This matter is before the Court upon Plaintiff's oral motion made in open court at a conference on August 20, 2012, to disqualify James Steinberg, Esq., counsel for Defendants [*2]Kareen C. Saunders, MD, Gabriel Tenembaum, MD, and Olive Crone, CNM, from representing either or all Defendants on the basis of a conflict of interest. Pursuant to the Court's Order of August 21, 2012, the parties have submitted memoranda of law addressing specific questions and issues posed by the Court related to the alleged conflict of interest.^[FN1]

Upon consideration of these submissions, it is ORDERED that Plaintiff's motion to disqualify Mr. Steinberg from representing all of the named defendants is denied as Plaintiff lacks standing to bring such a motion. However, the Court, in the exercise of its discretion, sua sponte disqualifies Mr. Steinberg from continuing his representation of any or all of the defendants.

This medical malpractice action was brought by Plaintiff against Defendants Saunders, Tenembaum, Crone, and Good Samaritan Hospital based upon the medical care and treatment she received from Defendants during her labor and delivery in February, 2010. At the time Plaintiff went into labor, her regular obstetrician Dr. Tenembaum was away on vacation. Dr. Saunders, who was not employed by Dr. Tenembaum, provided coverage for him.

Plaintiff's labor was monitored throughout by Olive Crone, a certified nurse midwife employed by Dr. Tenembaum. Ms. Crone kept Dr. Saunders informed of the developments that occurred throughout Plaintiff's labor when Dr. Saunders was not present at the hospital. Plaintiff provides the following time line of her labor from February 10 through February 11:

February 10

8:15 p.m.Dr. Saunders was advised of lack of progress of Plaintiff's labor

February 11

2:30 a.m.Dr. Saunders was advised that baby's heart rate had dipped. She

said she would come to the hospital

3:42 a.m.Dr. Saunders at hospital

5:06 a.m.Plaintiff fully dilated

5:56 a.m.Dr. Saunders evaluates Plaintiff

9:30 a.m.Notation "awaiting Dr. Saunders"

10:00 a.m.Dr. Saunders present

10:30 a.m.Dr. Saunders performs C-section

Plaintiff claims that Defendants departed from the standard of care by failing to perform the C-section earlier, resulting in uterine atony and a hysterectomy. Plaintiff states that she intends to depose Ms. Crone as to the information she relayed to Dr. Saunders during labor and her efforts to get Dr. Saunders to come to the hospital to see Plaintiff. She also intends to depose Dr. Saunders about the information Ms. Crone communicated to her regarding Plaintiff's condition during labor. Plaintiff contends that Dr. Saunders and Ms. Crone are likely to seek to shift responsibility to the other for the alleged mismanagement of the labor and for the claimed delay in the C-section.

[*3]Standing

Defense counsel asserts that Plaintiff lacks standing to bring the instant motion to disqualify because she did not have an attorney-client relationship with him.^[FN2] "The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client." Rowley v Waterfront Airways, Inc., 113 AD2d 926, 927, 493 NYS2d 828 [2nd Dept 1985] (citing Greene v Greene, 47 NY2d 447; Schmidt v Magnetic Head Corp., 101 AD2d 268). Where the moving party was never represented by the attorney whose disqualification is sought, the moving party lacks standing to complain about the representation. Id. at 927. See also Matter of the Estate of Felix Epstein, 255 AD2d 582, 583, 690 NYS2d 655 [2nd Dept 1998] (citing Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131, and Solow v Grace & Co., 83 NY2d 303, 308); Vanarthros v St. Francis Hospital, 234 AD2d 450, 651 NYS2d 164 [2nd Dept. 1996] (citations omitted); Matter of Reichenbaum, 162 AD2d 599, 600, 556 NYS2d 933 [2nd Dept 1990]. Because Plaintiff has no standing to bring a motion to disqualify Defendants' counsel, Plaintiff's motion must be denied.

