Regal Marketing, Inc. v. Sonny Son Produce Corp.

Full title: REGAL MARKETING INC., Plaintiff, v. SONNY SON PRODUCE CORP.; and WILLIAM…

Court: United States District Court, S.D. New York

Date published: Jul 31, 2002

01 Civ. 1911 (WK) (S.D.N.Y. Jul. 31, 2002)

Opinion

01 Civ. 1911 (WK)

July 31, 2002

Robert J. Mastrogiacomo, Esq., Claffey Mastrogiacomo, P.C., New York, NY, For Plaintiff.

Stephen M. Santoro, Esq., Levy, Santoro Santoro, Carmel, New York, For Defendants.

MEMORANDUM ORDER

WHITMAN KNAPP, Senior United States District Judge.

On March 7, 2001, Plaintiff Regal Marketing, Inc. (hereinafter the "Plaintiff") brought this action against Defendants Sonny Son Produce Corp. (hereinafter "Sonny Son Produce") and William Booth (hereinafter "Booth") (collectively the "Defendants") under the Perishable Agricultural Commodities Act, 7 U.S.C. § 499a et seq., in order to recover damages against the Defendants for their purported failure to pay the Plaintiff for various shipments of produce. The Defendants now move to disqualify the Plaintiff's attorney, Robert Mastrogiacomo, and any law firm with which he is associated from representing the Plaintiff in this litigation.

For the reasons set forth below, we DENY the motion for disqualification.

BACKGROUND

I. The Underlying Lawsuit

The Plaintiff is a corporation engaged in the business of buying and selling wholesale quantities of fresh fruits and vegetables. The company asserts that, over the course of seventeen transactions between June 27, 2000, and August 7, 2000, it sold, inter alia, pears, tomatoes, kiwis, and grapes to Sonny Son Produce in the aggregate amount of $48,589.50. That produce was shipped to a warehouse in the Hunts Point Terminal Market (hereinafter the "Market") in the Bronx and, according to the Plaintiff, delivered to and accepted by Sonny Son Produce without objection. When Sonny Son Produce failed, in large measure, to pay for these shipments, the Plaintiff filed a complaint with the Secretary of Agriculture seeking reparations in the amount of $47,830.50 pursuant to the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499a et seq.

Sonny Son Produce failed to answer or otherwise object to that complaint and a judicial officer acting on behalf of the Secretary of Agriculture entered a default order against the company. In that order, the judicial officer concluded that Sonny Son Produce had violated the PACA and directed the company to pay the Plaintiff, as reparations, $47,830.50 plus 10% interest as well as the $300 filing fee which the Plaintiff paid to file its complaint. After Sonny Sonny Produce failed to pay the reparations award, the Plaintiff brought this action to, among other things, enforce that award against the Defendants.

The Defendants contend that Sonny Son Produce never ordered these shipments from the Plaintiff and never accepted the delivery of any such produce from the Plaintiff. According to the Defendants, the Plaintiff was actually engaging in various transactions with another business known as Sonny Specialties Corp. (hereinafter "Sonny Specialties").

In August 2001, the Plaintiff moved for summary judgment on all of its causes of action against the Defendants. While that motion was still pending, the Defendant moved to disqualify the Plaintiff's attorney, Robert Mastrogiacomo, and any firm with which he is associated from representing the Plaintiff in this litigation. The Defendants specifically seek to disqualify Robert Mastrogiacomo because of his relationship with the law firm of Gentile Dickler.

II. Gentile Dickler's Prior Relationship With The Defendants

On or around February 23, 2000, Sonny Son Produce, Booth, and Sonny Specialties retained Paul Gentile ("Gentile") of the law firm of Gentile Dickler to assist them in complying with various directives of the City of New York (hereinafter the "City"). Although the record presented to us by the parties with respect to the subject matter of that representation can, at best, be described as minimal, this representation apparently involved questions about whether Sonny Son Produce, Booth, and Sonny Specialties needed to disclose the details of Sonny Specialties' relationship with Sonny Son Produce to the City's Department of Business Services and to the Market in order to comply with directives pertaining to the registration of joint account arrangements.

