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					Detective Investigators Association of the District Attorneys’ Offices,
                      4 OCB2d 59 (BCB 2011)
                           (Docket No. BCB-2922-11).

Summary of Decision: The DAs moved to disqualify counsel for the City on the
grounds that they have represented both the City and the DAs in prior matters,
parties whose interests are adverse in the current proceeding, and have received
confidential information from the DAs, the use of which would be prejudicial and
violative of the attorney-client relationship. The City denied that its counsel ever
represented the DAs or were the recipients of any confidential information, and it
denies that the present case is substantially related to any prior matters. The
Board denied the motion, finding that, even assuming there had been joint
representation, the DAs had no expectation of confidentiality, and the prior
matters were not substantially related to the present case. (Official decision
follows.)
__________________________________________________________________

                 OFFICE OF COLLECTIVE BARGAINING
                 BOARD OF COLLECTIVE BARGAINING

                            In the Matter of Impasse

                                    -between-

   NEW YORK CITY DETECTIVE INVESTIGATORS ASSOCIATION,
        DISTRICT ATTORNEYS OFFICE NEW YORK CITY,

                                    Petitioner,

                                       -and-

     THE CITY OF NEW YORK, ROBERT T. JOHNSON, BRONX
       COUNTY DISTRICT ATTORNEY; CHARLES J. HYNES,
     KINGS COUNTY DISTRICT ATTORNEY; CYRUS R. VANCE,
     NEW YORK COUNTY DISTRICT ATTORNEY; RICHARD A.
    BROWN, QUEENS COUNTY DISTRICT ATTORNEY; DANIEL
  M. DONOVAN, JR., RICHMOND COUNTY DISTRICT ATTORNEY;
      AND BRIDGET G. BRENNAN, OFFICE OF THE SPECIAL
                 NARCOTICS PROSECUTOR,

                            Respondents.
__________________________________________________________________

                     INTERIM DECISION AND ORDER
4 OCB2d 59 (BCB 2011)                                                                             2

         On January 10, 2011, the New York City Detective Investigators Association, District

Attorneys Office, New York City (“DIA” or “Union”) filed a verified petition pursuant to § 12-

309(a)(1) of the New York City Collective Bargaining Law (New York City Administrative

Code, Title 12, Chapter 3) (“NYCCBL”) seeking a determination by the Board of Collective

Bargaining (“Board”) regarding a disagreement between the parties as to an interpretation or

application of the NYCCBL. 1 Specifically, the Union seeks a determination whether the public

employer of the employees represented by the Union is the City of New York; the District

Attorneys of the five Counties comprising New York City together with the Office of the Special

Narcotics Prosecutor (collectively “the DAs”); or the City and the DAs jointly. The City in its

answer contends that it is not and never has been an employer of these investigators, but that its

Office of Labor Relations (“OLR”) has served only as a representative of the DAs for purposes

of collective bargaining. The DAs filed an answer and cross-petition on March 4, 2011, seeking

findings that the City is the joint employer of the investigators and that the City, through OLR, is




1
    NYCCBL § 12-309(a) provides, in pertinent part:

                The board of collective bargaining, in addition to such other
                powers and duties as it has under this chapter and as may be
                conferred upon it from time to time by law, shall have the power
                and duty:
                        (1) on the request of a public employer or public employee
                organization which is a party to a disagreement concerning the
                interpretation or application of the provisions of this chapter, to
                consider such disagreement and report its conclusion to the parties
                and the public;

For purposes of this Decision, the petition filed by the DIA pursuant to this section will be
referred to as a petition for a “declaratory ruling.”
4 OCB2d 59 (BCB 2011)                                                                          3

the continuing exclusive bargaining representative of the DAs for labor relations and collective

bargaining. The City disputes the DAs’ assertions.

       At a pre-hearing conference held in this matter on June 21, 2011, counsel for the DAs,

Jackson Lewis, LLP (“Jackson Lewis”), raised the contention, previously advanced in an

exchange of letters between counsel, that counsel for the City, Proskauer Rose, LLP

(“Proskauer”), should withdraw or be disqualified from further representation on the grounds

that it has represented both the City and the DAs, parties whose interests are adverse in the

current proceeding, and has received confidential factual information from the DAs, the use of

which would be prejudicial and violative of the attorney-client relationship. The Trial Examiner

advised counsel that if the DAs wished to have a ruling on this issue, they should raise it in a

written motion to which the other parties could respond. The instant motion to disqualify

Proskauer from representing the City followed, on July 7, 2011. The City submitted an answer

and the DAs filed a reply. The Union did not take any position on the disqualification motion.

The Board finds that, even assuming, arguendo, there had been joint representation by

Proskauer, the DAs had no expectation of confidentiality, and, in any event, the prior matters

were not substantially related to the present case. Accordingly, the motion is denied.



