The opinion of the court was delivered by: HURD
Plaintiffs filed this action on October 7, 1994, alleging, inter alia, that defendant discriminated against them in their employment based upon their age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. The action was subsequently certified as a class action. Defendant General Electric Company ("G.E.") moves for disqualification of plaintiffs' attorneys. Plaintiffs oppose.
The plaintiff class has been represented by McNamee, Lochner, Titus & Williams, P.C. ("McNamee Firm") since the institution of the lawsuit. Defendant was initially represented by Bond, Schoeneck & King, L.L.P. ("BSK"). On October 7, 1997, Epstein Becker & Green, P.C. ("Epstein Firm") was substituted as counsel for the defendant. This motion to disqualify the McNamee Firm followed shortly thereafter.
Attorney Michael J. Grygiel ("Grygiel") was employed by BSK from 1991 through January 15, 1997. While employed by BSK, Grygiel defended G.E. in two other age discrimination law suits, Arendt v. General Elec. Co., No. 1664-95 (N.Y. Sup. Ct), and Raco v. General Elec. Co., No. 95-CV-0062 (N.D.N.Y.). Grygiel reviewed pleadings, prepared answering pleadings, performed legal research, drafted motion papers, drafted opposition to a motion, and conferenced with other BSK counsel, G.E.'s in-house counsel, and other G.E. employees. During this time, BSK represented G.E. in this case as well as Abrams v. General Elec. Co., No. 95-CV-1734 (N.D.N.Y.). BSK's representation of G.E. in Abrams ended on July 8, 1996. Abrams is another class action age discrimination law suit involving the same layoff policy at issue in this case and in the Arendt case. Grygiel did not work directly on this case or on Abrams, although other BSK attorneys did so.
On January 15, 1997, Grygiel became "of counsel" to the McNamee Firm. Neither Grygiel nor the McNamee Firm notified G.E. of Grygiel's new employment and of the potential for a conflict of interest. While Grygiel did not then directly participate in the representation of the plaintiffs, the McNamee Firm continued its representation of plaintiffs in this suit and in Abrams. Grygiel and the McNamee Firm have been disqualified as counsel for plaintiffs in the Abrams case. See Abrams v. General Elec. Co., No. 95-CV-1734 (N.D.N.Y. Jan. 16, 1998).
An attorney must preserve a client's confidences and secrets, and must not use a client's confidence or secret to the client's disadvantage. N.Y. Jud. Law app. DR 4-101(B) (McKinney 1992). Attorneys must also avoid conflicts of interest with former clients, unless the conflict has been fully disclosed and the former client consents. N.Y. Jud. Law app. DR 5-108(A) (McKinney 1992). Thus,
except with the consent of a former client after full disclosure a lawyer who has represented the former client in a matter shall not:
1. Thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.
2. Use any confidences or secrets of the former client except as permitted by DR 4-101(C) or when the confidence or secret has become generally known.
Id. An attorney, therefore, may be disqualified from representing a client in a case if:
(1) the moving party is a former client of the adverse party's counsel;
(2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and
(3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.
Hammond v. Goodyear Tire & Rubber Co., 933 F. Supp. 197, 199-200 (N.D.N.Y. 1996)(quoting Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983)). In addition, an attorney has a continuing duty of loyalty to a client which constrains the attorney from representing another party whose interests are adverse to the interests of the former client. In re ...