Opinion
July 11, 1988
Appeal from the Supreme Court, Nassau County (Galfunt, J.H.O.).
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the case is remitted to the Supreme Court, Nassau County, for a hearing before a Justice to be held within 60 days of the date of this decision and order to determine whether the plaintiff's attorney should have been disqualified owing to a conflict of interest, and the appeal and cross appeal are held in abeyance in the interim; the Supreme Court, Nassau County, shall file its report with all convenient speed.
At the time of the divorce trial, which was held upon the consent of the parties before a Judicial Hearing Officer, the defendant wife and her former attorney were involved in a fee dispute which resulted in the former attorney's retention of the defendant's file during most of the trial proceedings. In the midst of the trial, the defendant learned that her former attorney and the plaintiff husband's attorney were involved in negotiations concerning the formation of a partnership. She so advised the Judicial Hearing Officer, who, after a brief sidebar, accepted the plaintiff counsel's statement that although he and the defendant's former counsel were, in fact, involved in such negotiations, no confidences relating to the defendant's case had been discussed.
We find that under the circumstances of this case the Judicial Hearing Officer erred in failing to hold a full evidentiary hearing in order to determine whether the plaintiff's attorney should have been disqualified on conflict of interest grounds (see, Poli v. Gara, 117 A.D.2d 786). Accordingly we order that an evidentiary hearing be held before a Justice of the Supreme Court, Nassau County, within 60 days of the date of this decision and order and direct that the court file a report with all convenient speed. The appeal and cross appeal shall be held in abeyance in the interim. Mangano, J.P., Bracken, Brown and Weinstein, JJ., concur.