| Bank Hapoalim B.M. v WestLB AG |
| 2011 NY Slip Op 01586 [82 AD3d 433] |
| March 3, 2011 |
| Appellate Division, First Department |
| Bank Hapoalim B.M. et al., Appellants, v WestLB AG etal., Respondents. |
—[*1] Hughes Hubbard & Reed LLP, New York (Christopher M. Paparella of counsel), forrespondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 23,2010, which granted defendants' motion to disqualify Jordan W. Siev and Reed Smith LLP ascounsel for plaintiffs, unanimously affirmed, without costs.
As a preliminary matter, counsel's conduct in taking on the conflicting representation isgoverned by the Code of Professional Responsibility, which was in effect at the time of theconduct, rather than by the Rules of Professional Conduct, which were in effect when the motionto disqualify was brought (see Lee v Cintron, 25 Misc 3d 1210[A], 2009 NY Slip Op52023[U], *2 [2009]; see generally Matter of Hays v Ward, 179 AD2d 427, 429 [1992],lv denied 80 NY2d 754 [1992]).
Code of Professional Responsibility DR 5-108 (22 NYCRR 1200.27) prohibits an attorneyfrom "representing interests adverse to a former client on matters substantially related to the priorrepresentation" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 130 [1996]).Although defendants' initial consultation about taking on the defense of the case did not lead tocounsel's retention, defendants' description of the matters, coupled with the circumstancessurrounding the meeting, gives rise to a reasonable inference that confidences were revealed,which establishes a fiduciary relationship of loyalty with respect to those communications(see Rose Ocko Found. v Liebovitz, 155 AD2d 426, 427 [1989]; Pellegrino v Oppenheimer & Co., Inc.,49 AD3d 94, 99 [2008]). Concur—Saxe, J.P., Sweeny, Catterson, Freedman andRomÁn, JJ.