Opinion
04 Civ. 10074 (CSH).
June 10, 2005
MEMORANDUM AND ORDER
Having considered the most recent correspondence of counsel, the Court discerns no legitimate cause for concern arising out of the matters described by the letter from plaintiffs' counsel dated June 1, 2005 and the response from counsel for the Union defendants dated June 2.
In the underlying action, the Plaintiffs are bellmen and doormen employed by defendant Palace Hotel and members of Union defendant Local 758. Their complaint alleges principally that the Hotel has breached a collective bargaining agreement currently in effect between an industry-wide association of hotels, of which the Palace Hotel is a member, and the Union defendant HTC, of which Local 758 is a member, by unilaterally altering the terms and conditions of plaintiffs' employment; and that the Union defendants have breached their duty to fairly and properly represent plaintiffs with respect to that breach. One of the plaintiffs is Robert Bishop.
The letters of counsel referred to reflect that the Palace Hotel has initiated a disciplinary proceeding against Bishop. The collective bargaining agreement contains grievance and arbitration provisions. HTC is obligated to represent employee-union members such as Bishop against whom the Hotel commences a disciplinary proceeding. HTC has selected Pryor Cashman Sherman Flynn LLP, the law firm that represents the Union defendants in the captioned case, to represent Bishop in that grievance proceeding.
Counsel for HTC say that the Hotel's disciplinary proceeding against Bishop concern "matters having nothing to do with the issues involved in the [captioned] lawsuit." Letter from Vincent F. Pitta, Esq., to the Court, dated June 2, 2005 at 1. Counsel for plaintiff do not contradict that assertion. They do say that during a discussion between Bishop and lawyers from Pryor Cashman "to discuss strategies for defending an on-going disciplinary proceeding" initiated by the Hotel, those lawyers also "solicited information concerning the instant action from plaintiff Bishop." Letter from Steven M. Coren, Esq., to the Court, dated June 1, 2005 at 1. Pryor Cashman responds that "[n]o attorney in this law firm attempted to discuss the issues in the subject lawsuit with Mr. Bishop." Pitta Letter at 1. Counsel for plaintiffs were not present at the discussion in question, can have no personal knowledge of its contents, and submit no statement by Bishop to support their assertion. Pryor Cashman's letter asserts, again without contradiction, that it is actively engaged in trying to work out a settlement between the Hotel and Bishop, with Bishop's consent and encouragement.
Notwithstanding these reassuring circumstances, counsel for plaintiffs charge that counsel for HTC have violated Disciplinary Rules they do not cite and have prejudiced plaintiffs in ways they do not describe. Counsel conclude their letter to the Court with the request: "Kindly advise." It is an odd request. Judges do not give advice. Lawyers do that. Judges resolve contested claims that lawyers advise their clients to assert.
In any event, there is no substance to counsel's professed concerns. HTC is obligated to represent Bishop in the disciplinary proceeding, and in the absence of any showing that the proceeding has anything to do with the issues in the captioned action, HTC is entitled to retain the Pryor Cashman firm to assist Bishop in the disciplinary proceeding.
I will add a word with respect to the pending motions. The Palace Hotel and the Union defendants have moved to dismiss plaintiffs' complaint. Plaintiffs oppose that motion and cross-move to disqualify Pryor Cashman as counsel for the Union defendants. I will decide the motion to disqualify first and hold the motion to dismiss in abeyance until I do so. The proper course to follow, whenever a party moves to disqualify the adversary's counsel, is to hold all substantive issues in abeyance until it is determined whether counsel must be replaced. If plaintiffs' motion to disqualify the Union defendants' counsel is denied, the Court will proceed to decide the motions to dismiss the complaint. If the disqualification motion is granted, the Union defendants will have to retain successor counsel, who will be granted leave to consider the motion to dismiss ab initio and supplement the motion papers if they wish.
To the extent that the letter dated June 1, 2005 from plaintiffs' counsel should be regarded as an application for some additional form of relief, the application is denied.
It is SO ORDERED.