Greene v. Greene
| Decision Date | 14 June 1979 |
| Citation | 418 N.Y.S.2d 379,391 N.E.2d 1355,47 N.Y.2d 447 |
| Parties | , 391 N.E.2d 1355 Helen C. GREENE, Respondent, v. Theodore J. GREENE, Individually and as a Partner of Finley, Kumble, Wagner, Heine & Underberg, et al., Defendants and Third-Party Plaintiffs-Appellants, Norman R. Grutman et al., Third-Party Defendants-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
The issue presented for review is whether plaintiff's counsel, the law firm of Eaton Van Winkle, Greenspoon & Grutman, should be disqualified because two of the members of the firm were formerly partners in defendant law firm, Finley, Kumble, Wagner, Heine & Underberg. For divers reasons the Eaton firm should be disqualified.
In the action underlying this controversy, plaintiff, Helen Greene, alleges that the firm of Finley, Kumble and one of its partners, Theodore Greene, committed a breach of fiduciary duties, fraud, and a host of other wrongs in connection with the creation and management of an Inter vivos trust established in 1969. Plaintiff was the settlor, sole beneficiary, and cotrustee of the trust. The two third-party defendants, Grutman and Bjork, are former members of the Finley, Kumble law firm. Grutman was affiliated with defendant firm from 1970 to 1976, during which time he acted as a managing partner of the firm and directed its litigation department. Bjork, Grutman's wife, joined Finley, Kumble as an associate in 1974, and became a member of the firm in 1975. She departed with her husband in 1976. Apparently, both joined the Eaton firm soon after leaving Finley, Kumble.
In August, 1977 plaintiff retained the Eaton firm to represent her and this action was instituted some four months later. According to plaintiff, she was fully advised that Grutman and Bjork, as former members of defendant firm, might be jointly and severally liable for any wrongdoing. She was further informed that since Grutman and Bjork had become members of Eaton, there might be "at least the appearance of a conflict of interest between (their) position as members of the firm representing (her) and their possible liability". Nonetheless, plaintiff expressed her desire that the Eaton firm represent her.
Defendants moved at Special Term for the disqualification of plaintiff's counsel on conflict of interest grounds. 1 Special Term denied the notion, and the Appellate Division affirmed, with two Justices dissenting. That court subsequently granted leave to appeal, certifying the following question for our review: "Was the order of Supreme Court, as affirmed by this Court, properly made?" We now modify the order of the Appellate Division and grant defendants' motion insofar as it sought to disqualify Eaton, Van Winkle, Greenspoon and Grutman from acting as plaintiff's counsel.
It is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client's interests diligently and vigorously within the limits of the law (Code of Professional Responsibility, canon 7). For this reason, a lawyer may not undertake representation where his independent professional judgment is likely to be impaired by extraneous considerations. Thus, attorneys historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests (see, e. g., Cardinale v. Golinello, 43 N.Y.2d 288, 296, 401 N.Y.S.2d 191, 195, 372 N.E.2d 26, 30; Eisemann v. Hazard, 218 N.Y. 155, 159, 112 N.E. 722, 723; Code of Professional Responsibility, DR 5-105). This prohibition was designed to safeguard against not only violation of the duty of loyalty owed the client, but also against abuse of the adversary system and resulting harm to the public at large.