                                        BACKGROUND

       DIA represents employees holding the titles of County Detective, Detective Investigator,

Senior Detective Investigator, Rackets Investigator, Senior Rackets Investigator, Supervising

Rackets Investigator; Rackets Investigator (Special Narcotics Court), Senior Rackets Investigator

(Special Narcotics Court) in Certification No. 30-75, as amended. DIA, 79 OCB 13, at 2 (BCB
4 OCB2d 59 (BCB 2011)                                                                            4

2007). These titles are employed in the offices of the DAs for the five counties comprising New

York City, and the Office of the Special Narcotics Prosecutor. The offices of the DAs are

“public employers” but not “municipal agencies” within the meaning of NYCCBL § 12-303. 2 A

consequence of this status is that, pursuant to NYCCBL § 12-304, the provisions of the

NYCCBL do not automatically apply to these offices, absent an election of coverage approved

by the Mayor. 3 In the absence of such an election, by default the employees of these offices

would be covered by the provisions of the New York State Public Employees’ Fair Employment

Act (New York Civil Service Law, Article 14) (“Taylor Law”) and would be under the

jurisdiction of the Public Employment Relations Board (“PERB”). However, in November 1968



2
    NYCCBL § 12-303 defines the relevant terms as follows:

                d. The term “municipal agency” shall mean an administration,
                department, division, bureau, office, board, or commission, or
                other agency of the city established under the charter or any other
                law, the head of which has appointive powers, and whose
                employees are paid in whole or in part from the city treasury, other
                than the agencies specified in paragraph two of subdivision g of
                this section.
                                             * * *
g. The term “public employer” shall mean . . . ; (2) the board of education, the New York city
health and hospitals corporation, the New York city off-track betting corporation, the New York
city board of elections and the public administrator and the district attorney of any county within
the city of New York; . . . . (Emphasis added.)
3
    NYCCBL § 12-304 provides, in pertinent part:
              This chapter [the NYCCBL] shall be applicable to:
                                            * * *
              c. any other public employer, and to the public employees and
              public employee organizations thereof, upon the election by the
              public employer or the head thereof by executive order of the chief
              executive officer to make this chapter applicable, subject to
              approval by the mayor . . . .
4 OCB2d 59 (BCB 2011)                                                                          5

the five DAs each elected, with Mayoral approval, to make the NYCCBL applicable to the

employees of their respective offices. See Association of New York City Assistant District

Attorneys, 14 OCB 13, at 2, n. 1 (BOC 1974). These elections were modified and affirmed in

writing by the DAs, and approved by the Mayor on April 26, 1993. (Pet. Ex. 14) Therefore, the

Board has jurisdiction over the DAs and the public employees at issue in this case.

        In addition to and distinct from electing coverage under the NYCCBL, each of the five

DAs’ virtually identical election letters, as modified, also provides that:

               I authorize the Office of Labor Relations of the City of New York
               to be the exclusive representative of the Office of the District
               Attorney, [name of each] County in all matters relating to labor
               relations and collective bargaining. Such agreements shall be
               effective upon approval of the City on economic matters and by
               this office on non-economic matters as evidenced by the signature
               of the District Attorney of [name of each] County.

Each of the Mayor’s April 26, 1993, letters responding to the modified election letters expressly

approves each DA’s election of coverage under the NYCCBL and, further, states in pertinent

part:

               Accordingly, the Office of Labor Relations shall continue to be the
               exclusive representative of the Office of [name of County] District
               Attorney in all matters relating to labor relations and collective
               bargaining subject to your approval on non-economic matters.

        The history of the instant dispute, as relevant herein, dates back to the preparation for

impasse proceedings between the Union and the DAs beginning in late 2006. It is undisputed

that, at that the commencement of those impasse proceedings, the City, through its Office of

Labor Relations (“OLR”), represented the DAs, and that Proskauer was the City’s counsel in that

matter. The parties dispute the nature and extent of Proskauer’s involvement in the impasse
4 OCB2d 59 (BCB 2011)                                                                         6

proceeding and other subsequent proceedings before PERB and in State Supreme Court.

However, the uncontested documentary evidence shows the following.

       On November 28, 2006, an OLR representative sent a notice of a “management strategy”

meeting by e-mail to the DAs; Proskauer was “cc”ed on the message. (Mot. Ex. A).

       In November 2006 and February 2007, the DIA made requests for information which it

desired in preparation for the impasse hearings, including information concerning “211 waivers.”

An Assistant Commissioner at OLR communicated these requests to the DAs by e-mail, asking

them to respond “so we can make a determination if this is something we need to produce for the

union;” Proskauer was “cc”ed on the messages. (Mot. Ex. B, D). The DAs’ e-mail response to

the requests was addressed to the Assistant Commissioner at OLR; again Proskauer was “cc”ed.

(Mot. Ex. C).

