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GUERRILLA GIRLS, INC. v. KAZ

October 1, 2004.

GUERRILLA GIRLS, INC. f/k/a GUERRILLA GIRLS, JERILEA ZEMPEL and ERIKA ROTHENBERG, Plaintiffs,
v.
DONNA KAZ, GUERRILLA GIRLS ON TOUR, INC. f/k/a GUERRILLA GIRLS THEATRE, JANE DOES 1-19, GUERRILLA GIRLS BROADBAND, INC., CATHERINE DOE 1 ALSO KNOWN BY THE PSEUDONYM "GERTRUDE STEIN," and CATHERINE DOES 2-12, Defendants.



The opinion of the court was delivered by: LOUIS STANTON, District Judge

OPINION and ORDER

Plaintiffs move to disqualify defendants' counsel, Barbara Hoffman, Esq. ("Hoffman"). For the reasons that follow, the motion is granted.

Background

  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 1996.

  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 works.

  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.

  Discussion

  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 Cir. 1981).

  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 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. 715 F.2d at 791 (citations and footnotes omitted). Each of these factors is examined below.

  1. Former Client

  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 ...


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