Nestor Cassini v. County of Nassau
2:22-cv-01696
| E.D.N.Y | Oct 20, 2023Background
- Plaintiffs Marianne Nestor Cassini and Gemeaux Ltd. sue multiple defendants over alleged looting of the Estate of Oleg Cassini; claims include RICO, Section 1983, conspiracy, conversion, breach of fiduciary duty, unjust enrichment, and others.
- Defendant Rosalia Baiamonte is the court-appointed Receiver; her counsel, Jeffrey Miller, is also a named defendant in the suit.
- Plaintiffs moved to disqualify Miller and his firm under New York Rules of Professional Conduct Rule 3.7 (witness-advocate) and Rule 1.7 (conflict of interest / personal interest).
- The case is at an early stage: a motion to dismiss is pending, discovery stayed, and no trial date; the court emphasized that little discovery has occurred.
- The magistrate judge denied the disqualification motion as premature and without prejudice to renewal prior to trial, finding plaintiffs’ allegations speculative and insufficient to meet the heavy burden for disqualification.
- The court did not reach plaintiffs’ separate argument to impute disqualification to Miller’s entire firm because the primary witness-advocate claim was denied as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller’s role violates the witness-advocate rule (NY RPC 3.7) | Miller is likely to be a necessary witness on significant factual issues (conspiracy/looting), so he cannot simultaneously advocate for Baiamonte | Motion is premature: no discovery, no clarity on whether Miller will be a witness; pretrial advocacy is permitted and concerns are trial-focused | Denied as premature; may be renewed at trial if testimony becomes necessary and prejudicial |
| Whether Miller’s representation creates a non-waivable conflict (NY RPC 1.7) | Miller, as a named defendant, has personal interests that risk undermining his judgment for Baiamonte and will prioritize his defense over client representation | No factual showing of a significant risk; allegations are speculative and no discovery has shown misalignment of interests | Denied for now due to lack of specific evidence of a significant risk to representation |
| Whether any disqualification should be imputed to Miller’s law firm | If Miller must be disqualified as advocate-witness, the firm should also be disqualified | Disqualification of firm need not be addressed until Miller’s disqualification is warranted | Not reached (court declined to reach firm-imputation because witness-advocate claim was denied as premature) |
Key Cases Cited
- Finkel v. Frattarelli Bros., 740 F. Supp. 2d 368 (E.D.N.Y. 2010) (disqualification under advocate-witness rule depends on necessity of counsel’s testimony)
- Cresswell v. Sullivan & Cromwell, 922 F.2d 60 (2d Cir. 1990) (motions to disqualify are within district court’s discretion)
- Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir. 1983) (high standard of proof required because disqualification can be tactically motivated)
- Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975) (any doubt on disqualification resolved in favor of disqualification)
- Glueck v. Jonathan Logan, Inc., 653 F.2d 746 (2d Cir. 1981) (disqualification warranted where continued representation poses significant risk of trial taint)
- Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994) (necessity of counsel’s testimony assessed before disqualification under advocate-witness rule)
- Murray v. Metropolitan Life Ins. Co., 583 F.3d 173 (2d Cir. 2009) (movant must show how counsel’s testimony would be substantially likely to prejudice the client)
- Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir. 2005) (violation of a disciplinary rule does not automatically require disqualification)