In a letter to the Department of Business Services dated February 23, 2000, Gentile explained that Sonny Son Produce's operation at the Market warranted the disclosure of its joint account arrangement with Sonny Specialties. Accordingly, on March 8, 2000, Gentile followed up with a second letter to the Department of Business Services in order to provide the necessary disclosure. In that second letter, Gentile informed the Department of Business Services that Sonny Specialties, a corporation which had been formed by Andrew Persichetti in 1998 and held its own PACA license from the United States Department of Agriculture, had entered into a joint account arrangement with Sonny Son Produce. He was further able to inform the Department of Business Services that this "joint deal" eventually relocated to the same unit in the Market and that Sonny Specialties evolved into a "d/b/a" for Sonny Son Produce. At the close of this disclosure letter, Gentile also commented upon Booth's corporate relationship with Sonny Specialties, for he explained that Booth had acquired a 60% interest in Sonny Specialties in order to effectuate the foregoing arrangement.

In late July 2000, Gentile provided further assistance to Sonny Son Produce when he submitted a particular request on its behalf to the United States Department of Agriculture. In this regard, Gentile asked the Department of Agriculture to amend Sonny Son Produce's PACA license to include an additional trade name (i.e. in effect, to add the name "Sonny Specialties Corp." to Sonny Son Produce's license). The Department of Agriculture denied that request in a letter dated August 21, 2000. In reviewing its records, the department discovered that it had already issued a PACA license to a corporation known as Sonny Specialties in 1998 (i.e. the very company which the Defendants now aver is the entity responsible for the Plaintiff's produce shipments). At the time Gentile submitted this request on behalf of Sonny Son Produce, the Department of Agriculture's records indicated that Sonny Specialties' license remained current and valid. As there had been no indication in the request that Sonny Specialties would be dissolved as a corporation or that it would relinquish its independent PACA license, the Department of Agriculture refused to allow Sonny Son Produce to add the trade name "Sonny Specialties Corp." to its own PACA license because, inter alia, Sonny Son Produce's use of such a trade name might be deceptive, misleading, or confusing. Nothing in the record suggests that Gentile continued to represent the Defendants after the Department of Agriculture issued the foregoing decision.

III. Robert Mastrogiacomo's Involvement With Gentile Dickler

Nearly seven months thereafter, the Plaintiff initiated this lawsuit to recover damages for Sonny Son Produce's failure to pay for various shipments of produce it had allegedly purchased and accepted between June 2000 and August 2000. The Plaintiff's Complaint was signed by Robert Mastrogiacomo ("Mastrogiacomo") under a caption which read:

Gentile Dickler Attorneys for Plaintiff Regal Marketing

Compl. at 16. In addition, the caption in the left hand corner of the first page of the Complaint read as follows:

Gentile Dickler (RJM 9756) Attorneys for Plaintiff 15 Maiden Lane New York, N.Y. 10038¹

1 The caption also provided a telephone number by which the law firm of Gentile Dickler could be contacted.

Compl. at 1. When the Defendants subsequently responded to the Plaintiff's lawsuit with counterclaims, the reply to those counterclaims was also signed by Mastrogiacomo with similar captions on the first and last pages of that reply. See Reply to Counterclaims at 1, 8.

Mastrogiacomo is a partner in his own law firm, Claffey Mastrogiacomo, P.C., which has existed since at least 1994. In contrast, according to both Mastrogiacomo and Gentile, Mastrogiacomo is not now, nor has he ever been, a member or associate of the law firm of Gentile Dickler. Indeed, no attorneys from Claffey Mastrogiacomo appear on the letterhead of Gentile Dickler and vice versa. Both law firms also maintain separate phone, fax, and billing systems and have separate professional liability insurance (with no member from either firm appearing on the other's insurance policy). Moreover, neither Mastrogiacomo nor anyone else at the law firm of Claffey Mastrogiacomo had been involved with or assisted Gentile in previously representing Sonny Son Produce, Sonny Specialties, or Booth before the Department of Business Services in February and March 2000 or before the Department of Agriculture in July and August 2000.

