Opinion
02-CV-6021L, 02-CV-6212
September 22, 2003
DECISION AND ORDER
Preliminary Statement
Pending before the Court are motions in the above — captioned cases for the disqualification of plaintiff's counsel. (Docket #33, Wieme; Docket #9, Boyink) — In response to the motions to disqualify, plaintiffs David M. Wieme ("Wieme") and Michael J. Boyink ("Boyink") have asserted cross — motions to compel discovery responses. (Docket #39 Wieme; Docket #13, Boyink).
Because both motions are analyzed under an identical standard, for purposes of these motions only, the Court will issue one decision and order for both cases.
By Order of Chief Judge David G. Larimer in the Wieme case (Docket #32) and by Order of Judge Charles J. Siragusa in the Boyink matter (Docket #4), all non — dispositive motions have been referred to me pursuant to 28 U.S.C. § 636(b)(1)(A)-(B).
Background
The law firm of Dolin, Thomas and Solomon (hereinafter "DTS") represents Boyink and Wieme in separate employment discrimination actions they filed against Eastman Kodak (hereinafter "Kodak"). Boyink claims that he was terminated from Kodak on the basis of his disability and that the reason given by Kodak for his termination (violating company disciplinary rules) was pretextual. Wieme claims that he was demoted as a result of reverse race discrimination and that he was treated more harshly than similarly situated African — Americans.The primary issue presented here is whether attorneys Nelson Thomas ("Thomas") and Patrick Solomon ("Solomon"), two partners of the DTS firm, should be able to represent plaintiffs in these lawsuits based on the fact that both of them formerly represented Kodak in employment discrimination litigation. Indeed, both Thomas and Solomon were formerly employed by the law firm Nixon Peabody, a firm which defends Kodak in most of its employment litigation in Rochester. Up until late 2000, Thomas and Solomon were associates in Nixon Peabody's Labor and Employment practice group. In November 2000, Thomas and Soloman left Nixon Peabody to create DTS and have developed a very active practice representing plaintiffs in employment related litigation.
The firm was formerly known as Nixon, Hargrave, Devans Doyle during their employment.
While at Nixon Peabody, Thomas and Solomon defended Kodak on a significant number of single — plaintiff employment discrimination cases. According to Nixon Peabody billing records, Solomon billed over 1,200 hours and Thomas almost twice that amount in representing Kodak in employment matters. (Shinaman Aff. ¶ 5, 14). Solomon's work on behalf of Kodak included 15 different discrimination cases and Thomas billed time to at least 8 different discrimination cases. (Shinaman Aff. ¶ 6, 15). While some of the cases involved minimal billable hours, Thomas and Solomon both defended Kodak in several cases involving substantial time. (Id.)
On the other hand, of the cases that Solomon and Thomas handled or were involved with, none involved reverse race discrimination or a failure to accommodate a disability claim. However, the cases did involve single plaintiffs making allegations of employment discrimination against Kodak, including claims of race discrimination, disability discrimination and at least one case involving a termination pursuant to Kodak's disciplinary rule policies.
Kodak claims that these prior cases encompass common policies and bear factual similarities to the two cases at issue here. Thomas and Solomon counter with the argument neither the Wieme nor the Boyink case were being handled by Nixon Peabody while they were employed there and thus they could not have obtained any knowledge specific to Wieme or Boyink. Moreover, no common witnesses or decision makers have been identified between the prior cases and the present matters. Kodak maintains that similar Kodak departments were involved in the cases, including the medical and security departments, and that more overlap may ultimately become evident as the case develops. Finally, Thomas and Solomon aver that they never advised Kodak about its employment policies or helped draft or review such policies and Kodak has presented no evidence to refute that allegation.
After Kodak moved to disqualify DTS in both cases, DTS cross — moved to compel discovery responses which directly relate to representation of Kodak that Thomas and Solomon had while at Nixon. For the following reasons, Kodak's motions to disqualify are hereby granted and the motions to compel are denied.
Upon receipt of the motion to disqualify, DTS served discovery requests for billing records and other documentation of Solomon and Thomas' former work on behalf of Kodak. In Boyink, objections to the discovery were served but in Weime, counsel indicated by letter to the Court that no discovery would be forthcoming.
Discussion
This case pays tribute to the fact that while the legal principles to be applied in determining disqualification motions are generally straight forward and easily stated, application of those principles to a particular case is often difficult and complicated. An easy litmus test is not evident on disqualification motions, forcing courts to grapple with these disputes on a very fact specific basis. Indeed, more often than not, there are facts which both sides can legitimately point to as supporting their positions. Reconciling those facts with the law often results in close calls. This case is no exception.
