New York Law Review

Tag: attorney disqualification

  • Tekni-Plex, Inc. v. Meyner and Landis, 89 N.Y.2d 123 (1996): Attorney Disqualification and Control of Attorney-Client Privilege in Corporate Acquisitions

    Tekni-Plex, Inc. v. Meyner and Landis, 89 N.Y.2d 123 (1996)

    When a corporation is acquired, the control of the attorney-client privilege transfers to the new management regarding general business operations, but not necessarily regarding communications about the acquisition itself if the parties contemplated adverse interests in post-acquisition disputes.

    Summary

    Tekni-Plex, Inc. (new Tekni-Plex) sued its former sole shareholder, Tang, alleging breaches of warranties in the merger agreement when Tang sold the company. Tang retained Meyner and Landis (M&L), who had been Tekni-Plex’s counsel for many years, including on environmental compliance matters now at issue. New Tekni-Plex sought to disqualify M&L and prevent them from disclosing privileged information. The court held that M&L should be disqualified due to their prior representation of Tekni-Plex, and that the attorney-client privilege regarding general business operations transferred to new Tekni-Plex. However, communications specifically about the merger remained under Tang’s control.

    Facts

    Tang was the sole shareholder of Tekni-Plex (old Tekni-Plex). M&L represented old Tekni-Plex for over 20 years, including on environmental compliance matters. In 1994, Tang sold Tekni-Plex to Acquisition, a shell corporation, in a merger. The merger agreement contained warranties regarding environmental compliance, and provided for indemnification. After the acquisition, Acquisition became “Tekni-Plex, Inc.” (new Tekni-Plex). New Tekni-Plex sued Tang, alleging breaches of the environmental warranties, claiming Tang misrepresented compliance with environmental laws, specifically regarding VOC emissions from a laminator machine.

    Procedural History

    New Tekni-Plex initiated arbitration proceedings against Tang, who retained M&L as his counsel. New Tekni-Plex moved to disqualify M&L. After the arbitrator declined to rule on the motion, New Tekni-Plex filed suit in New York Supreme Court to disqualify M&L, enjoin them from representing Tang and disclosing confidential information, and compel return of old Tekni-Plex files. The Supreme Court granted the motion, disqualifying M&L. The Appellate Division affirmed. The New York Court of Appeals modified the ruling.

    Issue(s)

    1. Whether M&L should be disqualified from representing Tang in the arbitration given their prior representation of old Tekni-Plex?

    2. Whether the attorney-client privilege regarding pre-merger communications between old Tekni-Plex and M&L passed to new Tekni-Plex?

    Holding

    1. Yes, because M&L’s prior representation of old Tekni-Plex on environmental compliance matters, which are substantially related to the current dispute, creates a conflict of interest.

    2. No, in part. The attorney-client privilege regarding general business operations transferred to new Tekni-Plex, but the privilege regarding communications pertaining specifically to the merger negotiations remained with Tang.

    Court’s Reasoning

    The Court of Appeals applied DR 5-108 (A) (1) of the Code of Professional Responsibility, which prohibits attorneys from representing interests adverse to a former client on substantially related matters. New Tekni-Plex met the three-prong test for disqualification: (1) a prior attorney-client relationship existed between M&L and old Tekni-Plex, which new Tekni-Plex assumed; (2) the current and former representations are substantially related; and (3) the interests of Tang and new Tekni-Plex are materially adverse. The court reasoned that when a corporation is acquired and the business operations continue, the control of the attorney-client privilege transfers to the new management. The Court cited Commodity Futures Trading Commn. v Weintraub, 471 U.S. 343 (1985), stating that “when control of a corporation passes to new management, the authority to assert and waive the corporation’s attorney-client privilege passes as well.” However, regarding communications about the merger, the court determined that because the merger agreement contemplated the potential for disputes between the buyer and seller, and because Tang was the sole shareholder of the seller, the privilege regarding those communications remained with Tang. Allowing new Tekni-Plex to control those communications “would thwart, rather than promote, the purposes underlying the privilege.” The court emphasized the need to encourage “full and frank communication between attorneys and their clients.”

  • People v. Hill, 85 N.Y.2d 32 (1995): Addressing Conflicts of Interest When Defense Counsel Joins the Prosecution

    People v. Hill, 85 N.Y.2d 32 (1995)

    When a defendant’s former counsel joins the District Attorney’s office while the defendant’s prosecution is pending, reversal of the conviction is not required unless the defendant demonstrates actual prejudice or a substantial risk of an abuse of confidence.

