Substantially Related

The New York Court of Appeals ordered disqualification of an attorney retained to defend a police disciplinary action. The attorney had provided legal advice to the complainant in an earlier dispute between the two that the court deemed to be substantially related to the present case:

As an initial matter, those elements of the two parties’ 2000/2001interactions that are undisputed establish that some kind ofattorney-client relationship existed between Lovett and Falk. Therecord shows that Falk sought Lovett’s legal advice at least partly ina professional capacity. The record further establishes thatconversations between Lovett and Falk touched on the matter ofdisciplining Chittenden. Lovett acknowledges that he rendered somelegal advice on that issue, advising Falk to be wary of OfficerChittenden’s First Amendment rights. Moreover, while discipliningChittenden might have been a personal desire of Falk’s, a request forlegal advice as to whether discipline against an inferior officer is aviable course of action falls squarely within a commanding officer’sprofessional responsibilities. Accordingly, Falk in his officialcapacity had an attorney-client relationship with Lovett, and thereforehas standing as a prior client to bring this action for declaratoryjudgment.

The other prongs of DR 5-108(A) are satisfied as well. Seekingadvice about a potential disciplinary case against Chittenden forinsubordination in 2000/2001 is “substantially related” to actuallybringing just such a case in 2003. More specifically, Chittenden’sprior conduct might bear on the issue of punishment, and Falk’s priorconsideration of pursuing charges for insubordination might likewise berelevant. Together, these factors create a sufficient nexus between thetwo representations. And Falk’s and Chittenden’s interests arematerially adverse in the disciplinary proceeding, which pits these twoparties — obvious antagonists — against one another.

(Mike Frisch)