The First Department, in a full-fledged opinion by Justice Saxe, reversed Supreme Court finding that a communication between plaintiff and an attorney in a law firm representing a defendant did not require disqualification of the firm. The contents of the communication did not have the potential to be significantly harmful to plaintiff because the relevant information was generally known:
A movant seeking disqualification of an opponent’s counsel bears a heavy burden … . A party has a right to be represented by counsel of its choice, and any restrictions on that right “must be carefully scrutinized” … . This right is to be balanced against a potential client’s right to have confidential disclosures made to a prospective attorney subject to the protections afforded by an attorney’s fiduciary obligation to keep confidential information secret (see New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18…). Courts should also examine whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation … . The decision of whether to grant a motion to disqualify rests in the discretion of the motion court … .
Issues relating to the prospective client relationship based on events that occurred after April 2009 are governed by Rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.0), rather than the repealed DR 5-108 (22 NYCRR 1200.27). …
The former Code of Professional Responsibility did not have a specific rule that governed disclosures during a prospective client consultation. Rule 1.18 of the Rules of Professional Conduct fills that void. It provides:
“(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.’
“(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
“(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d)” … .
Thus, where a prospective client consults an attorney who ultimately represents a party adverse to the prospective client in matters that are substantially related to the consultation, the prospective client is entitled to obtain the attorney’s disqualification only if it is shown that the information related in the consultation “could be significantly harmful” to him or her in the same or substantially related matter (…Rule 1.18[c]). Mayers v Stone Castle Partners LLC, 2015 NY Slip Op 00295, 1st Dept 1-8-15