the Code, Zimet's prior representation of TWA makes her current representation of Pastor unethical. As the moving party, TWA bears the burden of proving that it is. Stratavest Ltd. v. Rogers, 903 F. Supp. at 666. Because disqualification motions are often filed for tactical reasons, courts generally require a high standard of proof before they will grant them.Id. On the other hand, because of the importance assigned to the observance of an attorney's ethical obligations, once a probable conflict is demonstrated, a court should resolve any doubts in favor of disqualification. Red Ball Interior Demolition Corp. v. Palmadessa, 908 F. Supp. 1226, 1239 (S.D.N.Y. 1995). In deciding such a motion, a court must weigh a variety of competing interests including the nonmovants right to select the counsel of her choice, the movant's right to be "free from the risk of even inadvertent disclosure of confidential information and ... the public's interest in the scrupulous administration of justice." Hull v. Celanese Corp., 513 F.2d at 570.
To prevail in its motion, TWA must demonstrate: (1) that TWA was Zimet's former client; (2) that there is a substantial relationship between the subject matter of Zimet's prior representation of TWA and the issues in the present lawsuit; and (3) that Zimet "had access to, or was likely to have had access to, relevant privileged information in the course of [her] prior representation of [TWA]." Red Ball, 908 F. Supp. at 1239. Zimet concedes that she formerly represented TWA, so the first element of the successive representation test is satisfied. Pl. Memo of Law, p.8.
i. Substantial Relationship
To prove that two cases are substantially related, TWA must demonstrate that "the relationship between issues involved in the prior and present cases is 'patently clear.'" Government of India v. Cook Indus., Inc. 569 F.2d 737, 739-40 (2d Cir. 1978). Generally, this element is satisfied if central issues are common to both cases and if "the witnesses, testimony, and other evidence germane to one action are likely to be similar to the other." Red Ball, 908 F. Supp. at 1244. Hence, for example, a court found two cases to be substantially related because both concerned the same defendant's alleged practice of fraudulently issuing inaccurate grain weight certificates, although the certificates were issued to different plaintiffs. Cook Indus., Inc., 569 F.2d at 739. Similarly, a court found a substantial relationship between two cases dealing with the same parent corporation's control of its subsidiary and the alleged use of that control for illegal purposes. Emle Indus. Inc. v. Glen Raven Mills, Inc., 478 F.2d 562, 571 (2d Cir. 1973).
TWA has successfully demonstrated that the current action is substantially related to the discrimination proceedings Pastor initiated in 1979 and 1980. It has submitted, among other things, a 1979 TWA inter-office memorandum drafted by Zimet herself, in which she describes "the  complaint filed by Mr. Pastor with the State Division of Human rights alleging that he was discriminated against because of his age (44) and national origin (Hispanic)." Kornstein Aff. P 6, Ex. C. Likewise the current action alleges, among other things, that "the termination of plaintiff's employment with defendant was part of a continuing pattern and practice of discrimination against older persons," complaint P 43, and "part of a continuing pattern and practice of discrimination against certain minority groups, including but not limited to persons of Hispanic or Latin origin." Complaint P 49. Clearly the same general issues of TWA employment policies are central to both actions. Moreover, the identity of issues here is unusually strong because the previous and current cases involve not only the same defendant, but also the same plaintiff. As a result, even the distinctive details of Mr. Pastor's employment history at TWA are relevant to both.
ii. Access to Privileged Information
To satisfy the third element of the successive representation test, TWA must demonstrate that Zimet's "involvement in the prior case was such that she would have had access to relevant privileged information." Cook Indus., Inc., 569 F.2d at 740. Hence, disqualification is inappropriate if, for example, an attorney's association with a related matter was so peripheral and there was "no realistic chance that confidences were disclosed" to her. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir. 1975) (overruled on other grounds by Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980) (en banc), vacated and remanded, 449 U.S. 1106, 101 S. Ct. 911, 66 L. Ed. 2d 835 (1981)). Such is not the case here. Zimet concedes that she handled the 1979 and 1980 Pastor cases for TWA. Zimet Aff. P 18. As such, Zimet may be presumed to have had access to privileged information.
