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Law Firm of Omar T. Mohammedi, LLC v. Computer Assisted Practice Electronic Management Solutions

United States District Court, S.D. New York

July 27, 2018

COMPUTER ASSISTED PRACTICE ELECTRONIC MANAGEMENT SOLUTIONS, d/b/a "Capems, Inc.," KENNETH CULLEN, in his professional and individual capacities, and JUSTIN GORKIC, in his professional and individual capacities, Defendants.



         I. Introduction

         By notice of motion dated May 18, 2018, defendants, Computer Assisted Practice Electronic Management Solutions, d/b/a "Capems, Inc.," Kenneth Cullen, and Justin Gorkic (collectively "Defendants"), seek to disqualify plaintiff's counsel, Elizabeth Kimundi, Esq., on the basis of the advocate-witness rule (Motion to Disqualify Counsel, dated May 18, 2018 (Docket Item ("D.I.") 57) at 2). For the reasons set forth below, Defendant's motion is denied.

         II. Background

         Defendants were retained by plaintiff in January 2012 to perform various services related to plaintiff's computers. Plaintiff alleges that Defendants breached the service contract, violated the Computer Fraud and Abuse Act and converted plaintiff's property (Memorandum of Law in Opposition to Defendants' Motion to Disqualify Counsel, dated June 1, 2018 (D.I. 60) ("Plaintiff's Memorandum") at 8).

         Among other things, plaintiff alleges that, pursuant to the contract, it requested that Defendants replace a tablet device with a laptop computer supplied by plaintiff (Complaint, dated June 16, 2017 (D.I. 1) ¶ 39). Rather than replacing the tablet, Defendants swapped the hard drives of the two devices because Defendants allegedly could no longer install the Windows 7 operating system on the laptop (Plaintiff's Memorandum at 4) . Plaintiffs allege Defendants intentionally concealed that Windows 7 could no longer be provided and instead swapped the hard drives when Omar Mohammedi was not present in the office. In addition, plaintiff claims that neither device worked after the hard drives were swapped and that the original hard drive that was later removed from the tablet went missing (Plaintiff's Memorandum at 4). A conversation took place between defendant Gorkic and Kimundi prior to the foregoing work, and the present dispute arises out of that conversation.

         Defendants recorded all conversations between itself and its clients, and, therefore, have a recording of the conversation in issue (Affidavit of Justin Gorkic, sworn to May 18, 2018 (D.I. 58) ("Gorkic Aff.") ¶ 3).[1] Defendants claim that the conversation between Gorkic and Kimundi is relevant to the action, makes Kimundi a witness and requires that she be disqualified. Specifically, Defendants claim that Kimundi's testimony would contradict plaintiff's contention that Kimundi did not have authority to make decisions regarding the scope of the Defendants work (Affidavit of Lawrence H. Schoenbach, Esq., sworn to May 18, 2018 (D.I. 58-1) ("Schoenbach Aff.") ¶ 20). Further, Defendants claim that Kimundi's testimony will show that Defendants informed plaintiff that they were swapping the hard drives and that Kimundi gave them permission to do so.

         Ill. Analysis

         A. Legal Standard for Motion to Disqualify

         A motion to disqualify an attorney is committed to the discretion of the court. Purqess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994). "While New York law governs the professional conduct of attorneys in this state, '[t]he authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process.'" Air Italy S.p.A. v. Aviation Techs., Inc., No. 10-CV-20 (JG)(JMA), 2011 WL 96682 at *3 (E.D.N.Y. Jan. 11, 2011), quoting Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005). The Second Circuit has held that "[a]lthough our decisions on disqualification motions often benefit from guidance offered by the American Bar Association (ABA) and state disciplinary rules, . . . 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, supra, 409 F.3d at 132 (citations omitted); accord Solow v. Conseco, Inc., 06 Civ. 5988 (BSJ) (THK), 2007 WL 1599151 at *3 (S.D.N.Y. June 4, 2007) (Katz, M.J.). "Disqualification is only warranted in the rare circumstance where an attorney's conduct 'poses a significant risk of trial taint.'" Decker v. Naael Rice LLC, 716 F.Supp.2d 228, 231 (S.D.N.Y. 2010) (Scheindlin, D.J.), quoting Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981). However, "any doubt [with respect to whether disqualification should be ordered] is to be resolved in favor of disqualification." Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975) (citation omitted); accord Hevlicter v. J.D. Collins, No. 3:11-CV-1293 (NAM/DEP), 2014 WL 910324 at *2 (N.D.N.Y. Mar. 10, 2014).

         In view of their potential for abuse as a tactical device, motions to disqualify opposing counsel are subject to particularly strict scrutiny. Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009), citing Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989). Courts are also reluctant to grant motions to disqualify because they inevitably result in delay and added expense. Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983) (disqualification motions "inevitably cause delay" (citation omitted)); D.R.T., Inc. v. Universal City Studios, Inc., 02 Civ. 0958 (BSJ)(JCF), 2003 WL 1948798 at *2 (S.D.N.Y. Apr. 24, 2003) (Francis, M.J.). For these reasons, "the Second Circuit requires a high standard of proof on the part of the party seeking to disqualify an opposing party's counsel in order to protect a client's right to freely choose counsel." Kubin v. Miller, 801 F.Supp. 1101, 1113 (S.D.N.Y. 1992) (Kram, D.J.), citing Gov't of India v. Cook Indus., 569 F.2d 737, 739 (2d Cir. 1978).

         B. Advocate-Witness Rule

         Effective April 1, 2009, New York adopted the Rules of Professional Conduct ("Rules"), which replaced the Code of Professional Responsibility ("Code"). Rule 3.7(a) provides guidance concerning when a lawyer may remain in an action notwithstanding her potentially being called as a witness:

(A) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a ...

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