The disqualification case of the week involves a former client conflict of interest and the application of the substantial relationship test.  The two attorneys at issue share a very substantial relationship indeed — to the extent that recounting even half of it would likely render this blog post far too lengthy.  In short, attorney Douglas Dollinger briefly represented attorney Susan Lask in seeking releases from her former clients.  One of those former clients, Ms. Franzone, is now the plaintiff suing Lask for legal malpractice, among other claims.  The plaintiff’s attorney is (as you probably guessed) Dollinger.  Lask promptly moved for Dollinger’s disqualification.  (As an aside, Lask also had previously sued Dollinger for legal malpractice.)

In a successive (as opposed to concurrent) representation case, the Second Circuit will generally disqualify the attorney if: “(1) the moving party is a former client of the adverse party’s counsel; (2) there is a substantial relationship between the subject matter of the counsel’s prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.” (quoting Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 133 (2d Cir. 2005).  It was undisputed that Dollinger had represented Lask.  Turning to the relationship between the former and current matters, the court concluded:

Here, it is clear that there is a “substantial relationship” between the matters in the prior representation and the allegations of the complaint. As already described, Ms. Lask discussed the lion’s share of the conduct that underlies the central allegations of the complaint with Mr. Dollinger. Indeed, Ms. Lask wanted Mr. Dollinger to get a release of any claims against Ms. Lask from Ms. Franzone because of Ms. Lask’s prior dealings with Ms. Franzone—a release that would have barred the instant suit. While we accept Mr. Dollinger’s testimony that he came to believe that he could not obtain such a release because Ms. Franzone did not have an attorney at that time, this does not alter the fact that Ms. Lask transmitted information on the topic of her dealings with Ms. Franzone to Mr. Dollinger as part of her effort to obtain advice.
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Turning finally to the third element (which some courts essentially omit), the court concluded that Dollinger indeed had access to the confidential information “because the confidential information at issue is the very information that Ms. Lask communicated to Mr. Dollinger.”  Thus, the court determined that Dollinger had a former client conflict and disqualified him.  But then the court did what many other courts have done and attempted to absolve the disqualified attorney of further liability: “We emphasize that ‘[d]isqualification is not a sanction.’ United States v. Quest Diagnostics Inc., 734 F.3d 154, 168 n.21 (2d Cir. 2013) (citation omitted). Thus, this Opinion and Order shall not be construed as making any such ruling.”
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On a final note, in analyzing the substantial relationship, the court proceeded wisely procedurally: It permitted the two attorneys to discuss their prior communications in camera and under seal, which protected any privileged communications from the public record.
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The full opinion is available here: Franzone v. Lask, No. 14 CIV. 3043 GHW GWG, 2015 WL 1379066 (S.D.N.Y. Mar. 26, 2015).