Briana Pacheco and Helen Hiotis v. 1454 Diner, Inc., et al.

Summary

The court denied without prejudice Plaintiffs Briana Pacheco and Helen Hiotis’s motion to disqualify Mark Stumer and his firm from representing the other defendants in their employment-discrimination action. The court held that Plaintiffs had standing to seek disqualification, but that disqualification under the witness-advocate rule was premature because the necessity and prejudice of Stumer’s testimony had not been established. The court also concluded that any potential conflict of interest under New York Rule of Professional Conduct 1.7 had been waived, subject to Defendants filing written consent forms.

Holdings

1. Plaintiffs have standing to move to disqualify opposing counsel under both the witness-advocate rule and conflict-of-interest grounds.
2. Stumer is not disqualified from representing himself in the action merely because he may be a witness.
3. Disqualification of Stumer and his firm from representing the remaining defendants is premature and is denied without prejudice to renewal.
4. Assuming that Stumer's representation of the other defendants creates a conflict of interest, the conflict is not necessarily unwaivable and was waived through informed written consent.

Questions Presented

1. Whether plaintiffs had standing to seek disqualification of opposing counsel under the witness-advocate rule and conflict-of-interest principles.
2. Whether Mark Stumer was required to be disqualified from representing himself because he might be a witness in the action.
3. Whether Stumer and his firm were required to be disqualified from representing the other defendants under New York's witness-advocate rule.
4. Whether any conflict arising from Stumer's simultaneous representation of himself and the other defendants was necessarily unwaivable under New York Rule of Professional Conduct 1.7.

Disposition

other