This article considers two recent New York decisions that examine the meaning of “informed consent” in the context of both disqualification motions and cases where the interests of clients and their lawyers become directly adverse. Importantly, the cases examine the relationship between the New York Rules of Professional Conduct (RPCs) and the other principles to be considered when examining the adequacy of consent, including parties’ rights to select counsel, the courts’ overriding role in supervising litigation and, more generally, lawyers’ fiduciary duties to their clients, including the duty not to overreach.

Waiver in ‘Grovick’

In Grovick Props. v. 83-10 Astoria Boulevard, 2014 NY Slip Op 05627 (2d Dept. Aug. 6, 2014) the Appellate Division, Second Department, assessed the adequacy of an advanced waiver requested of and given by a client prior to the commencement of an engagement. By way of background, in April 2004, the plaintiff, Grovick Properties LLC, purchased commercial property in Queens from the defendant 83-10 Astoria Boulevard LLC. The law firm of Ruskin Moscou Faltischek, P.C., where Jon Schuyler Brooks was of counsel, represented Grovick on the purchase of the property. At the time of the closing, both buyer and seller learned that the State of New York “desired to place an environmental lien” upon the property resulting from the costs of remedial efforts in abating the discharge of petroleum, which contaminated the property. In order to close the transfer of title without the burden of remediation falling on Grovick, the parties entered into an escrow agreement, whereby Astoria placed $500,000 of the purchase price in escrow, to protect Grovick against any action by the state.

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