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Current Developments in the Commercial Divisions of the
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Posted: March 20, 2018

Counsel Disqualified Because of Representation in Prior Related Action

On March 1, 2018, Justice Ash of the Kings County Commercial Division issued a decision in Dollinger v. Landa, 2018 NY Slip Op. 30365(U), disqualifying counsel because of a conflict based on a representation in a prior related action, explaining:

A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish: (l) 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.

In the present matter, this Court finds that the Baachi Defendants have established the existence of a prior attorney-client relationship, that the matters involved in both cases are substantially related, and that the interest of the present client and former client are materially adverse. The documentary evidence shows that Abrams Fensterman represented the Baachi Defendants through several stages of litigation in the Willoughby action and that the Willoughby action is substantially related to this action. Although the two matters are not identical in claims, the above-captioned action arises out of specific facts and occurrences litigated in the Willoughby action, where Abrams Fensterman gained confidential information regarding the proper allocation of the proceeds from The Notes, an issue in which the Baachi Defendants and the Hersh Defendants have materially adverse interests in this litigation. Therefore, the Baachi defendants motion to disqualify Abrams Fensterman is hereby GRANTED.

(Internal quotations and citations omitted) (emphasis added).

We both bring and defend motions relating to attorney conflicts and do appeals of the decisions on those motions. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you face a situation where counsel may be–or is accused of being–conflicted.

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