    Summary

    Hill was convicted of robbery. His former counsel, Vecchione, had joined the District Attorney’s office while Hill’s case was pending. Vecchione had represented Hill in preliminary stages, then reassigned the case upon receiving the job offer. Hill argued this created a conflict of interest requiring reversal. The Court of Appeals affirmed the conviction, holding that while such situations require scrutiny, reversal is warranted only upon demonstrating actual prejudice or a substantial risk of abused confidence. The Court found no such prejudice or risk here, given the limited scope of Vecchione’s prior representation and his subsequent isolation from Hill’s robbery case within the DA’s office.

    Facts

    Hill was charged with multiple robberies in one indictment. In separate indictments, he faced charges for burglary and murder, and another robbery. Vecchione represented Hill on all indictments. Vecchione received an employment offer from the Kings County District Attorney’s office. He requested reassignment of Hill’s cases due to the conflict. The court relieved Vecchione in January 1992, and he joined the DA’s office. Vecchione had interviewed Hill, made court appearances, and filed motions. He claimed his work focused on the murder charge.

    Procedural History

    Hill was convicted of robbery charges. While his direct appeal was pending, Hill filed a CPL 440 motion to vacate the judgment based on Vecchione’s conflict. The Supreme Court denied the motion, finding failure to show actual prejudice. The Appellate Division affirmed, with one dissenting justice. The Court of Appeals granted leave to appeal and consolidated the appeals.

    Issue(s)

    Whether the defendant’s conviction must be reversed because his former counsel became employed by the District Attorney’s office while his prosecution was pending, absent a showing of actual prejudice or substantial risk of an abuse of confidence.

    Holding

    No, because the defendant failed to demonstrate actual prejudice or a substantial risk of an abused confidence due to his former counsel’s employment with the District Attorney’s office.

    Court’s Reasoning

    The Court addressed its prior holding in People v. Shinkle, where reversal was required when a Legal Aid director, familiar with the defendant’s case, became Chief Assistant District Attorney. However, the Court clarified that Shinkle doesn’t establish a per se rule. Citing Matter of Schumer v. Holtzman, the Court stated a prosecutor shouldn’t be removed unless necessary to protect a defendant from “actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence.” Here, Hill didn’t claim prejudice, and the risk of abuse was insubstantial. Vecchione’s representation was brief and focused on other charges. He worked in unrelated bureaus within the DA’s office, had no contact with Hill’s prosecutors, and didn’t discuss the case. The Court emphasized the importance of protecting client confidences but balanced it against the need for a showing of actual prejudice or a real risk of abuse to warrant reversing a conviction. “To warrant vacatur of the conviction, however, defendant must establish actual prejudice or a substantial risk of an abused confidence even when, as here, the issue arises on direct appeal.”

  • W.R. Grace & Co. v. Stroock & Stroock & Lavan, 88 N.Y.2d 306 (1996): Rebuttable Presumption of Disqualification for Large Law Firms

    W.R. Grace & Co. v. Stroock & Stroock & Lavan, 88 N.Y.2d 306 (1996)

    In cases involving large, departmentalized law firms, the presumption that a firm is disqualified from representing a client against a former client is rebuttable upon a showing that the attorneys currently handling the matter possess no confidential information from the prior representation.

    Summary

    W.R. Grace sought to disqualify the Stroock law firm from representing plaintiffs in an asbestos contamination case, arguing that Stroock had previously represented Grace in a similar matter. The New York Court of Appeals held that while a strict irrebuttable presumption of shared confidences applies to smaller firms, in large, departmentalized firms, the presumption can be rebutted by demonstrating that the attorneys handling the current case possess no confidential information from the prior representation. The court reasoned that the ethical concerns underlying the per se disqualification rule are less compelling in large firms and can be outweighed by policies favoring client choice and attorney mobility.

    Facts

    Stroock & Stroock & Lavan represented plaintiffs in an asbestos contamination case against W.R. Grace. Prior to this, Stroock, specifically attorney Barbara Billauer, had represented Grace in a similar asbestos case, City of Enterprise v. Grace & Co. Billauer had since left Stroock. Grace moved to disqualify Stroock, arguing that the firm’s prior representation created a conflict of interest.