Both Gentile Dickler and Claffey Mastrogiacomo lease space on the same floor in the same building in New York City. From time to time, Mastrogiacomo and his law firm have been associated with Gentile Dickler in an "of counsel" capacity. Whether or not Mastrogiacomo decides to assist Gentile Dickler with a particular case in such a capacity is apparently a question left to his own discretion. However, Mastrogiacomo assists Gentile Dickler with relatively few cases a year in an "of counsel" capacity.

On March 2, 2001, Gentile approached Mastrogiacomo and asked him to review the Plaintiff's file and act as "of counsel" to Gentile Dickler in the Plaintiff's lawsuit against the Defendants. Gentile sought Mastrogiacomo's help because of Mastrogiacomo's experience in handing matters brought under the PACA. Mastrogiacomo agreed to assist Gentile Dickler with the case in an "of counsel" capacity. It was in this capacity that he filed the Complaint and, subsequently, the Reply to the Defendants' Counterclaims described above.

On July 26, 2001, we held a conference in this case. According to the signatures on the appearance sheet, Mastrogiacomo appeared for the Plaintiff on behalf of Gentile Dickler. At the conference, the Defendants' attorney objected to Gentile Dickler's role in this lawsuit. In response, Mastrogiacomo suggested that, although he was currently acting in an "of counsel" capacity to Gentile Dickler in this lawsuit, his own law firm, Claffey Mastrogiacomo, should, by way of a substitution of attorneys, replace Gentile Dickler as counsel for the Plaintiff. According to Mastrogiacomo, he made this suggestion in an effort to avoid a time consuming and costly motion for disqualification. At that time, we directed the Plaintiff to file a consent to change attorneys whereby Claffey Mastrogiacomo would replace Gentile Dickler as the Plaintiff's counsel. We informed the Defendants' attorney that once that substitution had been made, the Defendants could formally move, if they so wished, to disqualify Mastrogiacomo.

Thereafter, the Plaintiff filed the relevant consent form and we approved the change of attorneys on February 26, 2002. Nearly two months thereafter, just before we were scheduled to hear oral arguments on the Plaintiff's motion for summary judgment, the Defendants moved to disqualify Mastrogiacomo and any firm with which he is associated from representing the Plaintiff in this litigation on the basis of his affiliation with the law firm of Gentile Dickler.

DISCUSSION

Motions to disqualify opposing counsel are viewed with disfavor in this Circuit. Clark v. Bank of New York (S.D.N.Y. 1992) 801 F. Supp. 1182, 1197. This disfavor "derives from the fact that disqualification has an immediate adverse effect on the client by separating him from the counsel of his choice, and that disqualification motions are often interposed for tactical reasons." Bd. of Ed. of the City of New York v. Nyquist (2d Cir. 1979) 590 F.2d 1241, 1246. See also Mitchell v. Metro. Life Ins. Co., Inc. (S.D.N.Y. Mar. 21, 2002) No. 01 Civ. 2112 (WHP), 2002 WL 441194, *3 ("The Court of Appeals [for the Second Circuit] has cautioned that motions to disqualify counsel are not to be granted indiscriminately because they interfere with a party's right freely to choose counsel and may be interposed for tactical reasons"). Accordingly, the party seeking disqualification must meet a "high standard of proof" before a lawyer is disqualified. Evans v. Artek Sys. Corp. (2d Cir. 1983) 715 F.2d 788, 791. See also Gov't of India v. Cook Indus., Inc. (2d Cir. 1978) 569 F.2d 737, 739; In re Maritima Aragua, S.A. (S.D.N.Y. 1994) 847 F. Supp. 1177, 1180.

The disqualification of an attorney is a matter subject to our sound discretion. See Cresswell v. Sullivan Cromwell (2d Cir. 1990) 922 F.2d 60, 72. "In making this determination, federal district courts in New York consult the ABA Model Rules of Professional Conduct (Model Rules), the ABA Model Code of Professional Responsibility (Model Code) and the New York Code of Professional Responsibility (New York Code). While these rules are not binding, courts look to them for guidance in regulating the professional conduct of attorneys appearing before them." Blue Cross and Blue Shield of New Jersey v. Phillip Morris, Inc. (E.D.N.Y. 1999) 53 F. Supp.2d 338, 342. See also GPA Inc. v. Liggett Group, Inc. (S.D.N.Y. Nov. 4, 1994) No. 94 Civ. 5735 (AGS), 1994 WL 613267, *1 n. 1; Brooks v. Knowledge Eng'g, Inc. (S.D.N.Y. April 7, 1994) No. 89 Civ. 4478 (SS), 1994 WL 121851, *2.

