| Matter of Marvin Q. |
| 2007 NY Slip Op 09402 [45 AD3d 852] |
| November 27, 2007 |
| Appellate Division, Second Department |
| In the Matter of Marvin Q., an Infant. Nassau County Departmentof Social Services, Respondent; Rafael Q., Appellant, et al., Respondent. (Proceeding No. 1.) Inthe Matter of Nashly Q., an Infant. Nassau County Department of Social Services, Respondent;Rafael Q., Appellant, et al., Respondent. (Proceeding No. 2.) |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), forpetitioner-respondent.
In related child abuse and neglect proceedings pursuant to Family Court Act article 10,Rafael Q., the maternal uncle of the subject children, appeals from an order of the Family Court,Nassau County (Schwartz Zimmerman, J.), dated January 24, 2007, which, inter alia, granted theLaw Guardian's motion to disqualify his attorney from representing him in the proceedings.
Ordered that the order is affirmed, with costs.
The disqualification of an attorney is a matter which rests within the sound discretion of thecourt (see Campolongo v Campolongo,2 AD3d 476 [2003]; Olmoz v Town of Fishkill, 258 AD2d 447 [1999];Fischer v Deitsch, 168 AD2d 599 [1990]). Although "[a] party's entitlement to berepresented in [*2]ongoing litigation by counsel of his or her ownchoosing is a valued right which should not be abridged," such right will not supersede a clearshowing that disqualification is warranted (Campolongo v Campolongo, 2 AD3d at 476;see Horn v Municipal Info. Servs., 282 AD2d 712 [2001]).
In the case at bar, the appellant's attorney, whose office represented the appellant in theFamily Court, violated Code of Professional Responsibility DR 7-104 (a) (1) (see 22NYCRR 1200.35 [a] [1]) by, without the Law Guardian's knowledge and consent, allowingmembers of his law firm to interview the subject child and by procuring an affidavit from thechild regarding the pending Family Court proceedings. "The appointment of a Law Guardian toprotect the interests of a child creates an attorney-client relationship, and the absence of the LawGuardian at the subject interview constituted a denial of the child's due process rights"(Campolongo v Campolongo, 2 AD3d at 476; see also Matter of New York CityDept. of Social Servs. [Luz H.], 208 AD2d 746, 747 [1994]; Family Ct Act § 241).
Accordingly, under the circumstances of this case, there was a clear showing thatdisqualification was warranted. Thus, the Family Court providently exercised its discretion ingranting the Law Guardian's motion to disqualify the appellant's counsel. The court also properlyprecluded use of the child's affidavit in the Family Court proceedings (see Campolongo vCampolongo, 2 AD3d at 476).
The appellant's remaining contentions are without merit. Schmidt, J.P., Rivera, Santucci andBalkin, JJ., concur.