On April 17, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Joseph v. Rassi, 2023 NY Slip Op. 31261(U), holding that in-house counsel that has not appeared in an action cannot be the subject of a motion for disqualification, explaining:
The plaintiff argues that notwithstanding Ms. Schulman’s concession he must still be disqualified because he is nonetheless presently actively engaged as legal counsel for the Milk Companies (including Legs Media and Milk Agency), presently provides legal advice to all of the Milk Companies in connection with all aspects of their businesses, including serveing as a liaison with outside counsel in this case. Those representations, also quoted from Mr. Schulman’s affidavit do not contradict his further assertion he is not involved in this litigation at all. There can be no disqualification of counsel that does not represent the party in the litigation at stake. There can be further no disqualification of in-house counsel merely because such counsel may be disqualified if they were litigation counsel. Indeed, the court does not anticipatorily disqualify lawyers that really have no connection to the actual litigation facing the court. The mere fact Mr. Schulman is in-house counsel for the Milk entities cannot be a basis upon which he can be disqualified. To be sure, the court has no authority to disqualify an attorney in matters not subject to its jurisdiction. There is thus no dispute that Mr. Schulman has no legal role to play in this litigation and thus the court has no authority to disqualify him at all. The fact that he continues to represent the Milk entities in matters not affecting this litigation cannot be a basis for disqualification. As noted, the court does have the power or authority to so disqualify such counsel.
(Internal quotations and citations omitted).