Cinema 5, Ltd. v. Cinerama, Inc., No. 105
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | Before MOORE, FEINBERG and VAN GRAAFEILAND; VAN GRAAFEILAND; Under the circumstances |
| Citation | 528 F.2d 1384 |
| Decision Date | 27 January 1976 |
| Docket Number | No. 105,D |
| Parties | 1976-1 Trade Cases 60,698 CINEMA 5 LTD., Plaintiff-Appellant, v. CINERAMA, INC., et al., Defendants-Appellees. ocket 75--7185. |
Page 1384
v.
CINERAMA, INC., et al., Defendants-Appellees.
Second Circuit.
Decided Jan. 27, 1976.
Page 1385
Donald J. Cohn, New York City (Webster, Sheffield, Fleischmann, Hitchcock & Brookfield, New York City, James V. Kearney, New York City, on the brief), for plaintiff-appellant.
Janet P. Kane, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, New York City, Simon Rose, David G. Richenthal, New York City, on the brief), for defendants-appellees.
Before MOORE, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This appeal from an order granting defendants' motion to disqualify plaintiff's counsel presents a somewhat unusual set of facts. Counsel has been disqualified from further representation of plaintiff because a partner in this New York City law firm is also a partner in a Buffalo firm which is presently representing the defendant Cinerama, Inc. in other litigation of a somewhat similar nature. Although we agree with the district court that there was no actual wrongdoing and intend no criticism of the lawyers involved, we find no abuse of the district court's discretion, Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975), and so affirm.
There is little or no dispute as to the facts, most of them having been stipulated. Attorney Manly Fleischmann is a partner in Jaeckle, Fleischmann and Mugel of Buffalo and in Webster, Sheffield, Fleischmann, Hitchcock and Brookfield of New York City. He divides his time between the two offices. Cinerama is a distributor of motion pictures and the operator of several large theater chains. In January 1972 the Jaeckle firm was retained to represent Cinerama and several other defendants in an action brought in the United States District Court for the Western District of New York. Plaintiffs in that suit are local upstate theater operators who allege anti-trust violations resulting from discriminatory and monopolistic licensing and distribution of motion pictures in the Rochester area. A similar action involving allegedly illegal distribution in the Buffalo area was commenced in March 1974, and the Jaeckle office represents the interests of Cinerama in this action also. Both suits are presently pending in the Western District.
The instant action, brought in the Southern District of New York in August 1974, alleges a conspiracy among the defendants to acquire control of plaintiff corporation through stock acquisitions, with the intention of creating a monopoly and restraining competition in New York City's first-run motion picture theater market. Judge Brieant found that there was sufficient relationship between the two law firms and the two controversies to inhibit future confidential communications between Cinerama and its attorneys and that disqualification was required to avoid even the appearance of professional impropriety, citing as authority our decision in General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974).
Appellant's counsel strongly dispute these findings. They say that they should not be disqualified unless the relationship between the controversies is substantial, and they contend there is nothing substantial in the relationship between an upstate New York conspiracy to deprive local theater operators of access to films and an attempted corporate take-over in New York City.
Page 1386
The 'substantial relationship' test is indeed the one that we have customarily applied in determining whether a lawyer may accept employment against a former client. International Electronics Corp. v. Flanzer, 527 F.2d 1288, 1291 (2d Cir. 1975); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). However, in this case, suit is not against a former client, but an existing one. One firm in which attorney Fleischmann is a partner is suing an actively represented client of another firm in which attorney Fleischmann is a partner. The propriety of...
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...remand for trial with different counsel representing Schuff. ¶ 169 The Second Circuit in Cinema 5 Ltd. v. Cinerama, Inc. (2d Cir.1976), 528 F.2d 1384, stated that a lawyer who would sue his or her own client, asserting in justification the lack of "substantial relationship" between the liti......
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United Nuclear Corp. v. General Atomic Co., Nos. 11988
...undertaken to perform for that client, is leaning on a slender reed indeed. 141 [96 NM 244] Page 320 Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2nd Cir. 1976). See Canon 5-105 of the Code of Professional Responsibility; 142 State v. Aguilar, 87 N.M. 503, 504, 536 P.2d 263, 264 (......
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In re I Successor Corp., Bankruptcy No. 02 B 23150-23151ASH
...Circuit have recognized its canons as appropriate guidelines for the professional conduct of the bar. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976); NCK Org. Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir.1976); Papyrus Tech. Corp. v. New York Stock Exchange, Inc., 32......
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