| Cohen v Cohen |
| 2015 NY Slip Op 00839 [125 AD3d 589] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Ilan Cohen, Appellant, v Tamara Cohen,Respondent. |
Jeffrey S. Schecter & Associates, P.C., Garden City, N.Y., for appellant.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP(Glenn S. Koopersmith, Garden City, N.Y., of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Janowitz, J.),dated September 26, 2012, as denied his motion to disqualify the law firm of Abrams,Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, fromrepresenting the defendant in this action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the plaintiff's motion is granted.
In this action for a divorce and ancillary relief, the plaintiff moved to disqualify thelaw firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger,LLP (hereinafter the law firm), from representing the defendant. In support of hismotion, the plaintiff asserted that, in or about November 2010, he met with SteveEisman, an attorney from the law firm, for a consultation, as he was considering divorceat that time. The defendant disputes the plaintiff's claim in this regard. According toEisman, although the plaintiff did schedule an appointment to meet with him, theplaintiff canceled the meeting. It is undisputed, however, that the plaintiff's brother metwith Eisman in July 2010. The plaintiff claims, and his brother avers, that, at thismeeting, the plaintiff's brother shared with Eisman detailed confidential informationconcerning various businesses the plaintiff and his brother own and in which they sharecommon interests. Eisman acknowledges that he discussed with the plaintiff's brother the"surface details" concerning, among other things, the plaintiff's brother'semployment.
The disqualification of an attorney is generally a matter resting within the sounddiscretion of the court (seeAlbert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). However," 'doubts as to the existence of a conflict of interest must be resolved in favor ofdisqualification so as to avoid even the appearance of impropriety' " (Mineola Auto., Inc. v MillbrookProps., Ltd., 118 AD3d 680, 680-681 [2014], quoting Seeley v Seeley,129 AD2d 625, 627 [1987]). Here, the Supreme Court should have granted the plaintiff'smotion to disqualify the law firm from representing the defendant in this action. Underthe particular circumstances of this case, given the undisputed evidence of theconsultation between Eisman and the plaintiff's brother, as well as the nature of thematters disclosed and the resulting substantial risk of prejudice, the very appearance of aconflict of interest was alone sufficient to warrant disqualification of the law firm as amatter of law without an evidentiary hearing (see Galanos v Galanos, 20 AD3d 450, 452 [2005];Sirianni v Tomlinson, 133 AD2d 391, 392 [1987]), [*2]notwithstanding the existence of a factual dispute as towhether Eisman met with the plaintiff. Dickerson, J.P., Sgroi, and LaSalle, JJ.,concur.
Hinds-Radix, J., dissents and votes to affirm the order insofar as appealed from, withthe following memorandum: "Whether to disqualify an attorney is a matter which lieswithin the sound discretion of the court" (Matter of Madris v Oliviera, 97 AD3d 823, 825 [2012]; see Midwood Chayim AruchimDialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d 1177 [2011]). In theinstant case, it cannot be said that the denial of the plaintiff's motion to disqualify the lawfirm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP(hereinafter the law firm), from representing the defendant was an improvident exerciseof discretion.
The plaintiff moved to disqualify the law firm from representing the defendant on theground that he and his brother each engaged in a preliminary consultation with SteveEisman, an attorney from the law firm, about whether they should hire the law firm toprosecute divorce actions on their behalf. However, the plaintiff was unable tosubstantiate his allegation that he consulted with Eisman. Eisman stated in an affirmationthat the plaintiff scheduled an appointment for a consultation and then canceled it.Eisman further asserted that the plaintiff "had consulted with various top matrimonialattorneys in the area to prevent [the defendant] from hiring an attorney."
Although it is undisputed that the plaintiff's brother consulted with Eisman, Eismanclaims that only "surface details" relating to the brother's marriage, residence,employment, and children were disclosed at that conference. The plaintiff's brotherclaims that he shared detailed information concerning the day-to-day operations of thebusinesses which he operated jointly with the plaintiff, illustrated by a diagram,described how the businesses earned a profit, and provided his opinion as to the value ofthe businesses. However, he never retained the law firm as his counsel.
