Abraham v. Leigh et al
Filing
705
ORDER granting 701 Motion to Disqualify. Accordingly, Ms. Abraham's motion to disqualify is GRANTED. This ruling is without prejudice to a further response from Defendant as to any efforts that Frankfurt Kurnit Klein & Selz PC has put in pl ace to screen Ms. Hyland from any confidential information that was obtained as a result of Ms. Abraham's legal consultation with Mr. Minkoff. If Defendant wishes to make a supplemental filing, he shall do so on or before June 3, 2022, at 12:00 p.m. eastern time. The Clerk of Court is directed to terminate the pending motion at docket entry 701. SO ORDERED. (Signed by Judge Katherine Polk Failla on 6/1/2022) (rro)
Case 1:17-cv-05429-KPF Document 705 Filed 06/01/22 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBYN ABRAHAM,
Plaintiff,
-v.-
17 Civ. 5429 (KPF)
ABBY LEIGH, in her Individual Capacity
and as Executrix of the Estate of Mitch
Leigh, the Viola fund, Abby Leigh Ltd,
ORDER
Defendant.
KATHERINE POLK FAILLA, District Judge:
On May 29, 2022, Ms. Abraham filed a motion to disqualify Nicole
Hyland, the expert proffered by Defendant to replace Mr. Lawrence Fox, who is
medically unable to participate at trial. (Dkt. #701). In the main, Ms.
Abraham alleges that at an earlier stage of this litigation she consulted with
and provided confidential information concerning this case to two attorneys at
Ms. Hyland’s firm, Frankfurt Kurnit Klein & Selz PC.
Three days after Ms. Abraham filed her disqualification motion,
Defendant filed an opposition. (Dkt. #703-704). In connection with this
submission, Defendant submitted the declaration of Ronald Minkoff, a partner
at Frankfurt Kurnit Klein & Selz PC, who confirmed that he spoke with Ms.
Abraham about this case approximately a year and a half ago. For the reasons
outlined below, Ms. Abraham’s disqualification motion is granted, without
prejudice to Defendant’s ability to renew its opposition.
Case 1:17-cv-05429-KPF Document 705 Filed 06/01/22 Page 2 of 7
LEGAL STANDARD
“The Court has the inherent power to disqualify an expert witness when
such relief is warranted.” Capitol Recs., Inc. v. MP3tunes, LLC, No. 07 Civ. 9931
(WHP), 2010 WL 11590131, at *1 (S.D.N.Y. Apr. 15, 2010) (quoting Rodriguez v.
Pataki, 293 F. Supp. 2d 305, 311 (S.D.N.Y. 2003)); see also Junger v. Singh,
514 F. Supp. 3d 579, 598 (W.D.N.Y. 2021) (“The court’s authority to disqualify
a party’s expert or consultant is based on its inherent power to preserve the
integrity of the adversary process.”). “While the reasons behind disqualifying
an expert witness are similar to those behind disqualifying an attorney that has
a conflict of interest, the two scenarios are distinguishable and subject to
different standards.” Grioli v. Delta Int’l Mach. Corp., 395 F. Supp. 2d 11, 14
(E.D.N.Y. 2005) (citations omitted). In particular, because “[u]nlike attorneys,
expert witnesses serve generally as sources of information and not necessarily
as recipients of confidences,” courts do “not apply the stringent attorney-client
conflict standards” in determining whether an expert should be disqualified.
Id. at 13 (citation omitted). “Disqualification of an expert or consultant
generally requires that the party seeking disqualification show that (i) [the
moving party] held an objectively reasonable belief in the existence of a
confidential relationship with the challenged expert; and (ii) during the
relationship there was a disclosure of confidential or privileged information to
the expert that is relevant to the current litigation.” Breitkopf v. Gentile, No. 12
Civ. 1084 (JFB) (AKT), 2014 WL 12843765, at *3 (E.D.N.Y. Mar. 24, 2014); see
also Gordon v. Kaleida Health, No. 08 Civ. 378 (LGF), 2013 WL 2250506, at *5
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(W.D.N.Y. May 21, 2013) (“The burden is on the party seeking disqualification
to show ... [an] ‘objectively reasonable’ belief that a confidential relationship
existed with the expert or consultant and that a party’s confidential
information was ‘actually disclosed’ to the expert or consultant.”).
Federal courts often look to state disciplinary rules when considering
motions for disqualification, although “such rules need not be rigidly applied as
they merely provide general guidance.” John Wiley & Sons, Inc. v. Book Dog
Books, LLC, 126 F. Supp. 3d 413, 419 (S.D.N.Y. Sept. 4, 2015) (citation
omitted); see also Benevida Foods, LLC v. Advance Mag. Publishers Inc., No. 15
Civ. 2729 (LTS) (DF), 2016 WL 3453342, at *11 (S.D.N.Y. June 15, 2016)
(“Although ‘not every violation of a disciplinary rule will necessarily lead to
disqualification and thus violations of state or American Bar Association
disciplinary rules should not be considered conclusive, such rules often guide
judicial decisions on disqualification motions” (internal citations and quotation
marks omitted)). The Court thus turns to Rule 1.18 of the New York Rules of
Professional Conduct, which governs relationships, such as that at issue here,
between an attorney and a prospective client. Under Rule 1.18(a), “a person
who consults with a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.” N.Y. R. Prof’l
Conduct 1.18(a). Subsections (b) and (c) of Rule 1.18 further provide:
(b) Even when no client-lawyer relationship ensues, a
lawyer who has learned information from a prospective
client shall not use or reveal that information, except as
Rule 1.9 would permit with respect to information of a
former client.
