Rotante v. Lawrence Hospital , 361 N.Y.S.2d 372 ( 1974 )

Stetjer, J.

The facts are not in dispute. The action is in malpractice and the moving defendant is one of the defendants being sued. He is a doctor and insured by Professional Insurance Company. The insurer undertook to defend the action on behalf of its insured and retained the firm of Turkewitz & Tessel for this purpose. Mr. Turkewitz appeared as attorney of record. He consulted with defendant Goodlier and prepared a lengthy analysis of the case. Thereafter he represented Hr. Goodner on an examination before trial. Twelve days thereafter Mr.. Turkewitz was hired as an attorney by the firm representing the plaintiff.

Prior to Mr. Turkewitz being so hired, the senior partner of the firm consulted Professional Insurance Company and advised it of the prospective hiring of Mr. Turkewitz, inquiring whether this insurer had any objection. The company replied that it did not. Plaintiff’s attorneys further state that Mr. Turkewitz has not had and will not have any connection with or participation in this suit.

While these facts neither indicate nor imply any departure from professional conduct or breach of any ethical canon, we cannot escape the conclusion that this is a situation rife with the possibility of discredit to the Bar and the administration of justice. Obviously Mr. Turkewitz cannot erase from his mind the confidences he received from his former client or the plan of defense he envisaged. Though we do not dispute his good faith or the good faith of the firm representing plaintiff, both the possibility of conflict of interest and the appearance of it are too strong to ignore.

We are asked: What is the consequence of this view, namely, the disqualification of plaintiff’s attorneys, on Mr. Turkewitz and on the plaintiff? Plainly as regards the attorney this will have to be determined on a case to case basis. With respect to the plaintiff, nothing so far appearing indicates any conflict as regards the other nine defendants, and they have made no claim in that respect. As regards the moving defendant, plaintiff would have to proceed with other counsel. While this would deprive him of counsel of his original choice, it does not differ from any Other situation where a conflict prevents a client from proceeding through a particular attorney.

The order, Supreme Court, New York County (Spiegel, J.), entered December 12, 1973, should be reversed on the. law and in the exercise of discretion and the motion granted without costs.