Rizzuto v. De Blasio, 17-CV-7381 (ILG) (ST)
| Decision Date | 29 March 2019 |
| Docket Number | 17-CV-7381 (ILG) (ST) |
| Parties | MATTHEW RIZZUTO, Plaintiff, v. BILL DE BLASIO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
In this action seeking damages for Defendants' allegedly unlawful actions in connection with his placement in foster care, Plaintiff Matthew Rizzuto seeks to be represented by his father, Donald N. Rizzuto, Esq. ("Mr. Rizzuto" or "Plaintiff's father"). Defendants, including several entities that oversaw Plaintiff's foster care placement as well as Plaintiff's maternal grandparents, move to disqualify Plaintiff's father from serving as his counsel, arguing that he is required to serve as a witness on his son's behalf and that his representation is impaired by conflicting interests with his son.
For the reasons discussed below, the Court GRANTS Defendants' Motion to Disqualify Plaintiff's father from serving as his attorney.
Plaintiff and his younger brother ("Plaintiff's brother") were placed in foster care from November of 2001 to August of 2010. Compl. ¶¶ 32-35, 76. Plaintiff, now an adult, was between the ages of three (3) and eleven (11) during that time. Compl. ¶ 1. Defendant New York City Administration for Children's Services ("ACS") removed Plaintiff's brother from his parents' home after he was admitted to the hospital with a head injury. Compl. ¶¶ 21-35. Plaintiff was also removed on the basis that he had been derivatively neglected by his parents. Compl. ¶¶ 31-35.
In a decision dated November 24, 2003, the New York State Family Court in Queens, New York dismissed the abuse petition against Plaintiff's parents. Compl. ¶ 40; see also Matter of Peter R., 779 N.Y.S.2d 137, 138 (App. Div. 2004). The City of New York appealed this ruling to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department. On June 21, 2004, the Appellate Division reversed the Family Court and entered a finding that Plaintiff's parents had abused and/or neglected Plaintiff's brother and had derivatively neglected Plaintiff. Matter of Peter R., 779 N.Y.S.2d at 140.
From 2002 to 2010, Plaintiff and his brother remained in the foster care of their maternal grandparents, with whom, the Complaint suggests, Plaintiff's father has an intensely negative relationship. Compl. ¶¶ 54-69. Plaintiff's parents were both permitted supervised visitation of their children, although Mr. Rizzuto's visitation rights were restricted beginning in 2005 based on what Plaintiff refers to as a "heated verbal exchange" between Mr. Rizzuto and Plaintiff's maternal grandfather. Compl. ¶ 54. Subsequently, after it was found that both Mr. and Ms. Rizzuto had visited with the children unsupervised, in violation of the conditions set by the Family Court, all visitation was restricted for both parents for roughly two years between 2006 and 2008. Compl. ¶¶ 64-65. Additionally, Defendants provide, as exhibits to the Motion to Disqualify, documents from the Family Court proceedings indicating that ACS's predominant stated reason for recommending that Plaintiff remain in foster care was Mr. Rizzuto's "inappropriate and psychologically scarring verbal interaction with the children." Mot. to Disqualify at 5.
Plaintiff and his brother were ultimately returned to the custody of their parents in August of 2010. Compl. ¶ 76.
Plaintiff asserts fourteen causes of action challenging his extended placement in foster care, the restrictions placed on his parents' visitation, and the conduct of Defendants in the various state court proceedings. Compl. ¶¶ 77-179. These causes of action include infringement of Plaintiff's Constitutional rights to family integrity, social work malpractice, legal malpractice, false arrest and imprisonment, intentional infliction of emotional distress, conspiracy, and several other tort claims arising under New York common law. Id.
