Mulhern v. Calder

• Decision Date: 28 July 2003
• Citation: 763 N.Y.S.2d 741,196 Misc.2d 818
• Parties: MARY E. MULHERN, Individually and as Administratrix c.t.a. of the Estate of MAURICE W. MULHERN, Deceased, Plaintiff,<BR>v.<BR>CHRISTOPHER S. CALDER, M.D., et al., Defendants.
• Court: New York Supreme Court

196 Misc.2d 818

763 N.Y.S.2d 741

MARY E. MULHERN, Individually and as Administratrix c.t.a. of the Estate of MAURICE W. MULHERN, Deceased, Plaintiff,

v.CHRISTOPHER S. CALDER, M.D., et al., Defendants.

July 28, 2003.

Thuillez, Ford, Gold, Johnson & Butler, L.L.P., Albany (Donald P. Ford, Jr., of counsel), for Albany-Troy Neurosurgical Associates, P.C., defendant.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C., Albany (Nannette R. Kelleher of counsel), for Christopher S. Calder and others, defendants.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Megan B. Van Aken of counsel), for New York Oncology Hematology, P.C., defendant.

Powers & Santola, L.L.P., Albany (Patrick J. Higgins of counsel), for plaintiff.

Carolyn Snyder Lemmon, Albany, for Kathleen DeCapita.

OPINION OF THE COURT

JAMES B. CANFIELD, J.

Defendant Albany-Troy Neurosurgical Associates, P.C. (ATNA) moves to disqualify plaintiff's counsel, Powers & Santola (P&S), on the grounds that P&S recently hired a secretary, Kathleen DeCapita (DeCapita), who was previously employed by ATNA's counsel, Thuillez Ford (TH), as a secretary/paralegal and assisted the TH attorney on this case.

The crucial issue in this case is whether the same disqualification rules applicable to "lawyers" are or should be applicable to "paralegals" and "secretaries." ATNA does not charge P&S or DeCapita with any actual ethical violation, but insists that P&S must be disqualified because DeCapita had access to confidential matters contained in this case. ATNA urges that the same rule that applies to lawyers who move from one firm to another should be applied to nonlawyers, regardless of the second firm's efforts to ensure that no confidences are revealed.

ATNA's reliance on Glover Bottled Gas Corp. v Circle M. Beverage Barn (129 AD2d 678 [1987]) is misplaced. Glover neither applies the same rule to paralegals nor holds that a paralegal with confidential information who moves to a new law firm automatically disqualifies the new firm. Indeed, the Glover Court recognized that the Code of Professional Responsibility is not applicable to paralegals, but apparently concluded that some unspecified conduct by the paralegal after she arrived at the second firm constituted a violation of the hiring firm's obligation "to insure that their employees conduct themselves in accordance with the code" (Glover Bottled Gas Corp. v Circle M. Beverage Barn, 129 AD2d 678, 679 [1987]).

In addition to the Glover Court's failure to specify what conduct by a paralegal justifies disqualifying the new employer, its cursory analysis is now 16 years old and needs to be reconsidered in light of the significant changes to the rule for lawyers since Cardinale v Golinello (43 NY2d 288 [1977]) was decided. While the Court of Appeals has not specifically overruled Cardinale's harsh and mechanical approach for lawyers who move to a new firm, it has set forth a method and standard for resolving those motions which involves inquiry into the fact of conflict and established that more than the mere possibility of conflict is required for disqualification of attorneys (Solow v Grace & Co., 83 NY2d 303 [1994]; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123 [1996]; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631 [1998]; Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611 [1999]).

In the absence of a definite standard for paralegals and secretaries, it is logical to consider the rule applicable to lawyers. The transition from Cardinale to Kassis marks the Court of Appeals' growing recognition that Cardinale's mechanical application of the Code of Professional Responsibility to disqualify law firms, while simple, is also unworkable. Disqualifying whole firms without regard for whether any members of the firm have confidential knowledge and what efforts were taken to avoid transmittal of confidences is unnecessarily preclusive, conflicts with the public policies favoring client choice and conflicts with attorneys' ability to practice (Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611, 616-617 [1999]). The beneficial certainty and simplicity of the mechanical approach is outweighed by the significant hardship it imposes on the clients who lose their chosen counsel and then must seek new counsel to pick up where the disqualified counsel left off (Solow v Grace & Co., 83 NY2d 303, 309-310 [1994]).

Most importantly, the per se disqualification rule invites abuse. Many of these motions are used frivolously as an offensive litigation tactic. The motions are designed to inflict hardship on the current client and delay upon the courts by forcing disqualification even though the client's attorney is ignorant of any confidences of the movant and the movant has no real concern that a confidence has been abused (Solow v Grace & Co., 83 NY2d 303, 310 [1994]).

Although it is not as simple as the Cardinale approach, the approved method for resolving disqualification motions requires consideration of "the circumstances of the prior representation" (Solow v Grace & Co., 83 NY2d 303, 313 [1994]) and a balancing of the concern for avoiding conflict of interest and professional appearances with the competing concern that disqualification motions not be used as "tactical `derailment' weapons for strategic advantage in litigation" (Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 638 [1998]). Thus, there is no per se rule that a law firm be disqualified because it hired an attorney who once worked at another office and could possibly have been exposed to confidential information. The movant must offer more to justify disqualification than mere "generalized assertions of `access to confidences and secrets'." (Id.) That standard discourages use of such motions merely for strategic purposes and assists courts by making it clearer whether a former attorney's alleged information was in fact a "confidence" or "secret" as defined by the code or whether it was generally known and therefore outside the scope of Code of Professional Responsibility DR 5-108 (a) (2) (22 NYCRR 1200.27 [a] [2]). While a movant need not actually spell out the claimed secrets and confidences in order to prevail, it must at a minimum provide the motion court with information sufficient to determine whether there exists a reasonable probability that DR 5-108 (a) (2) would be violated (Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 638 [1998]).

Even where the movant meets its burden for disqualifying an individual attorney, the entire law firm is not thereby automatically disqualified. The firm then has the burden of rebutting the presumption that it should be disqualified based on the individual attorney's disqualification (Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611, 617 [1999]). To avoid disqualification, the firm must provide prima facie evidence either that there is no possibility that any of the attorneys presently in the firm acquired confidential information concerning the former client (Solow v Grace & Co., 83 NY2d 303, 313 [1994]) or prove that any information acquired by the disqualified lawyer is unlikely to be significant or material in the present litigation (Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611, 617 [1999]). Unless the firm meets that test, it is disqualified regardless of its efforts to erect a "Chinese Wall" between the disqualified attorney and others in the firm (Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611, 619 [1999]).

While ATNA has presented no evidence that DeCapita was acting as a decision maker, advisor or even researcher when she assisted ATNA's counsel, DeCapita clearly was in a position to acquire ATNA's confidences while she typed letters and reports prepared for the case. Thus, P&S would be disqualified if the rule applicable to "secr...