John Gaal's Ethics Corner

A: It may depend on the specific court hearing your case. Several New York State courts have seemingly taken the position that some type of “standing” based on direct involvement in the conflict is required, although not always in so many words. For example, in both Singh v. Friedson, 2003 N.Y. App. Div. LEXIS 12057 (2d Dept. 2003) and D'Alessandro v. Eastman Kodak Company, 2003 N.Y. App. Div. LEXIS 10029 (4th Dept. 2003), counsel for one party moved to disqualify opposing counsel based on alleged conflicts involving relationships between those opposing counsel, and their current or former clients. As in your situation, in neither case was the moving party directly involved in the alleged conflicts. Both the Second and Fourth Departments took a very narrow view in denying the moving party's motion, and in each case concluded that because the parties seeking disqualification were not themselves current or former clients of the lawyers sought to be disqualified, the motions were properly denied. Some federal courts have taken a similar stance, requiring a moving party to have some direct interest in the alleged conflict in order to establish standing to bring a disqualification motion. See O'Connor v. Jones, 946 F. 2d 1395 (8th Cir. 1991); In re Yarn Processing Patent Validity Litigation, 530 F. 2d 83 (5th Cir. 1976), but see Brown & Williamson Tobacco Corp. v. Daniel Int'l Corp., 563 F. 2d 671 (5th Cir. 1977).

It appears, however, that most courts, including most of the District Courts within New York, do not impose a strict “standing” requirement. For example, in SMI Industries Canada Ltd. V. Caelter Industries, Inc., 586 F. Supp. 808 (N.D.N.Y. 1984), the Northern District noted: