Lyons v. Lyons

• Decision Date: 11 December 2015
• Citation: 22 N.Y.S.3d 338,50 Misc.3d 876
• Parties: Lisa Michele LYONS, Plaintiff, v. David Andrew LYONS, Defendant.
• Court: New York Supreme Court

50 Misc.3d 876

22 N.Y.S.3d 338

Lisa Michele LYONS, Plaintiff,

v.David Andrew LYONS, Defendant.

Supreme Court, Monroe County, New York.

Dec. 11, 2015.

Maureen A. Pineau, Esq., Rochester, Attorney for Plaintiff.

Barbara E. Farrell, Esq., Rochester, Attorney for Defendant.

RICHARD A. DOLLINGER, J.

In this matter, the husband in a divorce matter seeks to disqualify an attorney who represents his wife because she previously represented him in two child support proceedings in the last half decade. In pretrial proceedings in this case, the husband brought a motion seeking disqualification of his wife's selected attorney because, he alleges, he disclosed confidential information to his then-attorney when she represented him in the prior family court proceedings. The attorney, in response, produced her own affidavit, opposing the disqualification, arguing that the wife had the right to choose her own counsel over the husband's objection and, she avers, the husband never made any confidential disclosures to her. The paradox inherent in this matter is evident: how does this court decide whether such confidential information was disclosed without conducting a hearing to determine which declarant—the husband or his former attorney—is being truthful, and at the same time, preserve the confidential nature of those discussions?

Some of the essential facts are undisputed. The wife's attorney represented the husband in several family court matters before 2015. The documents before the court indicate that the attorney represented the husband in a disputed child support matter involving a child from a prior marriage, which resulted in a support order in September 2010. At the time of this proceeding, the husband was married to his current wife. In 2014, the husband, retained the attorney again, this time to represent him in a child custody matter involving the emancipation of the child from the prior marriage. The attorney appeared in family court with the husband. The family court matter was resolved through an order dated July 25, 2014. A year later, the husband's current wife commenced an action for divorce against him and retained the attorney who had previously represented the husband in the family court litigation.

At this point, the facts diverge. The husband, in his affidavit before the court, states that he had "personal and private conversations with the attorney regarding himself, his wife, and his child, his ex-wife, his finances and other matters too numerous to set forth herein." He provides no further elaboration, apparently concluding that further disclosure of these confidential matters might prejudice his claims in the matrimonial action. The wife's attorney challenges those facts. She attests that there was never a private meeting between the attorney and the husband because his current wife—the plaintiff in the pending divorce action—was present at all the meetings. The attorney claims there were no confidential communications between herself and the husband. She claims that any documents produced during the prior litigation were ferried to her by the wife, and known by the wife, and hence, any documents, which the husband provided during the prior representation, did not contain any confidential information. She denies any confidential communications with the husband about debt, the marital residence or his retirement plans. The husband and wife are both public servants and hence there is no confidential information about their income or benefits, wife's counsel argues. She concludes with the comment: "There is absolutely nothing about the custody of the litigant's now—emancipated son that has anything to do with the issues before this court." In oral argument, wife's counsel, in addition to disputing the claims that she had access to confidential or privileged information, argues that because the husband's claims to confidential communications are challenged, she is entitled to a hearing on the nature of the conversations, before this court can conclude that she should be disqualified.¹

The rules on disqualification of counsel are easily stated. The decision to disqualify an attorney from representation rests with the discretion of this court. Cardinale v. Golinello, 43 N.Y.2d 288, 296, 401 N.Y.S.2d 191, 372 N.E.2d 26 (1977) ; Lauder v. Goldhamer, 122 A.D.3d 908, 998 N.Y.S.2d 79 (2nd Dept.2014). Because there are "significant competing interests inherent in attorney disqualification cases", the Court of Appeals has advised against "mechanical application of blanket rules," in favor of a "careful appraisal of the interests involved." Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123 at 131, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663 (1996). A motion to disqualify counsel triggers a collision between two important legal and practical considerations. The wife's right to be represented in this litigation by counsel of her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. Avigdor v. Rosenstock, 47 Misc.3d 1220(A), 2015 WL 2238881 (Sup.Ct. Kings Cty.2015) ; see also 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 (1987) ; Gulino v. Gulino, 35 A.D.3d 812, 812, 826 N.Y.S.2d 903 (2nd Dept.2006). Conversely, the New York courts have suggested that an attorney must preserve a client's secrets and confidences and avoid the appearance of impropriety. Nesenoff v. Dinerstein & Lesser, P.C., 12 A.D.3d 427, 428, 786 N.Y.S.2d 185 (2nd Dept.2004). Gabel v. Gabel,