In this instance, the Defendants rest their motion to disqualify Mastrogiacomo on Cannon 5 of the New York Code of Professional Responsibility (hereinafter "the New York Code") as well as on Disciplinary Rule 5-108, 22 N.Y.C.R.R. § 1200.27.² Canon 5 of the New York Code provides that a lawyer should exercise independent professional judgment on behalf of a client. N.Y. JUD. LAW, APPENDIX, CANON 5 (1992); World Food Systems, Inc. v. Bid Holdings, Ltd. (S.D.N.Y. Mar. 12, 2001) No. 98 Civ. 8515 (VM) (KNF), 2001 WL 246372, *1; Witorsch v. Notaris (S.D.N.Y. Aug. 25, 1997) No. 95 Civ. 9163 (JFK), 1997 WL 529016, *6. A corollary of this canon is that where an attorney has previously represented a client, he may not thereafter represent an adverse party in a matter in which the confidences he formerly received from the original client may be used to the disadvantage of that client. See Leber Associates, LLC v. The Entertainment Group Fund, Inc. (S.D.N.Y. Dec. 7, 2001) No. 00 Civ. 3759 (LTS) (MHD), 2001 WL 1568780, *3, citing DR 5-108(A), 22 N.Y.C.R.R. § 1200.27(a).

2 "The New York Code is essentially identical to the American Bar Association Model Code of Professional Responsibility promulgated in 1969 and adopted by the New York State Bar Association in 1979." Leber Associates, LLC v. The Entertainment Group Fund, Inc. (S.D.N.Y. Dec. 7, 2001) No. 00 Civ. 3759 (LTS) (MHD), 2001 WL 1568780, *2 n. 1. The Second Circuit has recognized that the New York Code prescribes appropriate guidelines for the professional conduct of the Bar, and this district requires attorneys to adhere to the New York Code. Song v. Dreamtouch, Inc. (S.D.N.Y. May 8, 2001) No. 01 Civ. 0386 (AGS), 2001 WL 487413, *4.

To ensure faithful adherence to such principles, an attorney may be disqualified in a particular case if:

(1) the moving party is a former client of the adverse party's counsel;

(2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and

(3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.

Evans, 715 F.2d at 791. See also Leber Associates, LLC, 2001 WL 1568780 at *3. With these considerations in mind, we turn to the question of whether the Defendants have satisfied the applicable standard.

I. The "Of Counsel" Relationship And Disqualification By Imputation

Ordinarily, the parties moving for disqualification must first establish that they were once clients of the attorney they are now seeking to disqualify. See Clark, 801 F. Supp. at 1197; Bennet Silvershein Associates v. Furman (S.D.N.Y. 1991) 776 F. Supp. 800, 803. However, in this instance, Mastrogiacomo never personally represented either Sonny Son Produce or Booth. See Gentile Aff. ¶ 6, Mastrogiacomo Aff. ¶¶ 17-18. Nonetheless, the Defendants are indisputably former clients of Gentile, who is a partner in the law firm of Gentile Dickler. See Booth Aff., Ex. A, B; Gentile Aff. ¶¶ 1, 3-4. Although Mastrogiacomo is not a member of the law firm of Gentile Dickler see Mastrogiacomo Aff. ¶ 4, Gentile Aff. ¶ 7, he has, from time to time, handled cases in an "of counsel" capacity for that firm. See Gentile Aff. ¶ 10; Mastrogiacomo Aff. ¶¶ 3, 19, 33; July 18, 2002 Tr. at 7. Accordingly, the Defendants now seek to disqualify Mastrogiacomo on the basis of his "of counsel" affiliation with their former attorney.

