ATTEMPTING TO DISQUALIFY COUNSEL IN MATRIMONIAL

ST v LT 2021 NY Slip Op 50792(U) Decided on August 16, 2021 Supreme Court, Nassau County Prager, J. :

"The Defendant moves by Notice of Motion for an Order disqualifying the firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys for the Plaintiff.

BACKGROUND

The above-captioned action for divorce was commenced on December 19, 2018 with the filing of the Summons and Complaint. Plaintiff ST (the "Ex-Husband") and Defendant LT (the "Ex-Wife") (together, the "Parties") entered into a Stipulation of Settlement dated December 31, 2018 (the "Stipulation"), which resolved all issues incident to the divorce. The Stipulation was incorporated, but not merged, into the Judgment of Divorce entered on September 24, 2019 (the "Judgment").

Pursuant to the Stipulation, the Parties agreed that they would share joint legal custody of their son GST (the "Son"), born June 30, 2011, and that the Ex-Wife would have residential custody of the Son, subject to the Ex-Husband's parenting time.

On January 7, 2020, the Ex-Husband filed a Petition for Modification in the Nassau County Family Court seeking to expand his parenting time with the Son. The Ex-Wife filed a [*2]post-judgment motion in the instant action, seeking to remove and consolidate the Family Court proceeding with the instant action, and for sole legal custody of the son. The Parties stipulated to the removal and consolidation of the Family Court proceeding. The Ex-Husband cross-moved for sole legal and residential custody of the Son.

By Decision and Order dated September 21, 2020, by Hon. Thomas Rademaker, J.S.C. (the "Decision & Order") (NYSCEF Doc. 107), the Court (i) denied the Parties' respective applications for sole custody; (ii) modified the Stipulation and Judgment so as to award final decision-making authority to the Ex-Wife; and (iii) awarded legal fees in the sum of $20,000 to the Ex-Wife.

On or before September 29, 2020, the Ex-Husband filed an appeal from the Decision & Order in the Appellate Division, Second Department (the "Appeal") (NYSCEF Doc. 115). To represent him in the Appeal, the Ex-Husband retained Michael R. Gionesi, Esq., of the law firm of TABAT, COHEN BLUM, YOVINO & DIESA, PC, (the "Firm"), who had not represented him previously, either in the divorce action or in the underlying post-judgment proceedings.

On or about November 2, 2020, the Ex-Wife moved to disqualify the Firm from representing the Ex-Husband in the Appeal (NYSCEF Doc. 156). By Decision dated February 8, 2021, the Appellate Division denied the Ex-Wife's motion (NYSCEF Doc. 157).

On March 1, 2021, Mr. Gionesi, on behalf of the Firm, filed a Notice of Appearance in the instant post-judgment proceeding (NYSCEF Doc. 145). The instant motion to disqualify the Firm from representing the Ex-Husband herein was filed on March 17, 2021. The matter was conferenced by the undersigned, to whom the proceeding had been reassigned, and was marked fully submitted on June 16, 2021.

DISCUSSION

The Ex-Wife seeks to disqualify the Firm from representing the Ex-Husband in these post-judgment proceedings on the ground that she had consulted with a member of the Firm prior to the commencement of the divorce action, and had disclosed confidential information to him that could be prejudicial to her in the instant proceedings.

In her Affidavit in Support (NYSCEF Doc. 147), the Ex-Wife avers that prior to the commencement of the divorce action, in or about 2017, she consulted with Robert A. Cohen, Esq., an attorney of the Firm. She claims that the consultation lasted at least one and one-half (1½ ) hours, during which time she revealed several facts relating to the care and custody of the Son. Specifically, she states:

"I expressed my fears and concerns as to Plaintiff's mental health, conduct and his behavior towards our son and myself. I gave a detailed account of specific events and incidents of Plaintiff's actions to illustrate my fears. I advised counsel what I wanted and what I believed my husband's reaction would be to my requests." Affidavit in Support, ¶4.