       In March 2007, a draft pre-hearing impasse brief was prepared by Proskauer and

submitted to OLR. On March 26, copies of the brief were sent by an Assistant Commissioner at

OLR to the DAs for review and comments. The DAs responded to the Assistant Commissioner

with comments on March 27 and April 2; Proskauer was not “cc”ed. (Mot. Ex. E, F, G). One of

the comments by the DAs included a query whether the brief was written by OLR’s General

Counsel, whose name also appears on the brief). (Mot. Ex. E).

       At the hearings before the impasse panel, Proskauer appeared and presented the City’s

case. Following the hearings, on July 30, 2007, Proskauer prepared a post-hearing brief and

submitted it to OLR. Copies of the brief were circulated to the DAs for review and comment.

The DAs responded by e-mail, with some of the DAs’ comments addressed to both OLR and
4 OCB2d 59 (BCB 2011)                                                                             7

Proskauer (Brooklyn DA, Mot. Ex. H) and some addressed to OLR with Proskauer “cc”ed

(Queens DA, Mot. Ex. I).

       In October 2010, the DIA filed a declaration of impasse (for the subsequent round of

bargaining) and a petition for a declaratory ruling with PERB.          On November 10, 2010,

Proskauer circulated a draft letter to OLR and the DAs for review, asking PERB to decline to

assert jurisdiction over DIA’s petition. (Mot. Ex. K). 1.   The letter states that it is written “on

behalf of the City of New York.” After its statement of the City’s legal position, it concludes by

stating that “We have communicated with the District Attorneys’ Offices and they concur in this

application.” The letter thereafter was filed with PERB.

       On November 15, 2010, Proskauer sent an e-mail message to OLR and the DAs stating

that since it appeared that PERB was proceeding to exercise jurisdiction over the DIA’s petition,

Proskauer would be filing a declaratory judgment action in Supreme Court “on behalf of the

City” seeking a ruling that PERB lacked jurisdiction. A draft of the court papers was included.

Proskauer asked the recipients to let it know if they had any comments. (Mot. Ex. L). The DAs

submitted a few proposed changes to Proskauer by e-mail. Proskauer responded that it would

incorporate them and that it was filing in court “now.” (Mot. Ex. M).

       The summons and complaint lists the plaintiffs as the City of New York and the Mayor.

The DAs were not named as a party. (DAs’ Ans. Ex. A; Mot. Ex. S, at 3).            After filing the

summons and complaint in court, Proskauer notified OLR and the DAs by e-mail that it had sent

a letter to PERB informing them of the court action. (Mot. Ex. N). The letter to PERB attached

to the e-mail states that it was written “on behalf of the City of New York.” It requests that “all

respondents’” obligation to answer be adjourned in light of the pending court action.
4 OCB2d 59 (BCB 2011)                                                                             8

           Subsequently, pursuant to a stipulation signed by Proskauer and counsel for the DIA, the

DIA withdrew its petition before PERB for a declaratory ruling, and the City withdrew in court

its declaratory judgment action.

           On January 10, 2011, the DIA filed its petition for a declaratory ruling at the Office of

Collective Bargaining (“OCB”), seeking a determination whether the public employer of the

employees represented by the Union is the City of New York; the DAs; or the City and the DAs

jointly.     The Union seeks a resolution of this question because, having filed for impasse

proceedings at PERB, it wishes a determination of which employer(s) must participate in the

impasse proceeding. 4

           Sometime later in January 2011, the City informed the DAs that the City’s counsel,

Proskauer, would appear solely on behalf of the City in the DIA’s proceeding at OCB and would

not be representing the DAs in that matter. The DAs then requested the Mayor’s Criminal

Justice Coordinator and the New York City Law Department to authorize outside counsel to

represent the DAs in the OCB proceeding. That request was approved. (Letter dated February 4,

2011, from Eileen M. Sullivan, Executive Assistant DA, Queens County, to OCB.) The DAs

engaged in a procurement process to obtain separate counsel. (Mot. at 9-10.) The counsel

selected was Jackson Lewis.

           On April 7, 2011, Jackson Lewis requested that Proskauer provide it with copies of all

files and documents possessed by Proskauer related to that firm’s representation of the DAs.



4
  Under § 212(3) of the Taylor Law, the certified representatives of detective investigators, as
well as of certain other uniformed force titles, have the option of having their bargaining
impasses submitted to the impasse resolution procedures of § 209 of the Taylor Law, or the
provisions of an applicable local law, such as NYCCBL § 12-311(c).
4 OCB2d 59 (BCB 2011)                                                                            9

(Mot. Ex. P). Proskauer responded that “We are not aware of any matter in which this firm

represented the District Attorneys.” Proskauer further wrote that, in connection with the 2006

impasse proceeding with the DIA, cited in Jackson Lewis’ request,

                This firm was engaged by the Mayor’s Office of Labor Relations
                to represent the City in connection with that proceeding. At that
                time, the City, through OLR, served as the representative of the
                District Attorneys for purposes of collective bargaining.

