[*1]
D.B. v M.B.
2013 NY Slip Op 50502(U) [39 Misc 3d 1205(A)]
Decided on February 26, 2013
Supreme Court, Westchester County
Christopher, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 26, 2013
Supreme Court, Westchester County


D.B., Plaintiff,

against

M.B., Defendant.




XXXXX

Linda Christopher, J.



The following papers numbered 1- 10 [FN1] were considered in connection with plaintiff's motion brought by Order to Show Cause:

PAPERSNUMBERED

Order to Show Cause/Affidavit/Affirmation/Exhibit/Memorandum of1 - 5 [*2]

of Law

Affirmation of M. D., Esq./Affirmation of A. B.,6 - 8

Esq./Affirmation of L. B. L., Esq.

Affirmation in Reply/Memorandum of Law9 - 10

In this matrimonial action the plaintiff moves for an order disqualifying M. D., Esq., the law firm of B. & L. and the law firm of G. & C. from representing defendant, M. B., in this action, based upon his claim that B. & L. is associated with the firm of G. & C.. Defendant, through counsel, opposes the motion, arguing that the relationship between the firms does not constitute an association in accordance with the Rules of Professional Conduct.

Procedural History

Defendant had initially retained M. D. , Esq. to represent her in this action. She subsequently discharged Mr. D. and retained the K. Firm, which she also discharged. In or about April 2012, defendant retained B. C., Esq., whom she discharged on January 11, 2013, ten days prior to the trial scheduled in this matter. On the day of trial, defendant appeared pro se, at which time the Court afforded defendant the opportunity to retain counsel. Defendant then retained Mr. D., who enlisted the services of A. B., Esq., a member of the firm B. & L., LLP, to act as co-counsel with him.

Plaintiff was originally represented in this matter by E. G., Esq. from October 2009 through March 2012, at which time he sought new counsel. Plaintiff then contacted J. G. , Esq., of G. & C., P.C., and alleges that over a one to two month period, he spoke with Mr. G. a total of three times, during which times plaintiff discussed the facts and issues surrounding the instant divorce case. Plaintiff claims two of the conversations took place over 10 to 15 minutes, and the third conversation was much shorter. Plaintiff wrote that during the third conversation, Mr. G. advised plaintiff that he realized he had a conflict of interest since he had already afforded defendant a consultation on this same divorce matter. According to plaintiff, Mr. G. had given the defendant the consultation prior to realizing he had a conflict of interest in representing her, based on the fact that he had represented plaintiff's brother in his divorce action.[FN2] Subsequently, plaintiff retained his current counsel.

Argument

Plaintiff argues that the conflict of interest which prohibits Mr. G. from providing representation to defendant, extends to Mr. B. and his firm based on plaintiff's claim that the law firms of G. & C. and B. & L. have maintained an "association" together, as that term is used in the Rule of Professional Conduct. Plaintiff's counsel claims that over the last few years, the firms of G. & C. and B. & L. routinely and frequently appear together as co-counsel or "of counsel" to one another in matrimonial actions in the counties of Westchester and Putnam. Plaintiff's counsel asserts that there have been at least 8 matters within the past 18 months wherein Mr. G. and Mr. L. have appeared together.[FN3] Plaintiff's counsel states that Mr. G. was in this "association" with B. & L. at the time plaintiff and defendant had their consultations with him on this divorce matter, and that [*3]said "association" still continued to exist as of January 11, 2013. Plaintiff contends that by virtue of Mr. D. engaging Mr. B. as co-counsel, Mr. D. is infected with the same conflict as G. & C. and B. & L. Plaintiff claims that Mr. D. 's association with Mr. B., while Mr. B. 's firm is associated with Mr. G., who admittedly could not represent defendant in this action, renders Mr. D. unable to represent defendant in this matter.

Plaintiff also asserts that he does not consent to any of the attorneys who are conflicted from this matter due to their relationship with Mr. G., providing representation to defendant. He claims that defendant's decision to re-hire Mr. D., her first attorney, whom she had discharged, is an attempt by defendant to garner information about his brother and him, and is causing him apprehension.

