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Counsel Should Have Been Disqualified Based On Conflict of Interest—Criteria Explained

In reversing Supreme Court and determining that counsel representing the town must be disqualified for a conflict of interest, the Second Department explained the operative principles:

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” … . A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: “(1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” … . “A party’s entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” … . * * *

There is a rebuttable presumption that “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . That presumption may be rebutted by proof that “any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation” … . Proof must also be presented that the law firm properly screened the disqualified lawyer from dissemination and receipt of information subject to the attorney-client privilege … .  Matter of Town of Oyster Bay v 55 Motor Ave Co LLC, 2013 NY Slip Op 05636, 2nd Dept 8-14-13

 

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