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Case 1:17-cv-05429-KPF Document 705 Filed 06/01/22 Page 4 of 7
(c) A lawyer subject to paragraph (b) shall not represent
a client with interests materially adverse to those of a
prospective client in the same or a substantially related
matter if the lawyer received information from the
prospective client that could be significantly harmful to
that person in the matter, except as provided in
paragraph (d).
If a lawyer is disqualified from
representation under this paragraph, no lawyer in a
firm with which that lawyer is associated may
knowingly undertake or continue representation in
such a matter, except as provided in paragraph (d).
Id., 1.18(b)-(c).
Subsection (d) of Rule 1.18, in turn, specifies steps a law firm may take
to avoid disqualification by imputation. As relevant here, in order to avoid
disqualification, the attorney who communicated with the prospective client
must have taken “reasonable measures to avoid exposure to more disqualifying
information than was reasonably necessary to determine whether to represent
the prospective client.” N.Y. R. Prof’l Conduct 1.18(d)(2). The Rule also
requires the law firm to: (i) promptly and reasonably notify others in the firm
that the disqualified attorney may not participate in the representation; (ii)
implement “effective screening procedures to prevent the flow of information
about the matter between the disqualified lawyer and the others in the firm”;
(iii) disallow the apportioning of any part of the fee from the representation to
the disqualified attorney; and (iv) provide prompt, written notice to the
prospective client. Id. 1.18(d)(2)(i)-(iv); see also Benevida Foods, 2016 WL
3453342, at *12. Moreover, Rule 1.18 requires that a “reasonable lawyer
would conclude that the law firm will be able to provide competent and diligent
representation in the matter.” N.Y. R. Prof’l Conduct 1.18(d)(3).
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The comments to Rule 1.18 expand upon the requirements outlined in
paragraph (d)(2), noting that large firms, such as those with separate
departments or offices in multiple locations, are more likely to be able to meet
the requirements and avoid imputed disqualification. Id. 1.18, cmt. 7B. The
comments add that, while it is not impossible for a small firm to meet the
requirements of Rule 1.18(d)(2), “[a] small firm may need to exercise special
care and vigilance to maintain effective screening.” Id. Moreover, the
comments provide that, if a disqualified lawyer is working on other matters
with the lawyers participating in the matter requiring screening, “it may be
impossible to maintain effective screening procedures.” Id.
DISCUSSION
On the record presently before it, the Court concludes that Ms. Abraham
has satisfied her burden to disqualify Defendant’s proposed expert, and that
Defendant has not alleged any of the circumstances outlined in Rule 1.18(d)
that would assuage the Court that Ms. Hyland was walled off from any
confidential information gleaned by her firm. First, Ms. Abraham represents
that in October 2020, she “extensively discussed” this case with Mr. Minkoff,
who is a partner Ms. Hyland’s law firm. (Dkt. #701 at ¶ 12). Mr. Minkoff
confirms that such a conversation took place on October 15, 2020, which
conversation lasted for approximately half an hour. (Dkt. #704 at ¶¶ 2-3).
Based on this consultation, Ms. Abraham qualifies as a “prospective client”
under Rule 1.18(a), and accordingly has an objectively reasonable belief that
she had established some sort of confidential relationship with Mr. Minkoff.
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Second, Ms. Abraham contends that she disclosed confidential information
during this conversation, and the Court is inclined to agree. (Dkt. #701 at
¶ 12). Mr. Minkoff proffers that he does not have an independent recollection
of the contents of his conversation with Ms. Abraham, but his surrounding
emails indicate that the conversation centered on a contempt motion relating to
Ms. Abraham’s conduct during discovery and a fee dispute with her prior
counsel. (Dkt. # 704 at ¶¶ 3, 7). Although Mr. Minkoff does not recall
receiving any nonpublic or confidential information about the merits of the
underlying dispute (id. at ¶ 7), the Court’s history with this litigation prevents it
from wholly disaggregating the contempt motion from the merits of the dispute.
As such, the Court believes it likely that in the course of Ms. Abraham’s
conversation with Mr. Minkoff, she disclosed confidential or privileged
information that is relevant to the current litigation.
Although Rule 1.18 does not bind the Court, this Court refers to it for
“general guidance” in resolving Ms. Abraham’s motion. See Hempstead Video,
Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005). Here,
Defendant has provided the Court with no assurance that any information
gleaned by Mr. Minkoff about this case has not been shared with Ms. Hyland.
Indeed, in a letter dated May 19, 2022, Defendant presented Mr. Minkoff and
Ms. Hyland together as substitute expert witnesses (Dkt. #688), which suggests
a degree of collaboration between these two attorneys on this very matter that
would seem to obviate any screening measures that could be implemented.
Even so, Defendant has not provided any indication, whatsoever, that the law
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firm has implemented measures designed to prevent the flow of confidential
information concerning the instant matter between Mr. Minkoff and Ms.
Abraham, or that Mr. Minkoff will not share in any payment that is directed to
the firm in connection with this case. In the absence of any representation
that Frankfurt Kurnit Klein & Selz PC has attempted to meet the requirements
of Rule 1.18(d)(2), or that Ms. Hyland has, in fact, been screened from any
confidential information the firm obtained in connection with this matter, the
Court finds it appropriate to disqualify Ms. Hyland as Defendant’s substitute
expert witness.
Accordingly, Ms. Abraham’s motion to disqualify is GRANTED. This
ruling is without prejudice to a further response from Defendant as to any
efforts that Frankfurt Kurnit Klein & Selz PC has put in place to screen Ms.
Hyland from any confidential information that was obtained as a result of Ms.
Abraham’s legal consultation with Mr. Minkoff. If Defendant wishes to make a
supplemental filing, he shall do so on or before June 3, 2022, at 12:00 p.m.
eastern time.
The Clerk of Court is directed to terminate the pending motion at docket
entry 701.
SO ORDERED.
Dated: June 1, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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