Opinion
05/1614
03-05-2017
E.M.B., Plaintiff, v. A.M.B., Defendant.
Appearances: Francis C. Affronti, Esq. Attorney For Plaintiff Rochester, New York Walter R. Capell, Esq. Attorney for Defendant Rochester, New York
Appearances: Francis C. Affronti, Esq. Attorney For Plaintiff Rochester, New York Walter R. Capell, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
One of the prominent features of the 2010 no-fault divorce law is that New York ushered adultery-based claims to the "ash heap of history." As part of that change, the legal status of a "co-respondent" - the non-party whose collaboration with the defendant provided the basis for the adultery claim - vanished from the law books.
Although not originated by him, President Ronald Regan gave this phrase new life in a speech in England. Regan, Speech to the House of Commons, London, England, June 8, 1982.
In this case, the role of a co-respondent climbs back into the matrimonial vocabulary, when a co-respondent in a prior action and her current husband seek to disqualify an attorney who met with the couple more than a decade ago.
The legal status of a "co-respondent" requires this court to voyage back to what were called in The Lone Ranger television show, "the thrilling days of yesteryear," when adultery was the most common form of divorce litigation. Section 172 of the Domestic Relations Law still permits a plaintiff to list a "co-respondent" - the alleged partner in an adultery action - and serve them with the adultery pleading, although they do not become a party to the action. Fico v Fico, 4 Misc 2d 190 (Sup. Ct. 1956) (a co-respondent in a divorce action is not a party to an action). See also Van Patten v. Van Patten, 79 Misc 2d 613 (Sup. Ct. Saratoga Cty. 1974) (active participating wrongdoer sought status as a co-respondent and he should be entitled to "defend such action so far as the issues affect him"). Apparently, a co-respondent has legal standing to dispute the adultery allegations but no other right to be heard on any equitable distribution or other property related, issues. This distinction has some importance in this instance because the discussion between the co-respondent, her future husband and the attorney was, by its very occurrence, initiated solely in response to the allegations regarding grounds for the divorce between the husband and his former wife and not the particulars of equitable distribution or support in the then pending divorce action.
In this matter, the plaintiff — the ex-wife — filed a motion to have the defendant — her ex-husband — continue to pay the maintenance that she alleges she is owed under their settlement agreement and the judgment of divorce. The agreement resulted from a divorce action in 2005, in which the wife alleged adultery as the grounds. NY DRL § 170 (4). In that action, the wife named the husband's then-girlfriend, now current wife, as a "co-respondent."
In response to the naming of the girlfriend as a co-respondent, the husband and the girlfriend sought counsel for the girlfriend. In 2006, they had a meeting with the attorney who is now the subject of the pending disqualification motion. The husband alleges that during this meeting they discussed the matrimonial action, and "obtained legal advice from him specifically regarding the defense of the matrimonial action." He adds that they sought "his legal advice as to our options to respond to [the girlfriend] being named as a co-respondent in the Matrimonial Action." The co-respondent in the 2005 action - now married to the defendant - states in her affidavit that the topics covered at the meeting included the woman's status as a co-respondent, "a united joint defense" in the matrimonial action and "strategy options" in the matrimonial action. There was only one meeting between the attorney, the girlfriend and the husband. The attorney never appeared on behalf of the co-respondent in the underlying divorce action. There is no evidence that the girlfriend ever participated in the divorce action in which she was named as a co-respondent. The attorney who participated in the meeting has no recollection and no notes of the discussion. In their affidavits, the current husband and wife make no mention of any discussion with the attorney regarding maintenance that the husband would pay to his former wife or the circumstances in which such maintenance could be terminated.
The girlfriend's affidavit plays little role in this court's consideration of the pending motion. If confidential or privileged information relevant to the current application were relayed to the attorney in this meeting, it must have been divulged by the husband. The former girlfriend, now-wife's disclosure of confidential information about her own conduct or finances would have no relevance in the current contempt-enforcement proceeding pending before this court between the husband and his ex-wife.
The 2005 matrimonial action was eventually settled. The couple were divorced on July 2, 2008, more than two years after the meeting with the attorney, by a judgment which incorporated the parties' property settlement and opting-out agreement. The agreement required the Defendant to pay maintenance to the Plaintiff. The Plaintiff remarried on December 22, 2015. When the Defendant found out about the remarriage, he terminated the maintenance payments in April 2016 claiming his maintenance obligation was terminated when the Plaintiff remarried. NY DRL § 248. In her motion currently pending before the court, the Plaintiff seeks a finding of contempt for breach of the settlement agreement, claiming there is no termination event identified in the agreement and hence the husband is required to continue to pay.
