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Ritchie v. Gano

September 8, 2008

BRIAN RITCHIE, INDIVIDUALLY AND D/B/A VIOLENT FEMMES, PLAINTIFF,
v.
GORDON GANO, INDIVIDUALLY AND D/B/A GORNO MUSIC A/K/A GORNO MUSIC PUBLISHING, DEFENDANT.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

The plaintiff in this case, Brian Ritchie, and the defendant, Gordon Gano, are both members of the seminal folk-punk band, the Violent Femmes. Mr. Ritchie has sued Mr. Gano for breach of contract and related claims, and he now moves to disqualify the defendant's counsel, Robert S. Meloni and the firms of Robert S. Meloni, P.C. and Meloni & McCaffrey, P.C., based on Disciplinary Rules 5-108(a), 5-105, and 5-102(a) and (b) of the New York Code of Professional Responsibility. The plaintiff claims that (1) Mr. Meloni's current representation of Mr. Gano conflicts with his previous representation of Mr. Ritchie and/or the Violent Femmes, (2) Mr. Meloni's representation of both Mr. Gano and non-party witness Alan Skiena creates a concurrent conflict, and (3) it will be necessary for Mr. Meloni to testify as a fact witness about the signing of the agreement at issue in the case and about other band business. Mr. Meloni denies that there is any conflict with his current representation, asserts that the represented parties have waived any conflict where necessary, and argues that his testimony regarding the agreement is not necessary. For the reasons that follow, the motion to disqualify is denied.

Background

The Violent Femmes ("the Band") have performed a number of commercially successful musical compositions such as "Blister in the Sun" and "Add It Up." (Compl., ¶¶ 1, 14-16). Since the band's formation in 1980, Mr. Ritchie, Mr. Gano and others have formed and dissolved a number of corporate entities, including Violent Femmes, Inc., Violent Femmes Touring, Inc., Add It Up Productions, Inc., and VF2, Inc., to administer the band's various sources of income. (Compl., ¶ 18; Answer, ¶ 18). Defendant Gorno Music Publishing, Inc. ("Gorno") is a business entity wholly owned and controlled by Mr. Gano. (Compl., ¶ 6; Answer, ¶ 6). The day to day business of Gorno is handled by an attorney named Alan Skiena. (Compl, ¶ 19).

This dispute concerns the ownership and administration of the Band's songs and other assets and arises principally out of an agreement signed by the parties in April 2001 (the "2001 Agreement") and another agreement signed in 2002 (the "2002 Agreement"). At that time, the Band had begun touring in order to pay off debts incurred on previous tours. (Compl., ¶¶ 54-55; Answer, ¶¶ 54-55). According to the plaintiff, Mr. Gano threatened to leave the tour unless Mr. Ritchie agreed to sign the 2001 Agreement. (Compl., ¶ 56). The complaint also alleges that Mr. Gano "purposefully fail[ed] to appear" for a concert in Providence, Rhode Island and "unilaterally cancelled" already-booked tour dates in order to coerce Mr. Ritchie into signing the agreement. (Compl., ¶¶ 56-57). The plaintiff claims that he had "no choice" but to enter into the 2001 Agreement "[t]o guaranty the Band would continue the 2001 tour." (Compl., ¶ 57). The 2001 Agreement was drafted by the defendant's current counsel Robert S. Meloni, who was retained by Mr. Gano to represent him during the negotiation and execution of the agreement. (Memorandum in Support of Plaintiff's Emergency Motion to Disqualify Opposing Counsel ("Pl. Memo.") at 4; Declaration of Robert S. Meloni dated July 3, 2008 ("Meloni Decl."), ¶ 3). The plaintiff was represented during the negotiation of the agreement by attorney Jeffrey Jacobson. (Pl. Memo. at 4). The 2001 Agreement sets out the tour dates that Gano and Ritchie would play and their compensation for doing so, the winding down of VF2, Inc., and various other items of business between the parties. (2001 Agreement, attached as Exh. H to Pl. Memo., at 1-4).

The agreement also addresses the band members' interests in various compositions. Specifically, it provides that: "Ritchie will continue to receive an income participation in the amount of 7.5% of Gano's net receipts . . . on all Violent Femmes songs he did not write in consideration for his services as an 'arranger,'" with several specifically enumerated exceptions. (2001 Agreement at 3). The agreement further provides that "Ritchie has co-writer interests on other songs, for which he will be paid (inclusive of the 'arranger' percentage) as in the past." (2001 Agreement at 3). Finally, the agreement states that "Ritchie and Gano have a[n] exclusive publishing administration arrangement with Alan Skiena, which will continue in full force and effect" and that "Alan Skiena will continue handling the administration and payment of Ritchie's income participation to Ritchie as in the past." (2001 Agreement at 3-4).

After several informal attempts to renegotiate the 2001 Agreement, the plaintiff brought this suit alleging that the agreement is void on various grounds, including coercion, mistake of fact, fraud in the inducement, and unconscionability. (Compl., ¶¶ 53-66). He also alleges that the defendant violated the 2001 Agreement by failing to pay royalties owed to him under the contract and by licensing compositions in which he had a copyright interest without his permission and without paying him his share of the licensing fees. (Compl., ¶¶ 25-32). He brings this action for declaratory and injunctive relief and legal and equitable damages. The defendant has cross-moved for declaratory judgment, damages, and cancellation of the plaintiff's registration of the trademark "Violent Femmes." (Answer, ¶¶ 186-212).