The Ex-Wife notes that after the initial consultation, she did not retain Mr. Cohen. She does not indicate that she had any further contact with Mr. Cohen.

Counsel for the Ex-Wife acknowledges that the Appellate Division denied the Ex-Wife's motion to disqualify the Firm, but argues that the circumstances herein are distinguishable. In the Appeal, counsel asserts, the Appellate Court's consideration was limited to the Record on Appeal. In the instant post-judgment proceedings, there is no such limitation. Here, counsel contends that insofar as custody and visitation remain at issue, any confidential information received by Mr. Cohen is material to the instant proceedings and could be used by the Firm to the Ex-Wife's detriment. Counsel argues that any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.

In opposition, the Ex-Husband submits the Affidavit of Robert A. Cohen, Esq., sworn to on April 13, 2021 (NYSCEF Doc. 161), along with Mr. Cohen's intake sheet and intake notes from his consultation with the Ex-Wife (NYSCEF Docs. 159 and 160). Mr. Cohen states that the Ex-Wife consulted with him on June 3, 2016. He states that he has no independent recollection of the consultation. The intake sheet and intake notes (to the extent that they are legible) appear to reflect basic information about the spouses, including their age, employment, income, insurance, and assets. According to Mr. Cohen, all of the information disclosed during the consultation was required to be disclosed to opposing counsel during the underlying matrimonial action. He states that the notes do not reflect any information regarding the Ex-Husband's mental health or conduct toward the Son, and that generally, if such information were reported to him, it would be his practice to include it in his notes, as it would be relevant to the issue of child custody.

Mr. Cohen also affirms and represents that, although he has no information on this case other than what appears on the intake sheet and intake notes, he will have no involvement or participation of any kind in connection with the instant post-judgment matter (or the Appeal). He notes that he works out of the Firm's offices in Hauppauge, whereas the files on the instant matters are maintained exclusively in the Firm's Garden City offices.

The Ex-Husband also submits the Affirmation of Michael Gionesi, one of the Firm's attorneys handling this matter (NYSCEF Doc. 154). Mr. Gionesi contends that the Appellate Division heard the identical allegations, and considered the same arguments, as are now before the Court with respect to the Firm's disqualification, and that there is nothing new or different that would warrant a different result. As a factual matter, he argues that the Ex-Wife's allegations concerning confidential information revealed to Mr. Cohen are conclusory, self-serving and unsubstantiated. As a legal matter, he argues that a party's right to counsel of one's own choosing is a valued right that is not easily overcome. The mere appearance of impropriety, standing alone, is not sufficient for disqualification.

Mr. Gionesi asserts that there is no prejudice to the Ex-Wife in the Firm's continuing to represent the Ex-Husband. He cites Mr. Cohen's notes, which suggest that the 2016 consultation did not include a discussion of the Ex-Husband's mental condition or any other information relevant to the issues of custody and visitation. Moreover, Mr. Gionesi argues, the consultation pertained to the underlying divorce action, whereas the instant matter is a post-judgment proceeding. The confidences allegedly revealed to Mr. Cohen five years ago, in contemplation of the divorce action, are not relevant here. Finally, Mr. Gionesi affirms that Mr. Cohen will have no involvement in the instant post-judgment proceedings (or the Appeal), and he will have no communication with any attorney, or access to any physical or computer files, pertaining to this [*3]case.

In Reply, the Ex-Wife challenges the characterization of her allegations as conclusory and self-serving. She argues that she cannot be required to disclose the specific facts that she related to Mr. Cohen, insofar as to do so would reveal the very confidences that she seeks to protect. She reiterates her argument that disqualification is necessary to avoid prejudice and the appearance of impropriety.

