June 30, 2008
The New York Court of Appeals ordered disqualification of an attorney retained to defend a police disciplinary action. The attorney had provided legal advice to the complainant in an earlier dispute between the two that the court deemed to be substantially related to the present case:
As an initial matter, those elements of the two parties' 2000/2001 interactions that are undisputed establish that some kind of attorney-client relationship existed between Lovett and Falk. The record shows that Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the matter of disciplining Chittenden. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of Officer Chittenden's First Amendment rights. Moreover, while disciplining Chittenden might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment.
The other prongs of DR 5-108(A) are satisfied as well. Seeking advice about a potential disciplinary case against Chittenden for insubordination in 2000/2001 is "substantially related" to actually bringing just such a case in 2003. More specifically, Chittenden's prior conduct might bear on the issue of punishment, and Falk's prior consideration of pursuing charges for insubordination might likewise be relevant. Together, these factors create a sufficient nexus between the two representations. And Falk's and Chittenden's interests are materially adverse in the disciplinary proceeding, which pits these two parties — obvious antagonists — against one another.
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The only way I could make the opinion work is to conclude that because Lt. Falk consulted with Lovett, in part in his official capacity, the City of Rye then became Lovett's client. Thus, because Lovett became adverse to the City in the current case (pretty clearly related), you have a classic former client situation. If that is not the rationale, I do not understand the decision. Which is too bad for me, because that is a very fancy court.
Posted by: Bill Freivogel | Jun 30, 2008 7:05:02 PM