From Casetext: Smarter Legal Research

Abbott v. Oram

Appellate Division of the Supreme Court of New York, First Department
Dec 17, 2002
300 A.D.2d 135 (N.Y. App. Div. 2002)

Opinion

2576N

December 17, 2002.

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky, J.), entered March 21, 2002, which denied and dismissed the petition to stay arbitration upon the ground that respondent's representation by his chosen counsel would be violative of various ethical prohibitions and thus offensive to public policy, unanimously affirmed, without costs.

Thomas E. Engel, for Petitioners-appellants.

Michael S. Press, for Respondent-respondent.

Before: TOM, J.P., BUCKLEY, FRIEDMAN, MARLOW, GONZALEZ, JJ.


Disqualification of respondent's counsel, Maged F. Riad, for conflict of interest, pursuant to DR 5-108(A)(1) (22 NYCRR § 1200.27[a][1]), was properly denied since petitioners failed to adduce evidence sufficient to establish that there had been an attorney-client relationship between Riad and petitioner Whitman Breed Abbott Morgan (WBAM) at the time the partnership agreement at issue in the arbitration was drafted and negotiated (see Tekni-Plex, Inc. v. Meyner Landis, 89 N.Y.2d 123, 132).

Nor was Riad subject to disqualification by reason of his access to and possession of WBAM's confidences and secrets. Although, as a former managing partner of WBAM, Riad owes WBAM a fiduciary obligation and has an ethical obligation to maintain WBAM's confidences and secrets (see Greene v. Greene, 47 N.Y.2d 447, 453), petitioners failed to demonstrate that Riad's representation of respondent would entail a reasonable probability that any such secrets and confidences would be divulged. While Riad eventually became managing partner of WBAM, a position he held no longer than one year, at the time the subject partnership agreement was being negotiated he was merely a prospective partner of the firm and there is no specific allegation that he was, in that capacity, or subsequently, privy to firm secrets and confidences that might be utilized to petitioners' detriment in the present matter.

Finally, since petitioners have failed to demonstrate that Riad's personal knowledge of the matters at issue in the arbitration was so highly and indispensably probative as to render his testimony at the arbitration necessary, Riad's disqualification under the advocate-witness rule (DR 5-102[A] [22 NYCRR § 1200.21(a)]) was not warranted (see S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 446).

We have considered petitioners' remaining arguments and find them unavailing.

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


Summaries of

Abbott v. Oram

Appellate Division of the Supreme Court of New York, First Department
Dec 17, 2002
300 A.D.2d 135 (N.Y. App. Div. 2002)
Case details for

Abbott v. Oram

Case Details

Full title:IN RE APPLICATION OF WHITMAN BREED ABBOTT MORGAN, ET AL.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 17, 2002

Citations

300 A.D.2d 135 (N.Y. App. Div. 2002)
752 N.Y.S.2d 623

Citing Cases

Freedy v. Produce Co.

Although the demurrer must be ruled on the pleadings presented, without any aids or evidence of any kind, it…

Rodriguez v. 1414-1422 Ogden Ave. Realty

The landlord's claimed need for discovery provided no basis to forestall summary judgment because, among…