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The above-named Petitioner Susan K. (hereinafter "mother") filed an Order to Show Cause [*2]on June 1, 2009 with a petition for modification of a prior order regarding custody, and alleging that Thomas C. (hereinafter "father" or "Mr. C.") has severe mental health issues, and was in crisis so severely that his conduct impacted his ability to safely care for the subject child, Jacob C. (born December 10, 2000). The parents were parties to a prior divorce action. The Judgment of Divorce was signed by the Hon. Harold L. Galloway, Supreme Court Justice, on September 24, 2004. The Judgment of Divorce incorporated but did not merge a Separation and Property Settlement Agreement, executed by each of the parties on December 19, 2003.

On July 20, 2009 the mother filed an amended petition to modify the prior Judgment of Divorce, in which she makes further allegations regarding the conduct and behavior of the father, reflecting actions only after September 24, 2004, as a basis to modify the existing custody and visitation arrangement.

No answer or cross-petition has been filed by the father. On July 20, 2009 counsel for the father filed two separate motions. The first motion requests that Gregory Mott, Esq. be disqualified as counsel for the mother. The second motion requests that the previously ordered psychological evaluation of the father by a designated doctor be delayed, and that the father not be required to sign the HIPAA compliant release forms submitted by counsel for the mother; this same motion also asks that the discovery requests for a deposition of the father and for inspection and documentation of the father's residence be delayed.

Counsel for the mother submitted responding papers opposing both motions; the Attorney for the Child submitted responding papers opposing only the motion with respect to the psychological evaluation, mental health records and discovery. She did not take a position on the motion regarding disqualification of mother's counsel.

There is no dispute that father met with S. Gerald Davidson, Esq. on December 13, 2003. There is no dispute that Mr. Davidson is a partner in the same firm as mother's current counsel, Gregory Mott, Esq. There is no dispute that in 2003 father was referred to Mr. Davidson by his employer. There is also no dispute that the parties entered into a stipulated consent Separation and Property Settlement Agreement on December 19, 2003, some six days after the meeting between father and Mr. Davidson. There is no dispute that thereafter the parties were divorced in September, 2004 as specified above. There is also no dispute that the previous meeting between Mr. Davidson and father was not recollected by the father until after the employer was subpoenaed in late June, 2009, and thereafter notified all counsel and the Court that he had referred Mr. C. to Mr. Davidson in 2003. The father did not raise the issue of his prior appointment with Mr. Davidson until after the employer apparently reminded him.

The issue of a potential conflict of interest in representation is one that all Courts take very seriously. Mr C. is well within his rights to raise the issue, however, it is also clear that there is no automatic disqualification once raised, and that if such an issue is raised and unresolved between counsel and the parties involved, that a determination by a Court may be necessary. Such is the case here.

The Fourth Department Appellate Division has continued to make clear that the Court of Appeals decision in Kassis, et al v. Teachers Insurance and Annuity Association is the hallmark [*3]decision in this area and the Appellate Justices continue to follow this. (See Kassis, et al v. Teachers Insurance and Annuity Association, 93 NY2d 611 (1999); see also Lake v. Kaleida Health, 60 AD3d 1469 [4th Dept., 2009]).

In Kassis, et al, the Court of Appeals stated in no uncertain terms that the ethical and professional considerations in potential conflicts in representation require close scrutiny, as attorneys owe a continuing duty to former clients not to reveal confidences learned in the course of professional legal representation. It is this duty that provides the foundation for the well-established rule that a lawyer may not represent a client in a matter and thereafter represent another client with interests materially adverse to interests of the former client in the same or substantially related matter. (See Kassis, et al v. Teachers Insurance and Annuity Association, 93 NY2d 611 (1999) at 615 and 616) [emphasis added].

The Court of Appeals Justices go on to rule that once a potential conflict by prior representation is made, there is a rebuttable presumption raised that shifts the burden to the party trying to avoid disqualification to prove that any information acquired by the disqualified lawyer is unlikely to be significant or material in the new litigation. (See id at 617). The Justices also explained that having an automatic disqualification rule is unnecessarily preclusive because it imposes significant hardships on current clients and is subject to "abusive invocation" purely to seek tactical advantages. (See id 616).

