~4-
protects the attorney-client relationship by ensuring that clients
receive the undivided loyalty of their counsel. See id. At the
same time, it is well-settled that disqualification is “a drastic
measure which courts should hesitate to impose except when
absolutely necessary.” Owen v. Wangerin, 985 F.2d 312, 317 (?th
Cir. 1993) (quotation omitted). In addition to creating
unnecessary delays, unwarranted disqualifications often deprive
parties of their chosen legal advisor. See Guillen, 956 F. Supp.
at 1421. The Seventh Circuit has instructed that “there obviously
are situations where [disqualification motions] are both legitimate
and necessary; nonetheless, such motions should be viewed with
extreme caution for they can be misused as techniques of

harassment.” Freeman v. Chicago Musical Instrument Co., 689 F.2d

715, 722 (7th Cir. 1982).

The Seventh Circuit uses a three-part analysis to determine
whether disqualification is warranted. First, the court must
determine whether a substantial relationship exists between the
subject matter of the prior and present representations. If the
court concludes that a substantial relationship does exist, it must
next ascertain whether the presumption of shared confidences with
respect to the prior representation has been rebutted. If the
court concludes that this presumption has not been rebutted, it

must then determine whether the presumption of shared confidences


~9-
CONCLUSION
Plaintiff’s motion to disqualify defendant’s counsel is
denied.
It appears from the docket in this case that Mr. Chejfec has
not formally withdrawn from his representation of Amurol. He is
given leave to do so by June 18, 2003.

A status hearing is set for June 18, 2003, at 10:30 a.m.

DATE: Q 4, 2003

- ye ieee =

Jobe F. Grady, United stacl, J istrict Judge



-6-
Local Rule 83.51.10(e). Moreover, according to the Seventh
Circuit,

[t]he types of institutional mechanisms that have been
determined to protect successfully the confidentiality of
the attorney-client relationship include: (1)
instructions, given to all members of the new firm, of
the attorney’s recusal and of the ban on exchange of
information; (2) prohibited access to the files and other
information on the case; (3) locked case files with keys
distributed to a select few; (4) secret codes necessary
to access pertinent information on electronic hardware;
and (5) prohibited sharing in the fees derived from such
litigation. . . . Other factors have been considered
helpful in determining whether adequate protection of the
former client’s confidences has been achieved: the size
of the law firm, its structural divisions, the “screened”
attorney’s position in the firm, the likelihood of
contact between the “screened” attorney and one
representing another party, and the fact that a law
firm’s and lawyer’s most valuable asset is “their
reputations for honesty and integrity, along with
competence.”

Cromley, 17 F.3d at 1065 (quotation omitted).

Mr. Chejfec and Mr. Vesselinovitch have both submitted
affidavits.? Mr. Vesselinovitch states that in March 2003, upon
learning that Mr. Chejfec was interviewing for a position at KMZ2R,
he immediately took steps to screen Mr. Chejfec from the Amurol
matter. He directed those who were going to interview Mr. Chejfec
not to discuss or bring up the Amurol matter in any way during the
interviews. Mr. Vesselinovitch adds that he himself did not
recruit Mr. Chejfec to work at KMZR and did not conduct or

participate in any interviews.

¥# “Uncontroverted affidavits are sufficient rebuttal evidence.” Cromley
17 F.3d at 1065.


-~5-+
has been rebutted with respect to the present representation. See

Cromley v. Board of Educ., 17 F.3d 1059, 1064 (7th Cir. 1994).

KMZR does not contest that a substantial relationship exists
between the subject matter of the prior and = present
representations; it is the identical subject matter--the litigation
brought by Amurol against Morris. As a result, a presumption of
shared confidences arises with respect to the prior representation.
See Cromley, 17 F.3d at 1064. KMZR does not attempt to rebut the
presumption that Mr. Chejfec was privy to confidential information
from Amurol. Therefore, we must move to the third step of the
analysis and ascertain whether KMZR has rebutted the presumption of
shared confidences with respect to the present representation. The
issue is whether KMZR has demonstrated that it established an
effective screening procedure to block any disclosure of Amurol’s
confidences by Mr. Chejfec to any member or employee of KMZR.

