(finding that a joint defense agreement consent did not prevent a law firms disqualification, because it covered only later adversity rather than a concurrent conflict of interest; "But in New York, informed written consent, standing alone, does not cure an attorney's concurrent representation conflict of interest: interest could adversely affect the other, a court may conclude that 'such a belief would not be reasonable.'. . . Put another way: '[C]lient consent that is given is not valid if the objective test of a disinterested lawyer is not met.'"; "And even if the Court were to overlook these deficiencies in the Turin Defendants' brief, the crux of their argument fails: The JDA does not cure ALB's conflict of interest. The JDA's conflicts waiver begins: 'In the event of any litigation or other dispute between or among the Parties, each Party hereby waives any claim that counsel for any other Party is or should be disqualified from representing any other Party by reason of receipt of confidential, privileged or protected information or documents pursuant to this Agreement or any work performed or representation in furtherance of this Agreement.' That provision is not ambiguous. Pursuant to the JDA's conflicts waiver, the DE Defendants waived their right to object to Schneider Mitola's (or perhaps ALB's) representation on the grounds that it had received confidential information. But this consideration – an attorney's possession of a client's confidential information – is a factor courts consider when assessing the propriety of successive representations of adverse clients."; "In contrast, whether an attorney may concurrently represent adverse clients turns on whether he can demonstrate 'at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation.'. . . And by the JDA's terms, the DE Defendants did not waive their right to argue that Schneider Mitola (or perhaps ALB) should be disqualified on the basis of these concerns."; "Put simply, the De Defendants waived their right to object if Schneider Mitola sued them in a matter subsequent to the Federal Action (at least one the basis that Schneider Mitola possessed the DE Defendants' confidential information). The DE Defendants did not waive their right to object if Schneider Mitola concurrently sued and represented them."; "The Turin Defendants cite a number of federal and New York state-court cases wherein courts enforced waiver agreements that the Turin Defendants claim are similar to the JDA's. (Turin Opp. 9-10). As the DE Defendants note in their brief, all of these cases concerned successive-representation conflicts of interest. (DE Br. 7). See Estate of Hogarth v. Edgar Rice Burroughs, Inc., No. 00 Civ. 9569 (DLC), 2001 U.S. Dist. LEXIS 6294, 2001 WL 515025, at *5-6 (S.D.N.Y. May 15, 2001); GEM Holdco, LLC v. Changing World Techs., L.P., 7 N.Y.S. 3d 242 46 Misc. 3d 1207 [A], 2015 NY Slip Op 50014[U], (Table), 2015 WL 120843, at *4 (Sup. Ct.), aff'd in part, appeal dismissed in part sub nom. Gem Holdco, LLC v. Ridgeline Energy Servs., Inc., 130 A.D. 3d 506, 14 N.Y.S. 3d 14 (1st Dep't 2015); Grovick Properties, LLC v. 83-10 Astoria Boulevard, LLC, 120 A.D. 3d 471, 990 N.Y.S. 2d 601, 603-04 (2d Dep't 2014); St. Barnabas Hosp. v. N.Y. City Health & Hosps. Corp., 7 A.D. 3d 83, 775 N.Y.S. 2d 9, 10-11 (1st Dep't 2004). And more importantly, the Turin Defendants have not explained why this Court should read into the JDA's conflicts waiver a class of conflicts – concurrent representation conflicts – that the waiver expressly exempts."; "To be sure, even if the DE Defendants had consented to this conflict, the Court would still have good reason to disqualify ALB. It is unlikely that 'a reasonable lawyer' would believe that ALB could (i) defend the Turin Defendants and the DE Defendants in the Federal Action while (ii) suing DE on Turin's behalf in the State-Court Action. . . . But the Court need not reach this issue. The JDA unambiguously does not cure ALB's concurrent-representation conflict of interest.")
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2017-03-22 |
Federal |
NY |
|