    Procedural History

    The Supreme Court initially denied Grace’s motion to disqualify Stroock, finding that Stroock had demonstrated that its current attorneys had no access to Grace’s confidential information. The Appellate Division reversed, holding that an irrebuttable presumption existed that all attorneys in the firm had knowledge of confidential information, disqualifying Stroock. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the irrebuttable presumption of shared confidences within a law firm, which disqualifies the firm from representing a client against a former client in a substantially related matter, applies to large, departmentalized law firms even when the attorney who handled the prior representation has left the firm and the remaining attorneys possess no confidential information.

    Holding

    No, because in large, departmentalized firms, the presumption of shared confidences is rebuttable, and Stroock successfully demonstrated that the attorneys handling the current case possessed no confidential information from the prior representation.

    Court’s Reasoning

    The Court of Appeals acknowledged the importance of protecting client confidences and avoiding the appearance of impropriety, which are the foundations of the irrebuttable presumption rule. However, the court also recognized the costs of a per se disqualification rule, including limiting client choice and attorney mobility. The court distinguished its prior holding in Cardinale v. Golinello, which applied the irrebuttable presumption, by noting that Cardinale involved a small, informal firm where the sharing of information was commonplace. In contrast, Stroock was a large, departmentalized firm. The court adopted a more flexible approach, stating that “any fair rule of disqualification should consider the circumstances of the prior representation.” When the attorney responsible for the prior representation has left the firm, and the firm can demonstrate that the remaining attorneys possess no confidential information, the presumption of disqualification is rebutted. The court cited Silver Chrysler Plymouth v. Chrysler Motors Corp., noting the absurdity of assuming that every attorney in a large firm is aware of all client confidences. The court emphasized that “there are valid reasons for differentiating ‘between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery.’” In this case, the court found that Stroock had adequately demonstrated that its remaining attorneys had limited contact with the prior Grace matter and possessed no confidential information, thus rebutting the presumption of disqualification. As the court stated, “If the firm can demonstrate prima facie that there is no reasonable possibility that any of its other attorneys acquired confidential information concerning the client, a hearing should be held after which the court may determine that disqualification may be unnecessary.”

  • People v. Tineo, 64 N.Y.2d 531 (1985): Discretion to Deny Reinstatement of Counsel After Conflict Arises

    People v. Tineo, 64 N.Y.2d 531 (1985)

    A trial court has broad discretion to deny a defendant’s request to reinstate previously retained counsel if a potential conflict of interest arises close to trial, especially when the original counsel requested to be relieved.

    Summary

    Jose Tineo was indicted for drug offenses. On the eve of trial, his retained attorney, Kenneth Linn, informed the court that he had previously represented the People’s confidential informant and sought to be relieved due to a potential conflict. The court granted the request. Three days later, Linn sought reinstatement, limiting cross-examination of the informant to the informant’s criminal record. The court denied reinstatement, citing potential trial delay and the vacillation of both defendant and counsel. Tineo, dissatisfied with assigned counsel, represented himself at trial, with assigned counsel as a legal advisor, and was convicted. The New York Court of Appeals affirmed, holding that the trial court did not abuse its discretion in denying reinstatement given the circumstances.

    Facts

    Defendant, Jose Tineo, was arrested in November 1978 and indicted on multiple drug-related charges. Prior to jury selection, Tineo sought to discharge his retained attorney, Kenneth Linn, claiming lack of cooperation. The court denied this motion, citing Linn’s preparedness and the timing of the request. On January 7, 1980, Linn informed the court that he had previously represented the People’s confidential informant who would testify at trial, creating a potential conflict of interest. The court “reluctantly” relieved Linn, to which Tineo did not object.

    Procedural History

    The Supreme Court, New York County, convicted Tineo. The Appellate Division, First Department, affirmed the judgment. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred in granting defense counsel’s motion to be relieved due to a conflict of interest.
    2. Whether the trial court abused its discretion in denying defense counsel’s subsequent request for reinstatement.

    Holding

    1. The issue was not preserved for review, as defendant did not object to the original removal of his attorney.
    2. No, because the trial court, acting on the eve of trial, did not abuse its discretion by considering judicial economy, the integrity of the criminal process, and the continuous vacillation of both the defendant and counsel.

    Court’s Reasoning

    The Court of Appeals recognized the constitutional right to counsel of one’s choosing but emphasized that this right is not absolute once a criminal action has commenced. The court held that a request to change counsel is subject to the trial judge’s discretion, especially when the request could delay or obstruct proceedings. “That discretion is especially broad when the defendant’s actions with respect to counsel place the court in the dilemma of having to choose between undesirable alternatives, either one of which would theoretically provide the defendant with a basis for appellate review.”