To bring the enforcement action, the plaintiff and former spouse retained the same matrimonial lawyer who had conferred with her-then husband and his girlfriend in 2006. The ex-husband, after retaining counsel, immediately moved to disqualify the matrimonial firm because he and his then girlfriend-now-spouse had met with same attorney in 2006 and conveyed confidential information that precluded his participation in the matter.
To buttress this claim, the husband offers an affidavit from his attorney in the underlying divorce action in which he relates what the husband told him regarding the meeting between the girlfriend, the husband and the new lawyer. He indicates that the husband told him that they discussed a "united defensive strategy" related to the girlfriend's status as a co-respondent. The court declines to credit this affidavit as it is unmistakably hearsay.
This motion requires the court to revisit the details of the evolving standards for disqualification which the court detailed in Lyons v Lyons, 50 Misc 3d 876 (Sup. Ct. Monroe Cty. 2015). As a starting point, the disqualification of an attorney is a matter that rests within the discretion of the court. Cardinale v. Golinello, 43 NY2d 288, 296 (1977); Lauder v Goldhamer, 122 AD3d 908 (2nd Dept. 2014). As this court noted in Lyons v. Lyons, the rules for disqualification of counsel are, in the wake of series of appellate decisions and changes in the rules governing attorney conduct, more fact specific than ever before. As a general rule, the court must consider whether the lawyer or law firm that previously represented the party or entity which is seeking to disqualify that attorney, obtained in the course of that representation confidential information which could be disclosed or used against the former client in the current litigation. Cardinale v. Golinelle, 43 NY2d 288, 296 (1977). However, since Cardinale v. Golinelle, the flood of disqualification application drove a new rule reagrding conflicts when prospective clients consult with attorneys. Rule 1.18 of the Rules of Professional Conduct provides:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a 'prospective client.'Rules of Professional Conduct (22 NYCRR § 1200.1.18). The current rules regarding the definition of "confidential information" - possession of which by an adverse counsel can trigger disqualification - have been restated and codified as:
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d)" (emphasis added).
information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.Rules of Professional Conduct (22 NYCRR § 1200.1.6). Furthermore, as the First Department recently held, disqualification should be denied if "the conveyed information did not have the potential to be significantly harmful to [the former client] in the matter from which he seeks to disqualify counsel." Mayers v Stone Castle Partners, LLC, 126 AD3d 1 (1st Dept. 2015), cited in OmniVere, LLC v Friedman, 2017 NY Slip Op 30037 (U) (Sup. Ct. New York Cty. 2017). In addition, a reasonable probability of disclosure is sufficient to disqualify counsel and it is for the court to determine the "reasonable probability of disclosure of confidences' from the nature of the situation itself." Forbush v. Forbush, 107 AD2d 375, 379-380 (4th Dept. 1985). Finally, as this court held in Lyons v. Lyons, there must be a "clear showing" of the various factors to justify disqualification. Lyons v. Lyons, 50 Misc 3d at 883-884. Since this Court's opinions, other courts have confirmed this "clear showing" standard. Kelleher v Adams, 2017 NY Slip Op 01542 (2d Dept 2017)(choosing [counsel] is a valued right which should not be abridged absent a clear showing that disqualification is warranted); Matter of Rovner v Rantzer, 145 AD3d 1016 (2d Dept 2016); Giammona v 72 Mark Lane, LLC, 143 AD3d 941 (2d Dept 2016). See also Matter of Benihana Protective Trust, 2014 NY Slip Op 31104(U)(Sup. Ct. New York Cty 2014).
Subdivision (d) of this rule codifies the "Chinese wall" concept in shielding a law firm from the universal consequences of disqualification of one of its attorneys. Markowits v Friedman, 2014 NY Slip Op 30221 (U) (Sup. Ct. Kings Cty. 2014); Matter of Kaufman (Kaufman), 40 Misc 3d 1234 (A), n.2 (Surr.Ct. Nassau Cty. 2013) (a "Chinese Wall" is a screening device that separates a disqualified attorney from a conflicting case and enables the other attorneys in the firm to proceed with the representation).
