The opinion of the court was delivered by: McKENNA, District Judge.
Presently before the Court is (i) the motion of Plaintiff
Cedric Kushner Promotions, Ltd. ("CKP") for a preliminary
injunction in aid of arbitration and to file a supplemental
complaint against Plaintiff Graciano Rocchigiani ("Rocchigiani")
and (ii) Rocchigiani's motion to disqualify Scott N. Gelfand
("Gelfand"), individually, and Meister Seelig & Fein LLP ("MS &
F"), collectively, from representing CKP in this action and to
stay all proceedings against Rocchigiani pending final decision
of the motion, including appeals. For the reasons set forth
below, all of the motions are denied.
A brief review of the underlying facts leading up to the
instant motions, as alleged in the Complaint and Supplemental
complaint, is necessary.
The Rocchigiani-WBC Dispute
The World Boxing Counsel ("WBC") is a major prizefighting
ranking organization that certifies and recognizes championship
boxers in various weight divisions throughout the world. (See
Compl. ¶ 15). The WBC promulgates rules and regulations which
govern its sanctioned bouts, including the percentage of the
"purse" that the individual boxers receive from WBC fights.
(Compl. ¶ 8).
Rocchigiani is a professional light heavyweight boxer and a
German citizen. On March 21, 1998, Rocchigiani defeated Michael
Nunn ("Nunn") in what he alleges was the WBC Light Heavyweight
Championship (the "Title"). According to Rocchigiani, as the new
champion he had the right to defend the Title against Roy Jones,
Jr. ("Jones"), whom Rocchigiani claims was then the former WBC
Light Heavyweight champion. As the champion, Rocchigiani would
be entitled to garner a high percentage of the Title purse.
(Compl. ¶¶ 2-4).
A few months after Rocchigiani's victory over Nunn, however,
the WBC declared Rocchigiani the "Interim" Light Heavyweight
Champion and designated Jones, who previously was the undisputed
Titleholder, as the "Champion in Recess." (Compl. ¶ 5). The WBC
then set new terms for a championship bout between Jones and
Rocchigiani, which included a purse split that was substantially
less favorable than Rocchigiani believed he was entitled to
under the WBC rules. (Compl. ¶¶ 4-6).
Rocchigiani sought to dispute the WBC's declaration that he
was merely an interim champion. On August 24, 1998, he entered
into a promotional agreement with CKP (the "Memorandum
Agreement"), under which CKP was to become his exclusive
promoter. (Suppl. Compl. ¶¶ 37-40, Ex. A ¶¶ 1, 5-8, 10). In
exchange, CKP agreed to "commence and pay for legal proceedings
against the WBC . . . for the purpose of establishing
Rocchigiani as the sole recognized champion in the light
heavyweight class. . . ." (Suppl. Compl. ¶ 41, Ex. A ¶ 12).
Additionally, CKP undertook to provide Rocchigiani with several
fights, with the opponent and purse for each fight dependent
upon the outcome of the litigation against the WBC.
(Suppl.Compl. ¶¶ 43-46, Ex. A).
On September 18, 1998, Rocchigiani signed an authorization
(the "Authorization") for the retention of the Law Offices of
Gelfand in connection with the contemplated litigation against
the WBC, pursuant to the "joint litigation agreement" of
paragraph 12 of the Memorandum Agreement. (Gelfand Decl., Ex.
A). The Authorization stated that Gelfand had been "retained by
CKP" pursuant to the Memorandum Agreement and that "Gelfand may
act on Rocchigiani's behalf in connection with the Litigation,
including, but not limited to, appearing as counsel of record
for Rocchigiani in the Litigation." (Id.).
Gelfand commenced a law suit against the WBC on behalf of
Rocchigiani and CKP on September 24, 1998. This action,
currently pending before the Court, seeks, inter alia, a
declaration that Rocchigiani is the undisputed WBC Light
Heavyweight Champion. The Complaint identifies "The Law Offices
of Scott N. Gelfand" as attorneys for Rocchigiani and
The CKP-Rocchigiani Dispute
After the commencement of the lawsuit against the WBC, the
relationship between Rocchigiani and CKP soured. On January 11,
1999, Gelfand wrote to Dr. Hans-Joachim Rust ("Rust"),
Rocchigiani's German business attorney who handled Rocchigiani's
boxing contracts and participated in discussions with Gelfand
regarding the status of the WBC litigation. (See Gelfand
Suppl. Decl., Ex. C, Rust Decl. ¶¶ 1, 4). This letter noted that
CKP had learned that Rocchigiani was negotiating for bouts
"without CKP's knowledge and involvement[,]" which Gelfand
deemed was "in derogation of CKP's rights" under the Memorandum
Agreement. (Gelfand Suppl. Decl., Ex. C).
Rust responded to Gelfand's letter the next day via facsimile,
questioning the validity of the Memorandum Agreement and
protesting an additional letter that Gelfand had apparently
faxed to Premier Television Network. (Id., Ex. D).*fn2
Gelfand responded on January 13, 1999, disputing Dr. Rust's
assertions. (Id., Ex. E).
On January 15, 1999, Oppenhoff & Radler ("O & R") wrote to
Gelfand on behalf of Rocchigiani, indicating that it was now
German counsel for Rocchigiani. (Id., Ex. K). 0 & R's letter
also stated that it had consulted New York counsel, Ross &
Hardies, and determined that the Memorandum Agreement did not
preclude Rocchigiani from negotiating for future bouts without
CKP, that CKP had failed to perform its own obligations under
the agreement, and, in any event, Rocchigiani was formally
terminating the agreement. (Id.). O & R further stated that
Rocchigiani would hold CKP liable for any attempts by CKP to
interfere with negotiations between Rocchigiani and the
television networks regarding a possible fight with Jones.
A series of letters were exchanged in March 1999 regarding
CKP's proposal to release Rocchigiani from what CKP considered
to be the still active Memorandum Agreement. (See Rocchigiani
Decl., Ex. B). However, 0 & R ultimately rejected any settlement
and notified Gelfand that new counsel, Ross & Hardies, had been
selected as Rocchigiani's attorneys in the underlying action
against the WBC. (Id. Ex. C).
Another letter-writing campaign ensued between Ross & Hardies
and MS & F regarding the terms of MS & F's withdrawal, which was
ultimately resolved by this Court's July 26, 1999 Order granting
substitution of Ross & Hardies as counsel for Rocchigiani.
On October 18, 1999, MS & F filed a Demand for Arbitration
with the American Arbitration Association on behalf of CKP (the
"Arbitration"). (Dunning Aff. Ex. L, M). Three days later, CKP
moved by Order to Show Cause for leave to file a Supplemental
Complaint against Rocchigiani, realignment of the parties to
reflect the Supplemental Complaint, and to enjoin Rocchigiani
from entering into any agreements for, or participating in, any
boxing matches without CKP's consent. Rocchigiani opposed that
Order to Show Cause and filed the instant motion for
disqualification of Gelfand and MS & F as counsel for CKP.
Rocchigiani's motion to disqualify Gelfand and MS & F invokes
Canons 4, 5, and 9 and various disciplinary rules of the New
York State Lawyers' Code of Professional Responsibility (the
"Code"). The Code, "as adopted from time to time by the
Appellate Divisions of the State of New York, and as interpreted
and applied by the United States Supreme Court, the United
States Court of Appeals for the Second Circuit, and this court,"
governs the instant action. Local ...