United States District Court, S.D. New York
LAW FIRM OF OMAR T. MOHAMMEDI, LLC, Plaintiff,
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.
OPINION AND ORDER
PITMAN, UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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). 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.
Legal Standard for Motion to Disqualify
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).
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).
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
(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