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The stringent standards for attorney disqualification were re-examined and reaffirmed in a recent Northern District of New York ruling where the judge booted both a lawyer with peripheral involvement in a case and her firm. Although the hurdle is high, Chief Judge Frederick J. Scullin said the “danger of tainting the underlying trial and the unacceptable appearance of impropriety” warrant disqualification. Scullin’s decision in Kathleen Young v. Central Square Central School District, 5:99-CV-174, explores the sensitive issue of when a litigant can be prevented from having the attorney of her choice. He observed that “courts in this Circuit view motions to disqualify with disfavor,” and that the movant must meet a high standard of proof. Yet that burden was sufficiently borne in the case at bar, Scullin said. The matter is an Americans with Disabilities Act (ADA) case involving a teacher, Kathleen Young, who had taught in the Central Square district for more than 20 years when she was afflicted with multiple sclerosis. A pending lawsuit commenced by Young alleges the district neglected to provide reasonable accommodations that would have allowed her to perform the essential functions of her job. In a pretrial motion, the district sought disqualification of Young’s counsel, O’Hara & O’Connell of Syracuse, N.Y. O’Hara & O’Connell employs attorney Jennifer Speller, who represented the district in this case while she worked for another law firm, Ferrara, Fiorenza, Larrison, Barrett & Reitz PC of East Syracuse. Speller also worked briefly for the East Syracuse Law Firm of Frank W. Miller, which is now counsel to the school district. Speller contended that while at the Ferrara firm she did nothing more than general research into an employer’s obligations under the ADA and was privy to only the most basic information about Young’s case. However, a partner in the Ferrara firm submitted an affidavit indicating that Speller had access to highly sensitive materials, including matters of defense strategy. That left two questions for Chief Judge Scullin: whether Speller should be disqualified and, if so, whether O’Hara & O’Connell must also be removed from the case. The 2nd U.S. Circuit Court of Appeals has embraced a standard consistent with the guidelines of the American Bar Association Code of Professional Responsibility. Under that standard, an attorney may be disqualified if: the movant is a former client, there is a “substantial relationship” between the issues in the present lawsuit and the prior matter, and the attorney likely had access to privileged information. In this case, Judge Scullin said even Speller’s minimal involvement in the Young matter raises a reasonable inference that she acquired information relative to the continuing dispute. “Although Speller was not the attorney of record for the district when she worked at the Ferrara firm, she clearly performed some legal work with respect to plaintiff’s current dispute with the district,” Scullin wrote. FIRM DISQUALIFICATION With regard to disqualification of the firm, the 2nd Circuit has held that there is a presumption that client confidences will be shared among attorneys within a partnership. However, while that presumption can be rebutted if screening measures are implemented to prevent dissemination of confidential information, “courts have found that there are doubts that even the most stringent screening devices would be effective” when the law firm involved is a relatively small one. In this case, Scullin said, nothing in the record suggests that O’Hara & O’Connell implemented formal institutional safeguards to insulate Speller from the case. Mindful of the realities of small-firm practice upstate, Scullin reluctantly disqualified O’Hara & O’Connell. “The court wants to emphasize that neither O’Hara & O’Connell nor Speller did anything improper,” Scullin said in a footnote. “Rather, they were faced with a problem that plagues smaller firms on a continuing basis, especially in a relatively small legal community — a problem which inevitably leads, in some instances, to a situation which makes it impossible to avoid the appearance of impropriety and leaves the court with no choice but to disqualify both the individual attorney and her law firm.” Appearing on the motion were Byron J. Babione of the Law Firm of Frank W. Miller and James P. Evans and Dennis G. O’Hara of O’Hara & O’Connell.

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