Opinion
03 Civ. 2167 (LTS) (HBP).
June 29, 2004
OPINION AND ORDER
I. Introduction
Plaintiff moves for an Order (a) granting an evidentiary hearing; (b) disqualifying the law firm of Quinn, Emanuel Urquhart Oliver Hedges, LLP ("Quinn Emanuel") from representing defendant Jason Filardi; (c) awarding attorney's fees and costs and (d) granting any other relief that this Court deems just and proper. Plaintiff's motion is denied in all respects.
II. Facts
Jason Filardi claims to be the author of the screenplay for the film Bringing Down the House (First Amended Complaint, dated July 17, 2003 ("Am. Compl."), ¶ 21). The screenplay was purchased, and the resulting film produced and distributed by the Walt Disney Company ("Disney") (Am. Compl., ¶ 28). Plaintiff alleges that Filardi's screenplay for Bringing Down the House infringes her copyrighted screenplay entitled Amoral Dilemna (Am. Compl. ¶¶ 5 6). Plaintiff has filed suit against Filardi and Disney, among others, for copyright infringement.
The law firm of Quinn Emanuel jointly represents Filardi and Disney. Plaintiff moves to disqualify Quinn Emanuel from representing Filardi on the ground that Quinn Emanuel's joint representation constitutes a conflict of interest. Specifically, plaintiff argues that: (1) the affirmative defense of "Lack of Causation" asserted by both Filardi and Disney indicates that Filardi and Disney are "pointing the finger of liability" at each other; (2) Filardi's potential obligation to indemnify Disney creates a conflict of interest and (3) Quinn Emanuel's joint representation creates an appearance of impropriety (Plaintiff's Memorandum of Law, dated September 30, 2003 ("Pl. Memo."), at 5-11).
Filardi and Disney have submitted the declaration of Paul Conciatori, an attorney at Quinn Emanuel, in which he states that "no cross-claims have been asserted between Filardi and Disney" and "there is [no] reason to believe at this time that an actual conflict or dispute among Quinn clients will arise" (Declaration of Paul Conciatori, dated Oct. 15, 2003 ("Conciatori Decl."), ¶ 6). Conciatori has also averred that Filardi and Disney consented to joint representation after each was advised of "all relevant information regarding a joint representation and specifically the issue of potential conflict of interest was considered" (Conciatori Decl., ¶ 6).
III. Analysis
A. Standard
The standard for disqualifying counsel from representing multiple clients with potentially conflicting interests was succinctly stated by the Honorable Constance Baker Motley, United States District Judge in Agee v. Paramount Communications, Inc., 853 F. Supp. 778, 782-783 (S.D.N.Y. 1994), rev'd in part on other grounds, 59 F.3d 317 (2d Cir. 1995):
Generally, courts have expressed reluctance in granting disqualification motions because of their concerns regarding: (1) the "immediate adverse effect disqualification has on the client separated from his lawyer;" (2) "the desire to preserve, to the greatest extent possible, . . . the individual's right to be represented by counsel of his or her choice;" and (3) "the awareness that disqualification motions are being made, with increasing frequency, with purely strategic purposes in mind." Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 921 (N.D.N.Y. 1987) (citing Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir. 1975)).
Giving full consideration to these competing interests, motions to disqualify counsel should be subjected to heightened scrutiny. Accordingly, the moving party bears a "heavy burden of proving [the] facts required for disqualification." Evans v. Artek Systems Corp., 715 F.2d 788, 794 (2d Cir. 1983); Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978).
The American Bar Association Model Code of Professional Responsibility ("Model Code") contains many disciplinary rules ("DRs") that clarify the attorney-client relationship. . . . [T]he relevant rule governing conflicts of interest is DR 5-105, Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. Under DR 5-105, an attorney must generally disqualify himself and cease from representing multiple clients in cases where (1) the exercise of the attorney's independent professional judgment will be or is likely to be adversely affected by representing another client; or (2) the attorney is representing parties who have differing interests. Merely representing multiple clients who have similar interests in seeking joint representation does not automatically impair effective assistance of counsel or constitute a violation of DR 5-105. United States v. Curcio, 680 F.2d 881, 884-86 (2d Cir. 1982).