Here, the meeting in December 2003 between Mr. Davidson and the father is the potential conflict. Once raised, this raises the presumption and shifts the burden to the mother and her counsel to prove that any information acquired by Mr. Davidson is unlikely to be significant or material to the now pending litigation.

Mr. Mott, as counsel for the mother, has indicated that Mr. Davidson will be kept away from all aspects of this litigation, and as there are no actual records of the appointment between the father and Mr. Davidson other than a billing document, there is nothing material or relevant that could be learned or revealed.

The father, in his motion, does not articulate any specific problem with Mr. Mott other than the meeting with his partner in late 2003. He does not identify any prejudice or adverse effect from that appointment so long ago. The father fails to articulate what interests the mother has that are materially adverse to his interests, as a former client; the father also fails on the next point because the current litigation is not the same or a substantially related matter.

This new litigation, almost six years later, is substantially different from the issues that were resolved in 2003. Further, in reviewing the undisputed history here, the Court can not conceive what possible prejudice there may be from allowing mother counsel of her own choosing, including Mr. Mott. The basis for this determination lies most significantly in the timing of the prior matters. The appointment between Mr. Davidson and the father was prior to his voluntary execution of a complete separation and property settlement agreement that resolved all issues regarding custody and visitation. Further, the father did not engage Mr. Davidson's firm for any further representation in the matrimonial action, either then in December 2003 or in the ten months that followed the execution of the voluntary agreement while the actual divorce action was pending, nor at any time after 2003. It is clear that father elected to proceed pro se in both actions; he acknowledged that he had a right to counsel and chose not to engage one on his behalf in 2003 and 2004.

Mother, in her initial modification petition and in her amended modification petition makes [*4]allegations that are all after September 24, 2004 which is the undisputed date of the parties' prior divorce. There are no references to anything before that date. There are no references to any acts or conduct of the father that could possibly have been discussed with Mr. Davidson in December, 2003. Therefore, this Court can see no prejudice or other adverse impact upon the father by Mr. Mott continuing as counsel for the mother. Mr. Mott, in his responding papers, has already clarified that the firm in which he and Mr. Davidson are partners has taken steps to exclude Mr. Davidson from all contact with this case, and all communication regarding this case. In the absence of any specific, reasonably articulable prejudice to the father, the mother has met her burden under the rebuttable presumption, and this Court will not disqualify Mr. Mott from representing the mother.

Family Court Act §251 gives a Family Court Judge the authority to order any person within its jurisdiction to be examined by a psychiatrist or psychologist when such a determination will serve the purposes of the Court. Further, to order a parent or parent-substitute to undergo a psychological evaluation to aid the Court in making a determination of what is in a child or children's best interests is within the sound discretion of the Court. (See Smith v. Kalman, 235 AD2d 848 [3d Dept, 1997]).

Additionally, the Court of Appeals addressed the issue of releasing mental health records. The Court of Appeals stated in sum and substance that while the confidentiality provisions of both the New York Mental Hygiene Laws and the federal mental hygiene laws are there to protect the ongoing therapeutic relationship, the diagnoses, and the disclosures a patient receiving mental health treatment, and to discourage the unnecessary revelation of inherently private information, there are times when the release of said records is necessary. (See Matter of New York News v. Ventura, 67 NY2d 472 [1986]). Both counsel for the parents are correct that at certain times, this court can make the determination that the need to reveal a person's mental health records outweighs the fundamental right to privacy, as set forth in Frank v. Frank, 231 AD2d 968 (4th Dept, 1996). In Frank (supra), the court interpreted Mental Hygiene Law § 33.13(c)(1) as authorizing the release of clinical therapeutic records pursuant to a Court order only where a finding has been made that the interests of justice outweigh the need for confidentiality. (See id). But the court also went on to say that the Appellate Justices could not themselves make a determination for the release independent of the trial court, as they did not have all the facts the lower court did. As this is always a fact-driven determination, the trial court must weigh and make the determination for itself, and on a case-by-case basis.