Under the New York Code, "where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation." Kasis v. Teacher's Ins. and Annuity Ass'n (N.Y. 1999) 93 N.Y.2d 611, 616. See also 22 N.Y.C.R.R. § 1200.24(d) (creating a rebuttable presumption that a lawyer's personal conflict of interest is imputed to his firm). On occasion, New York courts have held that disqualification may be necessary where an attorney and a law firm share an "of counsel" relationship. See Cardinale v. Golinello (N.Y. 1977) 43 N.Y.2d 288, 296-297; Nemet v. Nemet (N.Y.App.Div. 1985) 491 N.Y.S.2d 810, 811. See also N.Y. State Bar Ass'n Comm. on Professional Ethics, Opinion No. 615 n. 1 (January 29, 1991) ("A lawyer who is `of counsel' to a law firm is `associated' with the members and associates of the firm for the purposes of DR 5-105(D)"); N.Y.C. Bar Ass'n Comm. on Professional and Judicial Ethics, Formal Op. No. 1995-8 (May 31, 1995) ("If the `of counsel' designation is employed, the attorneys will need to keep in mind that for purposes of analyzing conflicts of interest, `of counsel' relationships are treated as if the `counsel' and the firm are one unit").

Nevertheless, New York federal and state courts have also, on occasion, refused to disqualify an attorney or a law firm on the grounds of their "of counsel" or "special counsel" relationships. See Renz v. Beeman (N.D.N.Y. Feb. 21, 1989) No. 87 CV 487, 1989 WL 16062, *6-*7; Rosman v. Shapiro (S.D.N.Y. 1987) 653 F. Supp. 1441, 1442, 1447; Bison Plumbing City, Inc. v. Benderson (N.Y.App.Div. 2001) 722 N.Y.S.2d 660, 661, citing Gray v. Memorial Med. Ctr. (S.D. Ga. 1994) 855 F. Supp. 377, 379-380;³ Shelton v. Shelton (N.Y.App.Div. 1989) 542 N.Y.S.2d 719, 660. Those decisions are in accord with the principles articulated by the Second Circuit, which indicate that labels alone should not control a court's decision in the sensitive area of attorney disqualification. See Funds of Funds, Ltd. v. Arthur Anderson and Co. (2d Cir. 1977) 567 F.2d 225, 235. Hence, an attenuated relationship between a lawyer and a law firm will be insufficient to make the attorney a member of that firm for the purposes of an attorney disqualification motion, regardless of the attorney's "of counsel" label. Renz, 1989 WL 16062 at *6-*7. See also Gray, 855 F. Supp. at 379-380 ⁴ (refusing to disqualify an attorney by imputation on the basis of his "of counsel" affiliation with a law firm because "the level of an individual attorney's involvement within a firm is an important factor in a decision to impute disqualification to other attorneys" and the defendants had failed to demonstrate that the attorney in question was "`more than a de minimus of counsel, an independent contractor working part time for the firm'").⁵

3 Although the Appellate Division of the New York Supreme Court addressed a "special counsel" relationship in Bison Plumbing City Inc., see 722 N.Y.S.2d at 661, that term is merely one among many which denotes an "of counsel" relationship. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 90-357 (May 10, 1990). Indeed, the Appellate Division in Bison Plumbing City, Inc. reached its decision by specifically citing to Gray v. Memorial Med. Ctr. and Shelton v. Shelton, each of which addressed an "of counsel" relationship. See Gray, 855 F. Supp. at 379-380; Shelton v. Shelton (N.Y.App.Div. 1989) 542 N.Y.S.2d 719, 720.

4 Although the court in Gray premised its decision on the ABA Model Rules of Professional Conduct ("Model Rules") and the Defendants herein are relying on the New York Code, that distinction, without more, does not persuade us that the standard set forth in Gray should not provide guidance for the case at bar. In determining whether an attorney should be disqualified, federal district courts in New York consult both the New York Code and the Model Rules for guidance. Blue Cross and Blue Shield of New Jersey, 53 F. Supp.2d at 342. Moreover, "[t]he pertinent provisions of the . . . ABA Model Rules of Professional Conduct . . . are substantially the same as those found in the New York Code of Professional Responsibility." Leber Associates, LLC, 2001 WL 1568780 at *2 n. 2. Compare also ABA MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.10 (a), and Roberts Schaeffer Co. v. San-Con, Inc. (S.D. W. Va. 1995) 898 F. Supp. 356, 360, with N.Y.C.R.R. 10027.24(d). Indeed, as discussed above, the Appellate Division of the New York Supreme Court in Bison Plumbing City, Inc. specifically cited to the Gray decision (premised on the Model Rules) in applying the relevant provisions of the New York Code. See Bison Plumbing City, Inc., 722 N.Y.S.2d at 661.

