Opinion
XXXXXX/XX
10-23-2018
ANONYMOUS 2017-1, Plaintiff, v. ANONYMOUS 2017-2, Defendant.
Gassman Baiamonte Gruner, P.C., Attorneys for Plaintiff, 666 Old Country Road, Suite 801, Garden City, NY 11530, Ph: (516) 228-9181, Fax: (516) 745-6712 Law Offices of Thomas F. Liotti, LLC, Attorney for Defendant, 600 Old Country Road, Suite 530, Garden City, NY 11530, Ph: (516) 794-4700, Fax: (516) 794-2816 Mark A. Green, P.C., Attorney for the Children, 990 Westbury Road, Suite 202, Westbury, NY 11590, Ph: (516) 345-8080, Fax: (516) 345-1616
Gassman Baiamonte Gruner, P.C., Attorneys for Plaintiff, 666 Old Country Road, Suite 801, Garden City, NY 11530, Ph: (516) 228-9181, Fax: (516) 745-6712
Law Offices of Thomas F. Liotti, LLC, Attorney for Defendant, 600 Old Country Road, Suite 530, Garden City, NY 11530, Ph: (516) 794-4700, Fax: (516) 794-2816
Mark A. Green, P.C., Attorney for the Children, 990 Westbury Road, Suite 202, Westbury, NY 11590, Ph: (516) 345-8080, Fax: (516) 345-1616
Joseph H. Lorintz, J.
Hearing Issue
The sole issue of the disqualification of the Defendant's counsel, Thomas F. Liotti, Esq., was the subject of a hearing held before this Court over the course of six (6) days, August 3, 2018, August 13, 2018, August 15, 2018, September 5, 2018, September 6, 2018 and September 7, 2018. Pursuant to this Court's Decision and Order dated June 1, 2018, the hearing was to determine whether the Defendant's counsel should be disqualified. In a Decision and Order of this Court dated June 1, 2018, the motion brought by the Plaintiff seeking the disqualification of the Defendant's counsel was referred to a hearing.
At the hearing, the Plaintiff was represented by counsel. The Defendant was represented by counsel. Additionally, the parties' children were represented by an Attorney for the Children (hereinafter "the AFC"). The Defendant's counsel, Thomas A. Liotti, Esq., the Defendant, the Plaintiff and SG were the witnesses at the hearing, which was followed by an in camera interview with the two (2) children on October 3, 2018, in the presence of the AFC.
Background
The Plaintiff alleged that on April 2, 2018, in the late afternoon, the Defendant's attorney, Thomas F. Liotti, Esq. ("Mr. Liotti"), drove to the Defendant's home and chauffeured, in his vehicle, the Defendant, the parties' two children and their nanny to the home of SG, another client of Mr. Liotti's, in Plainview. The ride lasted approximately 40 minutes. Mr. Liotti did not notify the AFC, Mark A. Green, Esq., that he would be transporting the children.
Earlier that day, on April 2, 2018, Mr. Green brought an Emergency Order to Show Cause seeking to enjoin the Defendant and her counsel from speaking about their ongoing divorce and custody dispute in public. The Emergency Order to Show Cause was heard on April 2, 2018 by Hon. Hope Schwartz Zimmerman as this Court was not available that day. The Plaintiff's counsel, Mr. Liotti, and Mr. Green all appeared in Court on April 2, 2018. Justice Zimmerman did not sign the Order to Show Cause and referred the matter to this Court for April 3, 2018 at 2:00 p.m.
On April 3, 2018, the Plaintiff's counsel, the Defendant and her counsel and the AFC all appeared before this Court with reference to the emergency Order to Show Cause brought by Mr. Green. No mention at that time was made by Mr. Liotti to Mr. Green that he had transported the children in his vehicle the day prior.
