The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge
By order dated August 17, 2006, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket # 4). Plaintiff, Thomas Wega ("Wega"), has filed suit against his former employer, the Center for Disability Rights, Inc. ("CDR"), alleging that CDR unlawfully terminated his employment in violation of the Americans with Disabilities Act. (Docket # 21). Currently before this Court is Wega's motion to disqualify Matthew Fusco, Esq., and the firm of which he is a member, Chamberlain, D'Amanda, Oppenheimer & Greenfield LLP ("Chamberlain D'Amanda"), from representing CDR in this action. (Docket # 25). For the following reasons, Wega's motion is denied.
During his employment with CDR, which spanned the period December 2002 through August 2004, Wega held the position of Director of Human Resources and Training.
(See Docket # 21 at ¶ 7). In the summer of 2003, an employee of CDR filed a claim against CDR with the New York State Division of Human Rights (the "DHR") alleging that she had been subjected to sexual harassment by a CDR client. In response to that complaint, Bruce Darling, Executive Director of CDR, instructed Wega to retain Fusco's services to represent CDR in connection with the sexual harassment complaint. During the course of that representation, Fusco met with several employees of CDR, including Wega, to prepare for a two-party conference before the DHR and subsequently appeared at the conference accompanied by Wega. In addition, Wega retained and worked with a different attorney from Chamberlain D'Amanda concerning a real estate transaction that CDR engaged in 2004. Mr. Fusco had no involvement in that transaction, and the attorney who did is no longer a member of the firm. (See Docket ## 25, 28, 29).
It is well-settled that a lawyer's duty to his client is that of a fiduciary or trustee. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) (citing Hafter v. Farkas, 498 F.2d 587, 589 (2d Cir. 1974)). The client is entitled to trust that, at least until the pending litigation concludes, he has his counsel's undivided loyalty as an advocate and champion and may "rely upon his undivided allegiance and faithful, devoted service." Id. (citations and internal quotation omitted).
Disqualification of counsel is generally disfavored, and the moving party thus must satisfy "a high standard of proof" to demonstrate that disqualification is justified. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); Wieme v. Eastman Kodak Co., 2004 WL 2271402, * 1 (W.D.N.Y. 2004). Careful scrutiny of disqualification motions is warranted because "disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and [because] disqualification motions are often interposed for tactical reasons." Board of Educ. of City of N.Y. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Wieme v. Eastman Kodak Co., 2004 WL 2271402 at * 2. That said, although motions to disqualify are not lightly granted, any doubts must be resolved in favor of disqualification. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Wieme, 2004 WL 2271402 at * 2.
In this matter, Wega's motion is premised upon two separate grounds. First, Wega contends that disqualification is necessary as a result of his prior professional relationship with Fusco. As a second basis, Wega asserts that Fusco's disqualification is appropriate because he may be called as a witness during this litigation. (Docket # 25).
Wega's first contention implicates Disciplinary Rule (DR) 5-108 of the American Bar Association's Code of Professional Responsibility. That rule prohibits an attorney from representing a person whose interests are materially adverse to a former client in a matter that is substantially related to that former client's matter. DR 5-108. Disqualification is mandated under the "substantial relationship" test when the subject matter of the present litigation "is sufficiently related to the scope of the matters on which [the] firm represent[ed] [the former client so] as to create a realistic risk ... that unfair advantage will be taken of the [former client]." Wieme, 2004 WL 2271402 at * 2 (quoting Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 750 (2d Cir. 1981)). "Sufficient relationship" between the issues generally means that they are "identical" or "essentially the same." Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 740 (2d Cir. 1978).
According to the Second Circuit, an attorney may be disqualified from representing a client in a particular case under this rule 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 ...