 (Mot. Ex. Q). In its response, Proskauer further stated that OLR had directed it to provide

Jackson Lewis with the record of that impasse proceeding, including briefs, transcripts, exhibits

and related materials, but that as to all other requested documents, their client, OLR, had “chosen

to preserve their confidentiality” and instructed Proskauer to “decline your request.”

       By letter dated May 24, 2011, Jackson Lewis formally requested that Proskauer

voluntarily withdraw as counsel for the City in this matter. In a letter dated June 3, 2011,

Proskauer declined to withdraw. The positions of the parties on this issue were reiterated by

counsel at the pre-hearing conference held in this matter on June 21, 2011, and the instant

disqualification motion followed.



                               POSITIONS OF THE PARTIES

DAs’ Position

        The DAs contend that Proskauer should be disqualified because it has represented both

the DAs and the City – parties that are directly adverse in this proceeding which seeks a

determination of whether the DAs and the City are joint employers of the employees represented

by the DIA. In addition, the DAs assert that Proskauer has received confidential information

from the DAs in the course of numerous related proceedings.
4 OCB2d 59 (BCB 2011)                                                                        10

       The DAs argue that the DAs and the City were jointly represented by Proskauer for

purposes of bargaining and other collateral proceedings, including impasse proceedings before

PERB and this Board. The DAs further assert that Proskauer represented the DAs in a state court

action that is directly related to the matter before the Board.     In the face of the parties’

incompatible interests, Proskauer cannot serve the City without impinging on the attorney-client

privilege, work-product, and confidentiality previously afforded the DAs by virtue of their

attorney-client relationship with Proskauer. Under the applicable Rules of Professional Conduct,

an actual conflict exists which the DAs have not waived. 5 It should also be noted that, under




5
 The DAs refer to Rule 1.9 of the New York Rules of Professional Conduct (Rules of the N.Y.S.
Unified Court System, Part 1200), which provides:

              Rule 1.9. Duties to Former Clients

              (a) A lawyer who has formerly represented a client in a matter
              shall not thereafter represent another person in the same or a
              substantially related matter in which that person's interests are
              materially adverse to the interests of the former client unless the
              former client gives informed consent, confirmed in writing.

              (b) Unless the former client gives informed consent, confirmed in
              writing, a lawyer shall not knowingly represent a person in the
              same or a substantially related matter in which a firm with which
              the lawyer formerly was associated had previously represented a
              client:
                      (1) whose interests are materially adverse to that person;
              and
                      (2) about whom the lawyer had acquired information
              protected by Rules 1. 6 or paragraph (c) of this Rule that is
              material to the matter.

                      (c) A lawyer who has formerly represented a client in a
              matter or whose present or former firm has formerly represented a
              client in a matter shall not thereafter:
4 OCB2d 59 (BCB 2011)                                                                          11

New York Law, any doubts as to the existence of a conflict are to be resolved in favor of

disqualification.

       During all relevant time periods, Proskauer and the DAs had a direct attorney-client

relationship. Moreover, although the relationship between Proskauer and the DAs may have

resulted from the retention of Proskauer by the City, the firm’s relationship with the City does

not operate to exclude what is otherwise a de facto attorney-client relationship established

between Proskauer and the DAs. This situation is akin to the “secondary client” or “joint

representation” concept that is found between corporations and subsidiaries. The courts have

recognized that such a “secondary client” relationship can provide a basis for disqualifying

counsel. UCAR Int’l, Inc. v. Union Carbide Corp., 2002 U.S. Dist. LEXIS 21766, at *8 (SDNY

2002). A similar analysis has been recognized with respect to counsel’s representation of a State

and its subordinate state agencies. Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp.

2d 276, 288 (SDNY 2001). The courts have also found that where there is no intermediary

between a firm and the party to whom it submits drafts for approval, the fact that another entity

pays the firm’s fees does not negate the attorney-client relationship. British Airways, PLC v. The

Port Authority of New York and New Jersey, 862 F. Supp. 889 (EDNY 1994).




                       (1) use confidential information of the former client
               protected by Rule 1.6 to the disadvantage of the former client,
               except as these Rules would permit or require with respect to a
               current client or when the information has become generally
               known; or
                       (2) reveal confidential information of the former client
               protected by Rule 1.6 except as these Rules would permit or
               require with respect to a current client.
4 OCB2d 59 (BCB 2011)                                                                           12

        Alternatively, the DAs argue that inasmuch as the City has acted as the agent of the DAs,

pursuant to the Mayoral designation letters, that representative relationship created an attorney-

client relationship between the City’s counsel, Proskauer, and the DAs. See Don v. Singer, 2008

NY Slip Op 51071U, at *5 (N.Y. Co. Sup. Ct. 2008) (noting that “[[t]he attorney-client privilege

may extend to the agent of a client where ‘the communications are intended to facilitate the

provision of legal services to the client.’”).

