Opinion
Index No. 652968/2018 Motion Seq. No. 008
03-28-2023
GRETA PORETSKY, Plaintiff, v. BARTLEBY AND SAGE, INC., SAGE GENERAL STORE, INC., DAVIDOFF HUTCHER & CITRON, LLP, DAVID WANDER, LESLIE NILSSON, Defendants.
Unpublished Opinion
MOTION DATE 07/29/2022.
PRESENT: HON. DAKOTA D. RAMSEUR, Justice.
DECISION + ORDER ON MOTION
DAKOTA D. RAMSEUR, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 008) 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241,242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257 were read on this motion to/for DISQUALIFY COUNSEL.
Plaintiff, Greta Poretsky (Poretsky), commenced this action against defendants, Bartleby and Sage, Inc., Sage General Store, Inc., Davidoff Hutcher &Citron, LLP, David Wander, Leslie Nilsson, for among other claims, breach of contract and breach of fiduciary duty. Plaintiff now moves for an order disqualifying attorney Alexander Tiktin (Tiktin) and the law firm Tarter Krinsky &Drogin LLP (TKD) from serving as counsel for defendants Leslie Nilsson (Nilsson), Sage General Store, Inc. (SGS) and Bartleby &Sage, Inc. (B&S). The motion is opposed. For the following reasons, the motion is granted.
BACKGROUND
In or about the beginning of 2015, due to financial difficulties, Nilsson, owner of SGS - a catering and restaurant business - surrendered her lease to the restaurant and offered Plaintiff a partnership in the catering business as a 10% shareholder. In exchange, Plaintiff invested $20,000 and loaned $6,800 to SGS, which Nilsson used to pay SGS's bills.
In or about the fall of 2016, Nilsson transferred the catering business from SGS to B&S -both of which were incorporated with the New York Department of State. When Nilsson formed B&S, she agreed to give Plaintiff without consideration a 10% ownership interest of which 60% was considered "sweat equity" that would be forfeited if she left the company.
During this time, attorney David H. Wander (Wander) worked on behalf of his firm Davidoff Hutcher &Citron LLP (DHC) as counsel to B&S and Nilsson. According to Wander, he has been "Nilsson's business and personal attorney for many years, including when I had my own firm and also for the past 10 + years as a partner at DHC" (NYSCEF doc. no. 248, Wander aff., ¶ 19). Plaintiff alleges that B&S paid funds for Wander's representation of both B&S and Nilsson, personally, and that in 2018, Wander assisted Nilsson in obtaining a personal mortgage for a house in Dutchess County, New York. Wander's firm billed B&S for this work. Wander contends that while Nilsson did purchase a house in Dutchess County in 2018, where she now resides, and obtained a mortgage from Wells Fargo, he did not work on those transactions. According to Wander, Nilsson handled both transactions on her own and "neither I nor DHC represented Nilsson in either matter. Prior to the closing, Nilsson had to provide Wells Fargo with various documents, some of which I had in my files, and Nilsson asked me to send them to her and/or the bank" (id., ¶ 29 [internal citations omitted]).
Plaintiff further alleges that in 2018 Nilsson transferred $35,000.00 from B&S to herself, to assist in getting the mortgage. Since money from B&S was being used to secure the mortgage, Wells Fargo required that Plaintiff, a minority shareholder, give her written permission. According to plaintiffs motion, Nilsson did not want to inform Plaintiff of her "scheme, so she conspired with Wander to defraud Wells Fargo without plaintiffs approval and precluded plaintiff from having access to the books by taking an 'FU' approach to the minority shareholder's demands" (NYSCEF doc. no. 68, Paykin aff., ¶ 30).
According to plaintiff, Nilsson admitted that she transferred $35,000.00 from B&S with no legal basis and without entering it on the books. Wander explains that the $35,000 distribution to Nilsson from B&S was part of her compensation for 2018: "Nilsson's base salary and distributions for 2018, including the $35,000, totaled less than $150,000" (Wander aff., ¶ 30). Wander further states that "Nilsson asked the company's accountant how the $35,000 distribution should be recorded in the books and records" (id.).
