| Matter of Tina X. v John X. |
| 2016 NY Slip Op 02874 [138 AD3d 1258] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Tina X., Appellant, v John X.,Respondent.Scott Bielicki, Respondent. (And Two Other RelatedProceedings.) |
Beth A. Lockhart, Canastota, for appellant.
Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara of counsel), forScott Bielicki, respondent.
Donna Chin, Ithaca, attorney for the child.
Margaret McCarthy, Ithaca, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Madison County (Revoir,J.), entered April 3, 2014, which, in three proceedings pursuant to Family Ct Act article6, partially denied petitioner's motion to, among other things, vacate a stipulation andorder.
Pursuant to a June 2007 stipulated order, petitioner (hereinafter the mother) andrespondent (hereinafter the father) shared joint legal custody of their three children (bornin 1997, 2000 and 2007), with the mother having primary physical custody and the fatherreceiving parenting time. In 2012, the mother filed petitions seeking to enforce andmodify the visitation provisions of that order. When Family Court (McDermott, J.)notified Scott Bielicki that it intended to assign him to represent the children in theseproceedings, Bielicki disclosed to the court that he had previously been involved inprosecuting the mother on a charge of endangering the welfare of a child in his capacityas a part-time Assistant District Attorney in Madison County. Notwithstanding thisdisclosure, Family Court concluded that there was no conflict that [*2]would disqualify Bielicki from representing the children inthis matter and appointed him as the attorney for the children.
Thereafter, the father petitioned for sole legal and primary physical custody of thechildren, and an order was subsequently entered granting him temporary custody.Following a settlement conference with the Family Court Judge's court attorney inSeptember 2013, the parties agreed to resolve the pending petitions and stipulated to anorder providing for joint legal custody, with primary physical custody to the father andparenting time to the mother. The following month, after obtaining new counsel, themother moved to disqualify Bielicki and vacate the stipulation and order on the groundsthat Bielicki suffered from a conflict of interest and had coerced her into entering into thestipulation by "fraud, duress and/or undue influence." Following oral argument andwritten submissions on the conflict issue, Family Court (Revoir, J.) found that no conflictof interest existed precluding Bielicki from serving as the attorney for the children andpartially denied the mother's motion.[FN1] The mother appealed.
Although Bielicki's representation of the children continued on this appeal(see Family Ct Act § 1120 [b]), he did not file a brief on thechildren's behalf. Instead, Bielicki retained private counsel who, in turn, submitted a briefon his behalf solely addressing the accusations of unethical behavior and conflict ofinterest. For that reason, we withheld decision and ordered the appointment of a newattorney for the children (132 AD3d 1173 [2015]). New appellate counsel was thereafterassigned for each of the two younger children,[FN2] who now appear on their behalf.
Relying on a rule of this Court and various Rules of Professional Conduct, themother contends that Bielicki's prior involvement in prosecuting her on the childendangerment charge created a per se conflict of interest that precluded him from servingas the attorney for the children in this matter and warrants vacatur of the stipulation andorder. 22 NYCRR 835.3 (c) provides, in pertinent part, that "[a]n attorney who serves asdistrict attorney, county attorney, or municipal corporation counsel, or as an assistant in. . . such office, shall not be assigned or accept assignment in any court asan attorney for the child in the county where the attorney so serves in any type ofproceeding in which such office could represent a party" (Rules of App Div, 3d Dept[22 NYCRR] § 835.3 [c] [emphasis added]). As Family Court noted, thisprovision is inapplicable here inasmuch as there is no circumstance under which aDistrict Attorney's office [*3]could represent a party in acustody proceeding. District Attorneys prosecute crimes and offenses occurring in thecounty where elected and, even in that capacity, act not on behalf of any particularperson, but on behalf of the State of New York (see County Law§§ 700, 927; Della Pietra v State of New York, 71 NY2d 792,796 [1988]; Matter of Matthew FF., 179 AD2d 928, 928-929 [1992]). In short,the subject portion of this Court's rule was meant to prevent a governmental attorneyfrom serving as an attorney for the child in a Family Court proceeding in which his or heroffice could appear on behalf of a party—such as in a juvenile delinquency orFamily Ct Act article 10 neglect or abuse proceeding (see Family Ct Act§§ 254, 254-a, 301.2 [12]; 1032)—a situation that plainly doesnot exist here. Thus, 22 NYCRR 835.3 (c) did not bar Bielicki from serving as theattorney for the children in these proceedings.
The mother also argues that Bielicki's representation of the children violated Rules ofProfessional Conduct (22 NYCRR 1200.0) rule 1.11 (c), which provides that "a lawyerhaving information that the lawyer knows is confidential government information abouta person, acquired when the lawyer was a public officer or employee, may not represent aprivate client whose interests are adverse to that person in a matter in which theinformation could be used to the material disadvantage of that person." The rule definesconfidential governmental information as "information that has been obtained undergovernmental authority and that, at the time this Rule is applied, the government isprohibited by law from disclosing to the public or has a legal privilege not to disclose,and that is not otherwise available to the public" (Rules of Professional Conduct [22NYCRR 1200.0] rule 1.11 [c]).
