Opinion
97 Civ. 4134 (RWS)(JCF).
March 31, 2005
MEMORANDUM OPINION AND ORDER
The issue currently before the Court is whether a former associate of a law firm must be disqualified from representing a client in a fee dispute between the client and the associate's former firm. Under the circumstances of this case, disqualification is not required.
Background
On or about March 19, 1997, Edward C. King hired the law firm of Curtis Riess-Curtis ("CRC") to represent him in King v. Fox, a legal malpractice case against his former attorney, Lawrence Fox. (Declaration of John A. Howard in Opposition to Motion to Fix Fees dated May 17, 2004 ("Howard Fee Decl."), ¶ 4). At that time, CRC was managed by W. Robert Curtis and his wife, Cheryl Riess-Curtis (Howard Fee Decl., ¶ 6), and Ms. Riess-Curtis was the lead attorney on Mr. King's case. (Declaration of W. Robert Curtis in Support of Application to Disqualify John A. Howard and his Law Firm dated Dec. 17, 2004 ("Curtis Decl."), ¶ 2 n. 1). In March 2001, Ms. Riess-Curtis left CRC (Howard Fee Decl., ¶ 8) and subsequently filed for divorce from Mr. Curtis. (Reply Declaration of W. Robert Curtis in Further Support of Application to Disqualify ("Curtis Reply Decl."), ¶ 3). The firm changed its name to "Curtis Associates" (the "Curtis firm"), and Mr. Curtis assumed responsibility for the representation of Mr. King.
In 2002, after receiving bills from the Curtis firm for legal work at rates that seemed out of tune with his retainer agreement, Mr. King confronted Mr. Curtis concerning the firm's billing practices. (Affidavit of Edward C. King in Opposition to Motion to Fix Fees, dated May 17, 2004, attached as Exh. 1 to Howard Fee Decl., ¶¶ 10-18). He wrote to Mr. Curtis complaining that "this is the second Christmas in a row that's been ruined because of your billing practices." (Respondent's Surr-Reply in Opposition to Motion to Fix Fees ("Howard Fee Reply"), ¶ 2). Then, in a letter to Mr. Curtis dated January 7, 2004, Mr. King explained that he was terminating his relationship with the Curtis firm because of overbilling practices and that he was not willing to pay the entire outstanding bill. To settle the matter, he proposed either to pay Mr. Curtis $21,000, to review the bills with Mr. Curtis to come up with a fair and reasonable amount, or to refer the fee dispute to the Court. (Letter of Ed King dated Jan. 7, 2004, attached as Exh. 1 to Curtis Decl.). When no agreement was reached, Mr. Curtis filed a motion asking the Court to determine the fair and reasonable value of the services provided by the Curtis firm to Mr. King.
Meanwhile, John Howard, who had been hired by CRC as a full-time associate in October 2000, worked on the King v. Fox case for a total of 1.5 hours on October 25 and 31, and November 1, 2000, performing clerical tasks. (Declaration of John A. Howard in Opposition to Motion to Disqualify dated Dec. 30, 2004, ("Howard Decl."), ¶¶ 2, 6, 7; CRC Billing Invoices to Edward King, attached as Exh. 8 to Howard Decl.). On April 23, 2001, Mr. Howard resigned his employment with the firm. (Howard Decl., ¶ 2). Shortly before his resignation, he had asked Mr. Curtis whether he could take a week of vacation. Mr. Curtis refused, but then offered to hire Mr. Howard as an independent contractor so that the firm would no longer be responsible for paying his benefits. (Howard Decl., ¶ 3 n. 3). On that basis, Mr. Howard worked for Mr. Curtis on several cases in May 2001. (Howard Decl., ¶ 3). However, in July 2001, Mr. Howard filed a civil complaint in small claims court in New York County, seeking payment from the Curtis firm of one week's salary for the vacation time that he had been refused. The court dismissed that claim. (Howard Decl., ¶ 4).
