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FLAHERTY v. FILARDI

June 29, 2004.

MARIE FLAHERTY, Plaintiff,
v.
JASON FILARDI, et al., Defendants.



The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER

I. Introduction

Plaintiff moves for an Order (a) granting an evidentiary hearing; (b) disqualifying the law firm of Quinn, Emanuel Urquhart Oliver & Hedges, LLP ("Quinn Emanuel") from representing defendant Jason Filardi; (c) awarding attorney's fees and costs and (d) granting any other relief that this Court deems just and proper. Plaintiff's motion is denied in all respects.

  II. Facts

  Jason Filardi claims to be the author of the screenplay for the film Bringing Down the House (First Amended Complaint, dated July 17, 2003 ("Am. Compl."), ¶ 21). The screenplay was purchased, and the resulting film produced and distributed by the Walt Disney Company ("Disney") (Am. Compl., ¶ 28). Plaintiff alleges that Filardi's screenplay for Bringing Down the House infringes her copyrighted screenplay entitled Amoral Dilemna (Am. Compl. ¶¶ 5 & 6). Plaintiff has filed suit against Filardi and Disney, among others, for copyright infringement.

  The law firm of Quinn Emanuel jointly represents Filardi and Disney. Plaintiff moves to disqualify Quinn Emanuel from representing Filardi on the ground that Quinn Emanuel's joint representation constitutes a conflict of interest. Specifically, plaintiff argues that: (1) the affirmative defense of "Lack of Causation" asserted by both Filardi and Disney indicates that Filardi and Disney are "pointing the finger of liability" at each other; (2) Filardi's potential obligation to indemnify Disney creates a conflict of interest and (3) Quinn Emanuel's joint representation creates an appearance of impropriety (Plaintiff's Memorandum of Law, dated September 30, 2003 ("Pl. Memo."), at 5-11).

  Filardi and Disney have submitted the declaration of Paul Conciatori, an attorney at Quinn Emanuel, in which he states that "no cross-claims have been asserted between Filardi and Disney" and "there is [no] reason to believe at this time that an actual conflict or dispute among Quinn clients will arise" (Declaration of Paul Conciatori, dated Oct. 15, 2003 ("Conciatori Decl."), ¶ 6). Conciatori has also averred that Filardi and Disney consented to joint representation after each was advised of "all relevant information regarding a joint representation and specifically the issue of potential conflict of interest was considered" (Conciatori Decl., ¶ 6).

  III. Analysis

  A. Standard

  The standard for disqualifying counsel from representing multiple clients with potentially conflicting interests was succinctly stated by the Honorable Constance Baker Motley, United States District Judge in Agee v. Paramount Communications, Inc., 853 F. Supp. 778, 782-783 (S.D.N.Y. 1994), rev'd in part on other grounds, 59 F.3d 317 (2d Cir. 1995):
Generally, courts have expressed reluctance in granting disqualification motions because of their concerns regarding: (1) the "immediate adverse effect disqualification has on the client separated from his lawyer;" (2) "the desire to preserve, to the greatest extent possible, . . . the individual's right to be represented by counsel of his or her choice;" and (3) "the awareness that disqualification motions are being made, with increasing frequency, with purely strategic purposes in mind." Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 921 (N.D.N.Y. 1987) (citing Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir. 1975)).
Giving full consideration to these competing interests, motions to disqualify counsel should be subjected to heightened scrutiny. Accordingly, the moving party bears a "heavy burden of proving [the] facts required for disqualification." Evans v. Artek Systems Corp., 715 F.2d 788, 794 (2d Cir. 1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978).
The American Bar Association Model Code of Professional Responsibility ("Model Code") contains many disciplinary rules ("DRs") that clarify the attorney-client relationship. . . . [T]he relevant rule governing conflicts of interest is DR 5-105, Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. Under DR 5-105, an attorney must generally disqualify himself and cease from representing multiple clients in cases where (1) the exercise of the attorney's independent professional judgment will be or is likely to be adversely affected by representing another client; or (2) the attorney is representing parties who have differing interests. Merely representing multiple clients who have similar interests in seeking joint representation does not automatically impair effective assistance of counsel or constitute a violation of DR 5-105. United States v. Curcio, 680 F.2d 881, 884-86 (2d Cir. 1982).
(Footnote omitted.) See also D.R.T., Inc. v. Universal City Studios, Inc., 02 Civ. 0958 (BSJ) (JCF), 2003 WL 1948798 at *2-*3 (S.D.N.Y. Apr. 24, 2003) ("[M]otions to disqualify counsel are generally disfavored. Courts are reluctant to grant such motions because they are often tactically motivated, cause undue delay, add expense, and have an immediate adverse effect on the client by separating him from counsel of his choice." (internal quotation marks and citations omitted)); A.I. Credit Corp. v. Providence Washington Ins. Co., Inc., 96 Civ. 7955 (AGS) (AJP), 1997 WL 231127 at *1-*2 (S.D.N.Y. May 7, 1997) ("Motions to disqualify opposing counsel are viewed with disfavor [principally because] disqualification of counsel impinges on a party's right to employ counsel of choice. Moreover, the courts recognize that motions to disqualify are often interposed for tactical reasons. Courts require the party seeking disqualification of opposing counsel to meet a high standard of proof before disqualification may be granted." (internal quotation marks and citations omitted)).

  B. Conflict of Interest

  Plaintiff first argues that Filardi and Disney are "pointing the finger of liability" at each other and that "[t]his is such an obvious conflict of interest that Quinn Emanuel's acceptance of [joint representation] was clearly undertaken in bad faith" (Pl. Memo. at 6).

  In support of this argument, plaintiff cites the affirmative defense of "Lack of Causation" asserted in both parties' Answers, which states:
[A]ny alleged injur[ies] or damages suffered by Plaintiff were caused in whole or in part by the acts or omissions of others for whose conduct [defendant is] not responsible, were the result of pre-existing or intervening or superseding events, factors, occurrences, or conditions, which were not caused by the [defendant] and for which [defendant is] not liable, and were not proximately caused by any acts or omissions by [defendant].
(Filardi's Answer, dated Aug. 25, 2003 ("Filardi Ans."), ¶ 281; Disney's Answer, dated Aug. 25, 2003 ("Disney Ans."), ¶ 280). The "Lack of Causation" defenses do not establish a conflict of interest. They refer vaguely to the conduct of unidentified "others" and do not specifically "point[] the finger" at any other co-defendant. Indeed, as defense counsel has stated, Filardi and Disney have not filed any cross-claims and no cross-claims are anticipated to be made in the future (Conciatori Decl., ¶ 6). Thus, the "Lack of Causation" defenses do not establish a conflict of interest.

  Plaintiff next cites Filardi's potential obligation to indemnify Disney as evidence of a conflict of interest (Pl. Memo. at 7). Specifically, plaintiff argues that "[a]ny statement [Filardi] makes will be detrimental to [Disney]. Therefore, Quinn Emanuel would have to cross examine its own client, [Filardi], in order to defend and ...


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