The Plaintiff submitted the Order to Show Cause seeking to disqualify Mr. Liotti on April 10, 2018. Upon the presentment of the Order to Show Cause, the Plaintiff's counsel, the Defendant and her counsel and the AFC appeared before this Court. At that time, counsel for the Plaintiff argued that even if Mr. Liotti did not discuss the case with the children, in being in the presence of the parties' children in his car, Mr. Liotti was "inducing trust in him as mommy's lawyer". (Tr. 04/10/18 at p. 5, ln. 10) The AFC commented that he was "shocked" (Tr. 04/10/18 at p. 8, ln. 18) that Mr. Liotti would see his clients outside of his presence. He argued that his clients were "tainted" by having been exposed to one of the party's attorneys.
In response, at the presentment of the Order to Show Cause, Mr. Liotti stated that on April 2, 2018, there was an emergency situation, whereby a private investigator was following his client. He also indicated that the police were at the scene. He stated that he "never spoke to the children about this case or anything else". (Tr. 04/10/18 at p. 17, ln. 20) He stated that he knew the children from the Atlantic Beach Club and that when he has visited his client at her house, the children were "around" but he didn't speak to them about the case. He was there to look at the scene.
Mr. Liotti stated that on April 2, 2018, the children were very upset about the private investigator following the Defendant. He also stated that his client learned that she had a suspended license. Because of the fear associated with a possible suspended license, the private investigator's actions, the police presence, and her desire to go to SG's home in Plainview, Mr. Liotti decided that the best course would be to take the children from the home in Lido Beach to Ms. G's home in Plainview. Mr. Liotti parked his car on another street and had the Defendant and children meet him there. Mr. Liotti stated that the children were accompanied by a nanny to witness that he never discussed anything about the case with them. He also offered for the children to be interviewed in a modified "Lincoln Hearing" (Tr. 04/10/18 at p. 21, ln. 14) to verify that he never spoke to them about the case.
Mr. Liotti also stated that the private investigator who was following them "came up right on our tail and, in fact, endangered us" (Tr. 04/10/18 at p. 22, ln. 2). He stated that he tried to avoid him but the private investigator was "menacing" (Tr. 04/10/18 at p. 22, ln. 9). Finally, Mr. Liotti stated that he didn't even know if the children knew that he was the Defendant's lawyer. (Tr. 04/10/18 at p. 32, ln. 15)
Motion Papers
In his Affirmation in Opposition to the Plaintiff's Order to Show Cause to disqualify him, dated April 25, 2018, Mr. Liotti stated that his client, the Defendant, in the afternoon of April 2, 2018 called him while he was in his office, complaining about being followed and staked out by private investigators. Mr. Liotti stated that the children were "petrified" and he was very concerned for his client and the children as he believed there could be a set up for the Defendant to be arrested. He believed it was his responsibility to go to his client's home to insure her rights were protected. His plan was to park a short distance away from the Defendant's home and thwart the plan to have her arrested in front of her children. He stated that his client's need for his "legal protection" negated the use of a taxi or other forms of transportation. He states that he had no conversation with the children at any time and that "At no time did defendant say anything about me, the case or disparage plaintiff". (Liotti Affirmation, 4/25/18 at ¶ 20)
In his Affirmation, Mr. Liotti states that "I will not permit or stand by while they try to frame defendant, an exemplary mother and parent. Plaintiff may think that he is fighting for his finances but defendant has a higher calling. She fights only for her children. She will not and I will not allow her children to be used as pawns by plaintiff or anyone else". (Id. at ¶ 30) He further states "The AFC and Mr. Gassman may be accustomed to traditional, legal warfare but here plaintiff's unconventional tactics require an unconventional response, to wit: me". (Id. at ¶ 31) Mr. Liotti states in his Affirmation that "In retrospect, I believe that I acted appropriately and would not change any of my actions". (Id. at ¶ 33) He also stated that "If this Court were to seriously consider this motion for disqualification it would divest defendant of the advocacy that only I can provide." (Id. at ¶ 38)
Mr. Liotti attempts to distinguish the circumstances in this matter with a prior matter in which he was disqualified for taking the statement of a child in a Family Court proceeding who was represented by an attorney. In this matter, Mr. Liotti states he did not take any statements from either child and did not even speak to them.