    The court found that the trial court acted within its discretion in both relieving Linn and denying his reinstatement. Linn himself asserted the potential for a conflict of interest, and Tineo did not initially object to Linn’s removal. The court considered judicial economy and the vacillating positions of Tineo and Linn. The court distinguished this case from situations involving governmental interference with choice of counsel prior to the commencement of criminal proceedings. “It is no abuse of discretion for a trial court, acting on the eve of trial, to consider the interests of judicial economy, the integrity of the criminal process, and continuous vacillation of both defendant and counsel, in denying a motion for reinstatement.” The court emphasized that its role is not to second-guess the trial court’s exercise of discretion or to speculate on the defendant’s motivations.

  • People v. Shinkle, 51 N.Y.2d 417 (1980): Disqualification Based on Appearance of Impropriety

    People v. Shinkle, 51 N.Y.2d 417 (1980)

    An attorney’s prior representation of a defendant, followed by their employment at the prosecutor’s office during the defendant’s trial, creates an unacceptable appearance of impropriety, warranting disqualification of the entire prosecutor’s office, even with internal safeguards.

    Summary

    Shinkle was initially represented by an attorney from the Legal Aid Society. This attorney, Leopold, actively participated in Shinkle’s defense strategy. Subsequently, Leopold became the Chief Assistant District Attorney for Sullivan County and remained in that position during Shinkle’s trial. Despite measures to insulate Leopold from the case, the New York Court of Appeals held that Leopold’s presence in the prosecutor’s office created an unacceptable appearance of impropriety, violating Shinkle’s right to unswerving loyalty from his attorney. The conviction was reversed, emphasizing the importance of public trust in the legal system.

    Facts

    On March 8, 1977, Sol Lesser, Esq., from the Legal Aid Society of Sullivan County, Inc., was assigned to represent Shinkle.
    Edward Leopold, Esq., then executive director of the Legal Aid Society, actively advised Lesser during the early stages of the criminal proceeding.
    Leopold interviewed Shinkle extensively, was familiar with his case file, and assisted in formulating the defense strategy.
    On December 23, 1977, Leopold resigned from the Legal Aid Society.
    On January 12, 1978, Leopold was appointed Chief Assistant District Attorney for Sullivan County and served in that capacity during Shinkle’s trial.

    Procedural History

    Late January 1978: Shinkle filed an Article 78 proceeding to restrain the District Attorney’s office from prosecuting him due to Leopold’s appointment, alleging conflict of interest and prejudice. The application was denied without prejudice to renew before the Trial Judge.
    April 1978: The application was reargued and the court adhered to its original decision.
    The trial court also denied a similar application from the defendant.
    The Appellate Division affirmed Shinkle’s conviction.
    The New York Court of Appeals reversed the Appellate Division’s decision.

    Issue(s)

    Whether a defendant’s conviction must be vacated when their former attorney joins the prosecutor’s office during the prosecution, even if the prosecutor’s office implements measures to insulate the attorney from the case.

    Holding

    Yes, because the attorney’s presence in the prosecutor’s office creates an unacceptable appearance of impropriety and the risk of prejudice, regardless of internal safeguards designed to insulate the attorney from the case.

    Court’s Reasoning

    The Court reasoned that Leopold’s presence in the prosecutor’s office created an “unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant.”
    The court rejected the argument that the defendant needed to show actual prejudice, noting that such proof would be difficult for the defendant to obtain.
    The court stated, “Defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight”.
    The court found that the measures taken to insulate Leopold were insufficient to overcome the inherent impropriety because the People had to “circuitously resort to an affirmation from Leopold himself” to show the insulation’s effectiveness.
    The court acknowledged that this rule might impede attorney transfers between legal aid and district attorney offices, but emphasized that defendants are entitled to the appearance and fact of unswerving loyalty from their attorneys.

  • Greene v. Greene, 47 N.Y.2d 447 (1979): Disqualification of Counsel Due to Prior Fiduciary Relationship

    Greene v. Greene, 47 N.Y.2d 447 (1979)

    An attorney is disqualified from representing a client if the attorney’s firm includes members who formerly held a fiduciary relationship (such as partner) with the opposing party’s firm, especially when those members may have gained confidential information relevant to the current litigation.