        The DAs submit that the proceedings before the Board are not only “substantially

related” to the prior representation by Proskauer, they are the same matters.         The present

proceeding is a continuation of the matter initiated by the DIA before PERB. It also concerns the

same matter which was the subject of the declaratory judgment action brought (and later

withdrawn) by Proskauer in State Supreme Court – the object there was to prevent PERB from

proceeding and to obtain a ruling that the Board had sole jurisdiction to determine the instant

matter. Proskauer represented the DAs, as well as the City, throughout those proceedings.

        Finally, the DAs reiterate that in the present proceeding, the interests of the DAs and the

City are materially adverse. The dispositive issue before the Board is whether the City and the

DAs are joint employers of the employees represented by the DIA, as alleged by the Union. The

City denies that it is an employer or joint employer. The DAs allege that they and the City are

joint employers. (DAs’ Answer, ¶ 2). The DAs and the City also disagree on numerous related

facts and the conclusions to be drawn from those facts. The DAs assert that Proskauer has been

the recipient of confidential information concerning these facts, including, for example,

information and documents relating to “211 waivers” which the City now relies on as a basis for

its claim that the DAs are a separate employer.
4 OCB2d 59 (BCB 2011)                                                                           13

       For all these reasons, and consistent with the applicable law, the DAs ask that the Board

disqualify Proskauer from representing the City in this matter.



City’s Postion

       The City observes that the courts in New York have recognized that disqualification of

counsel is an extraordinary remedy that must not be lightly granted. Here, the DAs’ motion must

be carefully scrutinized because of the nature of the relief that they seek – to deprive the Mayor

of the City of New York of the counsel that has represented the City for decades. The City

submits that the DAs fall far short of meeting their burden and that their motion to disqualify

should be denied.

       The City contends that the exhibits submitted by the DAs provide objective proof that the

DAs never provided Proskauer with any information that could possibly be considered

“confidential” within the meaning of the Rules of Professional Conduct, because they show that

OLR was a party to every communication between Proskauer and the DAs. Disqualification of

Proskauer would serve absolutely no purpose because every shred of allegedly “confidential

information” is already in the possession of OLR, which could simply share it with any new

attorneys.

       The City also alleges that the DAs have destroyed any claim of privilege, even assuming

that an attorney-client relationship had existed, by voluntarily disclosing to third parties,

including the Union, their allegedly confidential communications with Proskauer. It is well

established that the attorney-client privilege is waived if the holder of the privilege voluntarily
4 OCB2d 59 (BCB 2011)                                                                             14

discloses any significant part of the communication to a third-party or stranger to the attorney-

client relationship. Denney v. Jenkins & Gilchrist, 362 F. Supp. 2d 407, 412 (SDNY 2004).

       The City further asserts that there is no overlap whatsoever between the evidence

submitted by the DAs on the joint employer issue and the evidence the DAs submitted to show

that there is a risk that “confidential information” relevant to the joint employer issue might be

used to their disadvantage.     In short, there has been no showing that any of the former

communications are “substantially related” to the issue pending before the Board – the issue of

whether the City and the DAs were joint employers.

       The courts have explained that the purpose behind the substantively-identical predecessor

to Rule 1.9, relied on by the DAs, is to protect a client’s secrets and confidences; thus the Rule:

               frees clients from apprehension that information imparted in
               confidence might later be used to their detriment . . . .

Tekni-Plex, Inc. v. Meyer & Landis, 89 N.Y.2d 123, 131 (1996). In this regard, Rule 1.9

protects against using or revealing confidential information protected by Rule 1.6. The latter

Rule defines “confidential information” as follows:

               “Confidential information” consists of information gained during
               or relating to the representation of a client, whatever its source,
               that is (a) protected by the attorney-client privilege, (b) likely to be
               embarrassing or detrimental to the client if disclosed, or (c)
               information that the client has requested be kept confidential.
               “Confidential information” does not ordinarily include (i) a
               lawyer's legal knowledge or legal research or (ii) information that
               is generally known in the local community or in the trade, field or
               profession to which the information relates.

In the present matter there is no risk of Proskauer using the DAs’ confidences for the City’s

advantage because there are no such confidences. Therefore, regardless of whether an attorney-

client relationship existed between Proskauer and the DAs, the motion must be denied.
4 OCB2d 59 (BCB 2011)                                                                           15

       The City argues that here, if the City and the DAs were indeed jointly represented by

Proskauer, as claimed by the DAs (Mot. at 4), that fact would be fatal to the motion for

disqualification because, in such circumstances, the DAs had no expectation of confidentiality in

their communications with Proskauer. The New York courts have held that, where the same

lawyer jointly represents two clients with respect to the same matter, the clients have no

expectation that their confidences concerning the joint matter will remain secret from each other,

and those confidential communications are not within the privilege in subsequent adverse

proceedings between the co-clients. Tekni-Plex, Inc. v. Meyer & Landis, 89 N.Y.2d at 137. For

this reason, the courts routinely deny motions for disqualification where the now-adverse parties

were formerly jointly represented, precluding any claim of confidentiality. See Volo Logistics

LLC v. Varig Logistica S.A., 51 A.D.3d 554, 555 (1st Dept. 2008).

