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Ello v. Singh

July 31, 2006

RICHARD ELLO, PLAINTIFF,
v.
ISHRI SINGH, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; RAYMOND POCINO, VICE PRESIDENT AND EASTERN REGIONAL MANAGER OF LABORERS INTERNATIONAL UNION OF NORTH AMERICA, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; LABORERS INTERNATIONAL UNION OF NORTH AMERICA; LABORERS-EMPLOYERS COOPERATION AND EDUCATIONAL TRUST FUND; RAYMOND POCINO, TRUSTEE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; MASON TENDERS DISTRICT COUNCIL TRUST FUNDS; JOHN VIRGA, FUNDS DIRECTOR, IN HIS INDIVIDUAL CAPACITIES; JOHN AND JANE DOES A THROUGH D, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION & ORDER

Before the Court is Plaintiff's Motion to Disqualify counsel for Defendants Ishry Singh, Raymond Pocino, John Virga, Laborers-Employers Cooperation and Education Trust Fund, Mason Tenders District Council Trust Funds, and Laborers International Union of North America.*fn1 Also before the Court is Plaintiff's Application for fees related to the filing of the Motion. For the reasons discussed herein, the Motion and Application are DENIED.

I. Background

Plaintiff, Richard Ello ("Ello"), was an employee for the Laborers International Union of North American ("LIUNA") and for the Mason Tenders District Council of Greater New York ("MTDC" or "the Union")*fn2 where, according to Plaintiff's counsel he "was directly involved with law enforcement personnel and with oversight of the funds." (Pollack Aff. ¶ 1)*fn3 "At times," Plaintiff's counsel alleges, "his duties involved working with the State of New York to establish funds, educational programs for the funds and to oversee other compliance issues. This was due in large part to his fiduciary duties to both the fund employees and participants, which accompanied his positions." (Pollack Aff. ¶ 1) Ello was employed as the Controller of MTDC between 1988 and 1996. (Pollack Aff. ¶ 3) Subsequently, from 1996 to April 1, 2005, Ello was employed as an "International Representative" for LIUNA. (Pollack Aff. ¶ 3) During this latter period, Ello was also the elected Secretary-Treasurer of LIUNA Local 108, the appointed Deputy Supervisor of Local 108, and the appointed Director of the Greater New York Laborers-Employers Cooperation & Education Trust Fund ("LECET"). (Pollack Aff. ¶ 3) In 1995, Ello was appointed Trustee of Demolition Workers Local 95 where he also served as a Trustee on the Local 95 Pension, Health, and Annuity Funds. (Pollack Aff. ¶ 4) At the same time, Ello was also selected to serve as a Committee Member of the MTDC Political Action Committee. (Pollack Aff. ¶ 4) In approximately 1998, Ello was selected to serve as an Administrative Committee member of the Laborers Eastern Region Organizing Fund. (Pollack Aff. ¶ 5) In December 2004, Ello was selected to serve as a Trustee for the LIUNA Local 30 Trust Funds. (Pollack Aff. ¶ 5) Ello also served "for many years" as a Trustee for the MTDC Pension, Welfare, Training Annuity, Scholarship and Staff Pension Plan Trust Funds. (Pollack Aff. ¶ 5) At the time Ello held these various positions, he was also a participant in the MTDC Pension, Annuity, and Welfare Funds, which entitled him to their benefits and protections.*fn4 (Pollack Aff. ¶ 5) Plaintiff's counsel contends that the nature of Ello's various positions required his extensive cooperation with the FBI, United States Department of Labor, United States Department of Justice, Manhattan District Attorney's Office, the Inspector General of LIUNA, and a court-appointed Monitor and Investigations Officer. (Pollack Aff. ¶ 6)

Plaintiff's counsel argues that the law firms Proskauer Rose LLP ("Proskauer") and Curtis, Mallet-Prevost, Colt, & Mosle, LLP ("Curtis") must be disqualified as defense counsel because both firms have had "numerous contacts and involvements" with Ello in his capacity as a Trustee, Officer, and fund participant. (Pollack Aff. ¶ 2) Therefore, Plaintiff contends, Proskauer and Curtis cannot represent the Defendants who he alleges terminated him under circumstances involving allegations of sexual misconduct because it would violate the confidences of Plaintiff, a "former top advisor and enforcer of ethical and legal rules and laws who they counseled as attorneys at law and with whom they frequently shared both confidential and personal, unofficial information in the past and up to the time of the events which lead to the filing of the instant case." (Pollack Aff. ¶ 7)

