The present order concerns a motion made by the husband requesting the disqualification of the Law Offices of DOMINIC A. BARBARA, ESQ. as the wife's counsel. The husband, Nathaniel Aryeh, claims that a conflict of interest exists and as such, the wife, Annette Aryeh, should be required to secure new counsel.

A divorce action was commenced on or about February 20, 2001. The Wife has been represented by the Law Offices of DOMINIC A. BARBARA from July 24, 2002 to present. From that time until January of this year, JUDITH ACKERMAN, ESQ. had been the associate in Mr. Barbara's office handling the matter for the wife. About January 12, 2004, Judith Ackerman left her previous employer and began working for GASSMAN & KEIDEL, P.C., the law firm that was representing the husband at the time. Upon the departure of Ms. Ackerman, the wife's matter was handed over to another associate in Mr. Barbara's office. Once Ms. Ackerman was hired by Gassman & Keidel, the husband was immediately notified and advised that due to the conspicuous conflict of interest, the firm would no longer be able to represent him and he would therefore need to obtain new counsel.

The Husband did not obtain new counsel until February 24, 2004, at which time he retained JAMES P. JOSEPH & ASSOCIATES, P.C.. On April 16, 2004, Ms. Ackerman left Gassman & Keidel and on April 19 returned to Mr. Barbara's firm. This event gives rise to the motion pending before this Court. [*2]

The husband asserts the claim that a new conflict of interest has arisen based upon Ms. Ackerman's current employment with Mr. Barbara's firm, subsequent to her employment with Gassman & Keidel. It is the husband's position that Judith Ackerman being employed by Gassman & Keidel for a period of time, albeit short, while the husband was still a client of the aforementioned firm renders Ms. Ackerman's new employer, Dominic Barbara, an inappropriate representative of his wife. The husband has requested that Mr. Barbara voluntarily recuse his firm from the matter, said request being refused. It is the wife's position that a disqualification would be unwarranted, based on the husband being informed to obtain new counsel and the minimal level of representation by Gassman & Keidel until that time, combined with the assertions made by Ms. Ackerman in her affidavit that she had, "no involvement whatsoever" with this case. (Plaintiff's Exhibit A at 2). The husband proceeded to file the foregoing motion seeking to disqualify the Law Offices of Dominic A. Barbara. The motion is hereby denied for the following reasons:

The basis for the husband's objection to the wife retaining her current counsel is the fear that the husband will by prejudiced by knowledge that Ms. Ackerman may have gained concerning the husband's position as well as an 'appearance of impropriety'.

The husband first claims that he was represented for six weeks by Gassman & Keidel while Ms. Ackerman was employed there. Although the husband is correct in the fact that Gassman & Keidel was his counsel during the time period of January 12, 2004 to February 24, 2004 (at which point he retained Mr. Joseph's firm), the firm's representation of him was ministerial in nature. The husband was instructed to obtain new counsel when the original conflict was realized prior to Ms. Ackerman's employ. Gassman & Keidel had remained husband's counsel solely due to the fact that no new counsel had yet been retained. Additionally, the husband fails to provide evidence to support his position concerning the representation that his former attorneys provided during that time. According to the affidavit of wife's counsel, the only activity in the case during the time period in question were three adjournments for the purpose of allowing the husband to retain new counsel and one issue of visitation concerning a holiday (Plaintiff's Affirmation in Opposition at 4). The husband does not contest this fact or assert that the involvement was more involved than that stated by the wife. As such, Gassman & Keidel's representation of the husband during those several weeks in and of itself is not enough to impart knowledge on Ms. Ackerman (even considering the small firm size) that would detrimentally affect the husband's legal representation.

The husband's other argument concerning the appearance of impropriety is based upon the New York Court of Appeals case Cardinale v Golinello, 43 NY2d 288. In citing Cardinale, the husband points to language stating the importance of avoiding an appearance of impropriety, to the extent that even if the lawyer did not gain any confidential information a disqualification may be warranted nonetheless. That language combined with the court's statement: "Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client's former attorney."(Cardinale v Golinello, supra, at 296) While this may seem damaging to the wife's position, the Cardinale case factually does not apply to the present matter.

The Cardinale case concerns Golinello's purchase of capital stock in a company. An [*3]attorney, Charles P. Schiller, began working for the firm representing Golinello shortly after the acquisition. The firm continued to do legal work for Golinello for over ten months while Schiller was employed there. Some years in the future a suit was brought against Golinello and his firm arising out of the sale of stock. The firm retained by the plaintiff brought in Schiller to try the case. The plaintiff's firm and Schiller were both subsequently disqualified from the case as a result. The fact pattern in the Cardinale case is not analogous to the present situation. While in Cardinale Schiller had worked for Golinello's firm for over ten months during the firm's representation of Golinello and then was picked to litigate the matter against the same, Ms. Ackerman was only employed by Gassman & Keidel for little over a month before the husband retained new counsel. Another distinction that can be drawn is that upon returning to Mr. Barbara's office Ms. Ackerman did not undertake to litigate the case, as Schiller in Cardinale did. The precedent does not apply as Cardinale v Golinello, supra, is not applicable to the present case.

