Friday, March 16, 2012

Client Interview Risk: Lawyer Disqualified because of Previous Interview with Defendant

First noted by Bill Freivogel, and recently analyzed by Mike Mintz at Martindale.com, Zalewski v. Shelroc Homes, LLC, 2012 U.S. Dist. LEXIS 19370 (March 6, 2012) addresses a recent disqualification:
  • "...the U.S. District Court for the Northern District of New York grappled with the issue whether to disqualify plaintiffs’ attorney, Lee Palmateer, because he had once been interviewed by defendants with a view to representing them in the identical or substantially similar action. The court concluded that Mr. Palmateer in fact had to be disqualified from representing plaintiffs in the action."
  • "Defendants claimed that they shared confidential, privileged information, including detailed analysis of the overall case and that they analyzed the evidence of the alleged copyright infringement. According to defendants, Palmateer was actively involved in the discussion and freely offered his advice and asked questions. According to defendants they discussed what defendants might be willing to offer to settle the case."
  • "The major bone of contention is the nature of the information defendants divulged to Palmateer at their meeting and whether that information is significantly harmful to defendants if Palmateer continues to represent their adversary, i.e. the plaintiffs."
Freivogel summarizes the net result: "In connection with N.Y. Rule 1.18, the parties disputed mightily the nature of information the defendants gave Lawyer during the interview. What convinced the magistrate judge to grant the motion was that counterclaims raised in this case deal with the plaintiffs' alleged abuses arising from Lawyer's use of information from the interview. Thus, in addition to everything else, Lawyer may well have to be a witness. Thus, the court disqualified Lawyer from this case only."

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