Rivera v. Lettire Construction Corp.

Background

On May 3, 2022, Plaintiff Roman De Gabriel Rivera raised a concern about defense counsel representing nine non-party fact witnesses. The court held a conference on May 25, 2022, to consider whether defense counsel should be disqualified from representing those witnesses.

At the conference, the court determined that there was no reason to disqualify defense counsel from representing the possible eyewitness to the incident, Guillermo Sanchez Melgarejo; the Safe Site medic who treated Rivera, Francis Buczynski; or the Moore Group safety manager, Jose Cabrera. The court took the representation of the remaining six witnesses under advisement.

Arguments and legal standard

Rivera argued that defense counsel had a conflict of interest because the witnesses’ testimony might expose the defendants to liability. He relied on New York Rule of Professional Conduct 1.7, which addresses conflicts when clients’ interests are antagonistic.

The court explained that motions to disqualify counsel receive particularly strict scrutiny because they can be used as a tactical device. The court must balance a client’s right to choose counsel against the need to protect the integrity of the adversarial process. The court may use New York’s professional-conduct rules as guidance.

Rivera also argued that defense counsel improperly solicited the witnesses. The court noted that Rivera provided no evidence of improper solicitation and no non-speculative reason to infer that it occurred.

Ruling

The court concluded that the possibility that the witnesses might give testimony adverse to the defendants was not enough to establish a conflict. The witnesses were not parties and had no stake in the outcome of the litigation, so their interests were not in conflict with the defendants’ interests for purposes of the representation at issue.

The court also held that it was not improper for defense counsel to speak with potential witnesses about their observations and later agree to represent them. The court noted that this arrangement is commonplace when witnesses are current or former employees of a defendant.

The court ruled that Rivera had not met his burden to show that disqualification was warranted and permitted defense counsel to continue representing the six remaining witnesses. Rivera retained access to the witnesses through ordinary discovery. The court directed the parties to meet and confer by June 15, 2022, about a reasonable schedule for all remaining unscheduled fact-witness depositions and to file a letter describing their proposed schedule.