Pastor attempts to rebut this presumption by arguing that the passage of time and intervening changes in TWA's corporate structure and management will have rendered obsolete any confidential information to which Zimet might have had access in the 1980s. Pl. Memo of Law, at pp. 9-10. Neither time nor structural change, however, have altered the details of Mr. Pastor's employment history at TWA before the mid-1980s, which will be relevant to Pastor's current case and was relevant to his previous case. Additionally, TWA submits the affidavit of Alane C. Probst, who affirms that although TWA has undergone extensive changes since 1986, "there have been no relevant changes in the policies of TWA that are directly connected with the issues pertaining to this lawsuit." Probst Aff. P 7.
More importantly, however, even if Zimet had not represented TWA against Pastor, she would still be ethically barred from representing any client in any action substantially similar to the issues in the cases she handled as TWA's counsel. In her previous position as in-house counsel for TWA, in the course of her work on employment related issues, Zimet necessarily had access to privileged information about the policies and practices of TWA that she may now be able to use to the disadvantage of her former client. As Judge Leval of the Southern District of New York stated in the case of Ullrich v. Hearst Corp, 809 F. Supp. 229 (S.D.N.Y. 1992), the rule against successive representation "concerns itself with the unfair advantage that a lawyer can take of his former client in using adversely to that client information communicated in confidence in the course of the representation." Such use "includes knowing what to ask for in discovery, which witnesses to seek to depose, what questions to ask them, what lines of attack to abandon and what lines to pursue, what settlements to accept and what offers to reject" as well as innumerable other insights. Ullrich, 809 F. Supp. at 236.
In summary, because Zimet defended TWA in cases involving issues substantially related to this one and because she had access to privileged information concerning TWA, the terms of the successive representation test dictate that she should be disqualified from representing Pastor.
III. Plaintiffs' Arguments Concerning Waiver and Laches
Pastor argues that even if TWA has shown that all the elements of the successive representation test are satisfied in this case, TWA waived its objection to Zimet's representation in 1990. As a result, Pastor argues that Zimet met her ethical obligations to TWA. Initially, Pastor contends that TWA may not object in this case, because it did not object the first time Zimet represented a former TWA employee in an employment discrimination suit against TWA, even though that client fell outside the explicit terms of the 1990 waiver. However, a party's failure to object to its former counsel's representation of one adverse party, without more, does not create an implied waiver of objections to that counsel's representation of all future adverse parties. Ullrich, 809 F. Supp. at 236.
Secondly, Pastor argues that defendant's motion should be denied because, although TWA knew in 1994 that Zimet once served as its counsel against Pastor, TWA delayed unreasonably by failing to move for her disqualification until 1996. It is true that a court may find an implied waiver if a party delays its disqualification motion unreasonably. Trust Corp. of Montana v. Piper Aircraft Corp., 701 F.2d 85, 87 (9th Cir. 1983). The submissions in support of and in opposition to this motion provide no basis for a finding that the motion was unreasonably delayed.
Pastor's case for an implied waiver is weakened by Zimet's failure to meet her ethical obligations to TWA under Disciplinary Rule 5-108. As TWA's former counsel, Zimet had the obligation to make full disclosure to TWA. Zimet was also obligated to make sure TWA waived its objection to her representation of TWA's former employee in a case substantially related to cases Zimet had handled for TWA. Though Zimet had forgotten her connection to Pastor, that oversight did not alter her obligation to obtain a waiver from TWA before she represented any former TWA employee in connection with an employment discrimination action.
Finally, Pastor's argument that TWA's motion should be barred by the doctrine of laches is unpersuasive. "In this circuit, laches is generally not a defense to a motion to disqualify." British Airways, PLC v. Port Authority of New York and New Jersey, 862 F. Supp. 889, 901 (E.D.N.Y. 1994) (quoting Baird v. Hilton Hotel Corp., 771 F. Supp. 24, 28 (E.D.N.Y. 1991)). In any event, this motion cannot be said to have been unreasonably delayed and a claim of laches is baseless.
Accordingly, for the reasons stated above, the defendant's motion should be granted.
I. Leo Glasser
United State District Judge