The disqualification of an attorney is a matter that rests within the discretion of the Court. Lauder v. Goldhamer, 122 AD3d 908, (2d Dept. 2014). "A movant seeking disqualification of an opponent's counsel bears a heavy burden. . . . A party has a right to be represented by counsel of its choice, and any restrictions on that right must be carefully scrutinized." Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4 (1st Dept. 2015) (internal citations and quotation marks omitted). See also Aryeh v Aryeh, 14 AD3d 634 (2d Dept. 2005). Such right "is a valued right which will not be superseded absent a clear showing that disqualification is warranted." Halberstam v. Halberstam, 122 AD3d 679 (2d Dept. 2014).

The right to counsel of one's choice is not absolute, however, and must be balanced against a potential client's right to the protection of his confidential disclosures. Mayers, supra. The duties of an attorney with respect to a prospective client's disclosures are set forth in the Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.18. Rule 1.18 provides, in relevant part:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a 'prospective client.'(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;(ii) the firm implements effective screening procedures to prevent the flow of information [*4]about the matter between the disqualified lawyer and the others in the firm;(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and(iv) written notice is promptly given to the prospective client; and(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.

In weighing the competing interests, a time-worn principle, still adhered to in certain circumstances, holds that any doubts about the existence of a conflict of interest must be resolved in favor of disqualification, and that the mere appearance of impropriety is sufficient to warrant disqualification. See Cohen v Cohen, 125 AD3d 589 (2d Dept. 2015); Halberstam v Halberstam, 122 AD3d 679 (2d Dept. 2014).

A line of authority has developed in recent years, however, that reflects an evolving standard applicable to a motion to disqualify. As discussed at length by Justice Dollinger in Lyons v Lyons 50 Misc 3d 876 (Sup. Ct. Monroe Cty 2015), and revisited two years later in EMB v AMB 55 Misc 3d 1202(A) (Sup. Ct. Monroe Cty, 2017), courts across the appellate departments, in response to the flood of disqualification cases and the adoption of the new Rules of Professional Conduct, are tending to engage in a more fact-specific inquiry, and to require the movant to show something more than the mere appearance of impropriety. Justice Dollinger cites a long line of cases in which Courts articulate, in various formulations, a standard requiring a fact-based "clear showing" of potential prejudice to the party seeking disqualification. See EMB v AMB, supra, and Lyons, supra; see, e.g., Lovitch v Lovitch , 64 AD3d 710 (2d Dept. 2009) ("Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney.") Justice Dollinger concludes: "This court understands that 'the appearance of a conflict' - an apprehension that a former attorney knows a secret that will be used against his former client - is a powerful fear among litigants. But, mere fear of disclosure - even when cloaked in the language of an 'appearance of a conflict' - is not enough: recent case law and changes in the Rules of Professional Conduct require that there must be some proof of the transfer of confidential information and a real risk of its disclosure to the detriment of the current litigant before a court, utilizing its discretionary powers, grants disqualification." EMB v AMB, supra.

With respect to the case at bar, the Court is persuaded by the reasoning of the latter line of cases, and is of the opinion that the holdings therein strike the appropriate balance between a party's right to representation by counsel of one's choice, and the movant's right to protection from a former attorney or prospective attorney's breach of duty to him or her.

A standard reflective of this recent trend was articulated by the First Department in a context similar to the one at bar, where the movant sought disqualification of his adversary's attorney on the basis of having previously consulted with that attorney as a prospective client. See Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4 (1st Dept. 2015). In Mayers, the Court held that, to prevail on a motion to disqualify, the movant must make a "clear showing" that: (1) the matter for which the attorney is presently retained is the same or substantially related to the matter for which the prior consultation was sought; (2) the interests of the party whom the attorney now represents are adverse to those of the party seeking disqualification; and (3) the information relayed in the prior consultation could be significantly harmful to the party seeking [*5]disqualification in the present matter. Mayers,126 A.D.3d at 5 (emphasis supplied). That is the rule which this Court shall apply here.