In June 2002, Mr. Howard started working as an associate for the law firm of Daly Bamundo Zwal Schermerhorn, LLP (the "Daly firm"). (Howard Decl., ¶ 1 n. 1). In March 2004, he was contacted by Mr. King to represent him in the current fee dispute, having been referred by Cheryl Riess-Curtis. (Howard Decl., ¶ 5). Another former client of the Curtis firm, Stevi Brooks, who is involved in a similar fee dispute against Mr. Curtis, subsequently contacted Mr. Howard to discuss the nature of Mr. King's claims. (Howard Decl., ¶ 8). Finally, another client of the Daly firm, Ruchama Gamal, has brought a legal malpractice action against Mr. Curtis; however, in the malpractice proceeding she is represented by counsel other than the Daly firm. (Howard Decl., ¶¶ 8-10; Curtis Reply Decl., ¶ 9 Exhs. 2 6).
On December 17, 2004, Mr. Curtis filed the instant motion to disqualify Mr. Howard and the Daly firm. He argues that: (1) Mr. Howard is in a position to use confidential information concerning the Curtis firm in connection with the fee dispute; (2) Mr. Howard's professional judgment has been impaired by his personal interests; and (3) he will likely be called as a necessary witness on the fee issue. (Memorandum of Law in Support of Application to Disqualify John A. Howard, Esq. and his Law Firm ("Curtis Memo.") at 1-10).
Discussion
A. Analytical Framework
Motions to disqualify opposing counsel are generally viewed with disfavor in this Circuit. See Papyrus Technology Corp. v. New York Stock Exchange, Inc., 325 F. Supp. 2d 270, 275 (S.D.N.Y. 2004); Paramount Communications, Inc. v. Donaghy, 858 F. Supp. 391, 394 (S.D.N.Y. 1994); Clark v. Bank of New York, 801 F. Supp. 1182, 1196 (S.D.N.Y. 1992). The primary reason is that "disqualification of counsel impinges on parties right to employ the counsel of their choice." Stratavest Ltd. v. Rogers, 903 F. Supp. 663, 666 (S.D.N.Y. 1995); see Evans v. Artek Systems Corp., 715 F.2d 788, 791 (2d Cir. 1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978). Moreover, the courts recognize that motions to disqualify are often interposed for tactical reasons. See Clark, 801 F. Supp. at 1196. Therefore, a moving party must meet a high standard of proof before disqualification is granted. See Evans, 715 F.2d at 791;Cook Industries, 569 F.2d at 739; Papyrus Technology, 325 F. Supp. 2d at 276; Stratavest Ltd., 903 F. Supp. at 666;Paramount Communications, 858 F. Supp. at 394.
The American Bar Association Code of Professional Responsibility (the "Code"), as adopted by the New York courts, establishes the appropriate guidelines for the professional conduct of attorneys in the United States District Courts in this state. See NCK Organization Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir. 1976); Arifi v. de Transport du Cocher, Inc., 290 F. Supp. 2d 344, 348 (E.D.N.Y. 2003); Sumitomo Corp. v. J.P. Morgan Co., Nos. 99 Civ. 8780, 4004, 2000 WL 145747, at *2 (S.D.N.Y. Feb. 8, 2000); Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 624-25 (S.D.N.Y. 1990); Local Civil Rule 1.5(b)(5). The Code
"consist[s] of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules." N.Y. Code of Professional Responsibility Preliminary Statement reprinted in N.Y. JUD. LAW APP. (McKinney 2000)). The Canons are "statements of axiomatic norms" Id. The Ethical Considerations are "aspirational in character and represent the objectives toward which every member of the profession should strive." Id. The Disciplinary Rules "are mandatory in character." Id. They "state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."Kittay v. Kornstein, 230 F.3d 531, 538 n. 3 (2d Cir. 2000).
B. Grounds for Disqualification
1. Disqualification Under DR 5-108
a. Mr. Howard's Employment at the Curtis Firm
Mr. Curtis contends that Mr. Howard, as a previous associate of the Curtis firm, "is in a powerful position to use privileged information concerning the [Curtis] firm" in general and the firm's "representation of Mr. King in particular" in connection with the pending fee application. (Curtis Memo. at 4).As a threshold matter, Mr. Howard argues that because he had no prior attorney-client relationship with Mr. Curtis, he cannot be disqualified. (Memorandum of Law in Opposition to Motion to Disqualify ("Memo. Opp. Disq.") at 8). In response, Mr. Curtis maintains that Mr. Howard had a fiduciary duty of confidentiality to his former employer. (Curtis Memo. at 4). Mr. Curtis seems to argue that Mr. Howard's position as an employee of the Curtis firm created a relationship akin to that between an attorney and a client. Mr. Howard also contends that he could not have been exposed to any confidence related to the underlying fee dispute because (1) he was no longer working at CRC when the work in dispute was performed; (2) his involvement in the King v. Fox litigation was minimal and was only "administrative" in nature; and (3) there is no substantial relationship between Mr. King's legal malpractice action against Mr. Fox and the current fee dispute. (Memo. Opp. Disq. at 8).