According to Nilsson, she purchased the house in Dutchess County, New York, where she lives, for which she obtained a mortgage from Wells Fargo Bank. She avers that she "handled both transactions on [her] own," without any assistance from Wander or his firm. She states that Wander's work was limited to sending paperwork: "Prior to the closing, I had to provide Wells Fargo with various documents, some of which Wander had in his files, and I asked him to send them to me and/or the bank" (NYSCEF doc. no. 153, Nilsson aff., ¶ 13).
In April of 2018, plaintiff came upon an email exchange between Nilsson and Wander concerning the B&S account. According to plaintiff, Nilsson falsely informed Wells Fargo that plaintiff had abruptly quit. Plaintiff also alleges that B&S was working with Wander to sell plaintiffs share in the company. Plaintiff believed they were engaging in bank fraud and was worried about her own position as partner and shareholder with B&S.
In these emails, it appeared to plaintiff that Nilsson was conferring with Wander to delay amending tax returns. According to Wander, as Nilsson was applying for the mortgage with Wells Fargo, "there also was an issue with the shareholder K-ls that the company's accountant had issued to Nilsson and Plaintiff for 2017 and Nilsson asked me for advice about the matter. Nilsson and I had various phone calls and email communications about the K-ls and a mistake by the accountant..." (Wander aff., ¶ 29). Plaintiff contends that Wander advised the delay in filing the corrected tax return. Plaintiff seeks to subpoena Wander about this transaction and other bills and payments that reflect the work done for the company, and for Nilsson personally.
On June 12, 2018, plaintiff filed a complaint against B&S, SGS, Nilsson, DHC and Wander. The complaint contained eight claims: (1) dissolution of B&Ss and an accounting; (2) breach of fiduciary duty against Nilsson; (3) breach of contract against Nilsson; (4) promissory estoppel against Nilsson; (5) fraud against Nilsson; (6) conspiracy to commit fraud against Nilsson, Wander and DHC; (7) fraudulent concealment by a fiduciary against Nilsson, Wander and DHC; (8) attorney malpractice against Wander and DHC; and (9) RICO/enterprise corruption against Nilsson, Wander and DHC.
DHC and Wander filed a motion dated August 24, 2018, to dismiss all claims against them (NYSCEF doc. nos. 7-17, 48-52). This motion to dismiss was granted by order of the court dated January 15, 2019. B&S, SGS, and Nilsson filed a motion dated August 24, 2018, to dismiss all claims against them (NYSCEF doc. nos. 16-17). This motion to dismiss was granted in part by the same order of the court. In that January 15, 2019 decision, the court dismissed with prejudice the fifth cause of action (conspiracy to commit fraud); the eighth cause of action (fraud); and the ninth cause of action (RICO/ enterprise corruption).
On August 25, 2020, plaintiff filed a motion seeking to disqualify Wander as defendants' counsel. Although the trial court denied the motion, on appeal, in an order dated March 15, 2022, the Appellate Division, First Department reversed and granted plaintiffs motion disqualifying Wander as defendants' counsel. The Appellate Division concluded that the disqualification was warranted based on a conflict of interest: "It is undisputed that Wander previously served as counsel for the corporate defendants and now purports to represent those defendants as well as their majority shareholder in an action brought against them by their minority shareholder and derivatively on their own behalf" (Poretsky v Bartleby and Sage, Inc., 203 A.D.3d 523, 523 ).