In this matter, both parties concentrate significant argument on the first portion of the disqualification test; i.e., whether the wife's current law firm actually established an attorney client — or other confidential relationship —- with the husband in the earlier litigation. It is undisputed that the husband and the attorney never had an attorney-client agreement. Despite this lack of an agreement, the husband argues that his participation in the conference with the attorney established a relationship - a prospective client relationship under the Rules - that suffices to trigger the attorney's disqualification. In this regard, the husband leans heavily on federal precedents. See e.g., Corporate Express Office Prods. v. Gamache, 2006 U.S. Dist. LEXIS 90345 (NDNY 2006). While these cases support the husband's general proposition that a sufficient "relationship" existed between the client and attorney to justify disqualification, the extent of disclosure by client to the alleged compromised attorney, which justified the court's conclusion in those cases, was far broader than that present here. See Papyrus Tech. Corp. v. NY Stock Exch., Inc., 325 F. Supp. 2d 270 (SDNY 2004) (attorney participated in weekly meeting where confidential topics were discussed and received confidential emails); Glueck v. Jonathan Logan, Inc., 653 F2d 746 (2nd Cir. 1981) (disqualified attorney represented a trade association and wanted to represent a client in suing one of the association's members); Stratton v. Wallace, 2012 U.S. Dist. LEXIS 108444 (WDNY 2012) (disqualification of defense firm appropriate when one of its current employees, a former associate in plaintiff's law firm assigned to plaintiff's case, had access to plaintiff's case file, conducted pre-action discovery, met with plaintiff in his home, and drafted the complaint). Similarly, many of the New York cases cited by the husband's counsel reached the same conclusion on compelling facts that the attorney, subject to disqualification, had access to specific confidential information. See Gjoni v Swan Club, Inc., 134 AD3d 896 (2nd Dept. 2015) (attorney, who represented the defendant in a human rights complaint could not represent the plaintiff against his former client); Matter of Town of Oyster Bay v 55 Motor Ave. Co., LLC, 109 AD3d 549 (2nd Dept. 2013) (disqualification when an attorney, who represented a property owner in condemnation proceedings, now sought to represent the condemner).The most recent Appellate Division precedent, cited by the husband in support of a claim of a "relationship" with the attorney, does little to bolster his claim that disqualification is warranted. Bank Hapoalim B. M. v WestLB AG, 82 AD3d 433 (1st Dept. 2011). The husband cites this decision to support his contention that even the preliminary conference in this matter creates a relationship upon which disqualification can be premised. The husband's reliance, justified in its conclusion that a preliminary conference can establish such a relationship, is misplaced on another score; i.e., whether there is a clear showing in this case that confidential information was disclosed by the husband sufficient to justify disqualification. The First Department opinion is bare bones in its description of the exact contents of the disclosures made during the preliminary meeting between attorney and his alleged client. By contrast, the trial court opinion in Bank Hapoalim B. M. v WestLB AG, 2010 NY Slip Op 33908 (U) (Sup. Ct. New York Cty. 2010) documents the exact nature of the extensive discussions at the preliminary conference between client and prospective counsel. The discussions included the structure of a corporate transaction, the merits of commercial claims, the potential for litigation and a host of otherwise privileged disclosures. There was evidence of written communications, marked "privileged and confidential" distributed to counsel by the client prior to the meeting In short, if this court applies the "clear showing" requirements, the First Department in Bank Hapoalim B. M. v WestLB AG properly held that these extensive disclosures, made without a retainer agreement in a preliminary conference, satisfied the requirements for a relationship and a "clear showing" that the attorney's possessed "confidential information," the disclosure of which could compromise the client's future litigation prospects.
As a practical matter, the husband, when discussing his girlfriend's co-respondent status with the attorney was not a "prospective client." He was already represented by counsel in his divorce action and was not seeking to have the attorney represent him in any capacity.
The husband cites nine federal cases to support the argument that he established a "confidential relationship" with the wife's current attorney during this single meeting. His only recent Appellate Division citation is Bank Hapoalim B.M. v WestLB AG, 82 AD3d 433 (1st Dept. 2011), which this court discusses above. He cites two nearly 30 year-old appellate division decisions - both of which preceded the Professional Conduct Rules cited above - as well. In Rose Ocko Foundation, Inc. v. Liebovitz, 155 AD2d 426 (2nd Dept. 1989), disqualification was required because the prospective client has discussed "settlement for a specific dollar amount." In Seeley v. Seeley, 129 AD2d 625 (2nd Dept. 1987), the court held that disqualification was required when the client had two conferences with counsel and in intimate detail discussed the ownership interests of the respective litigants, secrets relating to a litigant's 's interest in disputed property and confidential information concerning direct evidence relating to this action. As discussed infra, the husband's vague suggestions regarding the confidential information disclosed in this instance are thread bare when compared to the disclosures in these aging Appellate Division decisions that required disqualification. --------
In this court's view, the husband can establish that the conversation with counsel did create a relationship which could meet the first portion of the disqualification test: the husband could reasonably assume that any confidential or privileged information, disclosed by him to this attorney, would be protected from disclosure to his then-current wife either at that time or at any time in the future.