Section (e) of Local Rule 83.51.10 lists the factors we should
consider to determine whether Mr. Chejfec has been screened from
participation in this matter:

For purposes of this rule ..., a lawyer in a firm will

be deemed to have been screened from any participation in

a matter if:

(1) the lawyer has been isolated from confidences,

secrets, and material knowledge concerning the matter;

(2) the lawyer has been isolated from all contact with

the client or any agent, officer or employee of the

client and any witness for or against the client;

(3) the lawyer and the firm have been precluded from

discussing the matter with each other; and

(4) the firm has taken affirmative steps to accomplish
the foregoing.



-8-
describing the timely establishment of a screening process and the
details of that process. Plaintiff contends that a screening
procedure does not overcome “the undisputable conflict of interest
and the strong appearance of impropriety.” (Reply at 2.) We
disagree. When one attorney changes sides, the presumption of
shared confidences is rebuttable, see Cromley, 17 F.3d at 1066, and
KMZR has successfully rebutted the presumption by demonstrating
carefully constructed safeguards. Such screening mechanisms do
indeed overcome the appearance of impropriety. See id.
Plaintiff also emphasizes that KMZR is not defendant's
“regular outside counsel” and that KMZR “has been representing
Morris in this case for less than three months.” (Reply at 3.) We
believe that these factors should be given little, if any, weight.
Plaintiff also points out that Mr. Chejfec will be working in the
same office and in the same practice group as Mr. Vesselinovitch
and Ms. Henson. However, this case is distinguishable from the
cases cited by plaintiff in which the newly associated attorney
moves to a very small firm (where is it is questionable if
screening mechanisms will be effective). According to KMZR’s web
site, there are approximately 280 attorneys in the Chicago office
and approximately 60 attorneys in Mr. Chejfec’s practice group
(Litigation). Given these circumstances, we see no reason why the
screening mechanisms to which Mr. Vesselinovitch and Mr. Chejfec

have attested will not succeed.


_» Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 03 C 1264 DATE June 4, 2003
CASE Amuro] Confections Co v. Morris National, Inc.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.}
DOCKET ENTRY:
dd) a Filed motion of { use listing in “Motion” box above.]
2° oO Brief in support of motion due
(3) G Answer brief to motion due . Reply to answer brief due.
(4) ia) Ruling/Hearing on set for at
(5) oa Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a) Trial[set for/re-set for] on at.
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (1 General Rule21 © FRCP41(a)(1) © FRCP41(a)(2).
qo) «off [Other docket entry] Plaintiff's motion to disqualify defendant’s
counsel [7-1] is denied. It appears from the docket in this case
that Mr. Chejfec has not formally withdrawn from his representation of
Amurol. He is given leave to do so by June 18, 2003.
A status hearing is set for June 18, 2003, at 10:30 a.m.
qi) x (For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court. Document
No notices required. sumer otvves Naber
x. | Notices MAILED by judge’s staff. di ? 393

Notified counset by telephone

1YNO9 LOYLSIO “SN
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Mail AO 450 form.

J

| Copy to
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KAM deputy's KAM
initials Date/time received in : 7
central Clerk’s Office rating deputy tals



~7]-«

Mr. Vesselinovitch also states that when Mr. Chejfec began
working at KMZR on April 9, 2003, the firm took the following steps
to ensure that Mr. Chejfec was screened from all confidences,
secrets, and material knowledge relating to this matter: (1) e-
mails were sent to all KMZR lawyers and employees at every level in
every office, including Mr. Chejfec, directing that the Amurol
matter must not be discussed with Mr. Chejfec; (2) all files
concerning the Amurol matter are kept in the offices occupied by
the only two lawyers assigned to the matter (Mr. Vesselinovitch and
Ms. Henson), and those offices are locked every evening; and (3)
Mr. Chejfec was warned not to discuss any confidences relating to
the matter with any KMZR lawyer or employee. Mr. Vesselinovitch
avers that the screening mechanisms have been completely effective
and that no confidences have been divulged or received, and that
the screening will continue. Mr. Chejfec will be precluded from
sharing any billing credit or receiving any other form of credit or
compensation arising from the Amurol matter. In addition, Mr.
Chejfec has been isolated from, and will continue to be isolated
from, all contact with Morris, any agents, officers, or employees
of Morris, and any witnesses for or against Morris. Mr. Chejfec’s
affidavit essentially affirms much of what Mr. Vesselinovitch
states.