If Cardinale were to be applicable to the situation at hand in spite of the aforementioned distinctions, the two cases may be differentiated from one another. While technically Gassman & Keidel remained the Husband's attorneys until he retained new counsel, for all intents and purpose the firm was no longer husband's counsel. From the instant that Ms. Ackerman was hired by Gassman & Keidel until the Husband retained Mr. Joseph as counsel, Gassman & Keidel (as previously stated) took no action on behalf of the husband apart from requesting adjournments to give the husband more time to find new counsel and informing Mr. Barbara that husband did not consent to the proposed make-up schedule (while stating that husband's new counsel would later discuss the matter with them). The Court is taking the view that for the purposes being addressed, Gassman & Keidel should not be viewed as having represented husband for the period of Ms. Ackerman's employ.

If the Court were to reject the preceding argument and define the relationship between husband and his prior attorney in a rigid sense, the husband's motion would still falter on other grounds. Even viewing Gassman & Keidel as husband's counsel, there was no prior attorney-client relationship between the husband and Ms. Ackerman. Ms. Ackerman took no part in the little that the firm did for the husband and would not have become involved in the matter regardless, due to her prior conflict resulting from her representation of the wife.

Furthermore, the apprehension of the moving party's interests being prejudiced and the appearance of an attorney representing conflicting interests, as discussed in Cardinale, do not exist here. An affidavit such as that submitted by Ms. Ackerman would free a reasonable individual in the husband's position from an apprehension of impropriety as well as dispel the appearance to others that an attorney was representing conflicting interests.Specifically, in her sworn affidavit, Ms. Ackerman states that while at Gassman & Keidel she had "no involvement whatsoever" with the case (Plaintiff's Exhibit A at 2). She goes on to further state that during that time not only did she never see the husband, his file, or any document relating to the case, but she was never privy to any discussions concerning the matter. Ms. Ackerman says that she did not acquire any information whatsoever concerning the husband and she is of the belief that there would be no conflict of interest or any impropriety if Mr. Barbara's firm were to continue to represent the wife. Being the individual at the center of the present dispute, Ms. Ackerman is in the unique position of knowing what transpired during her [*4]short employment at Gassman & Keidel. A sworn affidavit by an attorney should be sufficient to rebut any apprehension of prejudice that the husband may have concerning his case as well as eliminate any appearance of impropriety on the part of counsel.

As cited in the Affirmation in Opposition, Kassis v Teachers, Inc. & Annuity Assoc., 93 NY2d 611 allows for a requested disqualification to be rebutted. There the court found that a presumption of disqualification is not present if "either the moving party fails to make any showing of a risk that the attorney changing firms acquired any client confidences in the prior employment or the nonmoving party disproves that the attorney had any opportunity to acquire confidential information in the former employment". In the present matter, no risk of Ms. Ackerman acquiring client confidences is present as evidenced by her sworn affidavit. Similarly, Mr. Barbara's firm disproved the likelihood of any opportunity for Ms. Ackerman to acquire confidential information due to the fact that Gassman & Keidel ended their legal relationship with the husband, for the most part, as soon as Ms. Ackerman was hired.

As pointed out in the Wife's Affirmation in Opposition, "The disqualification of an attorney is a matter which rests within the sound discretion of the Court". Olmoz v Town of Peekskill, 258 AD2d 447. The court's holding therein indicated that a client's ability to choose an attorney of his or her own free will is a fundamental right that should not be abridged. The facts in the present matter do not approach a degree of necessity where such drastic matters should be adopted.

The Court further directs that only Ms. Ackerman but not the Law Offices of Dominic A. Barbara shall be disqualified from representing the wife. Ms. Ackerman shall not be permitted to discuss, review, conduct research, or in any way to be involved in the matter, regardless of how ministerial the task.

E N T E R

DATED: June 25, 2004

_________________________________

HON. ARTHUR M. DIAMOND

J.S.C.

TO:

Attorney for Defendant

JAMES P. JOSEPH & ASSOCIATES, P.C.

James P. Joseph, Esq.

666 Old Country Road, Suite 303

Garden City, New York 11530

Attorney for Plaintiff

DOMINIC A. BARBARA

Dominic A. Barbara, Esq.

1100 Stewart Avenue

Garden City, New York 11530