Initial Consultation Insufficient to Justify Counsel's Disqualification on Conflict Grounds

On September 3, 2019, Justice Masley of the New York County Commercial Division issued a decision in Pizzarotti, LLC v. FPG Maiden Lane, LLC, 2019 NY Slip Op. 32645(U), holding that an initial consultation with a law firm was insufficient to justify that firm's later disqualification on conflict grounds, explaining:

To be represented by counsel of one's choosing is a valued right and any restrictions must be carefully scrutinized.. Pizzarotti has a heavy burden of showing that disqualification is warranted, but it has failed to offer any evidence that Herrick received information from the prospective client Pizzarotti that could be significantly harmful to that person in the matter. Rather, Cristanelli's vague affidavit fails to establish that harmful information was disclosed. Cristanelli's assertion that he relied on Herrick's one-half hour of free advice, contrary to Korbey's email legend that it does not constitute a zoning opinion, in filing this $33 million action for breach of contract does not make it so.

The time to remedy Pizzarotti's inadequate motion papers was in a reply, which it failed to submit, not at argument on the motion. Pizzarotti's repeated invitations to the court to interview Cristanelli off the record at the argument was untimely, unfair and would yield an unappealable record.

The documentary evidence corroborates this court's conclusion. Documents exchanged with Herrick consist of a letter Pizzarotti sent to Fortis with two survey pages attached and some emails. The emails objectively demonstrate that Pizzarotti contacted Korbey for advice on land use and zoning, his specialty. Pizzarotti cannot seriously assert that the documents it sent to Fortis before it initiated this action against Fortis, and shared with Herrick, contain confidential information (i.e. information that Fortis does not know) or that the information disclosed therein to Herrick would be harmful to Pizzarotti in this action against Fortis.

Finally, while Pizzarotti fails to include a table of authorities, the court notes that all but one of its cited cases precede April 2009 when Rule 1.18 was enacted and are thus not controlling. Rather, Mayers, the only contemporary case Pizzarotti cites, is factually similar and controlling here.

(Internal citations omitted).

We both bring and defend motions relating to attorney conflicts and do appeals of the decisions on those motions. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you face a situation where counsel may be--or is accused of being--conflicted.