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PLAINTIFF’S PRO SE MOTION TO DISQUALIFY DEFENDANT’S LAW FIRM PROPERLY GRANTED, AN ATTORNEY FROM THE FIRM RETAINED BY PLAINTIFF WORKED ON PLAINTIFF’S CASE AND SUBSEQUENTLY JOINED THE LAW FIRM REPRESENTING DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff’s pro se motion to disqualify the law firm representing defendant (Ray, Mitiv) was properly granted. An attorney who worked for a law firm retained by plaintiff and who worked almost exclusively on plaintiff’s case left the firm retained by plaintiff and joined Ray, Mitev:

“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 his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion”… . However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety … .

Here, the plaintiff’s showing satisfied all three of the relevant factors, giving rise to an irrebuttable presumption of disqualification … . Accordingly, based on the appearance of impropriety, disqualification was warranted … . Janczewski v Janczewski, 2019 NY Slip Op 01062, Second Dept 2-13-19

 

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