The Code of Professional Responsibility does not directly address situations such as this where a former associate seeks to represent a client in a proceeding against the associate's former law firm. Instead, the Disciplinary Rules bar attorneys, in some circumstances, from representing parties in litigation against their former clients. An attorney may not represent "another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." DR 5-108(A)(1), 22 N.Y.C.R.R. § 1200.27(a)(1). Second, an attorney may not use "any confidences or secrets of [a] former client[.]" DR 5-108(A)(2), 22 N.Y.C.R.R. § 1200.27(a)(2)).
The Second Circuit has held that in order to ensure adherence to these principles, an attorney may be disqualified from representing a client if
(1) the moving party is a former client of the adverse party's counsel; (2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.Evans, 715 F.2d at 791 (citations omitted). This is because a "lawyer's duty to his client is that of a fiduciary or trustee."Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) (citation omitted). Thus, a lawyer will be disqualified only if the use of confidential information regarding an adverse party was obtained either by the lawyer through prior representation or by an agent of the lawyer while the lawyer was representing the adverse party. See Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975) (court granted defendant's motion to disqualify firm representing lawyer who, as defendant's in-house counsel, had worked on litigation to which she was now a party); Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037, 1042-46 (W.D. Mo. 1984) (plaintiffs' counsel disqualified because he had obtained confidential information from client who had worked on plaintiff's case as employee of defendant's counsel; cf. Witorsch v. Notaris, No. 95 Civ. 9163, 1997 WL 529016, at *4 (S.D.N.Y. Aug. 25, 1997) (defendant's lawyer not disqualified although as plaintiffs' former accountant he had acquired confidential information).
In this case, Mr. Howard never represented CRC or Mr. Curtis, nor did he participate in any representation of CRC or Mr. Curtis while he worked at CRC. Although there was no attorney-client relationship here, Mr. Curtis argues that, because an attorney owes a fiduciary duty of confidentiality to his former partners, Mr. Howard owes a fiduciary duty of confidentiality to the Curtis firm as his former employer. (Curtis Memo. at 4). It is true that law partners stand in a fiduciary relationship one to another. Graubard Mollen Dannett Horowitz v. Moskovitz, 86 N.Y.2d 112, 118, 629 N.Y.S.2d 1009, 1012 (1995). However, it does not follow that an associate, as an employee, owes a fiduciary duty to his employer. "Under New York law, a fiduciary relationship arises when one has reposed trust or confidence in the integrity or fidelity of another who thereby gains a resulting superiority of influence over the first, or when one assumes control and responsibility over another." Reuben H. Donnelley Corp. v. Mark I Marketing Corp., 893 F. Supp. 285, 289 (S.D.N.Y. 1995) (citation omitted). "Whether one party is a fiduciary of another depends on the relationship between the parties. For example, the attorney/client and doctor/patient relationships are sufficiently rooted in trust and confidence to trigger super-contractual fiduciary duties." Id. (citations omitted). However, "a conventional business relationship does not create a fiduciary relationship in the absence of additional factors," id. (citations omitted), and there is no fiduciary relationship between an employer and employee in ordinary circumstances. See Berke v. Hamby, 279 A.D.2d 491, 492, 719 N.Y.S.2d 280, 281 (2d Dep't 2001) (no fiduciary relationship between employer and employee because employee was neither a shareholder nor a partner).
