Mulhern v. Calder

CourtUnited States State Supreme Court (New York)
Citation763 N.Y.S.2d 741,196 Misc.2d 818
Decision Date28 July 2003
PartiesMARY 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.

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.

[196 Misc.2d 819]

(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

[196 Misc.2d 820]

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...

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7 practice notes
  • LaSalle v. 1777 GC LLC, Index No. 19689/2019
    • United States
    • New York Civil Court
    • September 24, 2021
    ...meaning of a word or phrase’ "]). If § 3.7(a) was meant to apply to employees, it could have been so written. (see Mulhern v. Calder , 196 Misc. 2d 818, 823, 763 N.Y.S.2d 741 [Sup. Ct., Albany County 2003] (declining to apply the ethical rules governing lawyers to nonlawyer employees of law......
  • In re Worldcom, Inc., Case No. 02-13533 (AJG) (Jointly Administered) (Bankr. S.D.N.Y. 8/25/2008), Case No. 02-13533 (AJG) (Jointly Administered)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • August 25, 2008
    ...1998). In ruling, courts should balance the significant interests and consider the totality of the circumstances. See Mulhern v. Calder, 763 N.Y.S.2d 741, 743 (N.Y. Sup. Ct. Although Ungaretti's and Pirogovsky's increasingly adverse positions against Miller coupled with the discovery that U......
  • LaSalle v. 1777 GC LLC, 2021-21257
    • United States
    • New York Civil Court
    • September 24, 2021
    ...the meaning of a word or phrase'"]). If § 3.7(a) was meant to apply to employees, it could have been so written. (see Mulhern v Calder, 196 Misc.2d 818, 823, 763 N.Y.S.2d 741 [Sup Ct, Albany County 2003] (declining to apply the ethical rules governing lawyers to nonlawyer employees of law f......
  • NYC Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 2004 NY Slip Op 24452 (NY 2/9/2005)
    • United States
    • United States Court of Appeals (New York)
    • February 9, 2005
    ...Owen & Mandolfo, Inc. v. Davidoff of Geneva, Inc., 197 AD2d 370 [1993]; Kaplan v. Maytex Mills, 187 AD2d 565 [1992]; Mulhern v. Calder, 196 Misc 2d 818 The moving papers make no reference to an attorney of the firm testifying. They only refer to the testimony of an "employee" of the firm wh......
  • Request a trial to view additional results
7 cases
  • LaSalle v. 1777 GC LLC, Index No. 19689/2019
    • United States
    • New York Civil Court
    • September 24, 2021
    ...meaning of a word or phrase’ "]). If § 3.7(a) was meant to apply to employees, it could have been so written. (see Mulhern v. Calder , 196 Misc. 2d 818, 823, 763 N.Y.S.2d 741 [Sup. Ct., Albany County 2003] (declining to apply the ethical rules governing lawyers to nonlawyer employees of law......
  • In re Worldcom, Inc., Case No. 02-13533 (AJG) (Jointly Administered) (Bankr. S.D.N.Y. 8/25/2008), Case No. 02-13533 (AJG) (Jointly Administered)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • August 25, 2008
    ...1998). In ruling, courts should balance the significant interests and consider the totality of the circumstances. See Mulhern v. Calder, 763 N.Y.S.2d 741, 743 (N.Y. Sup. Ct. Although Ungaretti's and Pirogovsky's increasingly adverse positions against Miller coupled with the discovery that U......
  • LaSalle v. 1777 GC LLC, 2021-21257
    • United States
    • New York Civil Court
    • September 24, 2021
    ...the meaning of a word or phrase'"]). If § 3.7(a) was meant to apply to employees, it could have been so written. (see Mulhern v Calder, 196 Misc.2d 818, 823, 763 N.Y.S.2d 741 [Sup Ct, Albany County 2003] (declining to apply the ethical rules governing lawyers to nonlawyer employees of law f......
  • NYC Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 2004 NY Slip Op 24452 (NY 2/9/2005)
    • United States
    • United States Court of Appeals (New York)
    • February 9, 2005
    ...Owen & Mandolfo, Inc. v. Davidoff of Geneva, Inc., 197 AD2d 370 [1993]; Kaplan v. Maytex Mills, 187 AD2d 565 [1992]; Mulhern v. Calder, 196 Misc 2d 818 The moving papers make no reference to an attorney of the firm testifying. They only refer to the testimony of an "employee" of the firm wh......
  • Request a trial to view additional results

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