THE LAW ON DISQUALIFICATION
In this Circuit, motions to disqualify counsel are disfavored, and the moving party bears the heavy burden of demonstrating that disqualification is warranted by satisfying "a high standard of proof."Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); Sauer v. Xerox Corp., 85 F. Supp.2d 198, 199 (W.D.N.Y. 2000). This is primarily because "disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and [because] disqualification motions are often interposed for tactical reasons."Board of Educ. of City of N.Y. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). However, while courts will not lightly grant a motion to disqualify, any doubts must be resolved in favor of disqualification.Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Sauer, 85 F. Supp.2d at 199-200; Felix v. Balkin, 49 F. Supp.2d 260, 267 (S.D.N.Y. 1999). This approach strikes a balance between recognizing the client's right to counsel of choice, and protecting the "need to maintain the highest standards of the profession" and the "integrity of the adversary process." Sauer, 85 F. Supp.2d at 200 (quoting Evans, 715 F.2d at 792, andGovernment of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978)).
The disqualification motion here requires the Court to apply and interpret Disciplinary Rule DR 5-108 of the Lawyer's Code of Professional Responsibility. Rule 5-108 provides:
The Lawyer's Code of Professional Responsibility, as promulgated by the American Bar Association, has been adopted by the New York State Bar Association as its own code of ethics, Stratavest Ltd, v. Rogers, 903 F. Supp. 663, 666 (S.D.N.Y. 1995), and is recognized in the Second Circuit as prescribing appropriate guidelines for the professional conduct of the bar. See Cheng v. GAF Corp., 631 F.2d 1052, 1055 (2d Cir. 1980) (ABA's Code of Professional Responsibility recognized by Second Circuit as providing appropriate guidelines for proper professional behavior), vacated on other grounds, 450 U.S. 903 (1981); Paramount Communications v. Donaghy, 858 F. Supp. 391, 394 (S.D.N.Y. 1994); see also Rule 83.3(c) of the Local Rules of Civil Procedure for the Western District of New York ("The Code of Professional Responsibility of the American Bar Association as adopted by the New York State Bar Association shall be enforced in this Court.").
Except with the consent of a former client after full disclosure a lawyer who has represented the former client in a matter shall not:
1. Thereafter 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.
2. Use any confidences or secrets of the former client except as permitted by DR 4-101(C) or when the confidence or secret has become generally known.
N.Y. Judiciary Law App.; 22 N.Y.C.R.R. § 1200.27. (emphasis added)
Kodak also alleges that the current representation is a violation of DR 9-101 which states that an attorney's actions should avoid even the appearance of impropriety. However, in general, a mere appearance of impropriety will not alone serve as a sufficient basis for granting a disqualification motion except in unusual circumstances, and courts generally require proof that another canon has been violated before disqualifying a party's chosen attorney. United States Football League v. National Football League, 605 F. Supp. 1448, 1452 (S.D.N.Y. 1985);Bottaro v. Hatton Assocs., 680 F.2d 895, 896-97 (2d Cir. 1982) (unless attorney's conduct taints the judicial process, court will not disqualify counsel); Board of Ed. of City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979) (party seeking to disqualify must show attorney's conduct tends to taint the underlying trial by disturbing the balance of presentations).
The so — called "substantial relationship test" examines the relationship between the issues involved in the attorney's prior representation of the moving party and the issues involved in the present lawsuit to determine the likelihood of dissemination of client confidences. Here, both sides agree that the critical issue is whether there is a "substantial relationship" between the work that Thomas and Solomon did for Kodak while at Nixon Peabody and the work that they seek to do now on behalf of Wieme and Boyink. In the Second Circuit, the "substantial relationship test" has three elements. Disqualification is necessary only when (1) the party seeking disqualification is a former client of the adverse party's attorney, (2) there is a substantial relationship between the subject matter of the attorney'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. United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987); Schwed v. General Elec. Co., 990 F. Supp. 113, 115 (N.D.N.Y. 1998); Hammond v. Goodyear Tire Rubber Co., 933 F. Supp. 197, 199-200 (N.D.N.Y. 1996). It is important to note that once the first two prongs of this test are met, the third prong is presumed satisfied. Arons v. Lalime, 1998 WL 912034 at *5 (W.D.N.Y. October 8, 1998) ("Once a substantial relationship between the two matters has been established, the receipt of confidential information is presumed"); Kempner v. Oppenheimer Co., Inc., 662 F. Supp. 1271, 1277 (S.D.N.Y. 1987).
In determining whether there is a substantial relationship between the prior representation and the current representation, the Second Circuit has cautioned that disqualification will be required only when the subject matter of the present litigation "is sufficiently related to the scope of the matters" involved in the former representation so as "to create a realistic risk . . . that unfair advantage will be taken of the defendant." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 750 (2d Cir. 1981). See Government of India v. Cook Indus., Inc., 569 F.2d 737, 739-740 (2d Cir.) (while there is no bright line rule, the relationship between the issues must be "patently clear," "identical" or "essentially the same").
