| Matter of Madris v Oliviera |
| 2012 NY Slip Op 05746 [97 AD3d 823] |
| July 25, 2012 |
| Appellate Division, Second Department |
| In the Matter of Gordon T. Madris, Appellant, v Rosana S.Oliviera, Respondent. (Proceeding No. 1.) In the Matter of Rosana S. Oliviera, Respondent, vGordon T. Madris, Appellant. (Proceeding No. 2.) |
—[*1] Roberta Nancy Kaufman, Floral Park, N.Y., for respondent. Barbara H. Kopman, Westbury, N.Y., attorney for the child.
In two related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, by permission, from so much of an order of the Family Court, Nassau County (Eisman,J.), dated February 15, 2012, as granted the mother's motion to disqualify the father's attorney andthe attorney's law firm from appearing in the action.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, with costs, and the mother's motion to disqualify the father's attorneyand the attorney's law firm from appearing in the action is denied.
In the course of this Family Court Act article 6 proceeding, the father and the subject childallegedly experienced difficulty communicating with the caseworker assigned by the NassauCounty Department of Social Services (hereinafter the DSS) to complete the court-orderedinvestigation. The father's attorney wrote to the caseworker's supervisor to alert her to theproblem and to ask that she interview the parties to ensure that a complete and accurate reportwas produced for the court, and sent copies of the letter to the attorneys for the mother and thechild.
The mother moved to disqualify the father's attorney and the attorney's law firm on the basisthat the attorney had violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2 byengaging in improper ex parte communications with the child and with the DSS. The courtgranted the motion and disqualified the father's attorney and her firm. The father appeals, and wereverse the order insofar as appealed from.
It is well established that "[a] party's entitlement to be represented in ongoing litigation bycounsel of his or her own choosing is a valued right which should not be abridged absent a clearshowing that disqualification is warranted. While the right to choose one's counsel is notabsolute, disqualification of legal counsel during litigation implicates not only the ethics of theprofession but also the parties' substantive rights, thus requiring any restrictions to be carefullyscrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to showsufficient proof to warrant such a determination" (Gulino v Gulino, 35 AD3d 812, 812 [2006] [citations omitted]; see Lipschitz v Stein, 65 AD3d573, 576 [2009]; Matter of BrianR., 48 AD3d 575, 576 [2008]; Matter of Marvin Q., 45 AD3d 852, 853 [2007]; Aryeh v Aryeh, 14 AD3d 634[2005]; Campolongo vCampolongo, 2 AD3d 476 [2003]; Olmoz v Town of Fishkill, 258 AD2d 447[1999]). Whether to disqualify an attorney is a matter which lies within the sound discretion ofthe court (see Bentvena v Edelman,47 AD3d 651 [2008]; Matter of Marvin Q., 45 AD3d at 853; Aryeh v Aryeh,14 AD3d at 634; Campolongo v Campolongo, 2 AD3d at 476; Gulino v Gulino,35 AD3d at 812).
Rule 4.2 of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that an attorneymay not communicate with a represented party regarding the subject of the representation(paragraph [a]) or permit his or her client to do so (paragraph [b]) unless opposing counsel hasconsented or the communication is authorized by law. Although a violation of the rule against exparte communications will support a motion seeking an attorney's disqualification, includingsituations where the party is a child (see Matter of Brian R., 48 AD3d at 576; Matterof Marvin Q., 45 AD3d at 853; Campolongo v Campolongo, 2 AD3d at 476; see also Matter of Carey v Carey, 13AD3d 1011, 1012 [2004]), conclusory assertions of conduct violating a disciplinary rule willnot suffice to support disqualification (see Olmoz v Town of Fishkill, 258 AD2d at 448).
Here, the court improperly placed the burden on the father rather than on the mother (i.e., onthe opponent of disqualification rather than on the movant) and failed to consider the evidence inthe light most favorable to the nonmoving party (see Lipschitz v Stein, 65 AD3d at 576;Matter of Marvin Q., 45 AD3d at 853; Gulino v Gulino, 35 AD3d 812 [2006]; Aryeh v Aryeh, 14AD3d at 634; Campolongo v Campolongo, 2 AD3d at 476; Olmoz v Town ofFishkill, 258 AD2d at 447; see also Matter of Brian R., 48 AD3d at 576). Contrary tothe mother's conclusory assertions, there was no evidence that the father or his attorneyimproperly questioned the subject child regarding his interactions with the caseworker assignedto conduct the court-ordered investigation. Because there was no violation of rule 4.2 (b) of theRules of Professional Conduct (22 NYCRR 1200.0), there was no basis for disqualification ofthe father's attorney due to communications with the subject child (compare Matter of BrianR., 48 AD3d at 576; Matter of Marvin Q, 45 AD3d at 853; Campolongo vCampolongo, 2 AD3d at 476).
The court also misapprehended the role of the DSS where it has merely been assigned as theagency to complete a court-ordered investigation. "An entity cannot claim a blanket protectionfrom ex parte interviews by taking the position that house counsel is responsible for all futurelegal matters affecting that entity" (Schmidt v State of New York, 181 Misc 2d 499, 504[1999], affd 279 AD2d 62 [2000], citing ABA Comm on Ethics and Prof ResponsibilityFormal Op 95-396 [1995]). Similarly, "if a governmental party were always considered to berepresented by counsel for purposes of [the rule against ex parte communications], the freeexchange of information between the public and the government would be greatly inhibited"(Schmidt v State of New York, 279 AD2d 62, 65 [2000] [citations and internal quotationmarks omitted]). Because the DSS was not a represented party within the meaning of rule 4.2 (a)of the Rules of Professional Conduct (22 NYCRR 1200.0), the court erred in disqualifying thefather's attorney and the attorney's law firm on this basis as well. Mastro, A.P.J., Skelos, Florioand Hall, JJ., concur.