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8-27-13 Case 1-90-cv-05722-RMB-THK Document 1374 ENDORSED LETTER addressed to Judge Richard M. Berman from Bridget M. Rohde dated 8/26/13

8-27-13 Case 1-90-cv-05722-RMB-THK Document 1374 ENDORSED LETTER addressed to Judge Richard M. Berman from Bridget M. Rohde dated 8/26/13

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Published by rally524
08/27/2013 1374 ENDORSED LETTER addressed to Judge Richard M. Berman from Bridget M. Rohde dated 8/26/13 re: Counsel writes in response to the Court's request for the parties and the Review Officer to address whether any conflicts arise from the dual representation by Kauff McGuire & Margolis LLP ("KMM") of the Taft-Hartley fringe benefit funds of the New York City District Council of Carpenters ("Benefit Funds") and the Contractors Association of Greater New York ("CAGNY"). ENDORSEMENT: Mr. McGuire is respectfully directed to submit a signed + dated conflict waivers of each of the Funds trustees (as noted on p 1, footnote 1 of this letter). Waivers to be written + filed with the Court on or before Sept. 4, 2013. (Signed by Judge Richard M. Berman on 8/27/2013) (mro) Modified on 8/27/2013 (mro). (Entered: 08/27/2013)
08/27/2013 1374 ENDORSED LETTER addressed to Judge Richard M. Berman from Bridget M. Rohde dated 8/26/13 re: Counsel writes in response to the Court's request for the parties and the Review Officer to address whether any conflicts arise from the dual representation by Kauff McGuire & Margolis LLP ("KMM") of the Taft-Hartley fringe benefit funds of the New York City District Council of Carpenters ("Benefit Funds") and the Contractors Association of Greater New York ("CAGNY"). ENDORSEMENT: Mr. McGuire is respectfully directed to submit a signed + dated conflict waivers of each of the Funds trustees (as noted on p 1, footnote 1 of this letter). Waivers to be written + filed with the Court on or before Sept. 4, 2013. (Signed by Judge Richard M. Berman on 8/27/2013) (mro) Modified on 8/27/2013 (mro). (Entered: 08/27/2013)

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Chrysler
Center
666
Third
l\
venue
New
York, NY 10017
MINTZ
LEVIN
Bridget
M.
Rohde
I
2126926883
I 
MEMO
ENDORSED
BY HAND
S.ef1
Hon.
Richard
M.
Bennan United States District Court 
""1
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USDC SDNY
212-983-3115
fax
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ED
AUgus~
i§(jQl:3:
\ DATE
rlLED:
i'll7/1~
Southern District
of
New YorkUnited States Courthouse500 Pearl StreetNew York, NY 10007
Re: 
90 Civ. 5722 (SDNY) (RMB)Conflict
of
Interest Question
CHAMBERSOF
-
RICHARD
M.
BERMAN 
U.S.D.J.
Dear Judge Bennan:We write in response to the Court's request for the parties and the Review Officer toaddress whether any conflicts arise from the dual representation
by
Kauff McGuire & MargolisLLP ("KMM")
of
the Taft-Hartley fringe benefit funds
of
the New York City District Council
of
Carpenters ("Benefit Funds") and the Contractors Association
of
Greater New York("CAGNY").
We
respectfully submit that we do not believe that there were any actual conflictspresented due to KMM's prior simultaneous representation
of
both the Benefit Funds andCAGNY. Our belief is based both on our independent analysis
of
the facts available to
us
aswell as on Mr. McGuire's representations in his letter
of
August 22.
See
Letter by Raymond
G.
McGuire dated August 22, 2013 at
2.
(Of course, we
do
not have all
of
the facts that KMM hasand, for exanlple, we cannot independently know whether confidential infonnation from theBenefit Funds could have been used in the negotiations), Additionally, now that KMM hasceased representing CAGNY
in
any matter, the possibility
of
a conflict has further dissipated.As to any remaining possibility
of
potential conflict due to CAGNY being a fonner client
of
KMM, Mr. McGuire has represented that he will decline to provide advice to the Benefit Fundson any matter involving CAGNY,
See id.
11
As
background, since late 2010, KMM has represented the Benefit Funds as its generaloutside counsel. KMM has also represented CAGNY, including in its negotiation for a newcollective bargaining agreement with the District Council. The Benefit Funds are not a party to
We further note that
KMM
polled each
of
the Funds' trustees and received a waiver
of
any actual or potentialconflict arising from the dual representation.
See id.
at
l.
Rule l.7(b)
of
the New York Rules
of
ProfessionalConduct provides that
if
there is no impediment to the clients providing informed consent,
see
Rule 1.7(b)(1-3), andboth affected clients provide informed consent and that consent
is
confirmed
in
writing,
see
Rule 1.7(b)(4), a lawyermay represent a client notwithstanding a concurrent conflict
of
interest.
Mintz,
Levin, Cohn, Ferris, Glovsky
and
Popeo,
P.C.
BOSTON
I
LOl'4DON
I
Los
AN(;EU:S
I
NEW
YORK
I
SAN
DJEl;O
I
SANFRANCISCO
I
STAMl'ORD
I
WASHINGTON
II
 
