The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
DECISION-MEMORANDUM and ORDER
Presently before the Court is Defendants Robert A. Mitchell's and Mitchell Associates Architects' Motion to Disqualify the Plaintiffs' attorney, John P. Mastropietro, Esq., due to, inter alia, alleged conflicts of interest. Dkt. No. 43. The Plaintiffs oppose the Motion. Dkt. No. 47. For the reasons that follow, the Motion is DENIED.
In 1992, Plaintiff Dennis Ross and Defendant Robert Mitchell formed an architectural firm known as Mitchell Ross Associates, specializing in the design of public safety facilities such as fire stations and municipal buildings. In 1996, the two men formed Mitchell-Ross Associates Architects, P.C. ("the Firm"), each owning a fifty percent (50%) share in the company. In or about 2000, the Firm retained John Mastropietro, Esq., as its general counsel. In 2002, Ross and Mitchell each transferred a one percent (1%) share in the Firm to David Pacheco; from 2002 through 2005, Pacheco owned a two percent (2%) share in the Firm while Ross and Mitchell each held forty-nine percent (49%) shares.
In December 2004, Ross and Pacheco, together as majority shareholders, removed Mitchell as director and officer of the Firm and terminated his employment. Thereafter, Mitchell commenced a dissolution action against the Firm. Mastropietro was not involved in the dispute and did not represent any party in the dissolution action, however, he subsequently represented Mitchell individually in early 2005 by reviewing a contract for Mitchell's new firm. The dissolution action was settled in March 2005, and a settlement agreement ("the Agreement") memorialized the terms of the settlement between the Firm and Mitchell. The Agreement, among other things, set forth standards of conduct related to the promotion, advertising, and attribution for certain architectural projects completed by the Firm prior to the breakup. In or about June 2005, pursuant to the Agreement, the Firm changed its name to Pacheco Ross Associates, P.C ("Pacheco Ross").
In January 2008, Mitchell contacted Mastropietro for legal advice but Mastropietro advised him that he could no longer represent him. In May 2008, Mastropietro commenced this action on behalf of Pacheco Ross, asserting that Mitchell has run afoul of the terms of the Agreement. Mitchell filed the instant Motion on November 20, 2008, asserting that Mastropietro should be disqualified on the following grounds: (1) improper successive representation; (2) appearance of impropriety; and (3) application of the advocate-witness rule. Dkt. No. 43-4, Def.'s Mem. of Law.
A. Disqualification based on Ethical Considerations
1. Improper Successive Representation
A motion to disqualify an attorney is within the broad discretion of the court. Cheng v. GAF Corp., 631 F.2d 1052, 1055 (2d Cir.), judgment vacated on other grounds, 450 U.S. 903 (1981) (noting that a court's ruling will not be overturned absent an abuse of discretion determination).
Since disqualification may impose a serious impact on a party's right to an attorney of his choice, it should only be imposed when continued representation may pose a significant risk of taint upon the trial. Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981). Generally speaking, motions to disqualify are viewed with disfavor and the party seeking disqualification must meet a high standard of proof before disqualification will be granted. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) (observing that there is "a particularly trenchant reason for requiring a high standard of proof"); Human Elec., Inc. v. Emerson Radio Corp., 375 F. Supp. 2d 102, 105 (N.D.N.Y. 2004); United States v. Salvagno, 2003 WL 21939629, at *5 (N.D.N.Y. Mar. 4, 2003).
In deciding a motion to disqualify, courts often seek guidance from the American Bar Association (ABA) and state disciplinary rules, though "such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification." Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132-33 (2d Cir. 2005) (citing Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). In that respect, we note that New York has recently adopted the Model Rules of Professional Conduct, effective April 1, 2009. The Model Rules, in most respects, do not differ significantly from the previous standards set forth in the Model Code of Professional Responsibility.*fn2 Pertinent to this Motion, the standards relating to ethical conflicts stemming from successive representation are substantially similar. Compare Model Rule 1.9(a)-(c) with DR 5-108(A)(1).*fn3
The Second Circuit has held that in cases of successive representation, an attorney may be disqualified 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.
Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d at 133 (citing Evans v. Artek Sys. Corp., 715 F.2d at 791.*fn4
Defendants argue that there is a substantial relationship between Mastropietro's prior representation of the Firm and his current representation of Pacheco Ross Architects that is adverse to Mitchell. Defendants' argument in that respect can be summarized as follows: The issue in this action is whether Mitchell has violated the terms of the Agreement. In resolving that issue, one of the key factual questions will be who performed what work on which architectural project. During the time the relevant work was performed, Mastropietro was "privy to confidential communications involving Mitchell Ross's negotiations with its clients and about the performance of work in connection with Mitchell Ross ...