Wander himself states that he had been Nilsson's business and personal attorney for many years (Wander aff., ¶ 19). Wander represented SGS and B&S in various legal matters, and he also handled Nilsson's personal bankruptcy filing in 2011 (id.). Nilsson's prior company, SGS, which also catered weddings and other events, had a restaurant that turned out to be a financial drag on the profitable catering business and so, with Wander's guidance, Nilsson wound down that business in an orderly fashion and surrendered its premises to the landlord (id, ¶ 20). In August of 2021, Wander switched firms from DHC to TKD. After Wander moved from DHC to TKD, he worked only on plaintiffs disqualification motion, the appeal, and discovery-related communications with opposing counsel (Tiktin aff, ¶ 18).
According to Tiktin's affirmation in opposition, he started working with Wander at DHC in or around November of 2019. He joined TKD at the same time as Wander, in August 2021. However, he states that he was not "exposed" to this case until in or about October of 2020, when Wander asked him to draft papers in opposition to plaintiffs motion for disqualification and defendant's cross-motion to preclude plaintiffs use of illegally obtained emails. After plaintiff filed an appeal of this court's order denying plaintiffs motion to disqualify Wander, Tiktin worked on all aspects of the disqualification appeal as well as the papers in opposition to plaintiffs motion for re-argument. Tiktin was also involved with drafting opposition to plaintiffs motion to extend the note of issue (NYSCEF doc. nos. 194-220), and discussions with opposing counsel regarding outstanding discovery requests.
Tiktin affirms that his work on this case was limited to (1) reviewing documentary evidence; (2) drafting affirmations and affidavits; (3) exchanging and reviewing emails regarding discovery issues. He states that he was not exposed to any information that any other attorney working on this file would not have otherwise received, and specifically, never received any confidential information about plaintiff.
Tiktin states that an ethical wall was implemented at TKD respecting Wander's participation in this litigation. He explains that TKD had discussions which excluded Wander, TKD utilized a "cross departmental team" to implement an ethical wall, including Office Services for management of paper files and IT Support for management of electronic files. The ethical wall was explained in an email by Cory Campoli, TKD's Conflicts/Risk Management Specialist dated July 18, 2022, which states:
"TKD is establishing an ethical wall preventing David Wander from having any access to our files and information concerning Leslie Nilsson-Greta Poretsky v. Bartleby &Sage, Inc., Sage General Store, Inc. (client/matter #: 88012/1) (the 'Restricted Matter'). Anyone working on the Restricted Matter should not discuss this matter with David Wander. In addition, we are putting restrictions in our electronic filing system Manage preventing Mr. Wander from having access to any files of the Restricted Matter. Lastly, physical files of the Restricted Matter will be labeled "subject to ethical wall" and access will be restricted consistent with the electronic file access protocols"(NYSCEF doc.no. 251).
Plaintiff moves for disqualification on the grounds that: (1) Wander gained "material information about plaintiff and the claims at issue," leading to his disqualification as counsel for Nilsson, SGS and B&S (plaintiffs reply aff, ¶ 16); (2) Tiktin worked closely with Wander at DHC and now at TKD; (3) this close relationship between Tiktin and Wander has led to a "cross pollination of ideas" that "ensures material client confidences were shared" (id., ¶ 52). In other words, plaintiffs position is that this "likely exchange of material confidences" between Wander and Tiktin means that Wander's disqualification necessitates the imputation of disqualification to Tiktin, and, consequently, to TKD. Plaintiff argues that Wander, as counsel for SGS and B&S, worked on corporate matters that affected her, as sole minority shareholder, Nilsson and the two corporations.
Plaintiff argues that despite the Appellate Division's unanimous decision disqualifying Wander, TKD ultimately delayed the creation of an ethical wall. Plaintiff argues that this delay conflicts with the long-standing Court of Appeals ruling in Kassis v Teacher's Ins. & Annuity Assn. (93 N.Y.2d 611 [1999]), that disqualification of an attorney for a conflict of interest is rebuttably imputed to their entire firm.