The substance of all of these claims is that Defendants placed Plaintiff in foster care and restricted his parents' visitation rights arbitrarily—without any genuine evidence that his parents were unfit to take care of him—and in bad faith—with no intentions of working to return Plaintiff to his parents' custody. The Plaintiff frequently refers to Defendants—who include the City of New York, ACS, the Legal Aid Society, SCO Family of Services, and Plaintiff's maternal grandparents—as planning in concert to circumvent Plaintiff's rights, which he suggests was in large measure because of Defendants' personal antipathy towards his father Mr. Rizzuto. Compl. ¶¶ 45-47, 56-57, 62, 65, 68-70, 74, 89, 91, 95, 97, 109-111, 113-114, 122, 130, 163-165, 171, 176-178.
Disqualification of an attorney is committed to the discretion of the district court. Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994). The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the judicial system and the adversary process. Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009); Zalewski v. Shelroc Homes, LLC, 856 F. Supp. 2d 426, 431 (N.D.N.Y. 2012); see also Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) () (internal quotation marks and citation omitted).
A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. Matter of Kopet, 81 N.Y.S.3d 538, 540-41 (App. Div. 2018) (collecting cases). Disqualification motions therefore place a heavy burden on the moving party to demonstrate that disqualification is appropriate. See Evans v. Artek Systems Corp., 715 F.2d 788 (2d Cir. 1983). The high standard required of the party seeking disqualification is also necessary because disqualification motions "'are often interposed for tactical reasons,' and . . . 'even when made in the best of faith . . . inevitably cause delay.'" Mercedes v. Blue, No. 00-CV-9225 (RMB) (MHD), 2001 WL 527477, at *1 (citing Evans, 715 F.2d at 791-92). Nonetheless, because of the key role played by attorneys in ensuring the integrity of the adversary process, "[w]hen a party moves for the disqualification of his adversary's attorney, any doubt is to be resolved in favor of disqualification." Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); accord Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d 273, 275 (S.D.N.Y. 2004).
To determine when an attorney should be disqualified, this Court looks to the binding precedent of the Second Circuit, with rules of professional conduct serving as a guide. See Hempstead, 409 F.3d at 132 () (internal quotation marks and citations omitted).1 "Conversely, disqualification may be justified even in the absence of a clear ethical breach where necessary to preserve the integrity of the adversary process." First NBC Bank v. Murex, LLC, 259 F. Supp. 3d 38, 56 (S.D.N.Y. 2017) (internal quotation marks and citation omitted).
Defendants assert two grounds for the disqualification of Mr. Rizzuto: the "advocate-witness" rule and conflicts of interest with his son. The Court finds that both of these grounds warrant disqualification of Plaintiff's father from serving as his attorney. The Court will discuss each ground in turn below.
The advocate-witness rule prohibits an attorney from representing a party in a case where the attorney will or "ought to" be called as a witness. See Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989). Under the rule, an attorney may be disqualified from representing a client in an action when such attorney has knowledge of the facts or has participated in some of the events giving rise to the lawsuit and who, if allowed to participate in the case as both an advocate and a witness, would jeopardize the court's interest in ensuring that the litigation is conducted fairly and in conformity with prevailing ethical rules. See Prout v. Vladeck, 316 F. Supp. 3d 784, 809 (S.D.N.Y. 2018), reconsideration denied, 319 F. Supp. 3d 741 (S.D.N.Y. 2018); see also Murray, 583 F.3d at 178 (). Disqualification in such circumstances preventsparties from being forced to "choose between the attorney's testimony and his representation." MacArthur v. Bank of New York, 524 F. Supp. 1205, 1209 (S.D.N.Y. 1981). "When faced with an attorney as a sworn or unsworn witness, the proper recourse is to disqualify the attorney, not to exclude the testimony." United States v. Kliti, 156 F.3d 150, 156 (2d Cir. 1998); see also NY Eth. Op. 1045 (January 8, 2015) ( ).
In this Circuit, motions to disqualify counsel under the advocate-witness rule are assessed differently depending on whether the attorney (a) "ought to" testify on behalf of his own client or (b) may be called as a witness by another party. Lamborn, 873 F.2d at 531. This distinction corresponds to a previous version of the New York Disciplinary Rules that provided:
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