical conscience, permit the Poissant & Nichols firm to continue representing the plaintiff in this case. Firestone has met the difficult burden required in Evans and has satisfied the court that a conflict of interest is insurmountable in this case. The court is further aware that the small town of Malone, New York, is not overflowing with attorneys. However, the court is confident that the plaintiff will be able to obtain adequate representation from another source in upstate New York without extreme hardship.
Accordingly, it is
1. The law firm of Poissant & Nichols is disqualified from representing the plaintiff in this action;
2. The plaintiff shall retain substitute counsel and a notice of appearance shall be filed and served on or before October 1, 1996;
3. Upon the failure of plaintiff to retain substitute counsel by the above date, he will be appearing pro se ;
4. Discovery is stayed until October 1, 1996; and
5. The in camera submissions by the parties shall be filed under seal, to be opened only upon further order of the court.
IT IS SO ORDERED.
DAVID N. HURD
United States Magistrate Judge
Dated: August 15, 1996
Utica, New York.