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Glacken v. Incorporated Village of Freeport

October 6, 2010

WILLIAM F. GLACKEN, PLAINTIFF,
v.
THE INCORPORATED VILLAGE OF FREEPORT, ANDREW HARDWICK, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE INCORPORATED VILLAGE OF FREEPORT AND INDIVIDUALLY, THE BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF FREEPORT, HOWARD COLTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS VILLAGE ATTORNEY FOR THE INCORPORATED VILLAGE OF FREEPORT, DENNIS WARREN, INDIVIDUALLY, "JOHN DOE #1," "JOHN DOE #2," "JOHN DOE #3," "JANE DOE #1," "JANE DOE #2," DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

Presently before the Court is the motion of defendants The Incorporated Village of Freeport ("Freeport"), Andrew Hardwick (Hartwick"), and Howard Colton ("Colton") (collectively "Defendants") to disqualify Harrison J. Edwards ("Edwards") and his firm, Edwards & Edwards, from representing plaintiff William F. Glacken ("Plaintiff" or "Glacken"). For the reasons set forth below, the motion is granted.

Background

The Instant Action

Glacken is the former mayor of Freeport, having served in that position from 1997 to 2009. Edwards, who is Glacken's brother-in-law, was appointed in 1997 to serve as Village Attorney, a position he held until 2009 when Glacken lost his bid for re-election. Glacken, represented by Edwards, commenced the instant action challenging the decision of Freeport's Board of Trustee's to withdraw the defense and indemnification it initially authorized for Glacken pursuant to New York Public Officers Law § 18 with regard to a defamation lawsuit brought against him by Gary Melius ("Melius"). The complaint in the defamation action alleged that at a public meeting held in February 2009, Glacken had referred to Melius as an "extortionist." At the time of the alleged incident Glacken was running for re-election as mayor, an election he lost. Just days before his term of office was to expire, Freeport's Board voted to provide Glacken with a defense of the defamation action at Freeport's expense and to indemnify him in the event judgment was entered against him. That resolution was adopted in executive session of the Board with "Glacken, Trustees White, Miller, Martinez and Deputy Mayor/Trustee Frierson-Davis, the Village Treasurer, the Village Clerk and [Edwards]... all in attendance...." (Edwards Aff. ¶ 15.) After Glacken's successor took office, the Board revisited its decision, concluding that Glacken was not entitled to indemnification and defense as the alleged statements were not made within the scope of his duties of mayor but rather were made as he was campaigning for re-election.

The Water Works Actions

The defamation action is not the only lawsuit involving Melius and Glacken. Melius and his company, Water Works Realty Corp., also commenced two federal lawsuit against, inter alia, Glacken, Edwards and other Freeport officials. The federal actions involve allegations of a fraudulent scheme to deprive the plaintiffs therein of their rights in certain property referred to as the "Water Works property." The Board adopted a resolution authorizing Freeport to provide a defense for and indemnify Glacken, Edwards and other Freeport officials. Eventually Freeport entered into a stipulation of settlement for the Water Works action. However, Glacken, Edwards, and some of the other individual Freeport defendants refused to execute the settlement agreement on the grounds it contained a non-disparagement clause that would prohibit them from criticizing the settlement. Thereafter the Board voted to withdraw the defense and indemnification of Glacken, Edwards and the other non-settling defendants because of their failure to cooperate in the settlement of the Water Works actions.

Edwards' Representation of Glacken and Freeport

Edward's representation of Freeport was not limited to the twelve years from 1997 to 2009 when Glacken served as mayor. "During the 1980's" Edwards was the Village Attorney for Freeport under the "White and Storm administrations." (Edwards Aff. ¶ 4.) In 1987, Glacken became Village Attorney and Edwards became special counsel to Freeport's Community Development Agency and also represented Freeport on various litigations and development projects. (See id.)

As noted earlier, Glacken is Edwards' brother-in-law. According to Edwards, he has "represented Mr. Glacken and members of his family on varied individual matters since 1977." (Edwards' Aff. ¶ 3.) The Court has not been provided information as to precisely when Edwards represented Glacken, as opposed to "members of [Glacken's] family."

Discussion

I. Defendants' Motion

Defendants offer three grounds for disqualification of Edwards and his firm. First, they argue that Edwards has a conflict of interest because there is a substantial relationship between Edwards' former representation of Freeport and the issues in this action. Second, they assert that Edwards is likely to be a necessary witness. Finally, they maintain that because he is a named defendant in the Waterworks action and Freeport has revoked his defense Edwards' personal financial interest will adversely affect his representation of Glacken.

II.Motion to Disqualify: Legal Standards

In considering a motion to disqualify counsel, a court must "balance 'a client's right freely to choose his counsel' against 'the need to maintain the highest standards of the profession.'" Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (quoting Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978)). Thus, although any doubt should be resolved in favor of disqualification, Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Merck Eprova AG v. ProThera, Inc., 670 F. Supp. 2d 201, 207-08 (S.D.N.Y. 2009), motions to disqualify counsel are disfavored and subject to a high standard of proof, in part because they can be used tactically as leverage in litigation. See Evans v. Artek Systems Corp., 7 ...


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