August 26,2013Page 2
any
of
the District Council's CBAs including the one with CAGNY and counsel for the BenefitFunds do not participate in the CBA negotiations.One aspect
of
the collective bargaining agreement negotiated by the parties is thecompensation package for union members. This package contains both wages and benefits. Thebenet
it
contributions are made to the Benefit Funds on behalf
of
the union members rather thanto the members directly, such that the Funds might be considered a third party beneficiary. That,however, is not direct adversity. A related issue is that it is possible that confidential informationin an attorney's possession from representing the Benefit Funds could be utilized in negotiatingon behalf
of
the contractors' association or vice versa.
Of
course, that is a very fact specificinquiry. There is no
per se
adversity because
of
the mere existence
of
this possibility.With respect to the compensation package for the union members, it is important
to
notethat the contributions are made by individual contractors to each
of
the benefit funds -pension,welfare
et cetera.
One problem that can arise during the period
of
a CBA is that an individualcontractor may fail to pay, or fall behind in paying, contributions. When that occurs, collectioncounsel for the Funds, here, Virginia
&
Ambinder and
not
KMM, pursues the money that is inarrears. We additionally note that these actions are against the individual contractors,
not
therelevant contractors' association.Under Rule
1.7
of
the New York Rules
of
Professional Conduct, it does not appear thatany actual conflict
of
interest has been presented by
KMM's
representation
of
the Benefit Fundsand CAGNY. We have no reason to believe that KMM has represented differing interests
of
theBenefit Funds and CAGNY, as precluded by Rule
It
is our understanding that theBenefit Funds and CAGNY have not been directly adverse.
If
adversity were to arise, it wouldmost likely be between the Funds and an individual contractor who fails to make any or someportion
of
his benefit contributions. KMM would not handle such a representation for the Funds,Virginia
&
Ambinder would.
It
is reasonable for KMM and its lawyers to conclude that theirjudgment would not be impaired and their loyalty to the Benefits Funds and CAGNY would notbe divided by the continued representation
of
both
of
these clients as long as no single matterinvolved both the Benefit Funds and CAGNY.Additionally, as indicated in Mr. McGuire's letter
of
August 22, despite the absence
of
any conflict and despite obtaining a waiver from the Funds' trustees, KMM has ceasedrepresenting CAGNY in all matters. New counsel, Dennis Lalli, Esq.,
of
Bond Schoeneck
&
We
note that
All Star Carts
&
Vehicles,
Inc.
v.
BFI Can. Income Fund,
2010 U.S. Dist. LEXIS 53290
at
*11-
17
(June
1,
2010, E.D.N.Y.), provides a discussion
of
conflicts
of
interest
law
in
the disqualification context
in
theSecond Circuit.
In
comparing actual and potential conflict
of
interests, the Court therein stated: "An attorney has
an
actual, as opposed to a potential, conflict
of
interest when, during the course
of
the representation, the attorney's and[the client'S] interests diverge with respect to a material factual or legal issue or to a course
of
action .. .In contrast,'[a] potential conflict
of
interest exists
if
the interests
of
the defendant may place the attorney under inconsistentduties at some time
in
the future' ... The 'possibility that future conflicts may arise does not require'disqualification."
Id.
at
*
17-18 (internal citations omitted).
21

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