Wednesday, July 16, 2008

Appellate court upholds ESDC/AKRF conflict in Columbia case

So, according to the New York Times, a state appeals court, by a vote of 3-1, upheld a State Supreme Court Justice's ruling that it was improper for the ubiquitous consultant AKRF to work simultaneously for Columbia University on its expansion project and also for the Empire State Development Corporation (ESDC) on its end of the Columbia project.

[Here's the decision.]

So the ESDC must turn over some but not all papers requested by the plaintiffs in West Harlem Business Group v. Empire State Development Corporation. The court found some documents were exempt.

In a somewhat similar case regarding Atlantic Yards, a Supreme Court Justice ruled that it was improper for a lawyer to work simultaneously for developer Forest City Ratner and the ESDC--but the ruling was overturned when the appellate court found the representation was consecutive rather than simultaneous.

Unresolved: what exactly are the ESDC's guidelines regarding consecutive representation? How much of a gap must there be?

1 comment:

  1. Though this is an important story it didn’t make it into the New York Times print edition.

    As for the idea that the situation with Atlantic Yards is distinct because the work creating the conflict was consecutive rather than simultaneous- That presupposes first that the work was consecutive and truly consecutive- Who knows, maybe even the CU papers coming out as a result of this ruling might show that the AY work was not truly consecutive.

    How can the work be ‘consecutive’ when there is an implicit warranty that travels with the work that was done including the right of the client to check back with respect to follow up questions? The New York State ethics laws make distinctions between work separated by time- in which case they require substantial periods- two years with respect to employees- and work which is on the same matter. As for the cannons of legal ethics, as in most other professions this would need to be raised as a conflict and few clients would be willing to `waive’ the conflict unless they considered they were actually engaged in a collaborative effort with the other party- And isn’t that exactly the problem over and over again with ESDC and Atlantic Yards- They do not exercise judgement independent fo Ratner’s.

    I strongly suspect that if facts are allowed to come out, it will be clear that in the case of Atlantic Yards work was also simultaneous rather than consecutive. ESDC employees who have the information that it was simultaneous should come forward with that information now as concealing the information is a separate offense not covered by any privileges of litigation.

    Michael D. D. White
    Noticing New York

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