(Footnote omitted.) See also D.R.T., Inc. v. Universal City Studios, Inc., 02 Civ. 0958 (BSJ) (JCF), 2003 WL 1948798 at *2-*3 (S.D.N.Y. Apr. 24, 2003) ("[M]otions to disqualify counsel are generally disfavored. Courts are reluctant to grant such motions because they are often tactically motivated, cause undue delay, add expense, and have an immediate adverse effect on the client by separating him from counsel of his choice." (internal quotation marks and citations omitted)); A.I. Credit Corp. v. Providence Washington Ins. Co., Inc., 96 Civ. 7955 (AGS) (AJP), 1997 WL 231127 at *1-*2 (S.D.N.Y. May 7, 1997) ("Motions to disqualify opposing counsel are viewed with disfavor [principally because] disqualification of counsel impinges on a party's right to employ counsel of choice. Moreover, the courts recognize that motions to disqualify are often interposed for tactical reasons. Courts require the party seeking disqualification of opposing counsel to meet a high standard of proof before disqualification may be granted." (internal quotation marks and citations omitted)).
B. Conflict of Interest
Plaintiff first argues that Filardi and Disney are "pointing the finger of liability" at each other and that "[t]his is such an obvious conflict of interest that Quinn Emanuel's acceptance of [joint representation] was clearly undertaken in bad faith" (Pl. Memo. at 6).
In support of this argument, plaintiff cites the affirmative defense of "Lack of Causation" asserted in both parties' Answers, which states:
[A]ny alleged injur[ies] or damages suffered by Plaintiff were caused in whole or in part by the acts or omissions of others for whose conduct [defendant is] not responsible, were the result of pre-existing or intervening or superseding events, factors, occurrences, or conditions, which were not caused by the [defendant] and for which [defendant is] not liable, and were not proximately caused by any acts or omissions by [defendant].
(Filardi's Answer, dated Aug. 25, 2003 ("Filardi Ans."), ¶ 281; Disney's Answer, dated Aug. 25, 2003 ("Disney Ans."), ¶ 280).
The "Lack of Causation" defenses do not establish a conflict of interest. They refer vaguely to the conduct of unidentified "others" and do not specifically "point the finger" at any other co-defendant. Indeed, as defense counsel has stated, Filardi and Disney have not filed any cross-claims and no cross-claims are anticipated to be made in the future (Conciatori Decl., ¶ 6). Thus, the "Lack of Causation" defenses do not establish a conflict of interest.
Plaintiff next cites Filardi's potential obligation to indemnify Disney as evidence of a conflict of interest (Pl. Memo. at 7). Specifically, plaintiff argues that "[a]ny statement [Filardi] makes will be detrimental to [Disney]. Therefore, Quinn Emanuel would have to cross examine its own client, [Filardi], in order to defend and prosecute claims and contractual liabilities that [Filardi] owes to [Disney]" (Pl. Memo. at 8).
This argument also fails because defendants do not concede that Filardi infringed plaintiff's copyright. Rather, Filardi and Disney both deny that Bringing Down the House infringes on plaintiff's copyright and claim the work is Filardi's independent creation (Filardi Ans., ¶¶ 21, 111-124; Disney Ans., ¶¶ 21, 111-124). This uniform theory of defense simply does not create any conflict between the co-defendants. See D.R.T., Inc. v. Universal City Studios, Inc., supra, 2003 WL 1948798 at *1 ("Because the defendants have chosen to pursue a unified defense against the plaintiffs' charges . . . permitting them to go forward with joint representation does not sufficiently increase the risk of trial taint."). Plaintiff's argument is further weakened by the fact no cross-claims have been made, and none are anticipated to be made in the future. Thus, Filardi's potential obligation to indemnify Disney does not require disqualification of Quinn Emanuel.
Finally, plaintiff argues that Quinn Emanuel's joint representation of clients with conflicting interests creates an impermissible appearance of impropriety. Specifically, plaintiff argues that "a lawyer should avoid even the appearance of Professional Impropriety," citing 22 N.Y.C.R.R. 1200.45.
