In re Estate of Peters

• Decision Date: 02 January 2015
• Citation: 124 A.D.3d 1266,1 N.Y.S.3d 604
• Parties: In the Matter of the ESTATE OF David C. PETERS, Deceased.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1266

1 N.Y.S.3d 604

In the Matter of the ESTATE OF David C. PETERS, Deceased.

Supreme Court, Appellate Division, Fourth Department, New York.

Jan. 2, 2015.

Colucci & Gallaher, P.C., Buffalo (Paul G. Joyce of Counsel), for Respondent–Appellant.

Law Offices of John P. Bartolomei & Associates, Niagara Falls (John P. Bartolomei of Counsel), for Petitioner–Respondent.

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

Respondent appeals from an order denying her motion seeking, inter alia, to disqualify petitioner's attorney and his law firm from representing petitioner. We conclude that Surrogate's Court properly denied that motion.

In support of her motion, respondent contended that petitioner's attorney had once represented her and her son, David C. Peters (decedent), in an action related to ownership of one of the pieces of real property at issue in this proceeding. That real property is situated within the borders of the Tonawanda Seneca Nation Territory (Territory), and was purportedly owned by decedent when he died. Through his will, which was offered for probate in September 2011, decedent sought to devise and bequeath that same piece of real property, as well as businesses situated thereon, to his brother and petitioner, who is decedent's daughter. Respondent is decedent's mother, and she challenged various provisions of decedent's will, contending that she had a superior right of ownership over all of the real property situated on the Territory based on "matriarchal tribal law." Since decedent's death, there has been ongoing litigation related to decedent's estate and the Surrogate's authority to preside over that litigation (see e.g. Peters v. Noonan, 871 F.Supp.2d 218 ; Matter of Tonawanda Seneca Nation v. Noonan, 122 A.D.3d 1334, 996 N.Y.S.2d 446 ), and we take judicial notice of the records submitted to this Court in related appeals (see Edgewater Constr. Co., Inc. v. 81 & 3 of Watertown, Inc. [Appeal No. 2], 24 A.D3.d 1229, 1231, 806 N.Y.S.2d 817 ). In the midst of that litigation, respondent filed the instant motion to disqualify petitioner's attorney.

"The Code of Professional Responsibility does not in all circumstances bar attorneys from representing parties in litigation against former clients. Rather, DR 5–108 sets out two prohibitions on attorney conduct relating to former clients. First, an attorney may not 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’ ... Second, an attorney may not use ‘any confidences or secrets of the former client except as permitted by DR 4–101(C) or when the confidence or secret has become generally known’ " ( Jamaica Pub. Serv. Co. v. AIU Ins. Co., 92 N.Y.2d 631, 636, 684 N.Y.S.2d 459, 707 N.E.2d 414 ). "A party seeking disqualification of its adversary's lawyer pursuant to DR 5–108(A)(1) must prove that there was an attorney-client relationship between the moving party and opposing counsel, that the matters involved in both representations are substantially related, and that the interests of the present client and former client are materially adverse. Only ‘where the movant satisfies all three inquiries does the irrebuttable presumption of disqualification arise’ " (id. ).

Of particular concern to the courts, however, is the fact that "motions to disqualify are frequently used as an offensive tactic, inflicting hardship on the current client and delay upon the courts by forcing disqualification even though the client's attorney is ignorant of any confidences of the prior client. Such motions result in a loss of time and money, even if they are eventually denied. [The Court of Appeals] and others have expressed concern that such disqualification motions may be used frivolously as a litigation tactic when there is no real concern that a confidence has been abused" ( Solow v. Grace & Co.,

83 N.Y.2d 303, 310, 610 N.Y.S.2d 128, 632 N.E.2d 437 ). Inasmuch as the right to counsel of choice, while not absolute, "is a valued right[,] ... any restrictions [thereon] must be carefully scrutinized" ( S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 ). We must therefore balance "the vital interest in avoiding even the appearance of impropriety [with] a party's right to representation by counsel of choice and [the] danger that such motions can become tactical ‘derailment’ weapons for strategic advantage in litigation" ( Jamaica Pub. Serv. Co., 92 N.Y.2d at 638, 684 N.Y.S.2d 459, 707 N.E.2d 414 ).

Contrary to petitioner's contention, respondent established that she had a prior attorney-client relationship with petitioner's attorney, that the issues in the two litigations are substantially related, each involving ownership of the same parcel of property, and that her interests are adverse to those of petitioner (see id. at 636, 684 N.Y.S.2d 459, 707 N.E.2d 414 ; Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663, rearg. denied 89 N.Y.2d 917, 653 N.Y.S.2d 921, 676 N.E.2d 503 ; Solow, 83 N.Y.2d at 313, 610 N.Y.S.2d 128, 632 N.E.2d 437 ). Usually, that would create an "irrebuttable presumption of disqualification" ( Tekni–Plex, 89 N.Y.2d at 132, 651 N.Y.S.2d 954, 674 N.E.2d 663 ; see Jamaica Pub. Serv. Co., 92 N.Y.2d at 636, 684 N.Y.S.2d 459, 707 N.E.2d 414 ), but many courts have nevertheless denied disqualification upon finding that a party has waived any objection to the purported conflict of interest (see e.g. Hele Asset, LLC v. S.E.E. Realty Assoc., 106 A.D.3d 692, 693–694, 964 N.Y.S.2d 570 ; Gustafson v. Dippert, 68 A.D.3d 1678, 1679, 891 N.Y.S.2d 842 ; Lake v. Kaleida Health, 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800 ).

In determining whether a party has waived any objection to a conflict of interest, "courts consider when the challenged interests became materially adverse to determine if the party could have moved [for disqualification] at an earlier time ... If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation ... Further, where a motion to disqualify is made in the midst of litigation where the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made...