In opposition, Tiktin first argues that plaintiff cites no authority to support the contention that he or TKD must be disqualified as counsel for defendants based on the prior disqualification of Wander. Tiktin focuses on the fact that Wander was disqualified as counsel for defendants based on Wander's work as counsel for the corporation prior to the litigation, which Tiktin did not do. Tiktin highlights that Wander was disqualified based on the rule set forth in Deerin v Ocean Rich Foods, LLC (158 A.D.3d 603 [2d Dept 2018]), that one who served as counsel for a corporation may not thereafter represent an individual shareholder in litigation in which their interests are averse to other shareholders. According to Tiktin, since "neither I nor any other member of TKD represented the corporate defendants, B&S and SGS, prior to this case, Deerin and its progeny are inapplicable and disqualification is neither necessary nor appropriate" (Tiktin aff, ¶ 4).
Tiktin further argues that New York law requires that to impute disqualification from one attorney to the remainder of a firm, the party seeking disqualification must identify specific confidential information imparted to the disqualified attorney which may be shared with the firm, and that plaintiff has failed to set forth any confidential information imparted to Wander as counsel for the B&S and SGS, because no such confidential information exists. According to Tiktin, any information imparted to Wander as counsel for the corporate defendants was necessarily shared with both shareholders.
Additionally, Tiktin argues that the cases cited by plaintiff are materially distinguishable because this is not a case of "side switching," and TKD has never represented plaintiff. Tiktin agrees that his work on this case commenced in October of 2020, almost two years after the complaint was filed. He states that his knowledge of this case and the parties is limited to the facts noted in the affirmations and affidavits filed on the public docket, the documents exchanged during discovery, emails between the parties, and discussions with Wander concerning the foregoing, but not including any confidential information about plaintiff.
Finally, Tiktin argues that TKD has implemented an ethical wall to avoid even the appearance of impropriety. The ethical wall completely walls off Wander from this case by removing his access to all electronic files, separating Wander's home office from TKD's inoffice physical files, and specifically instructing TKD attorneys and staff not to discuss this case with Wander.
DISCUSSION
"The right to counsel is 'a valued right and any restrictions must be carefully scrutinized'" (Ulmann Schneider v Lacher & Lovell-Taylor PC, 110 A.D.3d 469, 469-470 [1st Dept 2013] [internal citations omitted]). For this reason, "a movant seeking disqualification of an opponent's counsel bears a heavy burden" (Mayers v Stone Castle Partners, LLC, 126 A.D.3d 1, 56 [1st Dept 2015]). A court contemplating disqualification must weigh the "delicate balance between the interests of the client who desires to retain an attorney of his or her choice against the interests of the opposing party to be free from any risk of opposition by an attorney who had been privy to that litigant's confidence" (Saftler v Government Empls. Ins. Co., 95 A.D.2d 54, 57[ 1 st Dept 1983] citing (Cardinale v Golinello, 43 N.Y.2d 288, 294 [1977]). According to New York law, this balancing must be done by the motion court: "[t]he decision of whether to grant a motion to disqualify rests in the discretion of the motion court" (Mayers, 126 A.D.3d at 6).
Even where no significant client confidences were acquired by the disqualified attorney, there may be a finding of imputation of disqualification to the law firm in question. This is so, because even the appearance of impropriety must be eliminated (Kassis v Teacher's Ins. &Annuity Assn., 93 N.Y.2d 611, 616 [1999]). An attorney "must avoid not only the fact, but even the appearance, of representing conflicting interests" (Cardinale, 43 N.Y.2d at 296). For this reason, doubts as to the existence of a conflict of interest are "resolved in favor of disqualification [in order] to avoid even the appearance of impropriety" (Gjoni v Swan Club, Inc., 134 A.D.3d 896, 897 [2d Dept 2015]).
Thus, where one attorney is disqualified as a result of having acquired confidential client information at a former law firm, the presumption that the entirety of the attorney's current firm must be disqualified may be rebutted (Kassis, 93 N.Y.2d at 617). No presumption of disqualification will arise if either the moving party fails to make any showing of a risk that the attorney changing firms acquired any client confidences in the prior employment or the nonmoving party disproves that the attorney had any opportunity to acquire confidential information in the former employment (id.).