With regard to the asserted conflict related to the firm's "association" with Mr. G.'s firm, Mr. L. and Mr. B. assert that 1) B. & L. LLP is a limited liability partnership, the purpose of which is the practice of law; 2) their firm is a separate and distinct practice and business from G. & C., P.C.; 3) on occasion Mr. G. and they have worked on certain matters together over the past three years; 4) neither Mr. L. nor Mr. B., nor anyone in their firm has ever met with or represented plaintiff of his brother in any matter; and 5) that Mr. G. never shared any confidential information, nor allowed either one of them, or anyone in the firm any other access to any confidential information arising out of, or learned by Mr. G. or anyone in his firm during the representation of plaintiff during the consultation, or in the prior representation of plaintiff's brother.

Specifically, Mr. B. states that he should not be disqualified from being able to represent defendant based on a limited business relationship that his firm has with Mr. G.'s firm on a limited number of cases, all of which are unrelated to plaintiff's case. He asserts that B. & L. LLP is a separate firm, with offices located at ———-Road, White Plains, NY that occasionally affiliates on a limited number of matters, with G. & C. , P.C., with offices located in Tarrytown, NY. Additionally, Mr. B. , Mr.L. and Mr. D. all claim that disqualification is not warranted as Mr. G. never shared any confidential information with any of them, from his consultations with plaintiff, or from his prior representation of plaintiff's brother.

Mr. B. and Mr. L. set forth that they have been partners in the firm of B. & L. LLP for 10 years, and Mr. D. is a sole practitioner. Both the firm of B. & L. and Mr. D. maintain offices at —————, Suite —-, White Plains. Mr. B., Mr. L. and Mr. D. state that they rent space in the suite with other lawyers, each of whom maintain separate practices. B. & L. pay rent to the landlord and Mr. D. sublets his space from another lawyer. Each of the lawyers and/or law firms in the suite is a separate practice or business. Mr. B. and Mr. L. claim that the firm's staff and all of its client files (computer files as well as hard copies) are maintained separately from other lawyers in the suite. Mr. D. makes that same claim regarding his staff and files.

Mr. B., Mr. L. and Mr. D. all state that except for limited circumstances, no lawyer in the suite has access to information relating to another lawyer's cases. Mr. D. asserts that on occasion, he will bring another lawyer in on a case with his client's consent, and share information limited to that specific case with that lawyer; that lawyer may or may not be located in the suite where Mr. D.'s office is located. Mr. B. and Mr. L. state that on occasion they are asked to act as counsel on another case by another lawyer or law firm, and that with the client's consent, their firm and that lawyer/law firm will share information limited to that specific case. Also, Mr. B. and Mr. L. state that at times either one of them has been brought into a case by a lawyer in the suite where the firm's office is located, but on other occasions Mr. L. has been asked to act as co-counsel by lawyers whose offices [*4]are located elsewhere, including Mr. G., of G. & C., P.C. with offices located in Tarrytown. Both Mr. B. and Mr. L. submit that although Mr. L. has worked on certain cases with Mr. G. and his firm, neither of them is a partner, member or employee of Mr. G.'s firm, nor do either of them have keys to , or access to his firm's offices, and in fact, other than the cases in which Mr. L. works with Mr. G. , no one in the firm of B. & L. has access to Mr. G.'s client files. Mr. B. and Mr. L. also state that they have many cases in which clients have retained them independently and which they handle independent of any involvement or input by Mr. G. or anyone at his firm, and that they receive independent payment from their clients; their firm is not solely reliant upon of counsel cases with Mr. G..

