| Sullivan v Cangelosi |
| 2011 NY Slip Op 03706 [84 AD3d 1486] |
| May 5, 2011 |
| Appellate Division, Third Department |
| Theresa Sullivan, Appellant, v Peter Cangelosi,Respondent. |
—[*1] Towne, Bartkowski & DeFio Kean, Albany (Elena DeFio Kean of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Cahill, J.), entered January 27, 2010 inUlster County, which granted defendant's motion to disqualify plaintiff's counsel.
After plaintiff commenced this action against defendant alleging, among other things, thatdefendant had trespassed on her property and assaulted her, defendant moved to disqualifyplaintiff's attorney, Edward Carroll. Defendant's motion was based on a telephone call he made toCarroll approximately one month prior to his alleged trespass and assault seeking representationwith respect to his ongoing dispute with plaintiff, who was his neighbor. Supreme Court, after ahearing, found that defendant had described his legal problems with plaintiff and at least some ofhis version of the history of his differences with her to Carroll during the telephone conversation.The court also found that Carroll, after telling defendant that he represented plaintiff, suggestedthat defendant write him a letter about any complaint he had with plaintiff and not have anycontact with her concerning anything that could lead to an altercation. Supreme Court concludedthat Carroll improperly gave defendant legal advice, that the subject matter of the telephoneconversation was related to the subject matter of the litigation and that any doubt as to whether aconflict of interest existed had to be resolved in favor of disqualification. Plaintiff appeals and wereverse.
Initially, we note that "[t]he right to choose one's own counsel is a valued right," therestriction of which "must be carefully scrutinized" (Matter of Advent Assoc., LLC v Vogt [*2]Family Inv. Partners, L.P., 56 AD3d 1023, 1024 [2008];see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440, 443[1987]). In this case, our analysis is guided by the former Code of Professional Responsibility,which was in effect at the time of the conduct in question (see Bank Hapoalim B.M. v WestLB AG, 82 AD3d 433 [2011]),and we note that even in the absence of an attorney-client relationship—as here—anattorney has a fiduciary obligation to preserve the confidential secrets of prospective clients(see Seeley v Seeley, 129 AD2d 625, 626-627 [1987]; Code of ProfessionalResponsibility EC 4-1; see also Code of Professional Responsibility DR 4-101 [a]; 5-108[a] [1] [22 NYCRR 1200.19 (a); 1200.27 (a) (1)]; Rules of Professional Conduct [22 NYCRR1200.0] rule 1.18 [c]). Since there is no question that the parties' interests are adverse, the caseturns on whether Carroll received confidential information during the telephone call that could beembarrassing or detrimental to defendant and, if so, whether the disclosures made during thephone call and the issues now in litigation are substantially related (see Seeley v Seeley,129 AD2d at 627; Code of Professional Responsibility EC 4-1).
Preliminarily, we disagree with Supreme Court's conclusion that Carroll's suggestion todefendant constituted legal advice. Inasmuch as the suggestion was made when defendant wasaware that Carroll represented plaintiff and it did not address defendant's rights or remedies, weview it as no more than an attempt to diffuse the dispute between the parties (compare Falk v Chittenden, 11 NY3d73, 78 [2008]; Parnes v Parnes,80 AD3d 948, 950 [2011]).
Turning to the issue of whether a fiduciary obligation arose here, defendant failed to establishthat he shared any information with Carroll during the telephone conversation that could beconsidered confidential (see Porter v Beaulieu, 290 AD2d 630, 630-631 [2002];Martin v Martin, 224 AD2d 597, 597 [1996]). Moreover, even though the acrimonybetween the parties apparently culminated in the incident giving rise to this action, therelationship between that history and the relevant issues in this action has not been shown to besubstantial, as it must to warrant disqualification (see Nicola v Barrett, 43 AD3d 583, 585 [2007]; Waehner v Northwest Bay Partners,Ltd., 30 AD3d 799, 800 [2006]; Gaspar v Hollrock Poured Concrete, Inc., 7 AD3d 871, 872 [2004];Leonardo v Leonardo, 297 AD2d 416, 418 [2002]).
Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is reversed,on the law, with costs, and motion denied.