       The City submits that the DAs have failed to establish that they had an attorney-client

relationship with Proskauer. To establish an attorney-client relationship there must be an explicit

undertaking to perform a specific task. Terio v. Spodek, 63 A.D. 3d 719, 721 (2d Dept. 2009).

Here, Proskauer’s task always was to provide legal advice and counsel to OLR, and to assist

OLR in performing OLR’s role as bargaining representative of the DAs.                  Proskauer’s

interactions with the DAs – which always included OLR – were in furtherance of that role. In

other words, Proskauer sought assistance from the DAs in preparation of its work product on

behalf of OLR. While input from the DAs was at times solicited, Proskauer took its direction

only from OLR. The documentary evidence shows that Proskauer’s submissions before the

impasse panel, PERB, and the State Supreme Court always indicated that they were being

submitted in the name of or on behalf of the City of New York.
4 OCB2d 59 (BCB 2011)                                                                            16

       Finally, the City contends that none of the prior matters relating to the DIA are

“substantially related” to the proceeding before the Board. To be “substantially related” within

the meaning of Rule 1.9, the issues in the present litigation must be “identical to” or “essentially

the same” as those in the prior case before disqualification will be warranted. Lightning Park,

Inc. v. Wise Lerman & Katz, P.C., 197 A.D.2d 52, 55 (1st Dept. 1994). In the present case, the

common issue raised by the DIA and the DAs is whether the City and the DAs are joint

employers of the Detective Investigator titles under the NYCCBL and the Taylor Law. The DAs

have also raised the collateral issue of whether the City is obligated to continue to serve as the

bargaining representative of the DAs. These two issues are different from those raised in the

other prior proceedings to which the DAs refer. In the 2006-2007 impasse proceeding, the issue

was the terms of a settlement for the covered employees in accordance with the criteria set forth

in NYCCBL § 12-311(c)(3)(b). In case of the 2010 improper practice and declaratory ruling

proceedings commenced by the DIA before PERB, the only issue addressed by the City – and

Proskauer – was the argument over which agency, PERB or OCB, had jurisdiction of the matters.

The City’s State court action also concerned only the issue of which agency had jurisdiction.

None of the foregoing proceedings concerned the “joint employer” question raised before this

Board. Accordingly, none of these proceedings is “substantially related” to the present one,

within the meaning of Rule 1.9.

       For all of the above reasons, the City asks that the DAs’ motion to disqualify Proskauer

be denied.
4 OCB2d 59 (BCB 2011)                                                                             17

                                          DISCUSSION

       This Board has held previously that it has the authority to disqualify counsel from

appearing before it when such practice would violate the Rules of Professional Conduct or their

predecessors, the Disciplinary Rules of the Code of Professional Responsibility. James-Reid, 79

OCB 9 (BCB 2007). The parties herein have not disputed that authority.

       The DAs seek Proskauer’s disqualification pursuant to Rule 1.9 of the Rules of

Professional Conduct. 6 The cases decided under this Rule and its predecessor hold that a party

seeking disqualification of its adversary's lawyer must prove: (1) the existence of a prior

attorney-client relationship between the moving party and opposing counsel, (2) that the matters

involved in both representations are substantially related, and (3) that the interests of the present

client and former client are materially adverse. Tekni-Plex, Inc. v. Meyer & Landis, 89 N.Y.2d

123, 131 (1996); Solow v. Grace & Co., 83 N.Y.2d 303, 308 (1994); M.A.C. Duff, Inc. v. ASMAC

LLC, 61 A.D.3d 828, 830 (2d Dept. 2009). The purpose of this Rule is to protect a client's

secrets and confidences by preventing even the possibility that they will subsequently be used

against the client in related litigation. Tekni-Plex, Inc., 89 N.Y.2d at 131. However, motions to

disqualify counsel are subject to a high burden of proof given that “disqualification interferes

with a party's right to retain counsel of his choice, and, in the current reality of litigation,

disqualification motions are often utilized as a tactical tool . . . .” Connolly v. Napoli, Kaiser &

Bern, LLP, 12 Misc.3d 530, 539 (Sup. Ct., N.Y. Co. 2006); First Hudson Financial Group, Inc.



6
 The Rules of Professional Conduct became effective on January 1, 2009. Since Disciplinary
Rule 5-108 of the predecessor Code of Professional Responsibility is substantively identical to
Rule 1.9, the case law interpreting and applying DR 5-108 is instructive in the present matter.
4 OCB2d 59 (BCB 2011)                                                                          18

v. Martinos, 11 Misc.3d 394, 397 (Sup. Ct., N.Y. Co. 2005); see Hickman v. Burlington Bio-

Medical Corp., 371 F. Supp.2d 225 (EDNY 2005).

