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ANDERSON v. NASSAU COUNTY DEPARTMENT OF CORRECTIONS

July 6, 2005.

DONNA ANDERSON, Plaintiff,
v.
NASSAU COUNTY DEPARTMENT OF CORRECTIONS, LIEUTENANT PETER DUDEK, in his individual and official capacities, UNDERSHERIFF MAGUIRE, in his individual and official capacities, and SHERIFF EDWARD REILLY, Defendants.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

This action arises out of allegations by Donna Anderson ("Anderson" or the "Plaintiff") that the Nassau County Department of Corrections (the "Department of Corrections") and certain individuals involved with the Department of Corrections' Medical Investigation Unit ("M.I.U.") (collectively, the "Defendants") unlawfully denied her disability benefits in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2003 et seq., and the New York State Human Rights Law, § 290 et seq. Pending before the Court is a motion by the Defendants to disqualify the law firm of Leeds Morelli & Brown ("Leeds") from its representation of the Plaintiff.

I. BACKGROUND

  On June 7, 2004, Anderson, represented by Rick Ostrove, Esq. of Leeds, commenced this action seeking monetary relief for the alleged denial of disability benefits and the alleged discrimination in the determination of such benefits. On October 19, 2004, Mary Washington ("Washington") commenced a separate action against the County of Nassau, the Nassau County Sheriff's Department and certain individuals affiliated with the Department of Corrections, including Anderson. See Washington v. Nassau County, et al., No. 04 Civ. 4544 (E.D.N.Y.). In that action, Washington, represented by Robert J. Valli, Esq., of Leeds, alleged discrimination with regard to the denial of disability benefits during the time period that Anderson was the Commanding Officer of the M.I.U. (the "Washington Action"). The Washington Action is assigned to United States District Judge Thomas C. Platt.

  On or about November 12, 2004, after the complaint in the Washington Action was served, the Defendants became aware of and informed Valli of the conflict of interest, namely the then-concurrent representation of Anderson as a plaintiff in this action and its representation of Washington in another action in which Anderson is a Defendant. According to a "Certification" filed in the Washington Action, Valli stated:
Upon learning of the conflict, I spoke with Mr. Rick Ostrove of my office, who handles most of the individual litigation cases at the firm. He confirmed for me that the firm did indeed represent Ms. Anderson. I informed him of the situation and he and I agreed that there was a conflict with our continued representation of Ms. Washington.
Certification ¶ 17.

  In a letter to the Court dated November 29, 2004, the Defendants requested permission to file a motion to disqualify Leeds from representing Anderson in the instant action. The proposed motion was based on the obvious conflict of interest arising out of Leeds' representation of Anderson as a plaintiff in this action and her being named as a defendant in the Washington Action. By letter to the Court dated December 6, 2004, Leeds proposed to remedy the situation by: (1) removing Anderson as a defendant in the Washington Action, (2) have Anderson and Washington each sign waivers indicating that they waive any conflict that might exist; and (3) ensure that the two matters continue to be handled by different attorneys within their office. In December 2004, Leeds obtained affidavits from Washington and Valli stating that Washington "would rather remove Ms. Anderson as a defendant than have [Leeds] removed as her counsel." Valli Certification at ¶ 20. Also in December 2004, Leeds obtained a sworn "Waiver of Conflict of Interest" from Anderson.

  On February 2, 2005, the Defendants filed the instant motion pursuant to Canons 5 and 9 of the Model Code of Professional Conduct ("MCPR") and Disciplinary Rule ("DR") 5-105 of the Code of Professional Responsibility to disqualify Leeds from representing Anderson. On this same date, the defendants in the Washington Action filed a similar motion to disqualify Leeds from representing Washington. On April 8, 2005, Judge Platt granted the motion to disqualify Leeds from representing Washington on the basis that the prejudice caused by Leeds' concurrent adverse representation of Anderson and Washington could not be cured, stating that "the Court feels there is no way around the issue and new counsel should be retained."

  II. DISCUSSION

  A. The Applicable Law

  "The authority of federal courts to disqualify attorneys derives from their inherent power to `preserve the integrity of the adversary process.'" Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (citing Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). In exercising this power, the Court must "attempt? to balance a client's right freely to choose his counsel against the need to maintain the highest standard of the profession." Hempstead Video, Inc., 409 F.3d at 132 (internal quotations and citations omitted).

  In the Eastern District, ethical standards are governed by the New York State Lawyer's Code of Professional Responsibility. See Local Civil Rule 1.3. Canon 5 of this Code states that "[a] lawyer should exercise independent professional judgment on behalf of a client." Canon 9 requires that "[a] lawyer should avoid even the appearance of professional impropriety." Similarly, DR 5-105 provides that:
(A) A lawyer shall decline proffered employment if the exercise of [the lawyer's] independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve [the lawyer] in representing differing interests, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by [the lawyer's] representation of another client, or if it would be likely to involve [the lawyer] in representing differing interests, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that [the lawyer] can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of [the lawyer's] independent professional judgment on behalf of each.
N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200.24.

  Thus, "`[a]s a matter of professional responsibility, an attorney owes a duty of loyalty to his client . . . not to divulge confidential communications . . . and not to accept representation of a person whose interests are opposed to the client.'" Ehrich v. Binghamton City Sch. Dist., 210 F.R.D. 17, 23 (N.D.N.Y. 2002) (emphasis added) (quoting In re Agent Orange Product Liability Litigation, 800 F.2d 14, 17 (2d Cir. 1986)). However, "not every violation of a disciplinary rule will necessarily lead to disqualification," Hempstead Video, Inc., 409 F.3d at 133. Disqualification is warranted only where "an attorney's conduct tends to taint the underlying trial." Nyquist, 590 F.2d at 1246; see also Ehrich, 210 F.R.D. at 25. This "risk of taint is encountered when an attorney who represents one client in a suit against another client, in violation of Canon 5, or might benefit a client in a lawsuit by using confidential information about an adverse party obtained through prior representation of that party, in violation of Canon 4." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981).

  Whether or not disqualification is warranted is subject to the court's discretion. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). In that regard, given the "immediate adverse effect on the client by separating him from counsel of his choice, and that disqualification motions are often interposed for tactical reasons, and inevitably cause delay," Nyquist, 590 F.2d at 1246, the Court must demonstrate reluctance in granting motions to disqualify counsel. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir. 1976); see also Blue Planet Software, Inc. v. Games Int'l., LLC, 331 F. Supp. 2d 273 (S.D.N.Y. 2004). As the Second Circuit has advised:
when dealing with ethical principles, . . . we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after painstaking analysis of the facts and precise application of precedent.
Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 (2d Cir. 1977) (quoting United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955)).

  In the context of a conflict of interest arising out of dual representation of clients, courts in the Second Circuit apply one of two distinct rules with respect to disqualification. The more stringent of the two, known as the "per se rule," pertains to situations involving the continuous, simultaneous and/or concurrent representation of clients. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) ("Cinema 5"). The second rule, requiring the courts to apply a "substantial relationship" test, pertains in two situations: (1) when disqualification concerns a former client; and (2) for cases of vicarious or attenuated representation. Id.; see also Hempstead Video, 409 F.3d at 130. Unlike the substantial relationship test which purpose is to "prevent the possibility that the former clients confidences will be used to his [or her] disadvantage," Ehrich, 210 F.R.D. at 24, the per se test mandates that adverse representation of a current client is in and of itself improper. Nevertheless, the attorney sought to be ...


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