    Summary

    Helen Greene sued Finley, Kumble, Wagner, Heine & Underberg, alleging breach of fiduciary duty related to a trust. Her counsel was Eaton, Van Winkle, Greenspoon & Grutman. Two Eaton firm members, Grutman and Bjork, were former partners at Finley, Kumble. The court addressed whether the Eaton firm should be disqualified due to conflict of interest, given Grutman and Bjork’s prior fiduciary duties to Finley, Kumble. The court held that the Eaton firm was disqualified because Grutman and Bjork’s prior access to confidential information at Finley, Kumble created an unacceptable conflict of interest.

    Facts

    Helen Greene established an inter vivos trust in 1969 and later sued Finley, Kumble (her former lawyers) for breach of fiduciary duty in managing the trust.
    Grutman and Bjork were partners at Finley, Kumble from 1970-1976 and 1974-1976, respectively, before joining the Eaton firm.
    Greene retained the Eaton firm in 1977, knowing Grutman and Bjork’s past affiliation with Finley, Kumble and the potential conflict.

    Procedural History

    Finley, Kumble moved to disqualify the Eaton firm.
    Special Term denied the motion.
    The Appellate Division affirmed.
    The New York Court of Appeals granted leave to appeal and modified the Appellate Division order, granting the disqualification motion.

    Issue(s)

    Whether a law firm should be disqualified from representing a client when two of its members were formerly partners in the opposing party’s law firm and may have gained confidential information during their tenure there.

    Holding

    Yes, because the former partners’ fiduciary duty to their old firm, combined with the potential access to confidential information relevant to the litigation, creates an unacceptable conflict of interest that warrants disqualification of the entire firm.

    Court’s Reasoning

    The court emphasized the attorney’s duty of loyalty to a client and the prohibition against representing conflicting interests. “It is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client’s interests diligently and vigorously within the limits of the law”.
    The court noted that attorneys are forbidden from placing themselves in positions where they must advance, or appear to advance, conflicting interests. This prohibition is “designed to safeguard against not only violation of the duty of loyalty owed the client, but also against abuse of the adversary system and resulting harm to the public at large.”
    The court reasoned that Grutman and Bjork, as former partners at Finley, Kumble, owed a fiduciary duty to the firm, similar to that owed by an attorney to a client.
    Finley, Kumble alleged that Grutman and Bjork gained confidential information regarding the firm’s potential liability concerning the plaintiff’s trust.
    The court found that it could not discount the possibility that information obtained by Grutman and Bjork in their role as fiduciaries would be used in the lawsuit. The court stated that “[a]n attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer’s former client”.
    Although a party may generally select an attorney of their choosing, this right is not limitless and cannot violate fiduciary relationships. The court concluded that the Eaton firm should be disqualified to maintain the integrity of the adversary system.

  • People v. Gomberg, 38 N.Y.2d 307 (1975): Attorney Disqualification Due to Conflict of Interest

    People v. Gomberg, 38 N.Y.2d 307 (1975)

    A trial court may disqualify a defendant’s chosen counsel, even over the defendant’s objection, when an attorney’s continued representation poses a substantial risk of prejudice to either the prosecution or the defendant due to a conflict of interest.

    Summary

    Louis Alperin, the defendant’s assigned counsel, discovered he previously represented a key prosecution witness, James Gonzalez, and possessed potentially damaging information about Gonzalez. Fearing prejudice to either the prosecution or the defendant, Alperin moved to be relieved. The trial court granted the motion over the defendant’s objection. The New York Court of Appeals affirmed, holding that while a defendant has a right to counsel, this right is not absolute and the court can disqualify counsel if a conflict of interest creates a substantial risk of prejudice. The court also rejected the defendant’s argument that the sentencing was improper.

    Facts

    On the eve of trial, defense counsel, Louis Alperin, realized he had previously represented a key prosecution witness, James Gonzalez. Alperin’s prior representation involved intimate knowledge of Gonzalez’s personal history, including potentially embarrassing information. After learning who the defense counsel was, Gonzalez recanted his identification of the defendant. Alperin promptly informed the court and prosecution of the conflict.

    Procedural History

    The prosecution moved to disqualify Alperin. Alperin joined the motion. The trial court granted the motion, relieving Alperin and assigning new counsel, despite the defendant’s objections. The Appellate Division affirmed the trial court’s decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the trial court erred in disqualifying the defendant’s assigned counsel, Louis Alperin, due to a conflict of interest arising from his prior representation of a key prosecution witness, despite the defendant’s desire to retain Alperin.

    Holding

    No, because a court may disqualify a defendant’s counsel when continued representation poses a substantial risk of prejudice to either the prosecution or the defendant due to a conflict of interest, even if the defendant objects.