       Here, it is doubtful whether the DAs have carried their burden as to the first element, the

existence of an attorney-client relationship with Proskauer.     To establish an attorney-client

relationship there must be an explicit undertaking to perform a specific task. Terio v. Spodek, 63

A.D. 3d 719, 721 (2d Dept. 2009). “While a plaintiff’s unilateral belief does not confer upon

him or her the status of a client, an attorney-client relationship may exist in the absence of a

formal retainer agreement.” Id. The existence of an attorney-client relationship can be

determined by evaluating the actions of the parties. See Pelligrino v. Oppenheimer & Co. 49

A.D.3d 94, 99 (1st Dep’t 2008).

       The exhibits submitted by the DAs in support of their motion show that in most (but not

all) instances, the communication between the DAs and Proskauer was through the intermediary

of OLR, with Proskauer either merely “cc”ed on messages exchanged between an Assistant

Commissioner or other representative of OLR and the DAs (Mot. Ex. A, B, C, D) or with copies

of Proskauer’s drafts being forwarded by the Assistant Commissioner to the DAs, who

responded directly to OLR without “cc”ing Proskauer (Mot. Ex. E, F, G). Only regarding one

Proskauer-produced document, the July 2007 post-hearing impasse brief which was distributed

by OLR, did one DA (Brooklyn) address comments to OLR and Proskauer (Mot. Ex. H), while

another DA (Queens) “cc”ed Proskauer on the comments it sent to OLR (Mot. Ex. I). As to the

few communications directly between Proskauer and the DAs, concerning a draft letter to PERB

(Mot. Ex. K) and a draft of declaratory judgment papers to be filed in court (Mot. Ex. L), the

communications, and the documents filed thereafter, clearly stated that they were written and
4 OCB2d 59 (BCB 2011)                                                                           19

submitted “on behalf of the City.” On this record, we cannot say that the actions of the parties

established that Proskauer, the City’s counsel, also had an attorney-client relationship with the

DAs. The evidence suggests, rather, that Proskauer, at times, solicited input from the DAs in

preparation of the work product it generated for and on behalf of OLR. Nevertheless, we need

not definitively resolve the question of an attorney-client relationship in order to decide the

instant motion.

       That is because, even assuming arguendo that Proskauer represented both the City and

the DAs, the effect of such “joint representation” would be to eliminate any expectation of

confidentiality that the DAs might have had in their communications with Proskauer. 7       As the

City correctly argues, the courts have held:

               [W]here the same lawyer jointly represents two clients with respect
               to the same matter, the clients have no expectation that their
               confidences concerning the joint matter will remain secret from
               each other, and those confidential communications are not within
               the privilege in subsequent adverse proceedings between the co-
               clients.

Tekni-Plex, Inc. v. Meyer & Landis, 89 N.Y.2d at 137.              For this reason, motions for

disqualification where the now-adverse parties were formerly jointly represented, thereby

precluding any claim of confidentiality, are denied by the courts. See, e.g., Volo Logistics LLC v.

Varig Logistica S.A., 51 A.D.3d 554, 555 (1st Dept. 2008); Meyers v. Lipman, 284 A.D.2d 284

(1st Dept. 2001). On this basis, we find that the DAs could not have had an expectation of

confidentiality in any communications with Proskauer.



7
  The DAs expressly allege that “the DAs and the City were jointly represented by Proskauer . .
.” (Mot. at 4).
4 OCB2d 59 (BCB 2011)                                                                          20

       Moreover, our finding in this regard is reinforced by the DA’s own exhibits which show

that OLR was a party to every identified communication between Proskauer and the DAs (with

one exception not relevant to our conclusion). 8 Thus, even if Proskauer were disqualified, all of

the allegedly “confidential information” identified by the DAs is already in the possession of

OLR, which could share it with any new attorneys. For this additional reason, disqualification

would serve no useful purpose.

       We do not find relevant the cases relied upon by the DAs concerning their argument that

a “secondary client” or “joint representation” concept is sometimes found applicable between

corporations and their subsidiaries, or between a State and its subordinate state agencies, to

provide a basis for the disqualification of counsel. The cited cases were decided on fact-specific

grounds and the facts were unlike those present in this case. In UCAR Int’l, Inc. v. Union

Carbide Corp., 2002 WL 31519616 (SDNY 2002), the court found that there was not “full” joint

representation and there was an expectation that certain information would not be shared

between the clients. In contrast, here, the evidence shows that if Proskauer represented the DAs

at all, it was jointly with its long-standing client, the City; and since OLR was a party to all

communications, there had to be an expectation that information would be shared. Similarly, in

Brown & Williamson Tobacco Corp. v. Pataki, 152 F. Supp. 2d 276, 288 (SDNY 2001), the

court found that the client was the state agency and not the State as a whole. Here, there can be




8
  The one communication sent by the DAs to Proskauer and not addressed or “cc”ed to OLR was
the DAs’ responses to the draft court papers prepared by Proskauer for the City in November,
2010, on the issue of PERB’s jurisdiction. These responses (Mot. Ex. M) added only a reference
to a letter the DAs had filed at PERB. We do not find these responses to have contained any
confidential information.
4 OCB2d 59 (BCB 2011)                                                                           21

no question that the City was Proskauer’s client, even if Proskauer were found also to have

represented the DAs.