In reply, plaintiff submits that the nature, extent, frequency and quality of the services that Mr. L. and Mr. G. render to their mutual clients is not identified in the papers submitted in opposition to plaintiff's motion. Plaintiff asserts that Mr. L. does not deny that he and Mr. G. and the respective firms are in an "association," and that there were at least 7 cases that L. and G. worked on together. Plaintiff's counsel asserts that Mr. G. has described to him that his relationship with Mr. L. is one where they will work together on matrimonial cases that appear likely to be litigated, and in the community of matrimonial attorneys, L. and G. are known to have a professional association whereby they appear together in contested matrimonial cases. Plaintiff further claims that as appears on e-courts, while in the last 3 years, Mr. G. has filed more than 70 notices of appearance in matrimonial actions, Mr. L. has filed less than 12. Plaintiff also submits that defendant cannot rely on the claim that she cannot locate any other attorneys to accept her case, and that she will be prejudiced if Mr. D. is disqualified as her counsel; he asserts that the fact that defendant has made herself a pariah of a client, is not his doing, and that if she needs time to retain new counsel, she no doubt will be afforded a reasonable period of time to do so.

Legal Analysis

It is well established that "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify the attorney bears the burden to show sufficient proof to warrant such a determination."

Madris v. Oliviera, 97 AD3d 823, 824 (2d Dept. 2012), quoting, Gulino v. Gulino, 35 AD3d 812 (2d Dept. 2006). In the context of ongoing litigation, disqualification of one party's attorney can stall and derail the proceedings, giving one party a strategic advantage over the other party. S & S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 NY2d 437, 443 (1987). "Whether or not to disqualify an attorney of law firm is a matter which rests in the sound discretion of the court (citation omitted)." Gulino, 35 AD3d 312.

Pursuant to Rule 1.9(a) of the Rules of Professional Conduct (22 NYCRR 1200.0)

"[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

As set forth in Jamaica Public Service Co. Ltd. v. AIU Insurance Company, 92 NY2d 631, [*5]636 (1998), a party seeking disqualification of an attorney under DR 5-108(a)(1) of the New York Code of Professional Responsibility, [which is substantially the same as current Rule 1.9(a)][FN4] must establish (1) that there was a prior attorney-client relationship between the moving party and opposing counsel; (2) that the matters involved in both representations are substantially related; and (3) the interests of the present client and the former client are materially adverse. Id.

In the instant matter it is undisputed that under Rule 1.9(a), Mr. G. and his firm of G. & C., P.C. have a conflict of interest with regard to representing defendant in this divorce matter. Mr. G. had a consultation with plaintiff in connection with this same divorce action, and also had represented plaintiff's brother in his divorce action where allegedly some of the same assets were at issue, that are at issue in this matter. Additionally, according to plaintiff, prior to his consult with plaintiff, Mr. G. had given defendant a consultation in this matter, before realizing he had he had represented plaintiff's brother in his divorce action and therefore had a conflict of interest in representing her.

Rule 1.10(a) of the Rules of Professional Conduct provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein." Therefore, "where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation (citations omitted)." Kassis v. Teacher's Insurance and Annuity Association, 93 NY2d 611, 616 (1999).

While it is not disputed that there have been relationships between Mr. G. and Mr. B.'s firm, the issue is whether there is currently a relationship that rises to the level of "association" contemplated by Rule 1.10(a), and thus necessitates imputation of Mr. G.'s conflict to Mr. B. by virtue of B. & L. LLP having an "association" with Mr. G., requiring the disqualification of Mr. B., and ultimately, Mr. D., due to his enlisting the services of Mr. B. as co-counsel.

New York State Bar Association Ethics Opinion No. 773 (January 23, 2004), relied on by plaintiff, states that a lawyer who is "of counsel" to a law firm is "associated" with the firm for purposes of imputation of conflicts of interest. The Opinion refers to DR 2-102(A)(4)[FN5] which provides that "[a] lawyer or law firm may be designated Of Counsel' on a letterhead if there is a continuing relationship with a lawyer or law firm, other than as a partner or associate." Also, the Opinion states that the "of counsel" relationship has been interpreted by the NYSBA Ethics Committee [as set forth in NYS Opinion 262 (1972)], "to mean that the of counsel lawyer is available to the firm for consultation and advice on a regular and continuing basis." Additionally, noted in the Opinion is the ABA Ethics Committee characterization of the "of counsel" relationship as being "close, regular [and] personal." ABA 90-357.