Disqualification will not be granted where there is no substantial relationship between the issues in the litigation and the subject matter of the prior representation or where the party seeking disqualification fails to identify any specific confidential information imparted to the attorney (Saftler v Government Employees Ins. Co., 95 A.D.2d 54, 57 [1st Dept 1983]). However, regardless of whether the disqualified attorney actually obtained and disseminated confidential information in connection with his former representation of the appellants, they are "entitled to freedom from apprehension and to certainty that [their] interests will not be prejudiced" (Matter of Town of Oyster Bay v 55 Motor Ave., Co., LLC, 109 A.D.3d 549, 551 [2d Dept 2013]). Thus, demonstrating that no significant client confidences were acquired by the disqualified attorney does not wholly remove the imputation of disqualification from a law firm (Kassis, 93 N.Y.2d at 618). Even the appearance of impropriety must be eliminated (id.; Moray v UFS Indus., Inc., 156 A.D.3d 781, 784 [2d Dept 2017]). Thus, it follows that even where it is demonstrated that the disqualified attorney possesses no material confidential information, a firm must nonetheless erect adequate screening measures to separate the disqualified lawyer and eliminate any involvement by that lawyer in the representation (id.).
In Kassis, the attorney, Charles Arnold, worked as an associate at Weg &Myers, attorneys for the plaintiff. Thurm &Heller represented the defendants in the action (Kassis, 93 N.Y.2d at 613-614). At some point during the litigation, Arnold left Weg &Myers and began work for Thurm &Heller (id.). The Court of Appeals granted plaintiffs' motion to disqualify Arnold as counsel for defendants based on the facts that "given Arnold's extensive participation in the Kassis litigation and Thurm &Heller's representation of the adversary in the same matter, defendants' burden in rebutting the presumption that Arnold acquired material confidences when attorney for plaintiffs is especially heavy. Defendants' conclusory averments that Arnold did not acquire such confidences during the prior representation failed to rebut that presumption as a matter of law" (id. at 618-619). The Court thus found that the creation of an ethical wall was inconsequential (id.).
Here, the first question is whether plaintiff established that Wander acquired any information that was significant or material in the subject litigation, or whether Tiktin and TKD establishes that any information acquired by the Wander is unlikely to be significant or material in the litigation. A finding that Wander acquired any confidences material to this litigation would allow for a presumption of disqualification. In such a case, the court must determine whether TKD undertook adequate screening in order to avoid disqualification.
According to plaintiffs allegations in this action, Wander worked on corporate matters that affected her as sole minority shareholder, as well as matters that benefitted defendant Nilsson to the detriment of plaintiff and the defendant corporations. This was the ground for Wander's disqualification. In directing Wander's disqualification, the First Department concluded that Wander's representation of both Nilsson and B&S posed a conflict of interest. The Court disqualified Wander as counsel for defendants because his "previous work as counsel for the corporate defendants," in which plaintiff was a minority shareholder, conflicted with his "representation of those defendants as well as their majority shareholder in an action brought against them by their minority shareholder" (Tiktin aff., ex. F).
"One who has served as attorney for a corporation may not represent an individual shareholder in a case in which his interests are adverse to other shareholders'" (Deerin, 158 A.D.2d at 608 [internal quotation marks and citations omitted]). In Campbell v McKeon, Campbell and McKeon founded the Veritas entities, which are investment funds and management entities for the funds. McKeon was the majority member of the management entities and Campbell was a minority member. When McKeon and the Veritas entities parted ways with Campbell, the opposing sides brought these actions against each other. As counsel to the Veritas entities, SRZ and Polk could not also represent McKeon in an action in which his interests would be adverse to the Veritas entities and other members of the entities such as Campbell (Campbell v McKeon, 75 A.D.3d 479 [1st Dept 2010]).