As a preliminary matter, the Court finds that it is not bound by the Appellate Division's decision denying the Ex-Wife's motion to disqualify. As argued by the Ex-Wife herein, the circumstances are distinguishable. The Appellate Division's consideration on the Appeal is limited to the Record on Appeal, which includes only the documents, papers, transcripts and other evidence filed in the proceedings before Judge Rademaker. Insofar as the Firm did not represent the Ex-Husband in those proceedings, no confidential information received by Mr. Cohen could have been included in the Record on Appeal. There is no such limitation on the record in the instant proceeding, and any facts known to Mr. Cohen would not, as such, be kept outside the scope of these proceedings.

In addition, for purposes of the instant determination, the Court shall assume, without deciding, that the Ex-Wife's statements are true regarding the subject matter of the information conveyed to Mr. Cohen in her 2016 consultation.[FN1] Insofar as Mr. Cohen states that he has no independent recollection of the meeting, and given the Ex-Wife's concerns regarding disclosure of the specific confidences she seeks to protect, a hearing on the issue would be fraught with complications, and would not be sufficiently fruitful to justify the further expense and delay in these proceedings. See, generally, EMB v AMB 55 Misc 3d at 1202(A); Lyons v Lyons 50 Misc 3d at 876.

Turning to the proof required by Mayer [126 A.D.3d at 5], the Court is unpersuaded by the Ex-Husband's suggestion that there is no substantial relationship between the instant post-judgment proceedings and the underlying divorce proceedings. At minimum, both matters concern issues of child custody and visitation. Nonetheless, upon the record presented, the Court does not find that the Ex-Wife has met her burden to make a "clear showing" that disqualification is warranted. While she is not required to spell out the claimed secrets she wishes to protect in order to prevail, she must provide the Court with some information that would permit the Court to conclude that there is a reasonable likelihood that the disclosures allegedly made to Mr. Cohen could be significantly harmful to her in the present litigation. See E.M.B. v A.M.B., 55 Misc 3d 1202(A), quoting Jamaica Public Service Co. Ltd. v AIU Ins. Co., 92 NY2d 631 (1998).

According to the Ex-Wife, she provided to Mr. Cohen information relating to the following subject matter: (1) the Ex-Husband's mental condition; (2) the Ex-Husband's conduct toward herself and the Son; and (3) what she wanted in the litigation, and what she believed the Ex-Husband's response would be to her requests.

The issues before the Court in these post-judgment proceedings fall under the rubric of enforcement or modification of the terms of the Stipulation and Judgment. With respect to [*6]enforcement, the onus is on the moving party to demonstrate that the other party has not complied with such terms. The facts and circumstances relevant to this inquiry are those which occurred after the entry of the Stipulation and Judgment. With respect to modification, the onus is on the moving party to demonstrate that there has been a change of circumstances that warrants a modification of such terms. The facts and circumstances relevant to this inquiry are those that existed at the time of the Stipulation and Judgment, and those that occurred thereafter.

The Ex-Wife does not explain, let alone demonstrate, how the facts and circumstances existing in 2016, over 2-1/2 years before the entry of the Stipulation and Judgment, are relevant to the instant post-judgment proceedings. More particularly, she does not explain, or even offer a theory, as to how the knowledge of such information by the Ex-Husband's counsel could impact the instant litigation or affect her legal status.[FN2] The Court cannot be called upon to speculate on her behalf.

Here, it is not the lack of specificity regarding the information allegedly provided to Mr. Cohen that is of concern to the Court. Rather, it is a lack of clarity as to how the type of information allegedly reported to Mr. Cohen in 2016 could significantly harm the Ex-Wife in the present litigation. At minimum, some fact-based explanation is required to withstand the strict scrutiny applied to a motion to disqualify.

The Court is of the opinion that it would be an improvident exercise of discretion to deprive the Ex-Husband of representation by counsel of his choice on the basis of nothing more than the conclusory assertion of prejudice. Moreover, the steps taken by the Firm to isolate Mr. Cohen from any contact with this case going forward further attenuate any claim of prejudice, and further militate against disqualification.

CONCLUSION

The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.

Based upon the foregoing, it is

ORDERED, that the Ex-Wife's motion for an Order disqualifying the firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys for the Plaintiff is DENIED."