Quinn Emanuel's joint representation does not create an appearance of impropriety. It is not uncommon for an indemnitor and an indemnitee to be represented by joint counsel. In any event, however, in the absence of an actual conflict, the mere appearance of impropriety is insufficient to constitute grounds for disqualification of counsel. See D.R.T., Inc. v. Universal City Studios, Inc., supra, 2003 WL 1948798 at *4 (rejecting plaintiff's motion to disqualify on the grounds that representation would create an appearance of impropriety "because the standard for attorney disqualification is whether the ethical violation might taint the trial."), citing Board of Ed. v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979) ("when there is no claim that the trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a disqualification order except in the rarest cases") and Softel, Inc., Dragon Med. Sci. Communications, Ltd., 87 Civ. 0167 (MGC), 1995 WL 75490 at *2 (S.D.N.Y. Feb. 23, 1995) ("`an appearance of impropriety' is usually insufficient to disqualify an attorney") (citation omitted); see also Feinberg v. Katz, 01 Civ. 2739 (CSH), 2003 WL 260571 at *7 (S.D.N.Y. Feb. 5, 2003) (same);Frontline Communications Intern. v. Sprint Communications Co., 232 F. Supp.2d 281, 288 (S.D.N.Y. 2002) ("the Second Circuit has emphasized that a court should not disqualify a lawyer based on impropriety alone"); Merriweather v. Sherwood, 77 Civ. 3421 (AGS), 2002 WL 1066755 at *4 (S.D.N.Y. May 28, 2002) ("While defendants are correct in pointing out that the appearance of impropriety is to be avoided, this, without more, is an insufficient basis for denying substitution."). There is no evidence here of any conflict which might taint the trial. Thus, even assuming that an appearance of impropriety exists, this argument still fails.
Joint representation similar to the one at issue here has been routinely upheld by other courts in this district. For example, in D.R.T., Inc. v. Universal City Studios, Inc., supra, 2003 WL 1948798 at *1, plaintiff argued that defense counsel's joint representation of two defendants created "a number of conflicts of interest that pose[d] a significant risk of trial taint." Defendant Universal was obliged to indemnify Defendant Moritz unless the claims arose out of "bad faith, willful misconduct, or breach of any warranty, representation or agreement of [Mr. Moritz] hereunder. . . ." 2003 WL 1948798 at *1. Plaintiff alleged that disqualification was required because defense counsel would be compelled to advocate opposing views with respect to whether the indemnification clause was preserved. 2003 WL 1948798 at *3. The Honorable James C. Francis, IV, United States Magistrate Judge, reviewed the standard for joint representation under Disciplinary Rule 5-105 and the relevant case law, and denied plaintiff's motion, stating:
Because the defendants have chosen to pursue a unified defense against the plaintiffs' charges, and because the defendants have demonstrated their informed consent to joint representation, permitting them to go forward with joint representation does not sufficiently increase the risk of trial taint. See Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 925 n. 6 (N.D.N.Y. 1987) (observing that where the parties have "freely and intelligently" given consent to the representation, the court "should refrain from paternalistically infringing on a party's right to a lawyer of his choice absent compelling factors indicating that the attorney's loyalty to his client has been incontrovertibly compromised"). Moreover, the possibility that future conflicts of interest may arise does not require a different result. See, e. g., Tartaglia v. City of New York, No. 98 Civ. 5584, 1999 WL 151104, at * 2 (S.D.N.Y. March 19, 1999) (allowing joint representation because "[a]s the litigation now stands, [the defendants] share an interest in challenging plaintiff's allegations"); Softel, Inc. v. Dragon Medical and Scientific Communications Ltd., No. 87 Civ. 0167, 1995 WL 75490, at *4 (S.D.N.Y. Feb. 23, 1995).