It is undisputed that Bielicki, in his capacity as Assistant District Attorney, waspersonally involved in the prosecution of the child endangerment charge against themother,[FN3] thatsuch charge was deemed dismissed as a result of an adjournment in contemplation ofdismissal (see CPL 170.55) and, therefore, the records of that criminalprosecution were sealed (see CPL 160.50 [1], [3] [b]). It is also evident that suchconfidential governmental information obtained by Bielicki in his capacity as AssistantDistrict Attorney could be used to the disadvantage of the mother in this custodyproceeding. That said, the mere appearance of impropriety, standing alone, is insufficientto warrant vacatur of the underlying stipulation and order (see Matter of Lovitch vLovitch, 64 AD3d 710, 711 [2009]; Christensen v Christensen, 55 AD3d 1453, 1455 [2008]; see also Schwartzberg vKingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465, 466 [2006]). Rather, themother was required to show actual prejudice or a substantial risk of an abusedconfidence (see People v Herr, 86 NY2d 638, 642 [1995]; Matter of Lovitchv Lovitch, 64 AD3d at 711; Christensen v Christensen, 55 AD3d at 1455; Matter of Stephanie X., 6AD3d 778, 779-780 [2004]).
Here, there is nothing in the record to indicate that Bielicki used any informationobtained during the prior criminal action to gain an unfair advantage in this custodyproceeding (see Matter ofRichard UU., 56 AD3d 973, 978 [2008]; Matter of Matthew FF., 179AD2d at 928-929; see alsoMatter of Aaron W. v Shannon W., 96 AD3d 960, 962 [2012]). Indeed, it wasthe father who disclosed the existence of the child endangerment charge, as well as thefacts [*4]underlying such charge, in both his petition tomodify custody and subsequent order to show cause. Nor is there anything in the recordsuggesting that Bielicki was biased in representing the children based upon hisknowledge of the facts surrounding the mother's prosecution (see Matter of Hurlburt v Behr,70 AD3d 1266, 1266-1267 [2010], lv dismissed 15 NY3d 943 [2010];Matter of Lovitch v Lovitch, 64 AD3d at 712; compare Davis v Davis,269 AD2d 82, 85-86 [2000]).[FN4] Thus, while Bielicki's assignment asattorney for the children in this matter was contrary to the standards set forth in Rules ofProfessional Conduct (22 NYCRR 1200.0) rule 1.11 (c)—and, for that reason,Family Court (McDermott, J.) should not have permitted Bielicki to serve in thatcapacity—such error, without more, does not warrant vacatur of the stipulationand order.
The mother's claim that Bielicki engaged in an ex parte communication with FamilyCourt, in violation of the Rules of Professional Conduct, is similarly unavailing. Thechallenged communication occurred prior to Bielicki's appointment as attorney for thechildren and, moreover, did not address the "merits of the matter" (Rules of ProfessionalConduct [22 NYCRR 1200.0] rule 3.5 [a] [2]; see Costalas v Amalfitano, 23 AD3d 303, 304 [2005]). Norcould any purported violation of Rules of Professional Conduct (22 NYCRR 1200.0)rule 1.9 serve as a basis for disqualifying Bielicki or vacating the stipulation and order, asthat rule concerns an attorney's duties to a former client, which the mother is not. Themother's remaining contentions, to the extent that they are properly before us, have beenreviewed and found to be lacking in merit.
Lahtinen, McCarthy and Lynch, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:A hearing wassubsequently held on the mother's claim that the stipulation and order were procured byfraud, duress and/or undue influence on the part of Bielicki. In a detailed decision andorder entered on March 15, 2016, Family Court found the mother's allegations to be"false, fabricated, frivolous" and contrary to the "credible recollection" of the events astestified to by the father's witnesses. Accordingly, the court denied that branch of themother's motion, concluded that she had engaged in frivolous conduct and imposedsanctions against her pursuant to 22 NYCRR 130-1.1.
Footnote 2:The parties' oldest child,having reached the age of 18 during the pendency of this appeal, is no longer subject tothe custody order (see Family Ct Act §§ 119 [c]; 651).Accordingly, any issue of custody or visitation with respect to him has been renderedmoot (see Helm v Helm, 92AD3d 1164, 1164 n 1 [2012]; Matter of Carnese v Wiegert, 273 AD2d 554,556 [2000]).
Footnote 3:The record reflects thatBielicki completed a pretrial notice form and prepared a document offering the mother asix-month adjournment in contemplation of dismissal. According to the mother, adifferent Madison County Assistant District Attorney appeared in court when her casewas called, and she did not become aware of Bielicki's involvement until after she hadsigned the custody stipulation and order at issue here.
Footnote 4:While Bielicki'sknowledge of the facts and circumstances surrounding the mother's child endangermentprosecution might be relevant to her claims of duress, coercion and undue influence, wereiterate that those distinct claims were bifurcated from the conflict issue and addressedby Family Court in a separate hearing (see n 1, supra).