101 A.D.3d 676, 676, 955 N.Y.S.2d 171 (2nd Dept.2012). It is "an undeniable maxim of the legal profession" that an attorney must avoid even "the appearance of impropriety." Heelan v. Lockwood, 143 A.D.2d 881, 883, 533 N.Y.S.2d 560 (2nd Dept.1988) ; see also Galanos v. Galanos, 20 A.D.3d 450, 452, 797 N.Y.S.2d 774 (2nd Dept.2005).

In deciding whether a conflict of interest requiring disqualification exists, the court must consider whether the lawyer or law firm that previously represented the party or entity which is seeking to disqualify that attorney, obtained, in the course of that representation, confidential information which would be disclosed or could be used against the former client in the current litigation. Cardinale v. Golinello, 43 N.Y.2d 288, 296, 401 N.Y.S.2d 191, 372 N.E.2d 26 (1977). As the Court of Appeals later articulated the rule:

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" (Code of Professional Responsibility DR 5–108[A][1] [22 NYCRR 1200.27(a)(1) ] ). 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" (Code of Professional Responsibility DR 5–108[A][2] [22 NYCRR 1200.27(a)(2) ] ).

Jamaica Pub. Serv. Co. v. AIU Ins. Co., 92 N.Y.2d 631, 635, 684 N.Y.S.2d 459, 707 N.E.2d 414 (1998). In other words, as originally constructed by the Court of Appeals, there was two-tiered test applicable here: if the pending action is substantially-related to the previous family court matter, and the wife's interests are "materially adverse" to her husband's in the pending action (which neither side disputes), then disqualification is presumed. The Court of Appeals approach was later modified, in part by 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. Rules of Professional Conduct, 22 NYCRR 1200.0 (Rule 1.9[a], [b](1 & 2); Kain Dev., LLC v. Krause Props., LLC, 130 A.D.3d 1229, 14 N.Y.S.3d 520 (3rd Dept.2015). If the husband satisfies all three inquiries, then an irrebuttable presumption of disqualification arises. Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663 (1996). In addition, the Fourth Department has added another caution, especially pertinent in matrimonial cases: the described dangers of the offensive use of prior confidential information are "exacerbated" "when an attorney who has represented the family unit subsequently represents one of the parties in a matrimonial action." Forbush v. Forbush, 107 A.D.2d 375, 380, 485 N.Y.S.2d 898 (4th Dept.1985).

It is not essential that the prior client establish that confidential information will necessarily be disclosed in the course of the litigation. Rather, a "reasonable probability of disclosure" may suffice. Narel Apparel v. American Utex Intl., 92 A.D.2d 913, 914, 460 N.Y.S.2d 125 (2nd Dept.1983) (a reasonable probability of disclosure [is] sufficient). Furthermore, a court should infer the "reasonable probabilityof disclosure of confidences" from the particular nature of the past and present representations at issue. Forbush v. Forbush, 107 A.D.2d 375, 379–380, 485 N.Y.S.2d 898 (4th Dept.1985) (Courts will infer the "reasonable probability of disclosure of confidences" from the particular nature of the past and present representations at issue); Flaum v. Birnbaum, 107 A.D.2d 1087, 486 N.Y.S.2d 686 (4th Dept.1985) (the former client need only show a reasonable probability that confidential information will be disclosed). Finally, doubts as to the existence of a conflict of interest must be resolved in favor of disqualification. Justinian Capital SPC v. WestLB AG, N.Y. Branch, 90 A.D.3d 585, 585, 934 N.Y.S.2d 807 (1st Dept.2011)citing Rose Ocko...