In this case, Mr. Curtis has not established that the relationship between his firm and Mr. Howard gave rise to any fiduciary duty on the part of Mr. Howard, nor that it was comparable to an attorney-client relationship. Therefore, Mr. Howard's prior employment at the Curtis firm is not a basis for disqualifying him.
b. Involvement in the Matrimonial Action
Next, Mr. Curtis contends that Mr. Howard should be disqualified because Mr. Howard became Cheryl Riess-Curtis' advocate in her matrimonial action against Mr. Curtis. Mr. Curtis' statements regarding Mr. Howard's involvement in the matrimonial action are quite cryptic. He declares that Mr. Howard "took a side in [the matrimonial] litigation," that he became "Cheryl's advocate," and that he "participated [in that dispute] as an adversary[.]" (Curtis Reply Decl., ¶¶ 3, 6).
Mr. Howard did not have the opportunity to address this issue since Mr. Curtis' Reply Declaration was the last submission to this Court.
Although it is not entirely clear, Mr. Curtis seems to imply that Mr. Howard, as Ms. Riess-Curtis' ally in her matrimonial action, acquired personal knowledge about the internal changes of the Curtis' firm that could now be used against Mr. Curtis. (Curtis Reply Decl., ¶¶ 3, 6). The theory seems to be that in the course of litigation over the matrimonial assets, Mr. Howard might have learned how the parties valued the firm's fee claim against Mr. King. (Curtis Reply Decl., ¶ 3 n. 1). Accordingly, this argument, too, must be analyzed in light of DR 5-108.
Mr. Curtis has not suggested that Mr. Howard served as Ms. Riess-Curtis' attorney in the divorce case. Even if he had, any information he might have obtained during that period about internal changes in the Curtis firm would necessarily have been learned either from Ms. Riess-Curtis or from the public record. According to Mr. Curtis' own argument, Mr. Howard was by that time his adversary, and so could not be found to owe Mr. Curtis any duty of confidentiality. Disqualification therefore cannot be grounded on DR 5-108.
2. Disqualification Under DR 5-101
Mr. Curtis also argues that if Mr. Howard continues his representation of Mr. King, he will be in violation of DR 5-101. (Curtis Memo. at 5). DR 5-101 provides that:
(a)[a] lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests, unless a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the lawyer's interest.22 N.Y.C.R.R. § 1200.20.
a. Alleged Animosity
Mr. Curtis claims that Mr. Howard has feelings of animosity due to his alleged termination for cause from the Curtis firm and his unsuccessful suit against Mr. Curtis in small claims court. (Curtis Memo. at 2). He argues that these feelings have impaired Mr. Howard's professional judgement. (Curtis Memo. at 2).
Even if Mr. Howard has a personal dislike for Mr. Curtis, Mr. Curtis has failed to show how this would adversely affect Mr. Howard's ability to represent Mr. King. An attorney will be disqualified only when his personal interests conflict with his client's interests. Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 404 (S.D.N.Y. 2000) ("[u]nder the Code of Professional Responsibility a lawyer has a duty to avoid conflicts between his own interests and those of his clients"). Here, there is no evidence that there is a conflict between Mr. Howard's and Mr. King's interests. Furthermore, Mr. Curtis has not identified a single case where an attorney has been disqualified from representing a party because he felt animosity towards the adversary or the adversary's attorney. Most of the decisions disqualifying an attorney on the basis of impaired professional judgment deal with lawyers' financial or property interests that conflict with the client's interests. See In re Falow, 260 A.D.2d 120, 121-24, 695 N.Y.S.2d 584, 585-88 (2d Dep't 1999) (lawyer violated DR 5-101 when he represented estate of deceased and simultaneously arranged for conveyance of part of deceased's estate to lawyer's own father); In re Rathjen, 280 A.D.2d 175, 177, 720 N.Y.S.2d 154, 156 (2d Dep't 2001) (attorney who entered into business transaction with client for sale of property in which he had personal, undisclosed interests that differed from interest of client violated DR 5-101). Therefore, Mr. Howard cannot be disqualified on the grounds of his alleged animosity towards Mr. Curtis.