Here, it is clear that recent events involving the father's mental health issues form the impetus for the mother's applications to change the prior court order. What is not yet clear is if there are long-term issues. Nor is it clear how the father's mental health treatment and adherence to any recommendations for treatment and/or medication factor into the judgments and parental role the father has played in the care of the child. Additionally, the Child's Attorney, in the course of her investigation, has indicated quite emphatically that the best interests of her client require a current evaluation of the father before a full recommendation can be presented to the Court. It is inconceivable that a complete and honest evaluation could be conducted without the professional evaluator having access to historical mental health treatment records, and possibly even medical [*5]records, as deemed necessary and appropriate by the professional undertaking the evaluation.

Further, while the release of said records to the evaluator is necessary, it may not yet be necessary for all counsel involved to have access to the historical records in order to ensure complete discovery in preparation for a true and accurate pre-trial conference and possible fact-finding hearing. Before this Court will permit a review by counsel for the mother or the Child's Attorney, the records will be provided to the Court for an in camera review and redaction if appropriate. The father, in his motion papers, has already consented to this, and the Court will allow this protection, and will allow the father's attorney to examine the records and raise specific issues as to the content thereof for determination by the court before the records are viewed by other counsel.

Counsel for the father requests that all pending discovery be suspended until after the psychological evaluation, if ordered, and after a report from the supervisor of the periods of visitation can be obtained. There is no allegation of unnecessary discovery or irrelevant requests. In fact there is no other basis provided for the request for delay; what has been advanced as a basis is inadequate. As stated above, delaying the proceedings, either through motion practice or other tactics, is contrary to the speedy resolution of matters, especially those involving children. If the actual issues at stake are not illuminated through the discovery process and the release of relevant records of the parties, the issues at stake can not be properly identified or narrowed such that the Court's time and resources may be unnecessarily squandered as well as the time and resources of the parties. More importantly, delays while attempting to identify and resolve issues that have not been properly and timely revealed only make the subject child's interests more tenuous and place unnecessary stress on the child. That is most certainly not in this child's best interests. For this reason that discovery will not be suspended in this proceeding.

NOW THEREFORE, it is

ADJUDGED AND DECREED, that in the interests of justice and to aid the Court in making a determination in the best interests of the subject child, the need for the release of the father's full and complete mental health treatment records from September 24, 2004 to the present time overcomes the father's right to privacy and the interests of justice outweigh the need for confidentiality, and it is further

ORDERED, that the motion filed by the father requesting disqualification of Gregory Mott, Esq., counsel for the mother, is denied, and it is further

ORDERED, that Gregory Mott, Esq. and the law firm of Davidson, Fink, LLP. are directed to maintain separate files for the legal case involving Susan K. and Thomas C. to which S. Gerald Davidson, Esq. shall have no access, and shall ensure that there is no communication with S. Gerald Davidson, Esq., in any form, regarding this case, and it is further

ORDERED, that the motion filed by the father requesting the full psychological evaluation [*6]previously ordered be delayed, is denied; the father is hereby directed to engage in and fully comply with all requests by the designated doctor as previously ordered, including signing all necessary release forms and ensuring payment is made in full, and the full and complete psychological evaluation shall be provided to the Court and counsel only, and may not be disclosed to others except the parties hereto pending further applications, if any, and it is further

ORDERED, that the father shall immediately execute HIPAA compliant forms for the release to the Court only of all mental health records from September 24, 2004 to the present time, for an in camera review of said records and further disclosure as discussed above, and it is further

ORDERED, that the motion filed by the father requesting delay of all discovery requests made by counsel for the mother is denied, and further that, absent good cause, all counsel and the parties are hereby directed to complete all discovery within forty-five (45) days of this Decision and Order.

Dated: September 9, 2009

ENTER

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HON. PATRICIA E. GALLAHER,

MONROE COUNTY FAMILY COURT JUDGE

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.