Twin Sec., Inc. v Advocate & Lichtenstein, LLP

Twin Sec., Inc. v Advocate & Lichtenstein, LLP 2012 NY Slip Op 05706 Decided on July 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 24, 2012
Mazzarelli, J.P., Catterson, DeGrasse, Richter, Manzanet-Daniels, JJ. 7794- 7795-
7796 652389/11

[*1]Twin Securities, Inc., et al., Plaintiffs-Appellants,

v

Advocate & Lichtenstein, LLP, et al., Defendants-Respondents, T & M Protection Resources, LLC, Defendant.




Morrison Cohen LLP, New York (Danielle C. Lesser of
counsel), for appellants.
Hinshaw & Culbertson LLP, New York (Richard Supple of
counsel), for Advocate & Lichtenstein, LLP and Jason A.
Advocate, respondents.
Advocate & Lichtenstein, LLP, New York (Jason A. Advocate
of counsel), for Linda Simon, respondent.

Orders, Supreme Court, New York County (Jeffrey K. Oing, J.), entered November 29, 2011, December 8, 2011, and December 21, 2011, which, to the extent appealed from, denied plaintiffs' (collectively, Twin Capital) motion to disqualify defendants Jason A. Advocate and Advocate & Lichtenstein, LLP from representing defendant Linda Simon in this action, unanimously affirmed, without costs.

Twin Capital, an investment management firm, alleges that defendants improperly tampered with and copied information from a computer allegedly belonging to it. Twin Capital is solely owned by nonparty David Simon, against whom defendant Linda Simon has commenced matrimonial proceedings. The computer at issue was at all relevant times located in the marital home, and defendants-respondents assert that it was freely accessible and used by members of the Simon family; Twin Capital disputes this claim.

Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (id.). Here, in the absence of discovery, it is premature to conclude that Jason Advocate is likely to be called as a witness on a significant factual issue (see Harris v Sculco, 86 AD3d 481 [2011]). Even if Mr. Advocate is likely to be a witness, discovery may reveal that his testimony "relates solely to an uncontested issue," one of the exceptions to the rule (see rule 3.7[a][1]). In light of this determination, we need not address the motion court's finding that disqualification "would work substantial hardship" on Linda Simon (rule 3.7[a][3]). [*2]

Nor is disqualification required under rule 1.7(a)(2) of the Rules of Professional Conduct (22 NYCRR 1200.0), which provides that, except under certain conditions, a lawyer shall not represent a client where there is a significant risk that the lawyer's judgment on behalf of the client will be adversely affected by the lawyer's own interests (see id.). After consultation with independent ethics counsel, Linda Simon executed a conflict waiver (see rule 1.7[b][4]). At this early stage, defendants-respondents appear to be presenting a unified defense. Thus, any potential conflict is speculative at present. Twin Capital's argument that a conflict exists based on Mr. Advocate's alleged rejection of its offer to settle with Linda Simon is not properly before us. These allegations are contained in affidavits dated after the motion court rendered its decisions.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 24, 2012

DEPUTY CLERK