Also cited by plaintiff is New York State Bar Association Ethics Opinion No. 793 (March 17, 2006), which reiterates the principles set forth in Opinion 773 regarding "of counsel" [*6]relationships and imputation of conflicts, but which also contrasts the situation where a lawyer's relationship with the firm is more attenuated than that of an "of counsel" relationship, and thus the lawyer would not be deemed "associated" with the firm for purposes of imputation of conflicts. According to the Opinion, this would occur where the relationship is not close, regular or personal, and the lawyer would not have general access to confidences and secrets of the firm.

Indeed there are circumstances where despite an attorney or law firm having been engaged in an "of counsel" relationship, Courts have refused to disqualify that attorney or law firm based on an imputed conflict of interest. See, Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 2004 WL 62560 (E.D.NY 2004)["Motions to disqualify opposing counsel are viewed with disfavor...because they are often interposed for tactical reasons' and result in unnecessary delay." Id.] ; Regal Marketing Inc. v. Sonny & Son Produce Corp, 2002 WL 1788026 (S.D.NY 2002); Bison Plumbing City, Inc. v. Benderson, 281 AD2d 955 (4th Dept. 2001); Shelton v. Shelton, 151 Ad2d 659 (2d Dept. 1989). In Hempstead Video, Inc. and Regal Marketing Inc. where the "of counsel" attorney 1) maintained a separate and discreet practice, and had never been and was not a member of the law firm; 2) did not have his name on the letterhead of the firm; 3) only engaged in occasional collaborative efforts with the firm , providing the firm with only sporadic assistance; and 4) was not shown to be more than a de minimus "of counsel" for the firm, the Court found that the relationship between the of counsel lawyer and the law firm was too attenuated to merit imputation of the conflict of interest.

Based on a review of the facts, and in conjunction with the applicable law, the Court finds that plaintiff has failed to meet his burden to demonstrate that the disqualification of Mr. B. , the firm of B. & L., or Mr. D. is warranted in this matter. While Mr. G. and his firm's conflict would prohibit him and G. & C. , P.C. from representing defendant, that conflict is not imputed to Mr. B. and the firm of B. & L.

Mr. B. and Mr. L. set forth that their firm is a separate and distinct practice from G. & C. , P.C.; the law firm of B. & L. , LLP maintains its offices in White Plains while the firm of G. & C., P.C. maintain its offices at a different location in Tarrytown. Mr. B. and Mr. L. state that over the past three years they have only occasionally affiliated with G. & C., P.C. on a limited number of matters.[FN6] Although Mr. L. works on certain cases with Mr. G. and his firm, neither Mr. B. nor Mr. L. are partners, members or employees of G. & C., P.C., nor do they have keys to, or access to the firm's offices, and other than the cases in which Mr. L. works with Mr. G., no one in the firm of B. & L. has access to Mr. G. 's client files. Also, Mr. B. and Mr. L. have many cases in which clients have retained them independently and which they handle independent of any involvement or input by Mr. G. or anyone at his firm, and they receive independent payment from their clients; their firm is not solely reliant on Mr. G. or his firm based on the cases where they act as his co-counsel or on an of counsel basis. Additionally, the Court notes that there has been no allegation that the name of any attorney from the firm of B. & L., LLP appears on the letterhead of the firm of G. & C, P.C., or vice versa.

In contrast, plaintiff's counsel seeks disqualification of Mr. B. based on the conclusory, [*7]unsupported allegations that over the last few years, the firms of G. & C. and B. & L. have maintained an "association" together, by routinely and frequently appearing together as co-counsel or "of counsel" to one another in matrimonial actions in the counties of Westchester and Putnam; yet plaintiff's counsel cites only 6 matrimonial matters of which he has first hand knowledge, wherein Mr. G. and Mr. L. have appeared together over the past 18 months. Plaintiff's allegations that Mr. G. and Mr. L. are known to have a professional association in the community of matrimonial attorneys is opinion not supported by facts. His claim that a review of e-courts will indicate that during the last three years Mr. G. has filed 70 notices of appearances in matrimonial actions as compared to less than 12 filed by Mr. L. is of no merit. Insinuations and inferences as to the extent of the relationship between L. and G. are not a substitute for facts.

