Miana v. Citigroup Global Markets, Inc. et al
Filing
63
OPINION AND ORDER denying 11 Motion to Disqualify Counsel. Signed by US Magistrate Judge Marcos E. Lopez on 5/3/11. (Lopez, Marcos)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS E. MIÑANA-RODRÍGUEZ,
Plaintiff,
v.
CIVIL NO.: 10-1978 (ADC)
CITIGROUP GLOBAL MARKETS, et al.,
Defendants.
OPINION AND ORDER
On October 18, 2010, Luis E. Miñana (“plaintiff”) filed a motion to disqualify Pietrantoni,
Méndez and Alvarez LLP (“PMA”) as counsel for defendants Citigroup Global Markets, Inc.
(“Citigroup”) and Smith Barney, Inc. (“Smith Barney”) (together, “defendants”) due to the firm’s
prior representation of plaintiff in a tax matter against the Puerto Rico Department of Treasury “for
grievances stemming from the incorrect characterization of [plaintiff’s] income as a financial
consultant.” (Docket No. 11, p. 5.) Defendants have filed an opposition. (Docket No. 21.)
Where a party raises a conflict of interest argument, “the relevant inquiry is whether the
subject matter of the two representations is ‘substantially related’; could the attorney have obtained
confidential information in the first suit that would have been relevant to the second.” Borges v. Our
Lady of Sea Corp., 935 F.2d 436, 439-440 (1st Cir. 1991). Disqualifying a “party’s chosen attorney
is a serious matter which [may] not be supported by the mere possibility of a conflict.” Reyes
Canada v. Rey Hernández, 193 F. Supp. 2d 409, 411 (D.P.R. 2002) (citations omitted). Therefore,
the moving party must allege “the type and nature of the confidences that were exchanged in the
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prior litigation that should subsequently disqualify the attorney in the latter representation.” Id. at
412.
At the outset, it is uncontested that PMA’s representation of plaintiff concluded in 2006,
approximately four years prior to the filing of the present complaint and roughly two years after the
filing of the 2008 action. (Docket No. 11-1.) Furthermore, one of PMA’s attorneys representing
defendants in this action also represented defendants in the 2008 action without objection. (Docket
No. 21, pp. 10-11.)
In his motion, plaintiff claims that PMA was “privy to private and confidential information
regarding the [p]laintiff’s income generated as an employee of the [d]efendants[.]” (Docket No. 11,
p. 3.) However, the only specific materials plaintiff references are his “complete personnel file” and
tax returns. (Docket No. 11, pp. 3-4.) As his employer, plaintiff’s personnel file is presumably in
defendants’ possession, custody or control. As for his tax returns, plaintiff has failed to sufficiently
allege how such materials have any bearing on the present suit for unjust dismissal. Plaintiff has
therefore failed to meet his burden of demonstrating the “type and nature” of confidences exchanged
during PMA’s representation of plaintiff in the tax matter that could have any bearing on the present
litigation. Reyes Canada, 193 F. Supp. 2d at 412; Estrada v. Cabrera, 632 F. Supp. 1174, 1177
(D.P.R. 1986) (“in the case of a former client the representation of a now adverse party is not per se
improper without a showing by the former client that the matters in the pending suit are
‘substantially related’ to the matters in which the attorney previously represented the party.”)
(citations omitted).
In light of the above, plaintiff’s motion to disqualify (Docket No. 11) is hereby DENIED.
In an abundance of caution, it is also hereby ORDERED that to the extent such measures have not
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been taken, PMA shall implement ethical walls prohibiting any attorney involved in the present
litigation from 1) discussing any matters concerning PMA’s representation of plaintiff in the tax
matter with attorney(s) involved in said representation, and 2) accessing any materials in the firm’s
possession related to said representation.
In San Juan, Puerto Rico, this 3rd day of May, 2011.
s/Marcos E. López
U.S. Magistrate Judge
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