In Mr. Liotti's Sur-Reply Affirmation dated May 18, 2018, during the April 2, 2018 encounter, he claims to have had no physical contact with the children and that they never spoke to him and he never spoke to them. (Liotti Sur-Reply Affirmation, 05/18/18 at ¶ 5) He further states in his Sur-Reply Affirmation that "Except for pure speculation that because the children were in my car for approximately forty minutes nothing has been offered to show that I had any verbal or even physical contact with the children. On the contrary here are affidavits from my client, two other witnesses and my own affirmation showing that I never spoke to the children and they never spoke to me on April 2, 2018 or at any other time". (Id. at ¶ 14)
In his Amended Sur-Reply Affirmation, Mr. Liotti once again states that he "had no physical contact with them: they never spoke to me and I never spoke to them". (Liotti Affirmation, 05/21/18 at ¶ 5)
In her Affidavit sworn to on April 26, 2018, submitted in opposition to the Plaintiff's application, the Defendant indicated that on April 2, 2018, due to their fear she was in danger of being arrested, her attorney "offered to transport me to a friend's house or a hotel". She stated that when Mr. Liotti arrived at her house the children were "pretty shaken up" about the private investigator who was in front of her house. She described the children going to "Tom's" car and them driving along Lido Boulevard while the private investigator followed them "aggressively" and photographed the children. She also described the children pointing at the private investigator's car, ducking down and "commenting about it in a nervous manner". The Defendant stated that "At no point in the car ride did Tom ever speak to the children about anything, much less about any case". She also indicated that the children "were focused on the private investigator and his constant aggressive pursuit of us".
Although the Defendant alleges in her Affidavit that neither she nor her attorney spoke about any case to the children or to each other, she specifically stated that during the car ride she spoke to her attorney "about the private investigator following us as my children were scared". Additionally, during the car ride she spoke to her "friend" about the private investigator.
The Defendant stated that during the night of April 2, 2018, she and the children stayed at a hotel. The next morning she described the children as being "so disrupted" by the presence of the private investigators that their breakfast and swimming "was riddled with constant concern by my children about being watched".
In her Sur-Reply Affidavit sworn to on May 8, 2018, the Defendant stated that Mr. Liotti never spoke to her children except for "hello" and "one or two other superfluous remarks to and or in response to my children".
The Testimony
Thomas F. Liotti, Esq.
The sum and substance of Mr. Liotti's relevant testimony follows. On April 2, 2018 at about 5:30 P.M. the Defendant telephoned Mr. Liotti and told him that "Mr. R from an investigation firm was outside her house." She claimed that Mr. R had been following her vehicle and taking pictures of her and the children earlier that day. She further claimed that a police car drove near her house, stopped and that the officer therein appeared to have a conversation with Mr. R. Mr. Liotti and the Defendant believed that the Defendant "was being set up for a possible criminal charge" by the Plaintiff, the police and the private investigation firm hired by the Plaintiff and decided that Mr. Liotti would go to the Defendant's home.
At approximately 6:30 P.M., Mr. Liotti drove to Lido Beach. He parked on Ryat Street, several blocks from the Defendant's home. When asked why he parked blocks away, Mr. Liotti testified that he "wanted to thwart any possible arrest of my client and make sure that my client's rights were protected. That's why I was doing it that way." He did not witness a police vehicle at or near the Defendant's home. Mr. Liotti walked from his car to the Defendant's home and entered via an entrance on the ground floor. The children were with their nanny. Mr. Liotti doesn't believe he greeted them. When asked if Mr. Liotti had ever seen the children before, he stated "I don't think so. Maybe at the Atlantic Beach Club, you know, just in passing, perhaps I may have seen them, but I don't have a specific recollection of that." When asked if he believed that he and the children were strangers to each other, Mr. Liotti answered "I believe so." He "thinks" that the Defendant greeted him at the door, though he later testified that the Defendant met him on the pathway to the house and that they entered the house together. He was in the Defendant's home for "five to ten minutes." Thereafter, Mr. Liotti drove the Defendant, the parties' two children and their nanny to the home of SG, located in Plainview. The drive from Lido Beach to Plainview took approximately 40 minutes. Soon after departing Ryat Street, the private investigator, Mr. R, tailgated Mr. Liotti's car and, at one point, pulled alongside them. Mr. Liotti thinks that Mr. R was trying to take a picture of the interior of his car and believes that Mr. R's driving endangered him and his passengers.