2003 WL 1948798 at *4.
Similarly, in Credit Corp. v. Providence Washington Ins. Co., Inc., supra, 1997 WL 231127, plaintiff moved to disqualify defense counsel from jointly representing the co-defendants in a copyright infringement action, in which one co-defendant was required to indemnify the other. The Honorable Andrew J. Peck, United States Magistrate Judge, also denied the motion stating:
[P]laintiff has not demonstrated that a conflict between [the two defendants] exists. Moreover, both [defendants] have consented to joint representation. As [defendant's] counsel informed the Court, the "joint defense agreement [between defendants] was entered into after both parties had the benefit of their own independent legal counsel and following full disclosure, and with due consideration having been given to the concept of a joint defense." . . . While client consent may not be enough where a conflict is apparent, here, where plaintiff has not shown that there is or even may be a conflict, the consent of the defendants to joint representation is significant. See, e. g., Fischer v. Deitsch, 198 A.D.2d 327, 328, 605 N.Y.S.2d 703, 704 (2d Dep't 1993) ("Moreover, [counsel] has represented to this court that all of the parties which he represents . . . have been made aware of his representation of multiple parties and have consented to it. Under such circumstances, disqualification is not necessary."), appeal dismissed, 83 N.Y.2d 1001, 616 N.Y.S.2d 481, 640 N.E.2d 149 (1994); see also, e. g., Conigliaro v. Horace Mann School, 95 Civ. 3555, 1997 WL 189058 at *6 (S.D.N.Y. April 17, 1997) ("Nevertheless, so long as Hess remains a defendant in this litigation, his representation of the other defendants raises the potential for a conflict of interest. . . . I need not . . . preclude the parties from employing the attorney of their choice. Rather, I must determine if the other defendants give their informed consent to the present arrangement."); Bonner v. Guccione, 94 Civ. 7735, 1997 WL 91070 at *2 (S.D.N.Y. March 3, 1997) ("Sometimes a conflict is so severe that a court will refuse to accept a waiver. The conflict in our case is not so severe.") (citations omitted); Smith v. City of New York, 611 F. Supp. 1080, 1091 (S.D.N.Y. 1985) ("No case cited by the plaintiff or uncovered by my own research condemns multiple representation in circumstances resembling those at bar. On the contrary: there is substantial authority for the proposition that . . . potential conflicts of interest are adequately dealt with by the clients' informed consent, thereby precluding disqualification. . . .").
Plaintiff in A.I. Credit Corp. also argued that an Order should be entered to ensure that defendants take "identical positions throughout the action." 1997 WL 231127 at *4. The Court rejected that argument as well, stating "if defendants change their position — and particularly if an actual conflict arises — the disqualification issue can be revisited." Id.
In Agee v. Paramount Communications, Inc., supra, 853 F. Supp. 778, plaintiff sued Paramount, who produced a television program entitled "Hard Copy," and 108 television stations who broadcast the program, for copyright infringement in connection with that program. 853 F. Supp. at 781-83. Under a licensing agreement between Paramount and the 108 television stations, Paramount was obliged to indemnify the television stations. Plaintiff moved to disqualify defense counsel, who jointly represented all of the defendants, on the grounds that the television stations "`will be denied proper representation with regard to interposing cross-claims [sic] against [Paramount] . . . as well as asserting defenses critical of the role [Paramount] had in the infringements, since one firm cannot simultaneously defend both [Paramount's] acts and seek to assert cross claims [sic] against [Paramount] for those acts.'" 853 F. Supp. at 783. Judge Motley denied plaintiff's motion, stating:
[W]hile plaintiff would have us believe that some future conflict might arise as a result of this representation, the court views his contentions as a mere smokescreen to cloud the common interest of the defendants in this case. Clearly, if the defendants were found liable under the Copyright Act, Paramount must indemnify each of the television station owners in addition to paying its own allocated share of the costs. Moreover, regardless of the outcome of the case, Paramount would be required under the license agreement to reimburse the TV defendants for reasonable attorney's fees. There are no adverse interests in this case and there is no confidential information that would unfairly impair defense counsel's representation of any party. Paramount is ultimately liable regardless of whether the TV stations are represented by [joint defense counsel] or their own attorneys and it is precisely because of this mutual interest that defendants have selected one law firm to represent them.
Plaintiff has presented no evidence that an actual conflict of interest exists in this case. Furthermore, the court finds no evidence that [joint defense counsel's] independent professional judgment would be impaired by representing multiple defendants. Accordingly, plaintiff's motion is denied.853 F. Supp. at 784.
In light of the foregoing caselaw, plaintiff's motion to disqualify Quinn Emanuel must be denied because of (1) the absence of an actual conflict between Filardi and Disney, (2) Quinn Emanuel's expectation that no conflict will arise in the future and (3) both parties' informed consent to joint representation.
IV. Conclusion
Accordingly, for all the foregoing reasons, plaintiff's motion for an evidentiary hearing, to disqualify defense counsel and for attorney's fees is denied in all respects.
SO ORDERED.