We conclude that KMZR has rebutted the presumption of shared

confidences with respect to the present representation by


~3-
withdraw, and Mr. Vesselinovitch told Mr. O’Malley that KMZR
had implemented screening procedures.

On April 7, 2003, Amurol filed the instant motion seeking to
disqualify KMZR from representing Morris pursuant to Rule 83.51.10
of the Local Rules of Professional Conduct of the United States
District Court for the Northern District of Illinois. On April 9,
2003, Mr. Chejfec began working at KMZR.

DISCUSSION

Amurol argues that KMZR is disqualified pursuant to Rule
83.51.10 of the Local Rules of Professional Conduct, the “Imputed
Disqualification” provision. The relevant portion of the Rule
states:

When a lawyer becomes associated with a firm, the firm

May not represent a person in a matter that the firm

knows or reasonably should know is the same or

substantially related to a matter in which the newly
associated lawyer, or a firm with which that lawyer was
associated, had previously represented a client whose
interests are materially adverse to that person unless:

(1) the newly associated lawyer has no information

protected by [Local Rule) 83.51.6 or LR 83.51.9 that is

material to the matter; or

(2) the newly associated lawyer is screened from any

participation in the matter and is apportioned no

specific share therefrom.
Local Rule 83.51.10(b).

The burden is on the moving party to show facts necessitating

disqualification. See Guillen _v. City of Chicago, 956 F. Supp.

1416, 1421 (N.D. Ill. 1997). When appropriate, disqualification



-2-
in January 2003, Morris retained KMZR to represent it.! Alexander
Vesselinovitch is the principal KMZR attorney handling the matter.
Emily Henson is the other KMZR attorney assigned to the matter.

In early February, plaintiff Amurol retained Seyfarth Shaw to
represent it in this proceeding, and filed suit on February 19. At
that time, Mr. Chejfec was an associate at Seyfarth Shaw and one of
two attorneys at the firm with primary responsibility for the
Amurol matter and who entered an appearance on behalf of plaintiff.
Mr. Chejfec participated in numerous privileged telephone
conversations with plaintiff’s in-house counsel and with other
attorneys at Seyfarth Shaw regarding case assessment, strategy
valuation, and possible theories of recovery. He reviewed all of
plaintiff£’s documents, performed legal research, and helped draft
the complaint.

In March 2003, Mr. Chejfec began interviewing for a position
at KMZR. Later that month, Mr. Chejfec accepted KMZR’s offer of a
position in the litigation department of its Chicago office. On
March 18, Mr. Chejfec informed John O’Malley, the other attorney at
Seyfarth Shaw who was working on the Amurol matter, that he had
accepted a position at KMZR and would begin working there in early
April. On March 31, Mr. O’Malley wrote Mr. Vesselinovitch to ask

that KMZR withdraw as counsel for Morris. KMZR declined to

¥ On March 14, 2003, KMZR filed an appearance in this case on behalf of
Morris.


re
03-1264.031-JcD June 4, 2003

IN THE UNITED STATES DISTRICT COURT JUK ies ay
FOR THE NORTHERN DISTRICT OF ILLINOIS “ 2003
EASTERN DIVISION
AMUROL CONFECTIONS COMPANY,
Plaintiff,
v.

No. 03 C 1264

MORRIS NATIONAL, INC.

Defendant.

MEMORANDUM OPINION

Before the court is plaintiff's motion to disqualify
defendant’s counsel. For the reasons stated below, the motion is
denied.

BACKGROUND

This is a breach of contract action in which plaintiff Amurol
Confections Company (“Amurol”) seeks over $900,000 for products
that it alleges it sold and delivered to defendant Morris National,
Inc. (“Morris”) without receiving payment.

Plaintiff moves to disqualify defendant’s counsel, the law
firm of Katten Muchin Zavis Rosenman (“KMZR”). The basis for the
motion is attorney Charles Chejfec’s recent move to KMZR from his
former firm, Seyfarth Shaw, which represents plaintiff.

The following facts are taken from the affidavits submitted by
both plaintiff and defendant. In late December 2002, Morris first

contacted KMZR in connection with the dispute in this lawsuit, and

/