Risk Update

Disqualification News — Appellate Court DQ Drama, DQ Motion Denied

Appellate Court Rejects Attempt to Disqualify Law Firm Representing Plaintiffs in Separate Matters With Care One Management” —

  • “‘Inference and innuendo’ are not enough to disqualify law firm Castronovo & McKinney from representing a plaintiff in a suit against Care One, while the firm also represents a former employee fired by the company over documents related to discovery in the case, according to the Appellate Division.”
  • “In an unpublished opinion, the appeals court upheld a trial court ruling denying the senior care provider’s motion to disqualify law firm Castronovo & McKinney from representing the plaintiff in McCarthy v. Care One Management after the firm was retained by another former Care One employee to represent him in negotiating his severance package.”
  • “Howard Tepper, Care One’s former senior vice president, also retained Castronovo & McKinney to negotiate his severance package after Care One allegedly fired him. Care One argued that Castronovo & McKinney violated 4.4(a) of the Rules of Professional Conduct by obtaining information on the company’s privileged litigation strategy in the punitive damages retrial and their confidential financial documents. The company asserted the Tepper emailed those documents to himself and then shared them with Castronovo & McKinney, according to the opinion.”
  • “Counsel for Care One, Bruce H. Nagel of Nagel Rice, called the opinion ‘illogical and disturbing.’ … ‘The panel now permits a firm who is seeking financial information to establish punitive damages to also represent the very person at the defendant who was the highest ranking financial officer who was charged with litigation strategy and the production of the financial documents,’ Nagel said in an email to the Law Journal. ‘And to make matters worse, secretly emailed himself the same financial information that plaintiffs counsel has been seeking in the underlying case. The decision is simply inexplicable.'”
  • “Nagel also stated that the panel rejected multiple emails from both in-house and outside counsel, which included Tepper in the litigation strategy decisions. The attorney said despite the fact the record was disputed, the court accepted Tepper’s certification that he was not privy to privileged information.”
  • “Counsel for Rebecca McCarthy, Paul R. Castronovo of Castronovo & McKinney, did not immediately respond to a request for comment.”
  • “‘To the extent Castronovo & McKinney might consider using documents related to Care One’s financial condition which were not produced by Care One’s counsel, unless the documents were otherwise publicly available, the potential consequences to the law firm could be far more severe than disqualification,’ stated the per curiam opinion.”

Motion To Disqualify Denied” —

  • “The United States District Court for the District of Columbia (Judge Nichols) has denied a motion to disqualify counsel (and for injunctive relief) to a party in an employment dispute in which the party (Shrensky) claimed wrongful discharge from the company ‘he helped found a half a century ago'”
  • From the decision:
    • “A final issue remains: Shrensky’s motion to disqualify. ‘A motion to disqualify counsel is committed to the sound discretion of the district court.’ Ambush v. Engelberg, 282 F. Supp. 3d 58, 61 (D.D.C. 2017) (citation omitted). Disqualification of an attorney ‘is highly disfavored,’ and any motion to disqualify ‘is therefore examined with a skeptical eye.’ United States v. Crowder, 313 F. Supp. 3d 135, 141 (D.D.C. 2018). That is because disqualification “negates a client’s right to freely choose his counsel’ and can be sought ‘to advance purely tactical purposes.’ Ambush, 282 F. Supp. 3d at 62 (citations omitted).”
    • “Shrensky’s motion to disqualify Connie Bertram and Bertram LLC is based on his theory that Bertram and her firm are or were simultaneously representing Fort Meyer and some of the company’s ‘directors, officers, employees, members, [and] shareholders’—specifically, Rodriguez and his daughter. Mot. to Disqualify at 6 (citation omitted). But Fort Myer has persuasively represented that neither Bertram nor her firm have engaged in any such concurrent representation. Mem. in Opp. to Mot. to Disqualify at 2–3, 5–6, ECF 10. Rather, ‘Bertram LLP ceased representing Mr. Rodriguez and Ms. Rodrigues before being retained by [Fort Myer]’ and ‘[n]either Ms. Bertram nor Bertram LLP represent either Mr. Rodriguez or Ms. Rodrigues in connection with this litigation.’ Id. at 6. Shrensky has not adduced any evidence that convinces the Court otherwise.”
    • “In any event, Shrensky is not impacted by any potential conflict of interest. He was never a client of Bertram or Bertram LLC, so neither would have any information obtained from him via an attorney-client relationship that could harm him in this litigation. Thus, any concurrent representation would risk harm only to the company or Rodriguez and his daughter. It is not Shrensky’s place to step in and assert their rights. See Colyer v. Smith, 50 F. Supp 2d 966, 968 (C.D. Cal. 1999). Regardless, the Court perceives no ‘serious question as to counsel’s ability to act as a zealous and effective advocate for the client, nor a substantial possibility of an unfair advantage to the current client because of [a] prior representation of the opposing party.’ Koller v. Richardson-Merrell Inc., 737 F.2d 1038, 1056 (D.C. Cir. 1984) (citations omitted), vacated on other grounds, 472 U.S. 424 (1985). Thus, Shrensky’s concerns do not justify disqualification.”