Counsel are nevertheless cautioned that the Court will not tolerate the use of intemperate language or other conduct that prevents the current litigation from proceeding in a civil manner.
b. Involvement in Related Fee Disputes
Mr. Curtis also claims that Mr. Howard must be disqualified because of his "involvement in related fraudulent claims." (Curtis Memo. at 5). Specifically, Mr. Curtis alleges that Mr. Howard, has retaliated against him by assisting Stevi Brooks and Ruchama Gamiel, former clients of Mr. Curtis, in evading the payment of fees to the Curtis firm. (Curtis Memo. at 5; Curtis Decl., ¶ 2). He contends that Mr. Howard's assistance in these two "fraudulent" cases is proof that Mr. Howard's professional judgment has been "adversely affected by his personal interests" and that his judgment "will continue to be [affected] with respect to his representation of Mr. King." (Curtis Memo. at 6).In particular, Mr. Curtis alleges that Ms. Brooks committed perjury during a hearing in a proceeding against the Curtis firm, that Mr. Howard was in contact with her before the hearing, and that he sent her material related to the fee dispute in this case. (Curtis Decl., ¶ 7). In addition, Mr. Curtis contends that Ms. Gamiel, who is now a client of the Daly firm, committed perjury in a legal malpractice action against him. (Curtis Reply Decl. ¶¶ 8-9). In essence, Mr. Curtis would like the Court to believe that Mr. Howard shaped Ms. Brooks' and Ms. Gamiel's strategy and that, somehow, he is responsible for alleged false testimony.
Mr. Curtis' allegations are not substantiated by any evidence. First, there is no proof that Mr. Howard assisted Ms. Gamiel in her litigation. In fact, Mr. Howard's firm does not even represent Ms. Gamiel in her lawsuit against Mr. Curtis. Moreover, Mr. Howard states that he has not been in contact with Ms. Gamiel since he left CRC in 2001. (Howard Decl. ¶ 11). It is true that Mr. Howard was contacted by Ms. Brooks in 2004 and that he sent her copies of the briefs filed in the King fee dispute. (Testimony of Stevi Brooks dated Oct. 5, 2004, attached as Exh. 9 to Howard Decl., at 26-27). However, even if Mr. Howard had assisted Ms. Brooks in her defense, this fact would not prove that Mr. Howard's judgment in this case has been impaired by his personal interests. Second, even if both Ms. Brooks and Ms. Gamiel testified falsely, there is certainly no evidence that Mr. Howard was in any way complicit.
Since Mr. Curtis' allegations are unsubstantiated, there is no basis for disqualifying Mr. Howard for a purported violation of DR 5-101.
c. Influence on Mr. King
In addition, Mr. Curtis alleges that Mr. Howard convinced Mr. King that the departure of Cheryl Riess-Curtis diminished the ability of the Curtis firm to represent him (Curtis Memo. at 6) and helped Mr. King devise theories for discharging the Curtis firm. (Curtis Decl., ¶ 2; Curtis Reply Decl., ¶ 10; Curtis Memo. at 3). In sum, Mr. Curtis claims that these alleged facts, coupled with the "tone of [Mr. Howard's] written statements" in his declaration, are proof that Mr. Howard's professional judgment has been affected by his personal interests. (Curtis Decl. at 4; Curtis Memo. at 6).
It is true that Mr. Howard declares that "Riess-Curtis' departure from the firm ushered in a new era in CRC's billing practices that drastically affected King's relationship to the firm." (Howard Fee Decl., ¶ 8). However, Mr. Howard's allegation, read in context, is not the kind of gratuitous criticism that might serve as evidence of Mr. Howard's alleged bias against Mr. Curtis. Rather, the assertion that the Curtis firm's billing practices changed after the departure of Ms. Riess-Curtis is based on objective facts presented in Mr. Howard's declaration. Mr. Howard relies on the billing record of the Curtis firm itself to show that, after Ms. Riess-Curtis' departure, Mr. Curtis passed on a substantial portion of the litigation responsibilities in theKing v. Fox case to independent contractors and associates who purportedly did not share Ms. Riess-Curtis' expertise and who had billing rates seemingly not provided for in the retainer agreement between Mr. King and Ms. Riess-Curtis. (Howard Fee Decl., ¶ 18 Table A). Mr. Howard's other arguments in support of Mr. King's discharge of the Curtis firm are also based on objectively verifiable assertions. He alleges that Mr. Curtis made untenable and frivolous arguments and neglected to raise more viable contentions in Mr. King's cross-motion for summary judgment in the underlying action. (Howard Fee Decl., ¶¶ 25-29). Whether convincing or not, this argument is based on an analysis of Mr. King's cross-motion, and is not a "concocted theory" of discharge. (Howard Fee Decl., ¶¶ 25-29). Thus, there is no evidence that Mr. Howard's professional judgment has been affected by his personal interests.