The husband's argument loses steam as his analysis shifts to the second prong of the test: whether the current action - a claim for breach of the settlement agreement - is "substantially-related" to the initial action, which was the former-girlfriend's status as a co-respondent in the adultery action. The actions are not substantially-related. The action which brought the husband and his then girlfriend to the attorney's office was the adultery claim under Section 170 (4) of the Domestic Relations Law. The action was settled. The agreement, which set forth the settlement, is now before the court. There is no suggestion, anywhere in the moving papers, that the husband discussed the settlement agreement with his then current-wife with the attorney during the preliminary conference. There is no suggestion that the husband made confidential disclosures about his payment of maintenance, his intentions regarding the payment of maintenance or the term of his maintenance obligation, which is nub of the current litigation. In short, the adultery action and the girlfriend's status as a co-respondent - which was the reason for the meeting - is not substantially related to a breach of contract claim asserted a decade later.
The lack of a substantial relation between the two actions alone does not doom the husband's claim because, as the final step in the analysis to justify disqualification, there must be a "clear showing" that the husband divulged confidential information and that the attorney could disclose that information and impact his former client's litigation or legal status. As this court noted in Lyons v. Lyons, 50 Misc 3d 876 (Sup. Ct. Monroe Cty. 2016), after an extensive analysis of the current rules for disqualification of counsel:
If a court may only disqualify counsel upon a "clear showing," then the scope of permissible judicial discretion is, in this court's view, substantially circumscribed. If the court finds that no "clear showing" has been made, then the court lacks the discretion to disqualify counsel. Furthermore, in the absence of a "clear showing," even if the court concludes that a litigant has a reasonable apprehension that his former attorney knows confidential information, no disqualification is warranted.Id. at 884. One of my colleagues in Monroe County made the same point in a case involving experienced counsel in the very firm that now advocates on behalf of the husband here. In Bernacki v Bernacki, 47 Misc 3d 316 (Sup. Ct. Monroe Cty. 2015), the court held that the mere allegation of "confidential information" is insufficient to justify disqualification. The court concluded that:
no information is presented in this motion that would permit the court to conclude that the information allegedly revealed was of the type referred to in Rule 1.18.
Plaintiff's reference to the information as "confidential," without more, is insufficient.Id. at 319. The Court cited the Court of Appeals language in Jamaica Public Service Co. Ltd. v. AIU Ins. Co., 92 NY2d 631 (1998) to juystify its conclusion:
. . . allowing a party seeking disqualification to meet its burden by generalized assertions of " access to confidences and secrets" would both make it difficult, if not impossible, to test those assertions and encourage the strategic use of such motions. . . . While a movant need not actually spell out the claimed secrets and confidences in order to prevail, it must at a minimum provide the motion court with information sufficient to determine whether there exists a reasonable probability that DR 5-108 (A) (2) would be violated. Id at 638. Sullivan v. Cangelosi, 84 AD3d 1486, 1487, 923 NYS2d 737 (3rd Dept. 2011) ("defendant failed to establish that he shared any information during a telephone conversation that could be considered confidential"). Similarly, the court cannot conclude that the information "could be significantly harmful" to plaintiff in this matter if the court - as here - is told no more about the information other than it was "specific and detailed." Bernacki v Bernacki, 47 Misc 3d at 319. Other courts have followed suit, demanding some evidence that the information relayed to the attorney was "confidential" and that its disclosure would be harmful before granting disqualification. See Gustafson v. Dippert, 68 AD3d 1678, 1679, 891 NYS2d 842 (4th Dept. 2009) (slim evidence and generalized allegations are insufficient to justify disqualification); Mayers v. Stone Castle Partners, LLC, 126 AD3d 1 (1st Dept. 2015) (disqualification is not warranted because the conveyed information did not have the potential to be significantly harmful). Similarly, in Raffaeli v. Raffaeli, 51 Misc 3d 1226 (A) (Sup. Ct. Westchester Cty. 2016), the court, in granting disqualification, concluded that the moving party sketched out a detailed list of specific confidential information that supported its conclusion. See also Gabel v Gabel, 101 AD3d 676 (2nd Dept. 2012) (no confidential disclosure because the "information" apparently disclosed was contained in publicly-available documents); Calandriello v. Calandriello, 32 AD3d 450 (2nd Dept. 2006) (conclusory allegations of "intimate knowledge" of business, personal and financial matters insufficient to establish substantial relationship between prior and current ligation).
