The Third Department, reversing Supreme Court, determined defendant did not demonstrate plaintiffs’ attorney, Schultz, should be disqualified based upon a conflict of interest. Plaintiffs, in this motorcycle accident case, were initially represented by a law firm (HHK) which had previously represented defendant. Schultz, who was not part of HHK, was acting as “co-counsel” for plaintiffs, working with an HHK partner, at the time HHK was disqualified. After analyzing the facts, the Third Department found that Schultz was not “associated” with HHK within the meaning of the relevant Rules of Professional Conduct:
The Rules of Professional Conduct prohibit attorneys who are “associated in a firm” from representing a client when a conflict of interest would preclude any one of them from doing so if he or she were practicing alone … . The Rules of Professional Conduct do not define the phrase “associated in a firm,” but it is well established that its meaning extends beyond partners and associates who are employed by the same firm and includes attorneys with “of counsel” relationships … . However, not every lawyer who has any connection or relationship with a firm is considered to be “associated” with that firm for the purpose of imputing a conflict of interest … . Whether an attorney is considered to be “associated in a firm” … is a factual analysis that turns on whether the attorney’s relationship with the firm is sufficiently “close, regular and personal” … .
“Because disqualification can affect a party’s federal and state constitutional rights to counsel of his or her own choosing, the burden is on the party seeking disqualification to show that it is warranted” … . We are unpersuaded that this “heavy burden” was satisfied here … . Kelly v Paulsen, 2016 NY Slip Op 08920, 3rd Dept 12-29-16
ATTORNEYS (ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)/CONFLICT OF INTEREST (ATTORNEYS, ATTORNEY, WHO WAS ACTING AS CO-COUNSEL WITH THE DISQUALIFIED LAWFIRM, WAS NOT SUFFICIENTLY ASSOCIATED WITH THE LAWFIRM TO WARRANT DISQUALIFICATION ON CONFLICT OF INTEREST GROUNDS)