    Court’s Reasoning

    The Court of Appeals acknowledged a defendant’s right to counsel but emphasized that this right is not absolute. The court distinguished this case from situations where a defendant waives a potential conflict or proceeds pro se. The court stated, “Clearly the lawyer cannot terminate the relationship, ex parte. Nor, on the other hand, may the client preclude termination.” The court found that disqualifying Alperin was appropriate because his continued representation created a very likely risk of unfair prejudice to either the prosecution or the defendant. The court reasoned that denying Alperin’s request to be relieved might have violated the defendant’s constitutional rights. The court distinguished United States v. Armedo-Sarmiento, noting that in that case, defense counsel did not join the prosecution’s motion to disqualify. The court also addressed the defendant’s claim of improper sentencing, finding that the sentencing judge’s reference to another crime for which the defendant was indicted but not convicted did not influence the sentences imposed.

  • Golinello v. Coldwell, Banker & Co., 415 N.Y.S.2d 326 (1979): Disqualification Based on Imputed Knowledge and Appearance of Conflict

    Golinello v. Coldwell, Banker & Co., 415 N.Y.S.2d 326 (1979)

    An attorney is disqualified from representing a client against a former client where the attorney was previously associated with a firm that represented the former client in a substantially related matter, even if the attorney did not personally work on the matter, and this disqualification extends to the attorney’s current firm, especially when there is no evidence the client specifically sought or desired representation by that specific attorney.

    Summary

    This case addresses the issue of attorney disqualification due to a conflict of interest. The defendant, Golinello, sought to disqualify the plaintiffs’ attorneys, Schiller and the firm of King & King, because Schiller had previously been associated with a law firm that represented Golinello in a related transaction. The court held that even though Schiller didn’t personally represent Golinello, his association with the firm that did created a conflict of interest, disqualifying him and his firm from representing the plaintiffs. The court emphasized that the appearance of impropriety and the need to protect client confidences justified disqualification, particularly where the client didn’t specifically seek representation by the conflicted attorney.

    Facts

    Golinello purchased stock in Cross County Sanitation Corp. and was represented by John Somers of Halperin, Somers & Goldstick, P.C. Charles Schiller was an attorney at Halperin, Somers & Goldstick from February 14 to December 29, 1972, during which time the firm continued to represent Golinello. Schiller did not personally render legal services to Golinello. Subsequently, plaintiffs retained King & King to sue Golinello over issues arising from the stock purchase. King & King requested Schiller, who was “of counsel” to them, to handle the litigation. Schiller participated in preparing the complaint. Golinello moved to disqualify Schiller and King & King once he learned of Schiller’s involvement.

    Procedural History

    The trial court granted Golinello’s motion to disqualify Schiller and King & King. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and certified a question regarding the disqualification.

    Issue(s)

    1. Whether an attorney should be disqualified from representing a client against a former client of the attorney’s previous firm, even if the attorney did not personally represent the former client.

    2. Whether the disqualification of an attorney should extend to the attorney’s current firm.

    3. Whether the disqualification should extend to all defendants in the case, given allegations of conspiracy.

    Holding

    1. Yes, because the attorney’s prior association with the firm that represented the former client creates a conflict of interest, violating the Code of Professional Responsibility.

    2. Yes, because under the principle of attribution, the disqualified attorney’s disability extends to the other lawyers in their firm.

    3. Yes, because of the allegations of conspiracy and joint participation of the defendants, there is no basis for distinguishing between representation against one defendant versus the others.

    Court’s Reasoning

    The court reasoned that the disqualification was necessary to uphold ethical standards and protect client confidences. Even though Schiller did not personally represent Golinello, he was associated with the firm that did, and the current litigation involved matters related to that prior representation. The court emphasized that “[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him.” The court stated that “the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship”.

    The court found it significant that the plaintiffs did not specifically seek Schiller’s representation; it was at the instance of King & King. This weakened any argument that the client’s interest in retaining a specific attorney should outweigh the conflict of interest. The court also extended the disqualification to King & King, applying the principle of attribution, where one attorney’s conflict is imputed to the entire firm. Finally, the court found no basis for distinguishing between Golinello and the other defendants due to allegations of conspiracy.

    The court emphasized the importance of avoiding even the appearance of impropriety, quoting Rotante v Lawrence Hosp., 46 AD2d 199 and Edelman v Levy, 42 AD2d 758, underscoring the stringent standards of the profession for the protection of clients.