The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
Having considered the most recent correspondence of counsel,
the Court discerns no legitimate cause for concern arising out of
the matters described by the letter from plaintiffs' counsel
dated June 1, 2005 and the response from counsel for the Union
defendants dated June 2.
In the underlying action, the Plaintiffs are bellmen and
doormen employed by defendant Palace Hotel and members of Union
defendant Local 758. Their complaint alleges principally that the
Hotel has breached a collective bargaining agreement currently in
effect between an industry-wide association of hotels, of which
the Palace Hotel is a member, and the Union defendant HTC, of
which Local 758 is a member, by unilaterally altering the terms
and conditions of plaintiffs' employment; and that the Union
defendants have breached their duty to fairly and properly
represent plaintiffs with respect to that breach. One of the
plaintiffs is Robert Bishop. The letters of counsel referred to reflect that the Palace
Hotel has initiated a disciplinary proceeding against Bishop. The
collective bargaining agreement contains grievance and
arbitration provisions. HTC is obligated to represent
employee-union members such as Bishop against whom the Hotel
commences a disciplinary proceeding. HTC has selected Pryor
Cashman Sherman & Flynn LLP, the law firm that represents the
Union defendants in the captioned case, to represent Bishop in
that grievance proceeding.
Counsel for HTC say that the Hotel's disciplinary proceeding
against Bishop concern "matters having nothing to do with the
issues involved in the [captioned] lawsuit." Letter from Vincent
F. Pitta, Esq., to the Court, dated June 2, 2005 at 1. Counsel
for plaintiff do not contradict that assertion. They do say that
during a discussion between Bishop and lawyers from Pryor Cashman
"to discuss strategies for defending an on-going disciplinary
proceeding" initiated by the Hotel, those lawyers also "solicited
information concerning the instant action from plaintiff Bishop."
Letter from Steven M. Coren, Esq., to the Court, dated June 1,
2005 at 1. Pryor Cashman responds that "[n]o attorney in this law
firm attempted to discuss the issues in the subject lawsuit with
Mr. Bishop." Pitta Letter at 1. Counsel for plaintiffs were not
present at the discussion in question, can have no personal
knowledge of its contents, and submit no statement by Bishop to
support their assertion. Pryor Cashman's letter asserts, again
without contradiction, that it is actively engaged in trying to
work out a settlement between the Hotel and Bishop, with Bishop's
consent and encouragement.
Notwithstanding these reassuring circumstances, counsel for
plaintiffs charge that counsel for HTC have violated Disciplinary
Rules they do not cite and have prejudiced plaintiffs in ways
they do not describe. Counsel conclude their letter to the Court
with the request: "Kindly advise." It is an odd request. Judges
do not give advice. Lawyers do that. Judges resolve contested
claims that lawyers advise their clients to assert.
In any event, there is no substance to counsel's professed
concerns. HTC is obligated to represent Bishop in the
disciplinary proceeding, and in the absence of any showing that
the proceeding has anything to do with the issues in the
captioned action, HTC is entitled to retain the Pryor Cashman
firm to assist Bishop in the disciplinary proceeding.
I will add a word with respect to the pending motions. The
Palace Hotel and the Union defendants have moved to dismiss
plaintiffs' complaint. Plaintiffs oppose that motion and
cross-move to disqualify Pryor Cashman as counsel for the Union
defendants. I will decide the motion to disqualify first and hold
the motion to dismiss in abeyance until I do so. The proper
course to follow, whenever a party moves to disqualify the
adversary's counsel, is to hold all substantive issues in
abeyance until it is determined whether counsel must be replaced.
If plaintiffs' motion to disqualify the Union defendants' counsel
is denied, the Court will proceed to decide the motions to
dismiss the complaint. If the disqualification motion is granted,
the Union defendants will have to retain successor counsel, who
will be granted leave to consider the motion to dismiss ab
initio and supplement the motion papers if they wish.
To the extent that the letter dated June 1, 2005 from
plaintiffs' counsel should be regarded as an application for some
additional form of relief, the application is denied.
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