At some point during the drive, the Defendant used her mobile phone to speak to Ms. G to get directions. Mr. Liotti doesn't remember if the Defendant and Ms. G spoke about Mr. R. When asked if he spoke to the Defendant about Mr. R in the presence of the children, Mr. Liotti testified "No, I did not have any conversation with her about the private investigator." After a portion of the Defendant's Affidavit was read to Mr. Liotti, wherein the Defendant alleged that she "spoke to [Mr. Liotti] giving him directions and about the private investigator following us" Mr. Liotti responded that he didn't recall that conversation. He testified that he did not communicate with the Defendant about anything other than directions while in the presence of the children. Mr. Liotti dropped the Defendant, the children and the nanny off at Ms. G's house in Plainview later that evening and drove away. He was not concerned about police conspiring to arrest the Defendant, since Ms. G's home was located outside of the 4th Precinct.
Mr. Liotti did not notify Mark Green, the Attorney for the Children, about his encounter with the children on April 2, 2018. He testified that he was focused on his client and the presence of the children was a "non-event." For those reasons, it did not occur to him that notifying Mr. Green was necessary. He later testified that he did not notify Mr. Green because he believed the Plaintiff's attorney would be notified by Mr. R and, since the Plaintiff's counsel and Mr. Green were working "hand in hand," Mr. Liotti believed Mr. Green would be notified by the Plaintiff's counsel.
Mr. Liotti testified to the existence of an audio recording of a conversation between the Plaintiff and DS, SG's husband. When asked who taped the conversation, Mr. Liotti answered, "I am not sure" and "I believe it was just taped in his car. He was on speakerphone, as I recall." When asked who played the recording for him, Mr. Liotti answered "maybe my client, I don't' recall." Later that day, Mr. Liotti was again asked how he gained access to the recording. This time, Mr. Liotti testified that he "got it from Mrs. A" and "she told me that her daughter had given it to her." He further testified "I believe her daughter did the taping." Alliance Reporting reduced the recording to a transcript with the "approval" of Mr. Liotti. The Defendant
The sum and substance of the Defendant's relevant testimony follows. The Defendant spent Easter in Connecticut with Ms. G. On April 2, 2018, upon their return, Ms. G dropped the Defendant off at Mr. Liotti's office, where the Defendant's car was parked. The Defendant arrived at her home in Lido Beach at approximately 4:00 P.M., at which time she a observed private investigator, Mr. R, parked near her home. He was photographing her, the children and their nanny. The Defendant unloaded her car and went inside. Mr. R remained outside of her home. The Defendant spoke to Mr. R on at least one separate occasion and learned that he is a retired Nassau County Police Officer and current employee of XXX.
The Defendant received a speeding ticket in November of 2017, which she gave to DL, a criminal defense attorney, to resolve. Sometime thereafter, the Defendant became concerned that the ticket may not have been resolved and that her license may have been suspended. She feared this could be used to justify her arrest, which she believed was being engineered by the Plaintiff, his counsel and the private investigator. On April 2, 2018, after her return home, the Defendant realized she left something in her vehicle. When she went outside to retrieve it, she noticed a marked police car parked near her home. The Defendant went back inside and called her attorney, Mr. Liotti, to communicate her fears about being arrested. After several conversations, they decided that Mr. Liotti would go to the Defendant's home and transport her, the children and their nanny to Ms. G's home in Plainview.
Upon seeing Mr. Liotti approaching her home, the Defendant went outside to meet him. They spoke for approximately six to ten minutes before going inside. At that time, the children and the nanny were in the gym located on the second floor of the Defendant's home. When asked by Mr. Liotti if she recalled him having any conversation with the children in the house, the Defendant testified "I recall that you did not." When asked if he had any conversations with the nanny, the Defendant testified that she did not recall. The Defendant told the children they were "going to S's house and they smiled." The children knew Ms. G and had been to her house before. The Defendant did not recall if she told the children how they were being transported or who was driving. At some point while Mr. Liotti was in the Defendant's home, the children saw him. The Defendant did not recall if the children asked who he was. The nanny suggested to the Defendant that she and the children walk along the beach to avoid being photographed by Mr. R. The suggestion was made within earshot of the children.