For this proposition, the First Department relied upon the decision in Deerin v Ocean Rich Foods, LLC (158 A.D.3d 603), in which the Court held that, because "the defendants' counsel was 'in a position to receive relevant confidences'" from the decedent, whose estate's interests "'are now adverse to the defendant[s'] interests,"' the Supreme Court should have granted that branch of the plaintiffs cross motion which was to disqualify the defendants' counsel" (Deerin, 158 A.D.3d at 608). Specifically, the plaintiff in Deerin alleged in an affidavit that the defendants' counsel was involved in the formation of Ocean Rich, and the defendants' counsel admitted that he had represented Ocean Rich in "various past matters" (id.). The defendants' counsel represented three of Ocean Rich's shareholders in his past representation of the corporation, and was, therefore, "in a position to receive relevant confidences" from the plaintiffs decedent (id. at 608). The competing interests of those shareholders were at issue in Deerin. The court found that defendants' counsel's involvement in the formation of Ocean Rich and his representation of it against third parties was "substantially related" to the present action (id.), and therefore, disqualification was proper.
Here, according to Nilsson's affidavit, Wander was her business and personal attorney for many years, including when he had his own firm and for more than 10 years as a partner at DHC. She avers that he has represented SGS and B&S in various legal matters and handled her personal bankruptcy filing in 2011, in which she received a discharge from her debts at that time (Nilsson aff., ¶ 3).
In Wander's affirmation in opposition to the plaintiffs motion to disqualify him, he describes his work for Nilsson and the corporate entities in the exact same way. Both Nilsson and Wander state that Wander also advised B&S's accountant prior to the closing on Nilsson's house. With respect to the closing, Nilsson had to provide Wells Fargo with various documents, some of which Wander had in his files, and Nilsson asked Wander to send them to her and/or the bank. There also was an issue with the shareholder K-l forms that B&S's accountant had issued to Nilsson and plaintiff for 2017. According to both Nilsson's and Wander's statements on motions before this court, Nilsson asked Wander for advice about the forms. Nilsson and Wander engaged in various phone calls and email communications about the K-ls, including a mistake by the accountant. They also communicated about related issues involving claims by Plaintiff, her status as a 10% shareholder and her request to review certain books and records of the company. After Wander moved from DHC to TKD, he states that his only work on this case was in connection with plaintiffs disqualification motion, the attendant appeal, and discovery-related communications with opposing counsel.
Based upon these descriptions, Wander was the business attorney for SGS and B&S for more than 10 years. He represented the two defendant corporations in legal matters, including this action, advised them on issues involving claims by plaintiff, including her status as shareholder, and her requests to access the books and records of the company, and he advised B&S's accountant with respect to shareholder K-ls. Based upon these statements, Wander was substantially involved in the representation of SGS and B&S. In his capacity as counsel to SGS and B&S, Wander himself was in a position to receive confidences pertaining to the interests of both shareholders, plaintiff and Nilsson, who have adverse interests. He was privy to the books and records of the company. Tiktin and TKD have not disproved that Wander had any opportunity to acquire confidential information in his role as counsel for Nilsson and SGS and B&S. Wander's work for the corporate defendants and for Nilsson is substantially related to this action.
Moreover, Wander did this work as a partner at DHC, and when he left that firm, he continued his representation of all three defendants as a partner at TKD. Furthermore, when he worked on this matter at DHC, he worked with Tiktin. Plaintiff has offered numerous emails that reflect Tiktin's involvement in this litigation going back to October of 2020. Wander's previous disqualification from representing SGS, B&S and Nilsson in this action, therefore, creates a rebuttable presumption that Tiktin and TKD should be precluded from representation of these defendants.
This presumption may be rebutted by proof "that any information acquired by the disqualified lawyer is unlikely to be significant or material in the [subject] litigation" (Kassis, 93 N.Y.2d at 617). Because Wander's representation of the conflicting parties occurred in the context of this litigation there is little question as to whether Wander acquired information that is material to this litigation.
