OPINION AND ORDER
JED S. RAKOFF, U.S.D.J.
Before the Court is the motion of the defendants to disqualify Carl A. Mathison, III, the attorney for the plaintiff. On July 3, 1996, after reviewing the motion papers and hearing oral argument, the Court reserved decision on the motion. Having now fully considered the submissions of the parties and the applicable precedents, the Court grants the motion.
Prior to entering the legal profession, Mr. Mathison was employed by Dutchess County as a probation officer and was an active member of the Dutchess County unit of the Civil Service Employees Association ("CSEA"), a defendant in this case. Indeed, from 1986 to 1989, Mr. Mathison served as the elected president of the Dutchess County unit of CSEA. During the same period, Mr. Mathison's close friend, Donald G. Gleason, the plaintiff here, served as the treasurer of the same unit. In 1989, a slate headed by defendant Helen Zocco defeated Mathison and Gleason in their respective bids for re-election.
Even before that election, Mr. Mathison and Ms. Zocco had a rancorous relationship that Mr. Mathison described as being "legendary within CSEA and within Dutchess County." See Ex. E to Affidavit of William A. Herbert, sworn to June 18, 1996. Subsequent to the election, in January of 1991, Ms. Zocco wrote a letter to Mr. Mathison's supervisor, stating her belief that Mr. Mathison was responsible for the widespread circulation to Dutchess County employees of a newspaper report that Ms. Zocco had been arrested for drunken driving. Herbert Aff., Ex. F. An investigation was undertaken by Dutchess County that resulted in an official warning to Mr. Mathison that using County time for personal and political activities was not part of his job and that any singling out of a County employee for disparagement would meet with formal disciplinary action. Herbert Aff., Ex. G. Shortly thereafter, Mr. Mathison was transferred to another office against his wishes, and in November of 1991, he resigned from his County employment to concentrate on his law school studies.
Meanwhile, Mr. Mathison filed a libel action against Ms. Zocco in New York State Court, predicated on the statements made by Ms. Zocco in her letter to Mr. Mathison's supervisor. Herbert Aff., Ex. F. During his deposition taken in that lawsuit, Mr. Mathison testified that the person responsible for the widespread distribution of the newspaper article about Ms. Zocco was not himself but the plaintiff here, Mr. Gleason.
Against this background, Mr. Gleason, represented by Mr. Mathison, brings this action to recover damages for alleged "ongoing violations of the First Amendment of the United States Constitution" and "repeated, multiple violations of the Labor-Management Reporting and Disclosure Act (LMDRA), including but not limited to violations of the Union Members Bill of Rights, LMDRA § 101 and LMDRA §§ 501 and 609." Complaint P7. More specifically, the Complaint, which Mr. Mathison drafted, alleges three causes of action.
The first concerns a so-called "agency shop" provision that requires employees who decline (or terminate) membership in CSEA to nonetheless pay to CSEA a fee that is equal to the dues paid by union members. Id. at P9. Part of the money raised through the assessment of such agency shop fees is used to support political parties, candidates for public office, and legislative agendas. Id. The Complaint asserts that the agency shop fee thereby violates the First Amendment.
Plaintiff's second cause of action relates to a political action fund that is maintained by CSEA and used to support lobbying and political activities. Id. at P10. This political action fund is financed by mandatory payroll deductions equaling three percent of each employee's union dues or agency shop fees. Id. While union members and agency shop fee-payers who do not wish to contribute to the political action fund can seek refund of their deductions, the refund process is both onerous and little-known. Id. at P11-12. Plaintiff challenges the mandatory payroll deduction as being violative of the First Amendment and claims that the refund procedure does not cure the unconstitutionality of the forced political contributions.
Before turning to the third claim, it should be noted that, with respect to the first two causes of action, defendants assert that Mathison has a conflict of interest because, as unit president, he negotiated contracts with agency shop provisions and mandatory payroll deductions identical to those challenged by Gleason in this suit. Def. Mem., at 3, 12-13. Therefore, defendants claim, Mathison is a necessary witness to their defense of the propriety of these provisions.
Mathison responds that the collective bargaining agreement at issue in this suit was signed in 1991, after he left the union. He adds that although as union president he was a signatory to a prior collective bargaining agreement containing similar terms, those particular provisions were dictated by higher-level officials in CSEA. Affidavit of Carl A. Mathison, III, sworn to June 25, 1996, at PP 15-17.
Further, at oral argument, Mr. Mathison stated:
In this action, by the way, we are not challenging any expenditures of funds. We are challenging the manner in which they are raised and the opportunity that is afforded Mr. Gleason and other union members to opt out of supporting political candidates they don't agree with, or political agendas they don't agree with, or, for that matter, opting out, as complainant is able to do, of union membership and paying only for the cost of representation.
Tr. 38. That statement, however, is arguably inconsistent with the third cause of action, which, inter alia, contains a specific allegation that Ms. Zocco misapplied this funding toward the defense of the libel suit brought against her by Mr. Mathison:
From December, 1991 through the present, defendant CSEA, Inc. has provided defendant Zocco with legal representation to defend a civil suit filed against her by an aggrieved union member.