Bank Hapoalim B.M., et al., Plaintiffs-Appellants, v. AG (2011)

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 23, 2010, which granted defendants' motion to disqualify Jordan W. Siev and Reed Smith LLP as counsel for plaintiffs, unanimously affirmed, without costs.

As a preliminary matter, counsel's conduct in taking on the conflicting representation is governed by the Code of Professional Responsibility, which was in effect at the time of the conduct, rather than by the Rules of Professional Conduct, which were in effect when the motion to disqualify was brought (see Lee v. Cintron, 25 Misc.3d 1210[A], 2009 N.Y. Slip Op 52023 [U], *2 [2009];  see generally Matter of Hays v. Ward, 179 A.D.2d 427, 429 [1992], lv denied 80 N.Y.2d 754 [1992] ).

Code of Professional Responsibility DR 5-108 (22 NYCRR 1200.27) prohibits an attorney from “representing interests adverse to a former client on matters substantially related to the prior representation” (Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 130 [1996] ).   Although defendants' initial consultation about taking on the defense of the case did not lead to counsel's retention, defendants' description of the matters, coupled with the circumstances surrounding the meeting, gives rise to a reasonable inference that confidences were revealed, which establishes a fiduciary relationship of loyalty with respect to those communications (see Rose Ocko Found. v. Liebovitz, 155 A.D.2d 426, 427 [1989];  Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 99 [2008] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK