| Dietrich v Dietrich |
| 2016 NY Slip Op 00884 [136 AD3d 461] |
| February 9, 2016 |
| Appellate Division, First Department |
[*1]
| Gregg Dietrich, Appellant, v Nicole Dietrich,Respondent. |
Law Office of Raunak Kothari, New York (Raunak Kothari of counsel), forappellant.
Cohen Clair Lans Greifer & Thorpe LLP, New York (Bernard E. Clair ofcounsel), for respondent.
Order, Supreme Court, New York County (Ellen Gesmer, J.), entered May 4, 2015,which, to the extent appealed from as limited by the briefs, granted defendant's motion todisqualify plaintiff's attorney, and denied plaintiff's motion for unsupervised visitationand modification of the visitation schedule and to enjoin defendant from smoking insideher apartment, unanimously modified, on the law, to deny defendant's motion todisqualify plaintiff's attorney, and otherwise affirmed, without costs.
In 2014, plaintiff husband retained Aronson, Mayefsky & Sloan, LLP (AMS) ashis attorneys in this action. In February 2015, he retained Preston Stutman &Partners, P.C. (PSP) to replace AMS. In March 2015, he retained attorney RaunakKothari to replace PSP. Attorneys Bernard Clair and Steven A. Leshnower of CohenClair Lans Greifer & Thorpe LLP (Cohen Clair), retained on January 22, 2014, havebeen defendant wife's only counsel in this action.
Kothari worked at Cohen Clair's predecessor firm from 2008 to 2009 and is presentlycocounsel with Deborah Lans of Cohen Clair on another, unrelated, pending matter. Lansand Leshnower have abutting offices at Cohen Clair and share the same assistant, whoworks on both matters. Kothari does not have his own office space suitable for client andother meetings. While the husband executed a waiver of conflict of interest in connectionwith Kothari's representation of him while working on another matter as cocounsel withCohen Clair, the wife did not.
Because disqualification can affect a party's federal and state constitutional rights tocounsel of his or her own choosing, the burden is on the party seeking disqualification toshow that it is warranted (Ullmann-Schneider v Lacher & Lovell-Taylor PC, 110AD3d 469 [1st Dept 2013]). The court must carefully scrutinize such requests,balancing the right to counsel of one's choice "against a potential client's right to haveconfidential disclosures made to a prospective attorney subject to the protectionsafforded by an attorney's fiduciary obligation to keep confidential information secret(see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.18)" (Mayers v Stone Castle Partners,LLC, 126 AD3d 1, 6 [1st Dept 2015]; see also Tekni-Plex, Inc. v Meyner& Landis, 89 NY2d 123, 131-132 [1996]).
Applying these principles, the wife did not meet her "heavy burden" of showing that[*2]disqualification is warranted, and Supreme Courtimprovidently exercised its discretion when it granted her motion to disqualify Kothari(see Mayers v Stone Castle Partners, LLC, 126 AD3d at 5).
Kothari has never represented or consulted with the wife. His status as cocounsel onan unrelated matter with the firm of attorneys that represents the wife while representingthe husband in this action does not violate any ethical or disciplinary rule. Rule 1.7 of theRules of Professional Conduct (22 NYCRR 1200.00) is not violated, because Kothari isnot concurrently representing anyone adverse to the interests of his client, the husband,who executed a conflict waiver. There is no risk that Kothari will be representingdifferent interests and no risk that his professional judgment will be adversely affected byhis own interests.
While rule 1.10 prohibits lawyers associated in a firm from taking on representationwhen any lawyer in the firm practicing alone would be prohibited from doing so, toimpute such a conflict of interest to Kothari by virtue of his being cocounsel on oneunrelated matter with the firm of attorneys representing the wife would be too broad areading of the rule. It would mean that attorneys from different firms could never worktogether—even on a single case—without having the conflicts of interest ofeach firm imputed to the other; it would impair clients' ability to retain the lawyers oftheir choice. Moreover, Kothari's relationship with the wife's attorneys was"non-regular," and not the "close, regular and personal" type of relationship that couldbecome an association for purposes of imputing conflicts of interest under rule 1.10(see D.B. v M.B., 39 Misc 3d 1205[A], 2013 NY Slip Op 50502[U], *7 [Sup Ct,Westchester County 2013] [internal quotation marks omitted]; compare People v Lynch, 104AD3d 1062 [3d Dept 2013] [in firm of fewer than 10 attorneys, one attorney's statusas of counsel extends to the other attorneys any conflict that may exist]).
Nor is there an appearance of impropriety sufficient to warrant disqualification. Thewife has not shown that there is a reasonable probability that her confidential informationwill be disclosed to Kothari during the course of this litigation. Furthermore, the wife'sconcerns can be easily addressed. Her attorneys could ensure that she and Kothari arenever scheduled to be in Cohen Clair's offices at the same time and could create anappropriate wall to ensure that her confidential information is not leaked. Her attorneyscould also discuss these concerns with the office assistant who works on this matter andthe matter in which Kothari serves as cocounsel to ensure that no confidences arebreached, or they could prohibit the assistant from working on both cases.
Supreme Court had sufficient information to decide the husband's motion forexpanded and unsupervised visitation without a hearing (see Matter of Myles M. v Pei-FongK., 93 AD3d 474 [1st Dept 2012]). The court properly found that the totality ofthe circumstances did not warrant modifying the temporary parental access schedule(see Friederwitzer v Friederwitzer, 55 NY2d 89, 96 [1982]). The court'sdetermination that visitation should continue to be supervised is reasonable, given thehusband's history of substance abuse and his recent positive drug test results, and in lightof the parental schedules set forth in the parties' stipulations.
In view of the wife's agreement to refrain from smoking in any room of her residencein [*3]which the child is present, the court properlydeclined to direct the wife not to smoke inside the residence.
We have considered the husband's remaining contentions and find them unavailing.Concur—Tom, J.P., Renwick, Andrias, Moskowitz and Manzanet-Daniels,JJ.