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Zena Cohen v. Marci B. Strouch and Daiichi Sankyo

March 24, 2011



Defendants Marci B. Strouch ("Strouch") and Daiichi Sankyo, Inc. ("DSI," and together, "Defendants") have moved to disqualify counsel for plaintiff Zena Cohen ("Cohen") in this action. For the following reasons, the motion is granted.


This action arises out of a September 27, 2010 motor vehicle accident. Cohen, the driver of one of the vehicles, claims that she suffered severe injuries as a result of the crash. There was also a passenger in Cohen's vehicle, Jeny Wiskautan ("Wiskautan"), who is not a party to this action. The driver of the other vehicle involved in the accident was defendant Strouch. Cohen alleges that at the time of the accident, Strouch was driving her vehicle within the scope of her employment for defendant DSI. Cohen alleges that the defendants' negligence resulted in her physical injury and emotional damages.

Wiskautan has brought a separate action in state court arising out of the same car accident against Cohen, Strouch and DSI, alleging that these parties' negligence resulted in her severe physical injury and emotional damages (the "State Court Action"). Wiskautan's complaint alleges that all three defendants should be jointly and severally liable for her injuries.

Cohen concedes that her counsel in this action, the firm Jaroslawicz Jacobs, LLC ("Jaroslawicz Jacobs"), is affiliated with Elizabeth Eilender ("Eilender"), who represents Wiskautan in the State Court Action. The website of Jaroslawicz Jacobs lists Eilender as "of counsel" and states that she is "one of the firm's senior trial attorneys."

Cohen filed this action on October 13, 2010. Defendants answered in November 2010 and filed this motion to disqualify on February 7, 2011. The motion was fully submitted on February



I. Attorney Disqualification in the Context of Concurrent Representation of Parties with Adverse Interests "The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process." Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (citation omitted). Furthermore, a "court is under a continuing obligation to supervise the members of its Bar." Dunton v. County of Suffolk, State of New York, 729 F.2d 903, 909 (2d Cir. 1984) (citation omitted).

"In deciding whether to disqualify an attorney, a district court must balance a client's right freely to choose his counsel against the need to maintain the highest standards of the profession." GSI Commerce Solutions, Inc. v. Babycenter L.L.C., 618 F.3d 204, 209 (2d Cir. 2010) (citation omitted). Motions to disqualify counsel are subject to strict scrutiny because of their potential to be used for tactical purposes. Murray v. Metropolitan Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009). "[E]ven when made in the best of faith, such motions inevitably cause delay" in the litigation. Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). As the Second Circuit has explained:

[D]isqualification has been ordered only in essentially two kinds of cases: (1) where an attorney's conflict of interests . . . undermines the court's confidence in the vigor of the attorney's representation of his client, or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation.

Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764-65 (2d Cir. 1990) (quoting Nyquist, 590 F.2d at 1246). In reviewing disqualification motions, courts "often benefit from guidance offered by the American Bar Association (ABA) and state disciplinary rules," however, "such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification." Hempstead Video, 409 F.3d at 132. "Instead, disqualification is warranted only if an attorney's conduct tends to taint the underlying trial." GSI, 618 F.3d at 209 (citation omitted).

When a conflict of interest is found, "[a]n attorney's conflicts are ordinarily imputed to his firm based on the presumption that associated attorneys share client confidences." Hempstead Video, 409 F.3d at 133. Therefore, if one attorney in a firm is disqualified from representing a client, then all attorneys in the firm are disqualified. This is so because there is an irrebuttable presumption of shared confidences among attorneys employed by the firm which forecloses the firm from representing others in the future in substantially related matters.

Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 306 (1994) (citation omitted). "[D]isqualification extends to individuals associated with a firm in a lesser capacity, for example, a law clerk. And we have never believed that labels alone [of] partner, clerk, co-counsel should control our decisions in so sensitive an area." Fund of ...

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