"Disqualification of counsel conflicts with the general policy favoring a party's rightto representation by counsel of choice, and it deprives current clients of an attorneyfamiliar with the particular matter" (Tekni-Plex, Inc. v Meyner & Landis, 89NY2d 123, 131 [1996]). Thus, a party seeking to disqualify an attorney for an opposingparty on the ground of a conflict of interest has the burden of demonstrating threeelements: (1) the existence of a prior attorney-client relationship between the movingparty and opposing counsel, (2) that the matters involved in both representations aresubstantially related, and (3) that the interests of the present client and former client arematerially adverse (see id. at 131; Mediaceja v Davidov, 119 AD3d 911 [2014]; Campbell v McKeon, 75 AD3d479 [2010]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9). Since the"substantially related" standard is now the norm (see Sessa v Parrotta, 116 AD3d 1029 [2014]; Reem Contr. Corp. v ResnickMurray St. Assoc., 43 AD3d 369 [2007]; Medical Capital Corp. v MRI Global Imaging, Inc., 27 AD3d427 [2006]), the fact that an attorney has learned of some of a former client'sfinancial information and corporate structure in prior litigation is not in and of itself abasis for disqualification (see NY St Bar Assn Comm on Prof Ethics Op 628[1992]; see also Abselet v SatraRealty, LLC, 85 AD3d 1406, 1407 [2011]).
In Solow v Grace & Co. (83 NY2d 303, 312 [1994]), the Court ofAppeals rejected its prior ruling in Cardinale v Golinello (43 NY2d 288, 296[1977]), that "the avoidance of even an appearance of impropriety [is] so important thatany harm associated with disqualification was minimal when compared with furtheringthose goals." This Court has since held that, "[a]bsent actual prejudice or a substantialrisk thereof, the appearance of impropriety alone is not sufficient to requiredisqualification of an attorney" (Matter of Lovitch v Lovitch, 64 AD3d 710, 711 [2009]; see Christensen v Christensen,55 AD3d 1453 [2008]; Develop Don't Destroy Brooklyn v Empire State Dev. Corp., 31AD3d 144, 150 [2006]).
In Galanos v Galanos(20 AD3d 450, 452 [2005]), relied upon by my colleagues in the majority, this Courtruled that "the very appearance of a conflict of interest in this case was alone sufficient towarrant disqualification." However, in that case, the plaintiff in a matrimonial action wasseeking to set aside transfers of assets from the defendant to her father. The plaintiff'sattorney previously represented the defendant's father "for a number of years" (id.at 451) and therefore had access to confidential information concerning the father'sassets. Thus, there was a significant [*3]attorney-clientrelationship between the plaintiff's attorney and the father, who was a necessary andadverse party to the litigation.
In the instant case, there was no evidence of a prior attorney-client relationshipbetween the law firm and either the plaintiff or his brother. A preliminary consultationbetween an attorney and an adverse party regarding whether the attorney should be hiredto represent the adverse party in a matter which bears a substantial relationship to thepresent litigation may be the basis for disqualification (see Mineola Auto., Inc. vMillbrook Props., Ltd., 118 AD3d 680 [2014]; Leisman v Leisman, 208AD2d 688 [1994]; Seeley v Seeley, 129 AD2d 625 [1987]). However, theplaintiff's assertions in that regard are insufficient to warrant disqualification. There is noevidence that the information provided by the brother was confidential, or that thebrother's interests are materially adverse to those of the defendant (see Gabel v Gabel, 101 AD3d676 [2012]; Bongiasca v Bongiasca, 254 AD2d 217 [1998]; Matter ofNomura Sec. Intl. v Hu, 240 AD2d 249 [1997]; Petrossian v Grossman, 219AD2d 587 [1995]; cf. Sullivan vCangelosi, 84 AD3d 1486 [2011]; Sirianni v Tomlinson, 133 AD2d 391[1987]).
Accordingly, the plaintiff's motion to disqualify the law firm from representing thedefendant was properly denied.