Lawyers often get phone calls from prospective clients seeking guidance on various issues general legal inquiries, asking a variety of general questions about laws, codes, regulations, and statutes, or questions concerning a pending or anticipated litigation. But a brief introductory conversation with a prospective client regarding an issue cannot disqualify the attorney from representing another party in that litigation. Or can it? Stay tuned to see how Justice Andrea Masley recently ruled on this very issue.

In Pizzarotti, LLC v FPG Maiden Lane, LLC et al., plaintiff entered into an agreement with Fortis pursuant to which plaintiff would perform certain construction management services for Fortis for the construction of a high-rise residential building.  Due to plaintiff’s concerns for the safety of the property and for people, Plaintiff stopped performing certain work at the project and commenced an action against Fortis seeking 1) a declaratory judgment that it property terminated its agreement with Fortis; 2) to enjoin Fortis from using plaintiff’s subcontractors or equipment and indemnify plaintiff; 3) damages for breach of contract for payments due under the agreement; 4) fair compensation for additional work; 5) damages for breach of contract by Fortis’ interference with plaintiff’s performance, and relationship; 6) judgment on its lien; and 7) damages for wrongful termination.

Plaintiff moved pursuant to 22 NYCRR § 1200.00, Rules of Professional Conduct 1.18 to disqualify defendant’s counsel, Herrick Feinstein LLP (“Herrick”) based upon the fact that plaintiff had an initial consultation with Herrick, which consisted of two brief telephone calls and the exchange of documents, all of which were provided to the defendant by plaintiff .   Rule 1.18, entitled “duties to prospective clients” governs this initial interview process.  New York law requires disqualification for disclosure of information that “embrace[s] substantive issues related to the” action and that was “made in confidence” to facilitate the provision of legal services, as the Court of Appeals long held in Seeley v. Seeley.

By way of background, in March of 2019, the same month that plaintiff commenced suit, plaintiff’s general counsel emailed a Herrick partner to figure out if he can assist on a “legal matter regarding one of [plaintiff’s] projects.”  Notably, in the brief email exchange between plaintiff and the Herrick partner regarding the scheduling of a call, each of the Herrick partner’s emails contained the following legend: “[t]his email does not constitute a zoning opinion of Herrick, Feinstein LLP and should not be relied upon for investment, tax or real estate transaction purposes.”  During the initial introductory call, the Herrick partner and plaintiff briefly discussed a potential encroachment issue at one of plaintiff’s projects.  According to the Affidavit of the Herrick partner, no confidential information was exchanged during the call.

Following the brief introductory call, plaintiff sent the Herrick partner a follow up email containing information pertaining to the project and providing a list of potentially adverse parties so Herrick can run a conflict check. Plaintiff also attached a three page document, which consisted of a letter from plaintiff to defendant, enclosing surveys of the structure.

A further introductory call was held by plaintiff, the Herrick partner, and another Herrick partner, a commercial litigator with construction litigation experience. Both Herrick partners affirmed in affidavits that the only issues discussed during the call were the misalignment condition and encroachment issue, affirming that “claims against Fortis, the lien law, or a dispute with Fortis related to the development project” were not discussed during the call.  Further, despite plaintiff’s allegations that confidential information and documents were provided to the Herrick partners, both partners affirmed that no confidential information was discussed.  Indeed, this was Herrick’s last conversation with plaintiff and plaintiff did not engage Herrick in connection with either the encroachment issue or any other issue.

Months later, Herrick was retained by Fortis. And so, this motion to disqualify ensued.

In her Decision and Order, Justice Masley determined that plaintiff “has a heavy burden of showing that disqualification is warranted.”  Justice Masley determined that the documentary evidence corroborates the Court’s conclusion that plaintiff’s evidence was insufficient to warrant Herrick’s disqualification due to conflict. The Court held that plaintiff failed to establish that Herrick received any confidential information from plaintiff that could be significantly harmful to plaintiff in the pending litigation. In fact, the Court reasoned that the alleged documents that were provided to Herrick were not confidential because they were intended for and sent to Fortis by plaintiff.

The right to counsel is a “valued right and any restrictions must be carefully scrutinized.” Ullmann-Schneider v. Lacher & Lovell-Taylor PC.  “[W]here the rules relating to professional conduct are invoked not at a disciplinary proceeding but in the context of an ongoing lawsuit, disqualification can create a strategic advantage of one party over another” (id.).  As such, there is fear that parties will use disqualification as a litigation tactic.  As a result, the party seeking to disqualify counsel must meet a heavy burden to justify counsel’s disqualification.  Here, plaintiff did not meet its burden.