Furthermore, the court does not find it dispositive on the question of disqualification that plaintiff has not offered specific confidential information imparted to Wander, or specific proof that such communication harmed plaintiff in this action. The court need not find specific confidential information to disqualify where there is an appearance of impropriety (Kassis, 93 N.Y.2d at 618; Solow v W.R. Grace & Co., 83 N.Y.2d 303 [1994]). Likewise, where the confidences acquired by the disqualified attorney are material and substantial, "the screen is plainly insufficient to avoid disqualification under the authority [of Kas sis}" (Manus v Family M. Foundation Ltd., 2014 NY Slip Op. 30921 [U] [Sup. Ct., New York County 2014], citing Kassis, 93 N.Y.2d at 617).
According to Tiktin's affirmation, he began work "with Wander" at DHC in November of 2019 (Tiktin aff, ¶ 27). He states that he was not "exposed" to plaintiffs lawsuit until October of 2020 when Wander asked him "to draft papers in opposition to Plaintiffs motion for disqualification and Defendant's cross-motion to preclude Plaintiffs use of illegally obtained emails" (id., ¶ 27). According to Tiktin, the sum of his work on this case involved only: "(i) reviewing documentary evidence; (ii) drafting affirmations and affidavits; (iii) exchanging and reviewing emails regarding discovery issues" (id., ¶ 30). He affirms that he was not exposed to any information that any other attorney working on this file would not have otherwise received and at no point since his "initial work on this case in October of 2020 [has he] ever received any confidential information about Plaintiff' (id., ¶ 32).
With respect to the establishment of an ethical wall, Tiktin states that he reviewed the March 15, 2022 Appellate Division, First Department's decision disqualifying Wander and discussed it with him. He states that Wander consequently withdrew his appearance from the docket in this case on June 29, 2022 and, at that time, TKD began internal discussions regarding the implementation of an ethical wall to bar Wander's involvement with this case.
Tiktin's work with Wander on this action along with the risk that Wander acquired any client confidences during his work for the defendant corporations, sets the stage for Tiktin's opportunity to have acquired confidential information. This has not been disproved. Likewise, the court finds that given the materiality of the confidences acquired by Wander in this action, the ethical wall established by TKD, almost one year after Wander and Tiktin arrived at TKD, appears to be insufficient to avoid disqualification. Furthermore, it is nearly impossible for this court to find that there is not an appearance of impropriety with respect to the handling of confidences in this action, supporting disqualification.
Tiktin further argues that his knowledge of this case and the parties is limited to the facts noted in the affirmations and affidavits filed on the public docket, the documents exchanged during discovery, emails between the parties, and discussions with Wander concerning the foregoing, but not including any confidential information about Plaintiff. However, these statements are not enough to undermine the concern raised by Wander's significant work with SGS and B&S and his subsequent representation of them alongside Tiktin.
The court does not believe that in making this decision the principles of imputed disqualification are defined too strictly. The disqualification of Tiktin and TKD will not act as an undue curtailment of the opportunity for lawyers to move from one practice setting to another. Under the circumstances of Wander's deep involvement with SGS and B&S, his work with Tiktin on this matter not only at DHC but also at TKD, raises concerns about the handling of confidential information that may be imputed to Tiktin and TKD. Although the Court is mindful of the opportunity of clients to choose counsel, and of the opportunity of firms to retain qualified lawyers, the facts of this case warrant the protection of client confidences, and therefore, the disqualification of Tiktin and TKD as attorney for defendants in this action.
Accordingly, it is hereby
ORDERED that the motion by plaintiff, Greta Poretsky, to disqualify Alexander R. Tiktin and Tarter Krinsky &Drogin, LLP as attorneys for defendants Leslie Nilsson, Sage General Store, Inc. and Bartleby &Sage, Inc. in this action is granted; and it is further
ORDERED that the parties shall appear for a conference on April 11, 2023 at 9:30 a.m.; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order upon all parties, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of the Court.