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A lawyer’s attempt to disqualify his former associate from representing one of the firm’s former clients has been rejected by a Southern District of New York magistrate judge. In King v. Fox, 97 Civ. 4134, Magistrate Judge James C. Francis IV said John Howard did not owe a fiduciary duty of confidentiality to his former employer, W. Robert Curtis. Howard was hired as a full-time associate at what was then Curtis & Reiss-Curtis in October 2000. While there, he spent a total of 90 minutes performing clerical tasks on King v. Fox, a legal malpractice action brought by plaintiff Edward C. King against his former attorney, Lawrence Fox. In 2001, Howard asked for a one-week vacation. Curtis refused but offered to hire Howard as an independent contractor. Howard worked for Curtis for a short period on a contract basis, but filed a civil complaint in small claims court in July 2001 seeking payment for the one week’s salary on the vacation time he was refused. The complaint was ultimately dismissed. In June 2002, Howard began working for Daly Bamundo Zwal & Schermerhorn. And in March 2004, he was contacted by King and asked to represent him in a dispute between King and Curtis over fees in the King v. Fox case. Curtis moved to disqualify Howard and the Daly firm from representing King. Curtis argued that his former associate might use confidential information about the law firm in connection with the fee dispute; that Howard’s professional judgment had been impaired by his personal interests; and that it was likely Howard would be called as a necessary witness. Complicating matters was the fact that Howard had allegedly sided with Cheryl Reiss-Curtis in a matrimonial action against Curtis. The couple also had been partners in Curtis & Reiss-Curtis, which is now called Curtis & Associates. Howard countered that he could not be disqualified because he had no prior attorney-client relationship with Curtis. He also argued that he was no longer working at the Curtis firm when the work in dispute was performed; he had only minimal “administrative” involvement in King v. Fox; and that there was no substantial relationship between King’s malpractice action and the fee dispute. Magistrate Judge Francis began by noting that motions to disqualify counsel are generally disfavored in the 2nd Circuit because people have the right to select their own attorneys and courts are concerned that disqualification motions “are often interposed for tactical reasons.” It was important to the magistrate judge that Howard never represented the Curtis firm or Curtis. He also disagreed with Curtis about Howard owing a fiduciary duty of confidentiality. “It is true that law partners stand in a fiduciary relationship to one another,” said Francis. “However, it does not follow that an associate, as an employee, owes a fiduciary duty to his employer.” A conventional business relationship, he said, is different from attorney/client and doctor/patient relationships, which, in the words of Southern District case law, “are sufficiently rooted in trust and confidence to trigger super contractual fiduciary duties.” “In this case, Mr. Curtis has not established that the relationship between his firm and Mr. Howard gave rise to any fiduciary duty on the part of Mr. Howard, nor that it is was comparable to an attorney-client relationship,” he said. “Therefore, Mr. Howard’s prior employment at the Curtis firm is not a basis for disqualifying him.” Francis rejected Curtis’s claim that Howard should be disqualified because he was an ally of Reiss-Curtis in the matrimonial action, or that he should be disqualified “on the grounds of his alleged animosity towards Mr. Curtis.” And the likelihood that Howard might be called as a witness in the fee dispute was minimal, Francis said. “There is no indication that Mr. Howard could provide relevant, let alone critical, testimony,” he said. Curtis and Howard represented themselves in the matter.

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