Solow v. Grace & Co

In Solow v. Grace & Co. (83 N.Y.2d 303 [1994]), the Court held that a party opponent is entitled to a presumption of disqualification of an adversary's counsel who has a prior attorney-client relationship with the party, and where the former and current representations are adverse and substantially related. The Court of Appeals in Solow, analyzing the operation of the presumption, focused on the purposes served by disqualification. The Court noted that the "presumption is employed to fully protect client confidences and secrets, to offer a clear test which is easy to administer and to avoid an appearance of impropriety on the part of the attorney or the law firm." (83 N.Y.2d at 308.) Ordinarily, disqualification does not require a hearing. However, the Court of Appeals also held in Solow that to apply an irrebuttable presumption in all cases exacts too high a cost from the existing client and to the judicial process. The Court acknowledged that such an exacting rule is subject to abuse as an "offensive tactic, inflicting hardship on the current client and delay upon the courts by forcing disqualification even though the client's attorney is ignorant of any confidences of the prior client. Such motions result in a loss of time and money, even if they are eventually denied. This Court and others have expressed concern that such disqualification motions may be used frivolously as a litigation tactic when there is no real concern that a confidence has been abused." (83 N.Y.2d at 310.) Therefore, in an appropriate case "the ethical considerations which support a per se disqualification rule have considerably less force and may be overridden by competing policy concerns." (83 N.Y.2d at 313.)