On December 7, 2022, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Joseph v. Rassi, 2022 NY Slip Op. 34129(U), refusing to prevent former counsel from cooperating with former clients, explaining:
It is well settled that a party in a civil action maintains an important right to select counsel of its choosing and that such right may not be abridged without some overriding concern. Therefore, the party seeking disqualification of an opposing party’s counsel must present sufficient proof supporting that determination.
There is no question that Mr. Schulman represented the various entities in the past and that such representation cannot be undone. However, Mr. Schulman does not currently represent any party in this litigation. The plaintiff argues that now, Schulman, the entities; In-House Counsel is favoring both the Controlling Members and those entities. – all at Joseph’s expense. However, Mr. Schulman is not trial counsel defending this action. There is no legal support for the proposition that Mr. Schulman cannot consult with the actual. trial counsel because of his past representation of the entities. Indeed, as all parties concede, Mr. Schulman may be called as a witness and can be required to provide testimony in this matter. Therefore, none of the rules concerning conflicts of interest are implicated by the scenario here. For example, Rule 1. 7 (b) of the New York State Rules of Professional Responsibility state that when a lawyer is faced with representing clients with different interests, a lawyer may represent such client if: (1) the Lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. However, that only applies if the lawyer is actively and currently engaged in representation. As noted, Mr. Schulman is not actively engaged in any such present representation and is not counsel pursuing this litigation. The mere fact that he can provide information to the entities he represented concerning the facts of this litigation does not demand disqualification. To be sure, the fact that Mr. Schulman may be a witness in this action further supports the conclusion that he is not actively representing any party.
(Internal quotations and citations omitted).