The opinion of the court was delivered by: LOUIS STANTON, District Judge
Plaintiffs move to disqualify defendants' counsel, Barbara
Hoffman, Esq. ("Hoffman"). For the reasons that follow, the
motion is granted.
Starting in 1985 a group of women artists and art professionals
came together to protest restrictions on, and promote recognition
of, women in the arts. They called themselves, and their loose
organization, "the Guerrilla Girls." Among their founding members
were plaintiffs Rothenberg and Zempel, and defendant Catherine
Doe a/k/a "Gertrude Stein." In order to focus public attention on
their message, rather than their identities, the Girls decided to maintain personal anonymity, and each member adopted a
pseudonym of a prominent deceased female artist.
Hoffman was the attorney for the group from 1991 to 1996.
During this time she represented it in at least five matters,
including registration of multiple copyrights and several
successful and unsuccessful book contract negotiations. Zempel
and Rothenberg terminated her representation of the group in
From their inception in 1985 until 1999 the Guerrilla Girls
remained an unincorporated association. In the fall of 1999, amid
internal disagreements, some or all of the Guerrilla Girls
decided to formalize their organization, and formed an
incorporated entity Guerrilla Girls, Inc. Shortly thereafter
the discord increased, culminating with at least two factions
starting their own off-shoot groups the defendants Guerrilla
Girls on Tour, Inc. and Guerrilla Girls Broadband, Inc.
The complaint, filed October 16, 2003, alleges in part that the
Guerrilla Girls, Inc., formed in September 1999, is the
successor-in-interest to all the property belonging to the
unincorporated group. This property includes copyrights for at
least 27 posters and two books, Confessions of the Guerrilla
Girls and The Guerrilla Girls' Bedside Companion to the History
of Western Art. Plaintiffs further allege they are their true authors and that
defendants are making unauthorized use of these copyrighted
Plaintiffs move to disqualify Hoffman as attorney for the
present defendants and the proposed defendant-intervenors (all of
whom claim to be current or past members of the unincorporated
group), because of her prior representation of the plaintiffs and
the unincorporated group. Plaintiffs claim that representation
involved matters at issue in the current litigation.
Motions to disqualify counsel are "viewed with disfavor in this
Circuit." Bennett Silvershein Associates v. Furman,
776 F.Supp. 800, 802 (S.D.N.Y. 1991). Because a motion to disqualify an
attorney seeks to separate a party from her chosen counsel and
may be interposed for tactical reasons, the Second Circuit
requires that the moving party meet a "high standard of proof,"
The Government of India v. Cook, 569 F.2d 737, 739 (2d Cir.
1978), and "bear the heavy burden of proving the facts required
for disqualification." Evans v. Artek Systems Corp.,
715 F.2d 788, 794 (2d Cir. 1983). Any doubt, however, "is to be resolved
in favor of disqualification." Hull v. Celanese Corporation,
513 F.2d 568, 571 (2d Cir. 1975). A court deciding a motion to disqualify counsel must "be
solicitous of a client's right freely to choose his counsel a
right which of course must be balanced against the need to
maintain the highest standards of the profession". Gov't of
India, 569 F.2d at 739. The appearance of impropriety alone will
not disqualify an attorney, but disqualification should be
granted when "an attorney's conduct tends to `taint the
underlying trial.'" Board of Ed. of the City of New York v.
Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979) (quoting W.T. Grant
Co. v. Haines, 531 F.2d 671, 678 (2d Cir. 1976)). A risk of
trial taint "is encountered when an attorney . . . might benefit
a client in a lawsuit by using confidential information about an
adverse party obtained through prior representation of that
party." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d
Plaintiffs rely on Disciplinary Rule 5-108(a) (1) of the Code
of Professional Responsibility (the "Code") as the basis for
their motion to disqualify Hoffman.*fn1
It provides that
. . . a lawyer who has represented a client in a
matter shall not, without the consent of the former
client after full disclosure: 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.
22 N.Y.C.R.R. § 1200.27(a)(1). While federal courts are not bound
by the Code, they often look to it, as well as the American Bar
Association's Code of Professional Responsibility, for guidance
when deciding disqualification motions. See Blue Planet
Software, Inc, v. Games International, LLC, No. 03 Civ. 8904,
2004 U.S. Dist. LEXIS 17047, at *4-5 (S.D.N.Y. August 25, 2004);
Papyrus Technology Corp. v. New York Stock Exchange, Inc., No.
04 Civ. 625, 2004 U.S. Dist. LEXIS 11926, at *12-13 (S.D.N.Y.
June 29, 2004). As the Second Circuit stated in Evans v. Artek:
Ordinarily an attorney may not knowingly reveal a
confidence of his client or use a confidence of his
client to the disadvantage of the client. To ensure
faithful adherence to this principle, an attorney may
be disqualified from representing a client in a
particular 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
(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.
715 F.2d at 791 (citations and footnotes omitted). Each of these
factors is examined below.
To meet their burden, plaintiffs must first prove that they had
a prior attorney-client relationship with Hoffman. It is
undisputed that Hoffman represented the unincorporated group from
1991 to 1996. During this period she represented, counseled and
advised the unincorporated group on a variety of legal matters.
Defendants argue that Hoffman represented only the group, and
that its members Zempel and Rothenberg individually were thus not
themselves Hoffman's former clients.*fn2 This argument fails
for several reasons.
Because "an unincorporated association is not a legal entity
separate from the persons who compose it," T.D. Holding Corp. v.
Hanley, No. 92 Civ. 6213, 1992 U.S. Dist. LEXIS 20801, at *4
(S.D.N.Y 1992), Hoffman's representation of the unincorporated
Guerrilla Girls as a group is tantamount to her representation of
each of its members. This is obvious with respect to Zempel and
Rothenberg, who were Hoffman's primary contacts within the
unincorporated group while she was its attorney, and who acted as
liaisons between Hoffman and the rest of the persons who composed the
group. As Hoffman herself ...