Discussion

A. Legal Framework

District courts have broad discretion to disqualify attorneys, but it is a "drastic measure" that is viewed with disfavor in this Circuit. See Papyrus Technology Corp. v. New York Stock Exchange, 325 F. Supp. 2d 270, 275-76 (S.D.N.Y. 2004); A.V. by Versace, Inc. v. Versace, 160 F. Supp. 2d 657, 663 (S.D.N.Y. 2001); Paramount Communications, Inc. v. Donaghy, 858 F. Supp. 391, 394 (S.D.N.Y. 1994); Clark v. Bank of New York, 801 F. Supp. 1182, 1196 (S.D.N.Y. 1992). The principal reason is that disqualification of counsel impinges on a party's right to employ the counsel of choice. See Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir. 1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); Stratavest Ltd. v. Rogers, 903 F. Supp. 663, 666 (S.D.N.Y. 1995). Moreover, the courts recognize that motions to disqualify are often interposed for tactical reasons. See Clark, 801 F. Supp. at 1196.

Therefore, a party seeking disqualification must meet a high standard of proof before the motion may be granted. See Evans, 715 F.2d at 791; Cook Industries, 569 F.2d at 739; Papyrus Technology, 325 F. Supp. 2d at 276; Stratavest Ltd., 903 F. Supp. at 666; Paramount Communications, 858 F. Supp. at 394. The Second Circuit has instructed district courts to take a "restrained approach that focuses primarily on preserving the integrity of the trial process" when deciding disqualification motions. Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir. 1980), vacated on other grounds, 449 U.S. 1106 (1981); see also Butala v. Agashiwala, No. 95 Civ. 936, 1997 WL 79845, at *10 (S.D.N.Y. Feb. 24, 1997); Huntington v. Great Weskin Resources, Inc., 655 F. Supp. 565, 571 (S.D.N.Y. 1987). In particular, "a district court must consider the factual record underlying such a motion in detail to determine whether the party seeking disqualification has sustained the high standard of proof necessary to disqualify opposing counsel." Papyrus Technolgy, 325 F. Supp. 2d at 276; see also United States Football League v. National Football League, 605 F. Supp. 1448, 1451 (S.D.N.Y. 1985)(citing NCK Organization, Ltd. v. Bregman, 542 F.2d 128, 131 (2d Cir. 1976)).

Disqualification is warranted only in situations where violations of the Canons of the Code of Professional Responsibility (the "Canons") pose "a significant risk of trial taint." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981) (citations omitted); Mitchell v. Metropolitan Life Insurance Co., No. 01 Civ. 2112, 2002 WL 441194, at *4 (S.D.N.Y. March 21, 2002); see also Board of Education v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979) (mere "appearance of impropriety" not sufficient). To establish that such a risk exists, the moving party must identify a violation of the Canons that "undermines the court's confidence in the vigor of the attorney's representation of his client." Nyquist, 590 F.2d at 1246 (citations omitted).

B. Alleged Grounds for Disqualification

1. Successive Conflict

The plaintiff argues that Mr. Meloni must be disqualified from representing Mr. Gano because he previously represented the Violent Femmes in legal proceedings, and in that role had access to certain confidential information of Mr. Ritchie's. New York's Code of Professional Responsibility (the "Code") establishes appropriate guidelines for the professional conduct of attorneys in the United States District Courts in this state. See NCK Organization, 542 F.2d at 129 n.2; Arifi v. de Transport du Cocher, Inc., 290 F. Supp. 2d 344, 348 (E.D.N.Y. 2003); Sumitomo Corp. v. J.P. Morgan & Co., No. 99 Civ. 8780, No. 99 Civ. 4004, 2000 WL 145747, at *2 (S.D.N.Y. Feb. 8, 2000); Paramount Communications, 858 F. Supp. at 394 ("The Code is recognized in this Circuit as prescribing appropriate guidelines for the professional conduct of the bar."); Local Civil Rule 1.5(b)(5). The Disciplinary Rules ("D.R.") of the Code bar attorneys, in some circumstances, from representing parties in litigation against their former clients. An attorney may not 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." D.R. 5-108(A)(1), 22 N.Y.C.R.R. § 1200.27(a)(1). Second, an attorney may not use "any confidences or secrets of [a] former client." D.R. 5- 108(A)(2), 22 N.Y.C.R.R. § 1200.27(a)(2)).

The Second Circuit has held that in order to ensure adherence to these principles, an attorney may be disqualified from representing a client 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.

Evans, 715 F.2d at 791; accord Medical Diagnostic Imaging, PLLC v. CareCore National, LLC, 542 F. Supp. 2d 296, 311 (S.D.N.Y. 2008). This is because a "lawyer's duty to his client is that of a fiduciary or trustee." Cinema 5, Ltd. v. ...


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