Opinion
xxxxxx
11-16-2018
M.M., Plaintiff, v. K.M., Defendant.
Angella S. Hull, Esq., 90-50 Parsons Blvd., Jamaica, NY 11432, (718) 206-2290-Phone, (718) 206-2291-Fax, Attorney for the Plaintiff. Michael Gionesi, Esq., Tabat, Cohen, Blum & Yovino, 1205 Franklin Ave., Suite 270, Garden City, NY 11530, (516) 294-9292-Phone, (516) 294-5533-Fax, Attorney for the Defendant. Ellen Pollack, Esq., 25 Roslyn Road, Mineola, NY 11501, (516) 746-3993-Phone, (516) 747-8897-Fax, Attorney for the Children.
Angella S. Hull, Esq., 90-50 Parsons Blvd., Jamaica, NY 11432, (718) 206-2290-Phone, (718) 206-2291-Fax, Attorney for the Plaintiff.
Michael Gionesi, Esq., Tabat, Cohen, Blum & Yovino, 1205 Franklin Ave., Suite 270, Garden City, NY 11530, (516) 294-9292-Phone, (516) 294-5533-Fax, Attorney for the Defendant.
Ellen Pollack, Esq., 25 Roslyn Road, Mineola, NY 11501, (516) 746-3993-Phone, (516) 747-8897-Fax, Attorney for the Children.
Joseph H. Lorintz, J.
The Defendant moves by Order to Show Cause for an Order: (1) Pursuant to C.P.L.R. § 2201, staying the trial of the instant matter, which was scheduled to begin on October 29, 2018, until further Order of the Court; (2) Appointing a separate Attorney for the Child to represent one of the parties' two children; and (3) For such other and further relief as this Court may deem just and proper.
On the scheduled trial date of October 29, 2018, after conference with the Court, the trial was adjourned to February 4, 2019. As such, the branch of the Defendant's application seeking to stay the trial is moot.
The parties were married on November 16, 2001 and have two children, a daughter age 16, and a son age 14. The instant action for divorce was commenced by the Plaintiff with the filing of a Summons with Notice on May 8, 2017 and a Preliminary Conference was held on August 17, 2017 with a Preliminary Conference Order being entered into on the same date. As both parties seek sole custody of the children and could not come to an agreement, an Attorney for the Children ("AFC") was appointed by Court Order, dated October 18, 2017 (Lorintz, J.).
The Defendant alleges that he has recently been advised that the children have divergent views with regard to parenting time which creates a conflict for the AFC that prevents the AFC from effectively representing both children. He therefore seeks to have a second AFC appointed to represent one of the children while the current AFC continues to represent the other child. The Plaintiff opposes the Defendant's application, arguing that there is no evidence that the children have divergent views with regard to custody, and that any difference in their views of parenting time does not negatively impact the AFC's ability to represent both children and advocate on their behalf. The AFC similarly asserts that there is no conflict in continuing to represent both children despite their differing parenting time scheduling preferences as both children want strong relationships with both parents. The AFC further states that both children are comfortable with her and want her to continue to represent both of them despite wanting different schedules. The disqualification of an attorney is a matter that rests within the sound discretion of the court. Calandriello v. Calandriello , 32 A.D.3d 450, 819 N.Y.S.2d 569 (2nd Dept. 2006) ; Zutler v. Drivershield Corp. , 15 A.D.3d 397, 790 N.Y.S.2d 485 (2nd Dept. 2005). In considering a motion to disqualify, the court is to be mindful that a party's right to be represented by counsel of his or her own choosing is a valued substantive interest which should not be interfered with absent a clear showing that disqualification is warranted. Matter of Epstein , 255 A.D.2d 582, 680 N.Y.S.2d 655 (2nd Dept. 1998). As the Court of Appeals has observed, disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants by denying a party the right to be represented by the attorney of his or her choice. S & S Hotel Ventures, Ltd. Partnership v. 777 S.H. Corp. , 69 N.Y.2d 437, 515 N.Y.S.2d 735, 508 N.E.2d 647 (1987). However, an attorney who represents two parties in a lawsuit cannot continue as counsel for either one once a conflict of interest has been established. Tavarez v. Hill , 23 Misc. 3d 377, 870 N.Y.S.2d 774 (Supreme Court, Bronx County, 2009) ; Sidor v. Zuhoski, et al. , 261 A.D.2d 529, 690 N.Y.S.2d 637 (2nd Dept. 1999). In determining whether there is a conflict of interest that would disqualify an attorney, guidance is provided by the New York Rules of Professional Conduct, Rule 1.7 . :
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:
(1) the representation will involve the lawyer in representing differing interests; or
(2) there is a significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
The Defendant sites numerous cases in support of his application, all of which found that the divergent views of the children required the disqualification of the AFC and the appointment of new separate AFCs for each child. However, the gravamen of those cases centers on the divergent views of where the children wanted to reside based upon each parent's fitness.
