The issues on this motion to disqualify plaintiff's counsel McCarter & English LLP because of its partner Howard M. Berkower's prior representation of defendant Visionary Vehicles LLC turn on two points: whether his work for Visionary was substantially related to the issues in this litigation (thus disqualifying him) and, if so, whether Mr. Berkower's disqualification is imputed to his partners and associates in the McCarter & English firm.
Mr. Berkower joined McCarter & English as a partner on October 22, 2007, five months after it had commenced this litigation on behalf of plaintiff on May 25, 2007. Apparently he came directly from his former firm, Zukerman Gore & Brandeis LLP, where he had been the partner in charge of that firm's representation of defendant Visionary Vehicles LLC with respect to its efforts to raise $200 million in equity financing, as well as in general corporate matters.
As reflected in the retainer letter Mr. Berkower wrote on February 6, 2006, when he and the Zukerman firm were retained by Visionary:
On behalf of Visionary Vehicles LLC ("VV"), you have asked my Firm, Zukerman Gore & Brandeis, LLP (the "Firm") to represent you in a $200 million institutional private equity financing and in general corporate matters (the "Engagement"). . . .
1. Professional Undertaking
I will have primary responsibility for the representation, and will use other attorneys and legal assistants in the office in the best exercise of my professional judgment. In the event that there arise any questions regarding the staffing of any matters during the course of our Engagement, please contact me immediately.
Upon his retention, Mr. Berkower was asked to review and comment on Visionary's May 3, 2005 private placement memorandum. He did that during February of 2006, at about the times of plaintiff's agreements (February 6 and 17) to the two installments (paid on February 21 and March 17) of its $2 million investment in Visionary, which were made after its principals reviewed the same May 3, 2005 memorandum on which he was then working. He made modifications to that 2005 memorandum, and represented Visionary in connection with its fund-raising activities. In April and May of 2006 he provided additional comments with respect to the 2005 memorandum and performed other work relating to an abortive arrangement with George Soros for Mr. Soros's furnishing of $200 million in financing, which the complaint in this litigation alleges fell through when Malcolm Bricklin, Visionary's chairman and CEO, refused to cede control to Mr. Soros. Mr. Berkower worked on a release in August 2006 when that proposed financing collapsed.
Mr. Bricklin states that he spoke more than ten times and met on more than five occasions with Mr. Berkower, who "was provided with extremely sensitive, privileged and confidential information regarding the financial details, corporate structure and fund raising activities" of Visionary (Bricklin's Sept. 2, 2008 Aff. ¶ 13).
From March through mid-May 2007 Mr. Berkower worked together with Visionary consultant Michael Jonas on converting Visionary from a limited liability company to a corporation. Mr. Jonas stated (his Aug. 26, 2008 Aff. ¶¶ 5, 7) that:
Mr. Berkhower [sic] provided all of the legal services in connection with the transfer of assets and liabilities from Visionary Vehicles, LLC to Visionary Vehicles, Inc. (now known as VCars, LLC). As part of his participation, Mr. Berkhower was privy to the intimate details of the business enterprises, including, but not limited to; the Company's assets, liabilities, debts, creditors, employees and their compensation, expenses, business plans, marketing strategies, dealer contracts, dealer territories, equity funding, as well as the ongoing negotiations between the Company and potential dealers and investors. . . . Mr. Berkhower reviewed detailed information regarding the Company as well as dealer development and other business information which was of a confidential and proprietary nature to VISIONARY VEHICLES, LLC.
Mr. Jonas states that he spoke with Mr. Berkower at least three dozen times, exchanged over 20 e-mails with him, that on August 19, 2008 there were over 500 e-mails from, to, or referring to Mr. Berkower, and that these communications were privileged, confidential and concerned sensitive nonpublic information.
Mr. Berkower is therefore disqualified from representing any interests adverse to Visionary's with respect to the above matters, under the familiar principles stated by the New York Court of Appeals in Kassis v. Teacher's Ins. and Annuity Association, 93 N.Y.2d 611 (1999):
Attorneys owe a continuing duty to former clients not to reveal confidences learned in the course of their professional relationship. It is this duty that provides the foundation for the well-established rule that a lawyer may not represent a client in a matter and thereafter represent another client with interests materially adverse to interests of the former client in the same or a substantially related matter. Indeed, such "side switching" clearly ...