3. Attorney as Witness
Mr. Curtis argues that Mr. Howard should be disqualified because he "will likely be called as [a] necessary adverse witness" in the matter at issue. (Curtis Memo. at 7). Mr. Curtis' argument relies on DR 5-102(A) of the Code, which provides:
(a) A lawyer shall not act, or accept employment that contemplates the lawyer's acting as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client. . . .22 N.Y.C.R.R. § 1200.21(a). "The phrase `ought to be called as a witness' has been construed to include an attorney who has crucial information in his possession that must be divulged in the course of trial." Wickes v. Ward, 706 F. Supp. 290, 292 (S.D.N.Y. 1989) (attorney necessarily disqualified where he was one of three witnesses to statements crucial to plaintiff's case); see also Paretti v. Cavalier Label Co., 722 F. Supp. 985, 986 (S.D.N.Y. 1989) ("if a lawyer negotiates, executes, and administers a contract, and is the key witness at trial, then he must be disqualified").
Here, Mr. Howard's testimony is not necessary to the plaintiff's case. Mr. King has provided evidence to support his claims that Mr. Curtis overcharged him and neglected to raise some arguments in Mr. King's cross-motion for summary judgement. As discussed above, Mr. King relies on documentary evidence to substantiate these assertions, and there is no indication that Mr. Howard could provide relevant, let alone critical, testimony. Therefore, Mr. Howard's testimony is not strictly necessary.See Kubin v. Miller, 801 F. Supp. 1101, 1113 (S.D.N.Y. 1992) ("[a] court should examine factors such as `the significance of the matters, weight of the testimony, and availability of other evidence' when considering the necessity of the testimony") (quoting S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 446, 515 N.Y.S.2d 735, 739(1987)); see also Parke-Hayden, Inc. v. Loews Theatre Management Corp., 794 F. Supp. 525, 527 (S.D.N.Y. 1992).
4. Disqualification Under Canon 9
Canon 9 of the Code states that "[a] lawyer should avoid even the appearance of professional impropriety." This requirement "reflects the bar's concern that some conduct which is in fact ethical may appear to the layman as unethical and thereby erode public confidence in the judicial system and the legal profession." Liu v. Real Estate Investment Group, Inc., 771 F. Supp. 83, 87 (S.D.N.Y. 1991). When assessing a motion for disqualification under Canon 9, courts should take a "restrained view." New York Institute of Technology v. Biosound, Inc., 658 F. Supp. 759, 761 (S.D.N.Y. 1987) (citation and quotation marks omitted). A motion to disqualify counsel under Canon 9 should be granted only if the facts present a real risk that the proceedings will be tainted. Id. Therefore, Canon 9, standing alone, is usually not a sufficient basis for disqualification.Telectronics Proprietary, Ltd. v. Medtronics, Inc., 836 F.2d 1332, 1339 (Fed. Cir. 1988) ("[o]nly in unusual situations will the appearance of impropriety alone be sufficient to warrant disqualification"); see also First Hawaiian Bank v. Russell Volkening, Inc., 861 F. Supp. 233, 237 (S.D.N.Y. 1994) ("unless the Court finds that disqualification is warranted under the specified sections of Canons 4 or 5, Canon 9 will not serve as the basis upon which the Court will decide the merits of [a] motion for disqualification"). In addition, even if a "layman's faith would be severely troubled" by the facts of a case, "an element of unfairness" is not enough to trigger disqualification.Board of Education of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).
This is not one of the unusual situations in which disqualification is warranted under Canon 9. On the record before the Court, there is no real risk that the proceedings will be tainted. For example, "[t]his is not a case in which an attorney has represented one client and then switched over to his former client's adversary." New York Institute of Technology, 658 F. Supp. at 762. Accordingly, Mr. Howard cannot be disqualified on the basis of Canon 9.
Conclusion
For the reasons set forth above, Mr. Curtis' motion to disqualify Mr. Howard and the Daly firm as counsel for the plaintiff is denied. A hearing on Mr. Curtis' fee application shall be conducted on April 25, 2005, beginning at 9:30 a.m.
SO ORDERED.