Furthermore, it is uncontroverted that neither Mr. L. nor Mr. B., nor anyone in their firm has ever met with or represented plaintiff or his brother in any matter, and Mr. G. never shared any confidential information, nor allowed either Mr. L. or Mr. B., or anyone in the firm any other access to any confidential information arising out of, or learned by Mr. G. or anyone in his firm during the representation of plaintiff during the consultation, or in the prior representation of plaintiff's brother.

The non-exclusive, and non-regular "of counsel" relationship between Mr. G. and Mr. L. is not the "close, regular and personal" type of relationship, and/or one wherein they are "available for consultation and advice on a regular and continuing basis," which would cause Mr. G. and Mr. L. to be deemed "associated" for purposes of imputation of a conflict of interest as contemplated by the Rules and Ethics Opinions.

The Court recognizes even in a situation wherein the attorneys acting "of counsel" maintain their own distinct integrity, at some point the relationship could become an association for purpose of imputing conflicts of interest. However, given the facts of this case, the sharing of 6 to 8 cases over 18 months is insufficient to make a finding of a conflict.

Based on the foregoing, and in the Court's discretion, the Court determines that neither Mr. B., B. & L., or Mr. D. are disqualified from representing defendant in the instant divorce action.

To the extent any relief requested in Motion Sequencewas not addressed by the Court it is hereby denied.

This decision shall constitute the order of the Court.

E N T E R

Dated: White Plains, NY

February 26, 2013HON. LINDA CHRISTOPHER, J.S.C.

To:(Attorneys' names omitted)

Footnotes


Footnote 1: Defendant's counsel, M. D., Esq., submitted an Affirmation in Opposition to plaintiff's motion, signed by D. A. S., Esq., with his, Mr. B.'s and Mr. L.'s affirmations annexed as Exhibits. Ms. S.'s Affirmation states that she was retained by Mr. D., and that she is appearing in this matter for the limited purpose of responding to plaintiff's application. As pointed out by plaintiff, Ms. S. does not represent defendant, and therefore the Court declines to consider her Affirmation. However, the Court will consider the Affirmations of Mr. D., Mr. B. and Mr. L. that are annexed to Ms. S.'s Affirmation.

Additionally, as noted by plaintiff, defendant did not submit an Affidavit in Opposition to plaintiff's motion. While certainly an Affidavit should have been submitted, the Court recognizes that when the issue of disqualification of her attorneys was raised in Court, defendant was clearly opposed to having her attorneys disqualified.

Plaintiff also claims that the opposition papers submitted were not timely served. However, plaintiff's counsel consented to defendant's request for an extension of time to submit his answering papers, although no such request was made to the Court. Plaintiff's counsel expected additional time to reply which the Court declined due to the impending trial date. In any event, the Court received reply papers from plaintiff which were considered herein by the Court. The Court notes that in the future, all such adjournments must be approved by the Court.

Footnote 2: Mr. G. previously represented plaintiff's brother in his divorce which concluded in or about 2009. According to plaintiff, some of the same assets at issue in this matter, were also at issue in his brother's divorce action.

Footnote 3: While counsel claims to have personal knowledge of 6 of these 8 cases, it is claimed that another attorney, J. H., Esq., allegedly advised counsel of the other two matters.

Footnote 4: The Rules of Professional Conduct replaced the New York Code of Professional Responsibility on April 1, 2009.

Footnote 5: Current Rule 7.5(a)(4)of the Rules of Professional Conduct is identical to DR 2-102 (A)(4) which it replaced as of April 1, 2009.

Footnote 6: Mr. L. and Mr. B. both state that on occasion they are asked to act as of counsel on other cases by other lawyers or law firms, and that with that client's consent, their firm and that lawyer/law firm share information limited to that specific case.