APPLICATION OF THE SUBSTANTIAL RELATIONSHIP TEST
Application of the particular facts of these cases to the law of "substantial relationships" results in this Court finding that Kodak's motion for disqualification should be granted. The Court has considered the following facts and circumstances.
1. The Nature of the Past Employment: Nixon Peabody is one of the larger law firms in the United States. As with most large firms, it is divided up into "practice groups." During their tenure with Nixon Peabody, Thomas and Solomon were assigned almost exclusively to the labor and employment benefits practice group. It is undisputed that they collectively spent several thousand hours representing Kodak on employment and labor matters, including significant time defending Kodak on charges of employment discrimination. The fact that all of Thomas' and Solomon's past representation of Kodak involved employment and labor matters suggests, if not indicates that there is a substantial relationship between the work they previously performed for Kodak and the issues that may prove relevant in the current litigation.
2. The Nature of Employment Discrimination Litigation: Unlike some other areas of the practice of law, employment discrimination cases present considerations that are uniquely germane to attorney disqualification. In employment litigation, particularly discrimination actions, an employer's past practices are often relevant to establish a pattern or practice of discrimination in current cases. Indeed, the type of past discrimination need not be identical to be relevant in a current case. Courts in the Second Circuit have permitted evidence of past discrimination different than the type allegedly suffered by a plaintiff to satisfy a plaintiff's burden to demonstrate a prima facie case of current discrimination. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000) (plaintiff may provide evidence of discrimination against members not in plaintiff's protected class to establish prima facie case). Thus, Thomas and Solomon's awareness of the details of other relatively recent allegations of discrimination made against Kodak weighs in favor of disqualification. See Coles v. Arizona Charlie's, 992 F. Supp. 1214, 1217 (D. Nev. 1998) (even though current case did not involve same incident or same plaintiffs, attorney formerly associated with employer's law firm disqualified because, inter alia, "the past conduct of the defendant employer can be used to establish a pattern or practice of discrimination to support an employee's claim of discrimination.").
3. The Nature of the Past Litigation Work: While it is undisputed that Thomas and Solomon spent several thousand hours while employed at Nixon Peabody working on labor and employment issues for Kodak, hours alone can not determine whether they had access to confidential client information. "If all the associate does is summarize depositions, or catalogue discovery turned over to the opposing party, it can hardly be presumed that the associate had access to confidential client information." Roth v. Continental Cas. Co., 676 F. Supp. 816, 819 (N.D. Ill. 1987). Here, by the time they left Nixon Peabody in late 2000, Thomas and Solomon were senior associates who had substantial and substantive case — related responsibilities. In at least one discrimination case against Kodak, Thomas was the lead attorney on the matter. Both Thomas and Solomon had regular contact with Kodak's in — house counsel regarding cases assigned to them and litigation strategy. Even if they had no role in formulating policy, Thomas and Solomon had access to confidential information regarding Kodak's labor procedures, litigation strategies, and even settlement tactics that could be useful to plaintiffs and harmful to Kodak.
4. Passage of Time: While not a dispositive factor, the relative recency of Solomon and Thomas' work on Kodak's behalf and their current employment of representing individuals suing their former client is certainly a pertinent consideration. Although there is no bright line rule establishing how much time could pass before litigation against Kodak would be appropriate, the fact that these cases were filed less than two years after Solomon and Thomas were defending Kodak against allegations of unlawful discrimination weighs in favor of disqualification.
Conclusion
This case presents a very close question and the Court appreciates that the result ordered here will separate the plaintiffs from the counsel of their choice. But while the result is harsh to plaintiffs, the disqualification motions here raise legitimate concerns and do not strike the Court as being interposed for tactical reasons or to delay the ultimate resolution of these cases. This Court also remains cognizant of the admonition that any doubts resulting from a meritorious disqualification motion should be resolved in favor of disqualification.Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975). See also Sauer v. Xerox Corp., 85 F. Supp.2d 198, 199 (W.D.N.Y. 2000)(("While courts will accordingly not lightly grant a motion to disqualify, however, any doubts must be resolved in favor of disqualification."). On the facts presented here, Kodak's motions to disqualify counsel are granted. Plaintiff's cross — motions to compel discovery are denied.
By the same token, this decision is limited to the facts presented and is not any indication that DTS is prohibited from suing Kodak in discrimination cases. Indeed, the argument made during oral argument by Kodak's counsel in the Wieme case that DTS should be forever barred from suing Kodak in a discrimination case is so expansive as to be nonsensical and ultimately detracts from the merits of Kodak's position on disqualification.
SO ORDERED.