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)).