Against this legal backdrop, several conclusions emerge. First, when the husband met the matrimonial attorney, he was not the client - the co-respondent, his girlfriend, was the prospective client. There is no indication that the husband individually was seeking advice from the attorney on the substance of his matrimonial action, as he was already represented in the underlying matrimonial action. The purpose of the 2006 consultation, by admission of both the then-girlfriend and the husband, was to simply discuss and strategize the girlfriend's participation as a co-respondent in the adultery-based claims, a conversation which would by its legal nature, focus solely on the personal relationship between the husband and his then girlfriend and its impact on the defense of his divorce action. There is no specific evidence that the husband disclosed to the attorney anything about his finances that would be pertinent a decade later when his former wife commenced an action to enforce the maintenance obligation under the agreement. The husband makes no allegation that his obligation to pay maintenance was discussed. The vague representations - "we strategized with him" or "we provided him with confidential and privileged information" and the attorney "provided to us confidential legal advice" - are simply insufficient to meet the "clear showing" test.
The husband's suggestion that he disclosed "financial information relevant to his marriage" does not rescue his motion First, this court cannot conceive how the husband's financial condition in 2006 - even if imparted in detail to the attorney - impacts his obligation to continue to pay maintenance in 2017. Second, there is a compelling legal argument that even if the husband made financial disclosures to the attorney, those disclosure are not legally confidential. The Domestic Relations Law, even in 2006, required extensive sworn financial disclosure by the husband to his wife in the divorce action. NY Domestic Relations Law § 236 (B) (4); Messina v. Messina, 175 AD2d 866 (2nd Dept. 1991) (law requires extensive financial disclosure by the parties in a matrimonial action). In Bongiasca v. Bongiasca, 254 AD2d 217 (1st Dept. 1998), the First Department made this exact point when a litigant sought to disqualify an attorney who had represented the couple a decade earlier and obtained financial information relating to real estate purchases. The court, in declining to disqualify counsel when he sought to enforce the husband's maintenance obligation, noted that because full financial disclosure is required the "it [was] difficult to discern what financial information defendant can claim to be confidential or secret." Id. at 217. In this case, the husband does not and cannot point to any specific item of financial information, disclosed to the attorney, that would not also have been disclosed to his wife in the then-pending matrimonial action. In short, the general comment - we discussed "confidential finances" - does not provide a "clear showing" that the "finances" were confidential. In the absence of a "specific, reasonably articulable prejudice" to the husband from the disclosure of "privileged information," disqualification is unwarranted. Matter of Susan K. v Thomas C., 25 Misc 3d 1207 (A) (Fam. Ct. Monroe Cty. 2009) at 7-8. See also Cohen v Cohen, 125 AD3d 589 (2nd Dept. 2015) (disqualification only warranted if substantial risk of prejudice).
Second, the husband, in pressing for disqualification, cannot point to any specific confidential information that he disclosed to the attorney in this one meeting almost a decade ago that might impact his former wife's claim for maintenance under the separation agreement, which is the only question currently before the court. Therefore, to that extent, while the pending motion is brought in the "same action" - as the husband alleges - and has the same index number as his divorce, the current motion is simply a question of contractual and statutory construction on whether the lack of an express termination upon remarriage in the agreement allows the husband to discontinue maintenance payments. Third, time works against the husband's claim. The conversation occurred more than ten years ago, and there is no evidence that any financial disclosure, made almost a decade ago, has any relevance to the current dispute. The husband cannot point to any financial circumstance, present in 2006, that is relevant to the current dispute. See Bongiasca v. Bongiasca, 254 AD2d 217 (1st Dept. 1998) (10-year gap between disclosure and enforcement action as a factor in denying disqualification). Finally, the attorney, to whom the disclosures were made, attests that he cannot remember any aspect of the meeting and has no notes of it.
While this court concurs with the husband that the lack of memory by counsel does not cure a conflict, nonetheless, if the attorney has no evidence of confidential information and no professed memory of its delivery a decade before, the husband's fear of disclosure seems somewhat overstated.
This court understands that "the appearance of a conflict " - an apprehension that a former attorney knows a secret that will be used against his former client - is a powerful fear among litigants. But, mere fear of disclosure - even when cloaked in the language of an "appearance of a conflict" - is not enough: recent case law and changes in the Rules of Professional Conduct require that there must be some proof of the transfer of confidential information and a real risk of its disclosure to the detriment of the current litigant before a court, utilizing its discretionary powers, grants disqualification. Here, there is insufficient evidence of the former and no reasonable likelihood that any information, disclosed a decade ago, would impact the current claim before this court.
Disqualification is not justified in this instance. The motion is denied.
Submit order on notice. 22 NYCRR 202.48. Dated: March 5, 2017 __________________________________ Richard A. Dollinger, A.S.C.J.