Proskauer acknowledges that it was appointed as counsel to the MTDC Funds in April 1995. (Albert Decl. ¶ 2) Plaintiff Ello became a trustee of the MTDC Funds in August 1996. (Albert Decl. ¶ 3) In the ten years Proskauer has represented the MTDC Funds it has advised the Funds in five primary areas: (1) legal compliance in employee fund administration; (2) participant claims; (3) audit and delinquency matters; (4) litigation matters; and (5) employment advice. (Albert Decl. ¶ 4) Since August 1997, Proskauer has represented the Demolition Workers Union Local 95 Trust Funds ("Local 95 Funds") in a similar capacity. (Albert Decl. ¶¶ 5-6) Similarly, since March 1998, Proskauer has served as counsel to the Recycling and General Industrial Union Local 108 Pension and Welfare Funds ("Local 108 Funds"), advising Local 108 Funds on matters in the same five areas. (Albert Decl. ¶ 8)

Curtis's alleged conflict stems from its representation in 1995-96 of MTDC and Mason Tenders Local 59 ("Local 59"). (Curtis Mem. 4) Plaintiff alleges that he had numerous interactions with Curtis in its representation of MTDC. In general, as a MTDC employee and "custodian of records," Plaintiff's interaction with Curtis involved supplying the firm with information it requested about MTDC. (Pollack Aff. ¶ 10) In its capacity as Local 59 Counsel, Curtis moved for a preliminary injunction seeking to prevent LIUNA from revoking Local 59's charter and from seizing its assets pursuant to a reorganization plan. (Curtis Mem. 5) In that complaint, Local 59 sued, among others, Plaintiff Ello in his official capacity as Office Manager and Comptroller for the MTDC of Greater New York. (Curtis Mem. 5) Plaintiff also asserts that in 1996-97, he worked with MTDC and LIUNA to recapture legal fees from Curtis in connection with its Local 59 representation. (Pollack Aff. ¶ 10)

II. Discussion

A. Prior Representation Disqualification Plaintiff appears to allege that Proskauer and Curtis previously served as counsel for Plaintiff, during which time the law firms were exposed to confidential materials such that there exists an inherent conflict of interest necessitating their disqualification.*fn5

Because motions to disqualify counsel can often be tactically motivated, cause delay and additional expense, and disrupt attorney-client relationships, the movant must meet a high standard of proof to disqualify the non-movant's counsel. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) (noting "high standard of proof" for disqualification motions, in part due to the fact they are "often interposed for tactical reasons, and that even when made in the best of faith, such motions inevitably cause delay" (citation and quotation omitted)); Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978) (requiring "high standard of proof" for disqualification motions because a client loses time, money, and the benefit of its longtime counsel's specialized knowledge of its operations when its attorney is disqualified); First Hawaiian Bank v. Russell & Volkening, 861 F. Supp. 233, 237 (S.D.N.Y. 1994) ("Motions to disqualify counsel are viewed with disfavor in this Circuit because they are often interposed for tactical reasons and result in unnecessary delay." (citation and quotation omitted)); Clark v. Bank of New York, 801 F. Supp. 1182, 1197 (S.D.N.Y. 1992) ("[A]lthough doubts should be resolved in favor of disqualification, the party seeking disqualification must carry a 'heavy burden' and must meet a 'high standard of proof' before a lawyer is disqualified." (citations omitted)).

To disqualify opposing counsel on conflict of interest grounds in order to protect the confidences of a former client, a movant must establish three elements: (1) the party is a former client of the attorney; (2) the attorney had access to, or was likely to have had access to, relevant privileged information in the course of the alleged prior representations; and (3) there is a substantial relationship between the subject matter of the (alleged) prior representation and the issues in the current action.*fn6 See Evans, 715 F.2d at 791. In cases where the earlier representation constituted a joint effort between the parties a fourth requirement, potentially precluding the use of the third factor, is added: "before the substantial relationship test is even implicated, it must be shown that the attorney was in a position where he could have received information which his former client might reasonably have assumed the attorney would withhold from his present client." Allegaert v. Perot, 565 F.2d 246, 250 (2d Cir. 1977); see also Cohen v. Acorn Int'l Ltd., 921 F. Supp. 1062, 1064 (S.D.N.Y. 1995); First Hawaiian Bank, 861 F. Supp. at 238 n.7 (citing Allegaert, 565 F.2d at 250-51). These factors are examined below.

1. Attorney-Client Relationship

The first and threshold question is whether Plaintiff had an attorney-client relationship with either Curtis or Proskauer. "There is no single, well-defined test used to determine whether an attorney-client relationship exists; rather, a court must weigh a number of factors, including among others: (1) whether a fee arrangement was entered into or a fee paid; (2) whether a written contract or retainer agreement exists indicating that the attorney accepted representation; and (3) whether the purported client believes that the attorney was representing him and whether this belief is reasonable." Parkins v. St. John, No. 01 Civ. 11660, 2004 WL 1620897, at *4 (S.D.N.Y. July 19, 2004) (citing First Hawaiian Bank, 861 F. Supp. at 238). ...


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