Opinion
May 22, 2001
Order, Supreme Court, New York County (Herman Cahn, J.), entered November 17, 2000, which, to the extent appealed from, granted the motion of plaintiff and third-party defendants to disqualify defendant third-party plaintiff's attorney, unanimously affirmed, without costs.
Kerry E. Connolly, for Defendant-Appellant/Third-Party Plaintiff-Appellant.
Before: Williams, J.P., Ellerin, Lerner, Saxe, Buckley, JJ.
The record supports the motion court's conclusion that in prior litigation the plaintiff and defendant, represented by her present counsel, had a joint strategy or common interest in which they were both aligned against Neways Inc. This joint strategy or common interest created a type of attorney/client privilege between plaintiff and the attorney (see generally, People v. Osorio, 75 N.Y.2d 80, 85; Parisi v. Leppard, 172 Misc.2d 951), and, in view of that circumstance, the attorney may not now represent defendant in this action, since this action is substantially related to the prior litigation in which the attorney in her capacity as an attorney became the recipient of plaintiff's litigation-related confidences, and defendant's interests herein are adverse to those of plaintiff (see, Solow v. Grace Co., 83 N.Y.2d 303, 313). Furthermore, given the issues in this case, involving a purported agreement between defendant and plaintiff to share in the settlement obtained in the prior litigation against Neways, it appears that the attorney may very well be called as a witness in the instant litigation. Thus, for this reason as well, she should not continue as counsel to defendant in this matter (see, Chang v. Chang, 190 A.D.2d 311, 318-319; Zweig v. Safeco Ins. Co. of Am., 125 A.D.2d 205, 206-207).
We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.