However, the Court has the authority to act sua sponte to disqualify counsel if it finds a conflict of interest warranting counsel's disqualification. See Flushing Savings Bank v FSB Properties, Inc., 105 AD2d 829, 830-831, 482 NYS2d 29 [2nd Dept 1984]. See also Matter of Kelly, 23 NY2d 368 [1968]; Matter of Vera, 49 AD2d 883, 373 NYS2d 210 [2nd Dept 1975]; Rosen v Rosen, 5 Misc 3d 1031A, 799 NYS2d 163 [Sup. Ct., Suffolk County 2003]. Plaintiff has alerted the Court to the potential conflict issue. The Court must now consider whether disqualification is warranted in light of same.

Disqualification

"The disqualification of an attorney is a matter which rests within the sound discretion of the court and will not be overturned absent a showing of abuse." Wells Fargo Bank, N.A. v Charo, 82 AD3d 880, 881, 920 NYS2d 90 [2nd Dept 2011](internal quote and citations omitted). In determining whether to disqualify counsel, however, the Court is required to "consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." S & S Hotel Ventures Ltd Partnership v 777 S. H. Corp., 69 NY2d 437, 440 [1987].

The Court finds a conflict of interest in defense counsel's simultaneous representation of Dr. Saunders and Ms. Crone because they have differing interests.^[FN3] The allocation of liability, if any, depends upon what information Ms. Crone, who was monitoring the labor, provided to Dr. Saunders, and the sufficiency of the information for determining whether and when a C-section was required. The likelihood is great that there will be finger-pointing between these two defendants as each of them has a competing interest in minimizing their share of the responsibility. Under these circumstances, Mr. Steinberg cannot zealously represent the differing interests of both clients. [*4]

Under the Rules of Professional Conduct, a lawyer shall not represent clients who have differing interests. See Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a]. "Because dual representation is fraught with the potential for irreconcilable conflict, it will rarely be sanctioned even after full disclosure has been made and the consent of the clients obtained." Greene v Greene, 47 NY2d 447, 451 [1979] (citing Matter of Kelly, 23 NY2d 368, 376, 378 [1968] and other cases). This is particularly true where the "public interest is implicated or where the conflict extends to the very subject matter of the litigation," as it does in this case. Greene v Greene, 47 NY2d at 451. The Court recognizes that such a conflict may be waived "where a disinterested lawyer would believe that the lawyer can competently represent the interest of each client and that each consents to the representation after full disclosure of the implications of simultaneous representation as well as the advantages and risks involved." Ferolito v Vultaggio, 2012 NY Slip Op. 5707, 949 NYS2d 356 [1st Dept 2012]. Although defense counsel has obtained written consent from all three defendants to his continued representation, the Court finds that a "disinterested lawyer" would not "reasonably" believe that competent simultaneous representation is possible given the nature of the conflict that exists here. Indeed, the Court makes such a finding. Further, it is not lost on the Court that the affidavits submitted by the parties purporting to waive the conflict and the information upon which they were predicated came from the conflicted attorney. As such, the Court questions whether the waivers were knowing.

The Court has considered the other factors — Defendants' right to counsel of their choosing and the factual setting of the case — and finds that neither outweigh the gravity of the conflict.^[FN4] The relationship between Defendants Tenembaum and Crone was only recently established after they were added as parties to the action in an amended complaint dated May 1, 2012. The addition of Tenembaum and Crone immediately presented the issue of whether simultaneous representation by Mr. Steinberg of all three defendants would be appropriate. As a result of the representation issue, which has now developed into a conflict issue, the parties did not proceed with discovery against Tenembaum and Crone. Thus, there is minimal prejudice to any of the defendants in obtaining new counsel at this stage of the litigation.

Accordingly, in the exercise of its discretion, the Court hereby disqualifies Mr. Steinberg and his firm from continuing his representation of any of the defendants. Any documentation counsel received from Defendants should be returned to them immediately.

This action is stayed for 30 days to allow Defendants Saunders, Tenembaum, and Crone to obtain new counsel. The matter is scheduled for a status conference on November 26, 2012 at 9:15 a.m.

Dated: October 19, 2012

Goshen, New YorkE N T E R

_______________________________

HON. PAUL I. MARX, J.S.C.