Perhaps the clearest instance of impermissible conflict occurs when a lawyer represents two adverse parties in a legal proceeding. In such a case, the lawyer owes a duty to each client to advocate the client's interests zealously. Yet, to properly represent either one of the parties, he must forsake his obligation to the other. Because dual representation is fraught with the potential for irreconcilable conflict, it will rarely be sanctioned even after full disclosure has been made and the consent of the clients obtained (Matter of Kelly, 23 N.Y.2d 368, 376, 378, 296 N.Y.S.2d 937, 945, 244 N.E.2d 456, 462; Eisemann v. Hazard, 218 N.Y. 155, 159, 112 N.E. 722, 723, Supra; Matter of Gilchrist, 208 App.Div. 497, 203 N.Y.S. 720; see, also, Matter of Cohn,46 N.J. 202, 216 A.2d 1). Particularly is this so when the public interest is implicated (see, e. g., Matter of A & B, 44 N.J. 331, 209 A.2d 101), or where the conflict extends to the very subject matter of the litigation (Matter of Kelly, supra, 23 N.Y.2d at p. 378, 296 N.Y.S.2d at p. 945, 244 N.E.2d at p. 462; see Matter of Gilchrist, supra, 208 App.Div. at pp. 497-498, 203 N.Y.S. at p. 720-721).
By the same token, where it is the lawyer who possesses a personal, business or financial interest at odds with that of his client, these prohibitions apply with equal force (Code of Professional Responsibility, DR 5-101, subd. (A)). Viewed from the standpoint of a client, as well as that of society, it would be egregious to permit an attorney to act on behalf of the client in an action where the attorney has a direct interest in the subject matter of the suit. As in the dual representation situation, the conflict is too substantial, and the possibility of adverse impact upon the client and the adversary system too great, to allow the representation. In short, a lawyer who possesses a financial interest in a lawsuit akin to that of a defendant may not, as a general rule, represent the plaintiff in the same action.
Aptly illustrating these problems are the circumstances of the present case. Plaintiff's counsel, the Eaton firm, has strong interests on both sides of the litigation. It has undertaken to represent plaintiff, owing her the highest duty of loyalty and professional skill in carrying on the legal action. At the same time, Grutman and Bjork, members of the firm, are manifestly liable, jointly and severally, for all tortious conduct which might have occurred during their tenure with defendant, Finley, Kumble (Partnership Law, §§ 24-26). That a possibility of their being cast in damages exists is demonstrated by their status as third-party defendants in this lawsuit. 2 Hence, the firm representing plaintiff has a direct and substantial stake in the outcome of the litigation. 3 Whether this conflict may be effectively waived by the client need not now be addressed, as there are additional considerations which dictate disqualification.
An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer's former client (e. g., Hatch v. Fogerty, 40 How.Prac. 492, 503). Underlying this rule is the notion that an attorney, as part of his fiduciary obligation, owes a continuing duty to a former client broader in scope than the attorney-client evidentiary privilege not to reveal confidences learned in the course of the professional relationship (see Watson v. Watson, 171 Misc. 175, 176, 11 N.Y.S.2d 537, 538). To obtain disqualification of the attorney, the former client need not show that confidential information necessarily will be disclosed in the course of the litigation; rather, a reasonable probability of disclosure should suffice (see Sheffield v. State Bar of California, 22 Cal.2d 627, 140 P.2d 376; Galbraith v. State Bar of California, 218 Cal. 329, 23 P.2d 291).
As former partners in defendant law firm, Grutman and Bjork owe a fiduciary obligation similar to that owed by an attorney to...
To continue reading
Request your trial
- Sellers v. School Bd. of the City of Manassas, Virginia
-
Oneida Indian Nation v. Cnty. of Oneida, s. 5:70–CV–0035(LEK)
...litigation” and therefore was not “akin to that of a defendant,” rather, its interests were indirect. Greene v. Greene, 47 N.Y.2d 447, 452, 418 N.Y.S.2d 379, 391 N.E.2d 1355 (N.Y.1979). Were New York State to settle the claims or be found liable on them, BSK would have suffered no direct ne......
- Ross v. Creighton University
-
Black v. State of Mo.
...to the opinion of Harold W. Barrick, chairman of the Advisory Committee (Ex. 59), and cite the cases of Greene v. Greene, 47 N.Y.2d 447, 418 N.Y.S.2d 379, 391 N.E.2d 1355 (1979) and In Re A. & B., 44 N.J. 331, 209 A.2d 101 (1965). With all due respect to Mr. Barrick, the Court disagrees. Mr......