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Attorneys owe a continuing duty to former clients not to reveal confidences learned in the course of their professional relationship. It is this duty that provides the foundation for the well-established rule that a lawyer may not represent a client in a matter and thereafter represent another client with interests materially adverse to interests of the former client in the same or a substantially related matter.
Plaintiffs Henry Kassis and North River Insurance Company retained the law firm of Weg & Myers to represent them in an action premised upon property damage to a building owned by Kassis in New York City. Thurm & Heller, a firm of approximately 26 attorneys, was counsel for defendants and third-party plaintiffs, Teacher's Insurance and Annuity Association and Cauldwell-Wingate Company, Inc. Thurm & Heller hired Charles Arnold, a former associate of Weg & Myers, who participated in the Kassis litigation while employed there. Weg & Myers moved on behalf of the plaintiffs to disqualify Thurm & Keller from further participation in the Kassis litigation. The court denied plaintiff’s motion, finding that Arnold’s involvement in the Kassis litigation while employed at Weg & Myers was limited. The Appellate Division affirmed, holding that the safeguards employed by Thurm & Heller eliminated the danger of Arnold inadvertently transmitting information he might have gained from his previous employment at Weg & Myers. The present appeal followed.
Under the circumstances, should Thurm & Keller be disqualified from further participation in the Kassis litigation?
The Court found that Thurm & Keller should be disqualified from continued representation of defendants and third-party plaintiffs since the associate played an appreciable role as counsel for plaintiff in the litigation between the parties while employed by plaintiff's counsel inasmuch as he was sufficiently knowledgeable and steeped in the files to conduct several depositions that resulted in extensive transcripts; he appeared as sole counsel for the client in two court-ordered mediation sessions; and he conversed regularly with the client. Given the associate's extensive participation in the litigation and Thurm & Keller’s representation of the adversary in the same matter, defendants’ burden in rebutting the presumption that the associate acquired material confidences was especially heavy, and defendants’ conclusory averments that the associate did not acquire such confidences during the prior representation failed to rebut that presumption as a matter of law. Therefore, the erection by Thurm & Keller of a "Chinese Wall" around the associate was inconsequential, and disqualification was required as a matter of law.