Risk Update

Disqualifications — Tales of Two Motions (One Survived, One Strategic, Judicial Scolding)

Brief Introductory Call with a Law Firm is Not Enough to Disqualify It From Representing Another Party in the Lawsuit” —

  • “Lawyers often get phone calls from prospective clients seeking guidance on various issues – general legal inquiries, asking a variety of general questions about laws, codes, regulations, and statutes, or questions concerning a pending or anticipated litigation. But a brief introductory conversation with a prospective client regarding an issue cannot disqualify the attorney from representing another party in that litigation. Or can it? Stay tuned to see how Justice Andrea Masley recently ruled on this very issue.”
  • “Plaintiff moved pursuant to 22 NYCRR § 1200.00, Rules of Professional Conduct 1.18 to disqualify defendant’s counsel, Herrick Feinstein LLP (“Herrick”) based upon the fact that plaintiff had an initial consultation with Herrick, which consisted of two brief telephone calls and the exchange of documents, all of which were provided to the defendant by plaintiff . Rule 1.18, entitled “duties to prospective clients” governs this initial interview process. New York law requires disqualification for disclosure of information that “embrace[s] substantive issues related to the” action and that was “made in confidence” to facilitate the provision of legal services, as the Court of Appeals long held in Seeley v. Seeley.”
  • “Following the brief introductory call, plaintiff sent the Herrick partner a follow up email containing information pertaining to the project and providing a list of potentially adverse parties so Herrick can run a conflict check. Plaintiff also attached a three page document, which consisted of a letter from plaintiff to defendant, enclosing surveys of the structure.”
  • “In her Decision and Order, Justice Masley determined that plaintiff “has a heavy burden of showing that disqualification is warranted.” Justice Masley determined that the documentary evidence corroborates the Court’s conclusion that plaintiff’s evidence was insufficient to warrant Herrick’s disqualification due to conflict. The Court held that plaintiff failed to establish that Herrick received any confidential information from plaintiff that could be significantly harmful to plaintiff in the pending litigation. In fact, the Court reasoned that the alleged documents that were provided to Herrick were not confidential because they were intended for and sent to Fortis by plaintiff.”

Kane Kessler Scolded By Judge For DQ Bid Against Storch” —

  • “A New York federal judge on Monday slapped Kane Kessler PC and its counsel for a bid ‘clearly devoid of merit’ to disqualify its opposing counsel in litigation where a New Jersey-based nonprofit organization accuses the firm of engaging in attorney misconduct.”
  • “U.S. District Judge Paul A. Engelmayer wrote Monday that Kane Kessler’s disqualification bid against Storch Amini PC is ‘transparently strategically motivated,’ as Kane Kessler and its counsel, Furman Kornfield & Brennan LLP, fail to establish that the lawyers for Oorah Inc. would need to be disqualified because they may need to testify over their knowledge of the underlying matter to an extent that would implicate their ability to serve as advocates for their client.”
    The judge also wrote that he was ‘constrained to admonish’ Furman Kornfield, holding that he expects the firm to ‘aspire to rigorous accuracy and a high level of professionalism and care.'”
  • “‘At various points, the court found statements of fact in defendants’ briefs inexact and incomplete, if not misleading,’ Judge Engelmayer wrote. ‘Particularly in a litigation in which the defendant is a law firm accused of making false and misleading statements to a court and opposing counsel, defense counsel’s factual imprecision ill behooves its client’s interests.'”
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