5 Cf. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 90-357 (May 10, 1990) (recognizing that the "core characteristic properly denoted" by the title "of counsel" is "a `close, regular, personal relationship'" but that the "of counsel" affiliation does not refer to "a relationship involving only an individual case," "a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms," or "the relationship of an outside consultant"); N.Y.C. Bar Ass'n Comm. on Professional and Judicial Ethics, Formal Op. No. 1996-8 (July 15, 1996) ("the accuracy of the term `of counsel' to describe the arrangement" between the law firm and an attorney "depends on the relationship being `close, continuing, regular and personal.' Such factors as the sharing of space and availability for consultation on a regular basis are strongly indicative of the requisite closeness of relationship . . . but not conclusive absent closeness, regularity and a personal dimension in the relationship.")

When Mastrogiacomo's relationship with Gentile Dickler is examined in accordance with these principles, it falls short of the type of affiliation which would justify the attribution of Gentile's conflicts of interest to Mastrogiacomo. As discussed above, Mastrogiacomo is not actually a member or associate in the law firm of Gentile Dickler. His name does not appear on that firm's letterhead and he is not included on Gentile Dickler's professional liability insurance policy. Moreover, Claffey Mastrogiacomo, the law firm in which Mastrogiacomo is a partner, maintains a separate phone, fax, and billing system (as well as a separate professional liability insurance policy) than that employed by Gentile Dickler. Claffey Mastrogiacomo merely leases space on the same floor in the same building as Gentile Dickler. Although Mastrogiacomo indicated, over the course of oral arguments, that he did on occasion utilize Gentile Dickler's secretary to expedite a task, he handles only a few cases for Gentile Dickler over the course of a year in an "of counsel" capacity. In other words, he only engages in occasional collaborative efforts with Gentile Dickler and hence provides that firm with only sporadic assistance.

Accordingly, although the Defendants attempt to impute Gentile's conflicts of interest to Mastrogiacomo, they have not shown that Mastrogiacomo is "`more than a de minimus of counsel, an independent contractor working part time for'" Gentile Dickler. See Gray, 855 F. Supp. at 379. Since Mastrogiacomo's relationship with Gentile Dickler is too attenuated to merit the imputation of Gentile's conflicts of interest to Mastrogiacomo, that relationship cannot justify Mastrogiacomo's disqualification on the basis of Gentile's conflicts. See id. at 380; Renz, 1989 WL 16062 at *7.

II. Substantial Relationship

Even if the Defendants could show that Mastrogiacomo's relationship with the law firm of Gentile Dickler was sufficient to justify the imputation of Gentile's conflicts of interest to Mastrogiacomo, the Defendants would still be unable to secure his disqualification as they have failed to demonstrate that the subject matter of Gentile's previous representation of the Defendants is substantially related to the subject matter of this lawsuit. "[W]here the alleged conflict relates to a former client, disqualification is warranted only where there is a substantial relationship between the subject matters of the representation." Hartford Accident and Indem. Co. v. RJR Nabisco, Inc. (S.D.N.Y. 1989) 721 F. Supp. 534, 539.⁶ See also In re Maritima Aragua, S.A., 847 F. Supp. at 1182-1183; Clark, 801 F. Supp. at 1198-1199.

