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MARSHALL v. NEW YORK DIV. OF STATE POLICE

January 11, 1997

MARGARET A. NAUGHTON MARSHALL, Plaintiff, against STATE OF NEW YORK DIVISION OF STATE POLICE, JAMES P. MCMAHON, in his official capacity as Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, DAVID M. LUITWEILER, in his official capacity as former First Deputy Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, FRANCIS A DEFRANCESCO, in his official capacity as Chief Inspector of the NEW YORK STATE DIVISION OF STATE POLICE, and THOMAS A. CONSTANTINE, in his official capacity as former Superintendent of the NEW YORK STATE DIVISION OF STATE POLICE, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 The case that underlies the present dispute involves allegations of sexual harassment. However, the issue presently before the Court has little to do with sexual harassment. Instead, the present dispute revolves around the lives of lawyers and their potential for conflicts of interest. On this point, few facts are uncontested. Consequently, the Court has had to sift through the parties' submissions in an effort to lay this factual predicate for the instant dispute.

 In July of 1993, attorney Mary Helen Moses of Ruberti, Girvin & Ferlazzo ("Ruberti Firm") forwarded a document to the Governor's Office of Employee Relations ("Governor's Office"); the 23-page document ("Moses Document") contained allegations of sex discrimination involving approximately 12 female employees, including Plaintiff, at the New York State Division of State Police ("NYSP"). The document was submitted to Joseph Bress, former Director of the Governor's Office of Employee Relations. Bress shared the document with Richard Girgenti, Director of Criminal Justice, and Thomas Constantine, Superintendent of State Police.

 As a result of these allegations, Superintendent Constantine ordered an investigation. The purpose of this investigation, however, is the subject of profound disagreement between the parties. According to Defendants, the investigation was begun in an effort to effectively evaluate the allegations in the Moses Document and defend against any possible litigation. According to Plaintiff, the purpose of the investigation "was to settle the claims of Plaintiff and the other female members of the NYSP, not as Defendants' suggest, to prepare a litigation defense." (Pltf's Mem. of Law in Opposition at 5.)

 In any event, at some point after the investigation commenced, Mr. Bress informed Superintendent Constantine that due to his agency's lack of legal expertise in this field, Ms. Kim Greene, Esq. would be assisting him in his review and analysis of the investigation. At the time, Greene was the Director of the Governor's Task Force on Sexual Harassment. In early January, 1994, Ms. Greene resigned her position as Director of the Task Force and Deputy Counsel at the New York State Department of Labor. And, as a result of concerns raised by State Police Counsel Glenn Valle regarding confidentiality, Ms. Greene was placed on the payroll as an hourly employee of the Governor's Office of Employee Relations.

 Towards the conclusion of the NYSP investigation, Superintendent Constantine invited Mr. Bress, Mr. Girgenti, Mary Anne Crotty (Director of Policy Management for Governor Cuomo), Maureen Casey, Esq. (Counsel to Mr. Girgenti), and Ms. Greene to attend a day-long briefing on the results of the NYSP investigation. This briefing took place at the State Police Academy on February 23, 1994, and Ms. Greene was in attendance.

 Shortly after the briefing, Mr. Bress gave Ms. Greene the first volume of the two volume State Police investigation report. Ms. Greene issued a 30 page written analysis of the investigation dated October 17, 1994. This analysis prepared by Ms. Greene was marked "Confidential."

 In March of 1995, selected portions of Ms. Greene's analysis were quoted in various newspapers. These newspapers claimed to have obtained copies of Greene's confidential report from an unidentified and anonymous source. A newspaper reporter subsequently provided a copy of the confidential report to the Ruberti Firm. The NYSP learned that the Ruberti Firm was in possession of a copy of the report during a settlement meeting on May 23, 1995.

 In late June, 1995, Ms. Greene began working for Plaintiff's counsel, Ruberti, Girvin & Ferlazzo. In March 1996, Assistant Attorney General David Roberts notified the Ruberti Firm that because of Greene's prior involvement in this case, the State had conflict-of-interest concerns about her affiliation with the Ruberti Firm. On May 7, 1996, Defendants served the instant Motion to Disqualify. On May 15, 1996, Ms. Greene left Ruberti, Girvin & Ferlazzo. On June 21, 1996, Plaintiff served a Cross-Motion for Rule 11 Sanctions on the basis that Defendants' present motion is not supportable.

 Currently before the Court are Defendants' Motion to Disqualify the law firm of Ruberti, Girvin & Ferlazzo and Plaintiff's Cross-Motion for Rule 11 Sanctions.

 II. DISCUSSION

 In this Circuit it is well settled that a motion to disqualify is committed to the discretion of the district court. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1055 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903 (1981); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). In addition, motions to disqualify are generally viewed with disfavor in this Circuit. See, e.g., Huntington v. Great Western Resources, Inc., 655 F. Supp. 565, 571 (S.D.N.Y. 1987) ("The Second Circuit has emphasized in its most recent disqualification opinions that a court's ultimate objective in weighing disqualification questions is to ensure that the balance of presentations in a litigation will not be tainted by improper disclosures. . . . Courts have been directed to take a 'restrained approach that focuses primarily on preserving the integrity of the trial process.' ") (citations omitted). A party seeking disqualification must meet a high standard of proof before disqualification will be granted. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983).

 That said, however, the American Bar Association Code of Professional Responsibility ("Code") has been recognized as providing appropriate guidelines for determining proper professional behavior. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 n.2 (2d Cir. 1977); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 129 n.2 (2d Cir. 1976); cf. Armstrong v. McAlpin, 625 F.2d 433, 446 n.26 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106 (1981) (although ABA committee that drafted Code has indicated rules were intended for use in disciplinary proceedings rather than in disqualification proceedings, court can refer to Code for guidance).

 The Code of Professional Responsibility is clear that an attorney must preserve the confidences and secrets of a client. Canon 4 and its Ethical Considerations and Disciplinary Rules provide the standards to guide an attorney in preserving the confidences and secrets of a client:

 
Except when permitted by DR 4-101(C), a lawyer shall not knowingly:
 
1. Reveal a confidence or secret of a client.
 
2. Use a confidence or secret of a client to the disadvantage of the client.
 
3. Use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

 N.Y. Jud. Law ยง DR 4-101B (McKinney 1992). The Code of Professional Responsibility further provides that attorneys should avoid conflict of interests with former clients:

 
Except with the consent of a former client after full disclosure a lawyer who has represented the former ...

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