In the Matter of H. Children , 160 Misc. 2d 298, 608 N.Y.S.2d 784 (Family Court, Kings County 1994), was an underlying abuse proceeding in which the Respondent was charged with sexually abusing the parties' daughter, age 16. The AFC interviewed both children and found that the 14-year-old son had a divergent view from his sister as to the existence of the alleged abuse. The AFC believed there to be a conflict of interest as both children could be called as witnesses, and therefore sought to withdraw as the son's attorney while continuing to represent the daughter. The court therefore disqualified the AFC and appointed two new AFCs.
Gary D.B. v. Elizabeth C.B. , 281 A.D.2d 969, 722 N.Y.S.2d 323 (4th Dept. 2001), was a custody hearing commenced by the mother after the eldest of the parties' four children went to live with her because of an argument between the child and the father, who had custody of all four children. The lower court granted custody of all four children to the mother, finding that the father's parenting skills were not adequate to meet the children's needs, and that the mother, who was a recovering alcoholic and drug addict, could more adequately meet those needs. During the hearing the children presented divergent views as to where they preferred to live, with the three younger children preferring to live with the father and the oldest child preferring to live with the mother. Although not determinative in the Appellate Division's decision to modify the lower court's decision and award custody of the younger children to the father, the court held that the AFC's motion during the hearing to withdraw from representing all of the children due to the conflict as a result of their divergent views should have been granted.
Matter of James I. (Jennifer I.) , 128 A.D.3d 1285, 9 N.Y.S.3d 745 (3rd Dept. 2015), was a neglect proceeding in which all three children were removed from the care of the mother based upon the mother's excessive use of corporal punishment and her relapse in her alcohol recovery. The father of one of the children was deceased and the father of the other two children was adjudicated to have neglected the children based upon his sexual abuse of one of the children. A permanency hearing was held to determine placement of the children with relatives. The child whose father was deceased was placed with her paternal grandparents while the other two children presented divergent interests as to with whom they wished to be placed. Because the AFC would have to therefore take a position contrary to one of the children, the Appellate Division remanded the matter to the Family Court with further proceedings after the appointment of separates AFCs.
In the underlying neglect proceeding of Matter of Brian S. (Tanya S.) , 141 A.D.3d 1145, 34 N.Y.S.3d 851 (4th Dept. 2016), one of the three children had a divergent view from her two siblings regarding placement. The Appellate Division found that the AFC for all three children took a position contrary to the wishes of two of the children, thereby failing to advocate on their behalf, thus providing inadequate counsel. The matter was remitted back to the Family Court for a new hearing upon the appointment of separate counsel for each of the children.
Here, unlike the cases cited by the Defendant, there are no allegations of parental abuse or even that either parent is lacking. Moreover, there isn't a divergent opinion as to with which parent each of the children would prefer to reside as they wish to spend equal time with both parents. The children love both parents and want a good relationship with them. They simply have different preferences regarding the particulars of the parenting time schedule. This difference of opinion over scheduling does not create a conflict of interest for the AFC. She can advocate for each child's separate view of the parenting schedule without prejudicing the rights of the other child.
Importantly, the AFC has had a relationship with both children since being appointed in October 2017. The children trust her and want her to continue to represent both of them despite their different views of the parenting schedule. Lacking any evidence of a conflict of interest created by these divergent views, there is no reason to remove the AFC. Matter of Child Welfare Amin. (Louis G.) , 270 A.D.2d 259, 703 N.Y.S.2d 523 (2nd Dept. 2000) ; Matter of Rosenberg v. Rosenberg , 261 A.D.2d 623, 690 N.Y.S.2d 693 (2nd Dept. 1999). Accordingly, the Defendant's application to disqualify the AFC from continuing to represent both children is DENIED .
The parties are to appear at the scheduled trial on February 4, 2019 at 9:30 am.
This constitutes the Decision and Order of the Court.