6 The Defendants appear to suggest that the representations at issue in this motion might best be characterized as simultaneous representations rather than successive representations. According to the date stated on the complaint, Mastrogiacomo supposedly signed the complaint in the instant action on April 5, 2000, even though the action was filed on March 7, 2001. The Defendants seize on this "April 5, 2000" date to suggest that Gentile Dickler was simultaneously representing Sonny Son Produce as well as Booth (through Gentile's services) before the Department of Business Services in February and March 2000 (and a few months later before the Department of Agriculture) while the law firm was simultaneously representing the Plaintiff in an adverse action against the Defendants in the lawsuit here (through Mastrogiacomo's services). Were this truly a case involving simultaneous representations, a more stringent disqualification standard would apply than that otherwise applicable in circumstances involving successive representations. See Waterbury Garment Corp. v. Strata Prod., Inc. (S.D.N.Y. 1982) 534 F. Supp. 63, 66 ("When the moving party is a present client of his adversary's attorney the representation is `prima facie improper' and disqualification is required"); Leber Associates, LLC, 2001 WL 1568780 at *3 (recognizing that "[a]n attorney's obligation to a current client is more stringent" and that this obligation should not "be judged by the same standard as applied to an attorney's filing of litigation against a former client, that is, the substantial-relationship test"); Rosewood Apartments Corp. v. Perpignano (S.D.N.Y. Feb. 7, 2000) No. 99 Civ. 4226 (NRB) (MHD), 2000 WL 145982, *4 (same). However, Mastrogiacomo attests that the Complaint was completed on or about March 6, 2001, and that it bore an incorrect date as a result of his office's inadvertent failure to change the date on the computer template used in preparing that complaint. See Mastrogiacomo Aff. ¶ 26. Although the Defendants attempt, without any evidentiary basis, to cast doubt on that explanation, the record does not support their allegations. The action at bar concerns produce shipments that were made between June 2000 and August 2000. Indeed, this action focuses in part on the enforcement of a reparations award entered by the judicial officer at the Department of Agriculture in December 2000. Hence, if the complaint herein had been signed on April 5, 2000, then the Plaintiff would have been seeking to recover reparations for shipments which had not yet been made and to enforce an award which had not yet been issued. Given these considerations, we take Mastrogiacomo's explanation at face value and will not invoke the more stringent standard applicable to simultaneous representations.

"The requirement that there be `a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present suit' is strictly enforced." Leber Associates, LLC, 2001 WL 1568780 at *5. See also Clark, 801 F. Supp. at 1198; Bennett Silvershein Associates, 776 F. Supp. at 803-804. In deference to the concerns about the possible disruption occasioned by disqualification motions and the desire to honor a client's choice of counsel if possible, the Second Circuit has observed that disqualification will be granted "only when the issues involved have been `identical' or `essentially the same.'" Gov't of India, 569 F.2d at 740. See also Leber Associates, LLC, 2001 WL 1568780 at *5. "The courts in this Circuit continue to adhere to that stringent standard." Id. See also In re Maritima Aragua, S.A., 847 F. Supp. at 1182; Clark, 801 F. Supp. at 1198; Bennett Silvershein Associates, 776 F. Supp. at 803-804; Waterbury Garment Corp. v. Strata Prod., Inc. (S.D.N.Y. 1982) 534 F. Supp. 63, 67. That standard requires a determination with respect to whether the facts which were necessary to the first representation are necessary to the present litigation. See United States Football League v. National Football League (S.D.N.Y. 1985) 605 F. Supp. 1448, 1459. A substantial relationship will be established between the two representations if facts pertinent to the problems for which the original legal services were sought are relevant to the subsequent litigation. See id.

Here, Gentile previously assisted the Defendants with regulatory issues. In February and March 2000, he helped them comply with the directives of the City's Department of Business Services as they pertained to the registration and disclosure of joint account arrangements. See Booth Aff., Ex. A. In July 2000, he asked the United States Department of Agriculture to allow Sonny Son Produce to add a trade name to its PACA license (i.e. in effect to add the trade name "Sonny Specialties Corp." to Sonny Son Produce's license), although the department denied that request on August 21, 2000. See Booth Aff., Ex B. Gentile's regulatory work before the Department of Business Services focused in particular on the details of the joint account arrangement between Sonny Son Produce and Sonny Specialties (including Booth's ownership interest in Sonny Specialties); his regulatory work before the Department of Agriculture touched upon the confusion or deception which would (according to the Department of Agriculture) flow from Sonny Son Produce's use of the trade name "Sonny Specialties Corp." where that trade name was already employed on an independent license by the separately incorporated Sonny Specialties (particularly as there was no indication at the time of the request that the latter corporation would be dissolved). See Booth Aff., Ex. A, B. However, nothing in the record indicates that Gentile's assistance with such regulatory work touched upon either issues relating to Sonny Son Produce's indebtedness to third parties nor upon information pertaining to the specific perishable commodities Sonny Son Produce purchased in 2000 or the companies from which Sonny Son Produce accepted such commodities as opposed to the companies with whom Sonny Specialties engaged in distinct business transactions.

