Background
Plaintiff Ravich brought discrimination and retaliation claims against the City of New York and defendant Winston Faison. Before filing suit, Ravich had consulted attorney Eric Sanders about his race and disability discrimination claims. Sanders never agreed to represent Ravich, making Ravich a “prospective client” under New York Rules of Professional Conduct Rule 1.18. Sanders subsequently agreed to represent Faison — a separately situated individual — in his own unrelated discrimination and retaliation claims against the City. The City’s Corporation Counsel represented both defendants.
Ravich moved to disqualify Sanders from representing Faison and to enjoin defendants from using information Ravich had shared with Sanders during the consultation. Sanders and Faison each submitted affidavits stating that the Faison matter was unrelated to Ravich and that no confidential information from Ravich had been shared with Faison. Supreme Court, New York County (Sharpe, J.) denied the motion, and also found that Ravich had waived attorney-client privilege as to the consultation emails by filing them publicly on the court docket. The First Department unanimously affirmed.
The Court’s Holding
The court applied RPC Rule 1.18, which governs duties to prospective clients and prohibits an attorney from using or revealing confidential information obtained in the consultation and from representing a client with materially adverse interests in the same or a substantially related matter. The standard for disqualification under Rule 1.18 requires the movant to meet a “heavy burden” of showing that the matter from which disqualification is sought is “substantially related to the consultation” and that the information conveyed during the consultation “has the potential to be significantly harmful” to the movant in the matter at issue.
Ravich failed to carry that burden. He did not demonstrate that Faison’s personal discrimination claims against the City were “substantially related” to Ravich’s own discrimination claims — the two plaintiffs were separately situated litigants with independent claims. Because the threshold of substantial relatedness was not met, disqualification was not warranted under Rule 1.18 regardless of whether any information was shared.
On the attorney-client privilege question, the court held that Ravich had waived any privilege over the consultation emails by filing them on the public court docket. Citing Ambac Assur. Corp. v. Countrywide Home Loans, Inc. (27 NY3d 616 [2016]), the court held that public disclosure of otherwise privileged communications waives the privilege. While the lower court had directed the City not to use the email attachments submitted for in camera review — except for information obtained from independent sources — Ravich had not appealed that protective directive.
Key Takeaways
- Disqualification of an attorney under RPC Rule 1.18 (prospective client rule) requires showing both that the current representation is “substantially related” to the prior consultation and that the information conveyed poses potential significant harm — the movant bears a heavy burden on both prongs.
- Filing consultation emails on the public court docket waives attorney-client privilege over those communications — litigants who use privileged materials as exhibits in motion practice must be aware of the waiver consequence regardless of whether they later seek in camera protection for attachments.
- Attorneys who consult with prospective clients who ultimately do not retain them remain bound by Rule 1.18 but may represent adverse parties in unrelated matters — the duty extends only to substantially related matters, not to all future work touching the same general subject area.
Why It Matters
Disqualification motions under Rule 1.18 are increasingly deployed in civil rights and employment litigation, where plaintiff-side attorneys may consult with multiple potential clients before forming a retainer relationship. This decision clarifies that the “substantially related” requirement is a meaningful bar — the fact that two individuals have discrimination claims against the same employer is not by itself enough to trigger disqualification. The separate litigants must be pursuing matters that are substantively intertwined, not merely thematically similar.
The privilege-waiver holding has broader procedural implications: litigants who file privileged communications as exhibits to support a motion to disqualify — or any other motion — effectively waive the privilege over those documents through the act of public disclosure. Practitioners handling sensitive employment or civil rights disputes should be alert to this risk before including consultation emails, attorney notes, or any privileged material in public motion filings.