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Few opportunities would convince any sane associate to leave the partnership track at Skadden, Arps, Slate, Meagher & Flom, one of the world’s most powerful law firms. But Uri Litvak claims he took such a gamble to go in-house at Norwalk-based Trilegiant Corp. Only, when he got there, the company, Litvak asserts in a wrongful termination suit, wasn’t interested in honest legal opinions. Had he known that, Litvak contends, he would have never chosen to take a “substantial” pay cut to join the 3,000-employee provider of loyalty-building and direct-marketing programs. Now a Connecticut judge has his own choice to make: what state’s legal ethics rules to apply to the dispute. Litvak is admitted in New York and Florida, two states that starkly differ when it comes to allowing attorneys to breach client confidences to pursue legal claims. Through its lawyers, Trilegiant sought to dismiss the suit on summary judgment. In order to disclose the unlawful conduct the company allegedly sought Litvak to pursue, Litvak would have to break New York State’s Disciplinary Rule 4-101, which bars attorneys from revealing client confidences or privileged material, Trilegiant argued. Litvak, however, daringly maintained he can prove his wrongful discharge and other claims without revealing privileged or confidential information, and “at this early stage the court concludes he is entitled to try,” Stamford Complex Litigation Docket Judge Taggart D. Adams wrote last month in allowing the litigation to proceed. Litvak joined Trilegiant in September 2001 to be its “primary source of legal guidance on regulatory matters,” according to his March 2004 revised complaint. He was fired roughly a year later, he claims, for abiding by Connecticut’s Rules of Professional Conduct. LITTLE LEEWAY? Litvak’s attorney, Jason Solotaroff of New York City’s Giskan & Solotaroff, said Adams’ Aug. 17 decision on Trilegiant’s summary judgment motion shouldn’t be overlooked as merely procedural. “It is definitely a positive development. It’s good judges are finally realizing in-house counsel [need] to be protected,” Solotaroff said. Mary Kelly, of Hartford’s Livingston, Adler, Pulda, Meiklejohn & Kelly, is listed on the complaint as local counsel. Litvak claims he was fired because he provided honest legal opinions about Trilegiant’s undisclosed actual or intended conduct, which he refused to ratify. Whether Trilegiant intentionally pursued unlawful conduct or sought to influence Litvak’s legal opinion and whether the incident actually led to Litvak’s firing are among the unanswered questions of fact, Adams noted. “There is also the mixed question of law and fact as to whether Litvak’s professional responsibilities as to confidential information, a much broader concept than privileged attorney-client communications, are governed by the professional rules governing Florida lawyers or those governing New York [l]awyers,” Adams wrote. Under the New York disciplinary rule, a lawyer may reveal client confidence only if necessary to collect a fee or defend the lawyer against an accusation of wrongful conduct. But “if this court determines that the Florida professional rules are applicable, at least prior to June 26, 2002, this conceivably would allow Litvak more leeway in what evidence could be used to prosecute his claims,” Adams said, “since the Florida rules allow an attorney to divulge some confidential information in order to pursue a claim against a former client.” Litvak was an active member of the Florida bar from 1996 to June 26, 2002. Solotaroff said Florida’s ethics rules are similar to Connecticut’s, and his argument is that the court should apply the disciplinary edicts of the state that most follows those adhered to in this state. Trilegiant’s lead counsel is Elizabeth S. Torkelson, of Epstein Becker & Green’s Stamford office. Torkelson said her clients do not comment on pending litigation. Litvak claims he had a “partnership track position” at Skadden, where he worked for three years. Skadden officials could not confirm that by press time.

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