In sharp contrast, the instant action is concerned with this very category of information which Gentile's unrelated regulatory work did not touch upon. The Plaintiff contends that Sonny Son Produce, and not Sonny Specialties, purchased various shipments of its produce between June and August 2000. The Defendants, however, argue that the Plaintiff has filed this action against the wrong party and that the Plaintiff was in fact doing business separately (and specifically) with Sonny Specialties and not with Sonny Son Produce. See Booth Aff. ¶ 5; Santoro Aff. ¶ 10; Defs.' Mem. in supp. of Mot. to Disqualify at 1, 4. In other words, their defense here in large measure rests upon the question of which of these two supposedly distinct businesses purchased the particular produce at issue (and may therefore be liable to the Plaintiff under 7 U.S.C. § 499e and 7 U.S.C. § 499g).

Since all the parties to this lawsuit have thus steadfastly avoided implicating any joint arrangement between Sonny Son Produce and Sonny Specialties, and have instead focused on the distinct and independent actions of each of these two businesses, the subject matter of Gentile's February/March 2000 regulatory work on behalf of the Defendants is not substantially related to the subject matter of this lawsuit.⁷ Moreover, as no one in this lawsuit has raised any dispute which implicates the trade name set forth on Sonny Son Produce's PACA license or Sonny Son Produce's failure to add the trade name "Sonny Specialties Corp." to its license, the subject matter of Gentile's July/August 2000 regulatory work on behalf of the Defendants is not substantially related to the subject matter of this lawsuit.⁸

7 At oral arguments, it became apparent that the Defendants were concerned about the information pertaining to Booth reflected in Gentile's March 2000 letter to the Department of Business Services, particularly in light of Booth's relationship with Sonny Specialties, which the Defendants contend "is the liable party to begin with." See July 18, 2002 Tr. at 11-12. Their concerns stem from the Plaintiff's attempt to hold Booth personally liable under the PACA. However, such concerns have little merit here. Gentile's regulatory work before the Department of Business Services only focused on disclosures pertaining to Booth's ownership interest in Sonny Specialties see Booth Aff., Ex. A, and the Plaintiff in this action is solely attempting to hold Booth liable under the PACA in accordance with his interests in Sonny Son Produce, not as a result of any interest he may hold in Sonny Specialties.

8 The Defendants appear to suggest that Gentile's regulatory work before the Department of Agriculture is related to the subject matter of this lawsuit because both the prior representation and the action here fall under the broad umbrella of the PACA. We disagree. Sonny Son Produce's request to add a trade name to its existing PACA license implicated the Secretary of Agriculture's authority to disapprove a licensee's use of an additional trade name if, in his opinion, such a use would be deceptive, misleading, or confusing to trade. See 7 U.S.C. § 499c(c). In contrast, the claims here focus on the unrelated questions of whether the Defendants complied with the trust provisions set forth in 7 U.S.C. § 499e and whether the reparations award issued by the Department of Agriculture should be enforced pursuant to 7 U.S.C. § 499g. Given that no party here has raised a dispute with respect to Sonny Son Produce's PACA license, we find that the mere fact that these three statutory provisions all fall within the broad scope of the PACA does not alone establish a substantial relationship between this lawsuit and Gentile's prior regulatory work on behalf of the Defendants before the Department of Agriculture.

In sum, neither the issues arising out of Gentile's prior regulatory work on behalf of the Defendants nor the information pertinent thereto are substantially related to the subject matter of the action at bar. The absence of a substantial relationship between those prior representations and the action here precludes Mastrogiacomo's disqualification on the basis of Gentile's former regulatory work on behalf of the Defendants. See In re Maritima Aragua, S.A., 847 F. Supp. at 1182-1183; Clark, 801 F. Supp. at 1198-1199.

CONCLUSION

For the foregoing reasons, we hereby DENY the Defendants' motion for disqualification.

SO ORDERED.