       Finally, again assuming arguendo that Proskauer previously represented the DAs, we

find that the matters involved in the earlier and the present representations are not substantially

related. To be “substantially related” within the meaning of Rule 1.9, the issues in the present

litigation must be “identical to” or “essentially the same” as those in the prior case in order for

disqualification to be warranted. Lightning Park, Inc. v. Wise Lerman & Katz, P.C., 197 A.D.2d

52, 55 (1st Dept. 1994). The DAs’ allegations of representation by Proskauer in “bargaining”

generally, vehemently disputed in the affidavits submitted by the City, are simply conclusory and

unsupported by any specific allegations of fact. The documentary evidence and uncontested

allegations of fact show that Proskauer’s contact with the DAs concerned only three matters: (1)

preparation for and the conduct of impasse panel proceedings with the DIA in November 2006

through July 2007; (2) proceedings before PERB related to the improper practice and declaratory

ruling petitions filed by the DIA in October 2010; and (3) a declaratory judgment action filed in

State Supreme Court in November 2010. The subject of the first was the preparation and

presentation to an arbitrator of arguments and evidence on the question of changes in the terms

and conditions of the DIA’s members’ employment, pursuant to the statutory impasse procedures

(NYCCBL § 12-311(c)(3)(b)).       The subject raised by Proskauer on behalf of the City in its

submission to PERB in the second matter was the issue of which agency, PERB or OCB,

properly had jurisdiction of the matters filed by the DIA. The subject raised by Proskauer on

behalf of the City in the third matter, the State court action, also concerned only the issue of

which agency, PERB or OCB, had jurisdiction.
4 OCB2d 59 (BCB 2011)                                                                            22

         None of these subjects is “substantially related” to or “essentially the same” as the issue

before this Board in the present case – the issue of whether the DAs and the City are “joint

employers” of the DIA’s members within the meaning of the applicable law. While the DAs are

correct that the joint employer issue was raised by the DIA at PERB, it is clear that any

representation by Proskauer at PERB did not concern the merits of the DIA’s claim, but rather

only the question of PERB’s jurisdiction. Therefore, we find that none of the instances of the

DAs’ alleged representation by Proskauer were “substantially related” to the issue before this

Board.

         Though not asserted by either party, to the extent the January 2011 action by the Mayor’s

Criminal Justice Coordinator authorizing the DAs to obtain separate counsel to represent them in

the proceeding before this Board might be perceived to be the recognition, by the City, of the

existence of a conflict of interest, we note that any divergence between the parties’ interests

arose only when the DAs and the City took apparently inconsistent positions on the joint

employer issue raised at OCB by the DIA and was not connected to any former representation by

Proskauer. As stated above, Proskauer never addressed the merits of the joint employer issue in

its submissions at PERB and in State Supreme Court, and first submitted a position on the merits

of this issue in the City’s answer to the DIA’s petition before OCB, submitted on February 18,

2011, after the DAs had retained Jackson Lewis. 9 We reiterate that, even assuming there was

prior joint representation by Proskauer, the purported subjects of such representation were not



9
  Although the date Jackson Lewis commenced representation of the DAs does not appear in the
record, the record shows that at least as early as February 16, 2011, that firm informed the DIA
that it had been retained to represent the DAs in this matter. (Letter dated February 17, 2011,
from DIA counsel to OCB.)
4 OCB2d 59 (BCB 2011)                                                                           23

“substantially related” to or “essentially the same” as the limited joint employer issue before the

Board in this case. As we find no basis for any claim that Proskauer represented the DAs

concerning this issue, there is no conflict warranting disqualification.

       For all of the reasons stated above, we deny the DAs’ motion to disqualify Proskauer as

the City’s counsel in this proceeding. We will direct that a hearing on the underlying joint

employer issue be commenced expeditiously.
4 OCB2d 59 (BCB 2011)                                                                          24

                                             ORDER

          Pursuant to the powers vested in the Board of Collective Bargaining by the New York

City Collective Bargaining Law, it is hereby

          ORDERED, that the motion to disqualify the City’s counsel in this matter, Proskauer

Rose LLP, filed by the District Attorneys of the five Counties comprising New York City

together with the Office of the Special Narcotics Prosecutor, be, and hereby is, denied; and it is

further

          DIRECTED, that a hearing on the underlying joint employer issue raised in the petition

of the New York City Detective Investigators Association be commenced expeditiously.

Dated: November 16, 2011
       New York, New York

                                                            MARLENE A. GOLD
                                                              CHAIR

                                                            CAROL A. WITTENBERG
                                                              MEMBER

                                                            PAMELA S. SILVER BLATT
                                                              MEMBER

                               I dissent.                   PETER PEPPER

				
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