New York University v. Simon, B-12

• Decision Date: 23 July 1985
• Docket Number: N,B-12
• Parties: NEW YORK UNIVERSITY, Petitioner-Landlord v. Lloyd N. SIMON, 1 Washington Square Village, Apt.ew York, New York, Respondent-Tenant.
• Court: New York City Court

Page 659

498 N.Y.S.2d 659

130 Misc.2d 1019

NEW YORK UNIVERSITY, Petitioner-Landlord v. Lloyd N. SIMON, 1 Washington Square Village, Apt. B-12, New

York, New York, Respondent-Tenant.

Civil Court of the City of New York,

New York County, Trial Term,

Part 49.

July 23, 1985.

Rosenberg & Estis, New York City, for petitioner-landlord.

Mandel & Resnick, New York City, for respondent-tenant.

EDWARD H. LEHNER, J.:

The sole and novel legal issue presented on this motion to disqualify the law firm of Rosenberg and Estis from representing the petitioner relates to the nature of the information that movant must supply the court in order to prevail.

FACTS

This is a holdover proceeding based on a claim of nonprimary residence. Respondent, a member of the bar, asserts that after receiving legal papers from petitioner seeking his eviction, he contacted several attorneys with respect to prospective representation, and that one of the lawyers called was Gary Rosenberg, with whom he had two telephone conversations. He claims that during the second call he gave Rosenberg important confidential information about his tenancy. However, on the hearing held in connection with this application, movant declined to state any information he relayed to the attorney, claiming that if he did so, it would give petitioner an unfair advantage. He stated that he decided not to retain the Rosenberg firm and hired his current attorneys a few days after his last conversation with Rosenberg. At that time petitioner was represented by other counsel, the firm of Rosenberg & Estis having been later substituted as attorneys for petitioner.

Mr. Rosenberg testified that he had no recollection of the telephone calls and doubted that they occurred because: i) at the time his firm was not representing tenants; ii) his firm was representing petitioner on other matters; and iii) he was on vacation during a substantial portion of the period during which respondent stated the conversations occurred.

ANALYSIS

The court initially observes that, although not determinative of this application, since a landlord can obtain discovery in primary residence cases (Rubin v. Klein, N.Y.L.J. Apr. 2, 1985, p. 4, c. 2 Century Apartments Associates v. Merritt, N.Y.L.J. June 25, 1985, p. 6, c. 1 ) the unfair advantage which movant claims will inure to petitioner because of the use of confidential information appears especially difficult to demonstrate in this type of proceeding.

In Nichols v. Village Voice, 99 Misc.2d 822, 417 N.Y.S.2d 415 (Sup.Ct.N.Y.Co., 1979) the court, applying the test formulated by Judge Weinfeld in T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953), stated that (99 Misc.2d p. 825, 417 N.Y.S.2d 415):

" ... the person seeking disqualification, need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer's duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained."

See also: Flushing National Bank v. Municipal Assistance Corp. for the City of N.Y., 90 Misc.2d 204, 211, 397 N.Y.S.2d 662 (Sup.Ct.N.Y.Co.1977); Matter of Hof, 102 A.D.2d 591, 594, 478 N.Y.S.2d 39 (2d Dept.1984)

The general principle disqualifying one's former attorney from representing an adversary is not limited to situations where the prior representation was in a traditional attorney-client relationship. Although Canon 4 of the Code of Professional Responsibility declares that "a lawyer should preserve the confidences and secrets of a client", Ethical Consideration 4-1 states that "both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him." (emphasis supplied).

It has been held that where one consulted an attorney with a view to employing him, communications in the course of such preliminary discussions are subject to the attorney-client privilege (Benge v. Superior Court, 131 Cal.App.3d 336, 182 Cal.Rptr. 275, 280 (1982); Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892, 895 (1961); McCormick, Evidence (3d ed. 1984) Sec. 88 p. 208), for if the privilege depended on the chance of whether the attorney after hearing the statement of the facts decided to accept the employment or decline it, "no person could ever safely consult an attorney for the first time." In re DuPont's Estate, 60 Cal.App.2d 276, 140 P.2d 866 (1943).

Based on the same considerations, it has been stated that the disqualification of an attorney by reason of conflict of interest may occur in the absence of an actual attorney-client relationship where a "fiduciary relationship" arose in the course of such a preliminary consultation. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir.1978), cert. den. 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978); Kearns v. Fred Lavery Porsche Audi Co., 745 F.2d 600, 603 (Fed.Cir.1984), cert. den. 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985).

In determining whether a sufficient fiduciary relationship exists for purposes of a conflict of interest disqualification motion, the Seventh Circuit in Westinghouse rejected the narrow objective test of the district court, which had concluded that no attorney-client relationship existed in the absence of indicia of a contract of employment or evidence of an agency relationship, and took a more subjective approach. See also: Hughes v. Paine, Webber, Jackson & Curtis, Inc., 565 F.Supp. 663, 669 (N.D.Ill.1983); Trinity Ambulance Service, Inc. v. G. & L. Ambulance Services, Inc., 578 F.Supp. 1280, 1283 (D.Conn.1984); Developments in the Law--Conflicts of Interest in the Legal Profession, 94 Harv.L.Rev. 1244, 1321-1323 (1981). Under this approach the dispositive factor is whether the prospective client had a reasonable expectation of confidentiality at the time the...