After leaving the Defendant's home, Mr. Liotti returned to his vehicle, which was parked several blocks away. The Defendant, the nanny and the children met him there. Ms. C met them at Mr. Liotti's car to relieve the children's nanny. The children sat in the backseat of Mr. Liotti's car and Ms. C sat between them. The Defendant sat in the front passenger seat. When everyone was in the car, Mr. Liotti drove to Ms. G's house in Plainview. The Defendant observed Mr. R following them. The children occasionally pointed to Mr. R's car and ducked in their seats to avoid being seen. The Defendant told the children "not to worry." During the drive, the Defendant called Ms. G to let her know they were coming and to get directions. They also spoke about personal matters concerning Ms. G. She remained on the phone with Ms. G for "most of the drive." On cross-examination, when the Defendant was asked about the substance of the same conversation, she testified "I can't recall." On re-direct, when asked if they spoke about anything besides directions and Ms. G's life, the Defendant testified "it's possible." When asked if Mr. Liotti had any conversations with the children, the Defendant testified "none." She further testified that neither she nor Mr. Liotti said anything about the case in front of the children. Upon arriving at Ms. G's home, the children, the Defendant and Ms. C exited the car and were greeted by Ms. G. Mr. Liotti drove away.
When asked if the children had ever been to Mr. Liotti's office, the Defendant testified that they may have been in the waiting room at his office, though she was sure. She further testified that the children may have sat in a car with their nanny in Mr. Liotti's parking lot while the Defendant went upstairs. The Defendant has maintained an office in Mr. Liotti's office suite for the past six to eight months. The children know the location of her office. When asked if she ever referred to her office as her "lawyer's office", the Defendant testified that she did not recall. She further testified that the children may have spoken to Mr. Liotti at the "ABC Club because he is on the board there and he is counsel there and we used to spend a lot of time there" and the children likely know that Mr. Liotti is her attorney because they have overheard the Plaintiff disparaging him by name. Later, during re-cross, when asked if the children know Mr. Liotti's name, the Defendant testified "I have no idea."
At some unspecified time, the parties' eight-year-old daughter gave the Defendant recordings she made of conversations between the Plaintiff and other persons. The Defendant recorded the child telling her about the recordings. When asked why, the Defendant testified that she was "surprised" and "wanted to be sure that no one thought I asked her to do that" The Defendant further testified that she occasionally records conversations with the children "if I believe it to be something that I want to make sure that is accurately represented because I am not asking my children to do any of this."
The Plaintiff
The sum and substance of the Plaintiff's relevant testimony follows. The Plaintiff did not recall where he was on April 2, 2018. He has never spoken to Mr. R. When asked if he knew LR, the Plaintiff answered in the affirmative and testified that she works for an investigation firm, which he retained in March 27, 2018 to surveil and investigate the Defendant. The Plaintiff understood that surveillance of the Defendant would be done only upon his explicit authorization. When asked if he directed XXX to surveil the Defendant on April 2, 2018, the Plaintiff testified that he did not. The Plaintiff received bills from XXX but does not believe he was billed for surveillance performed on April 2, 2018. He did not recall having a conversation with DS on or about April 2, 2018. When asked if he had a conversation with LR about the Defendant's license plate, the Plaintiff testified that he did but denied communicating with state troopers about the same and denied plotting to have the Defendant arrested.
SG
The sum and substance of Ms. G's relevant testimony follows. Ms. G was introduced to the Defendant by Mr. Liotti, who represents Ms. G in a separate matter. Since their introduction, Ms. G and the Defendant have become "very close" friends and have traveled extensively over the past year. Ms. G is married to DS. When asked if she knows of XXX, Ms. G testified that private investigators employed by XXX have been following her constantly for three years "unless I go back to D. If I don't go back, they follow me." On April 1, 2018, Ms. G drove with the Defendant and the children to spend the Easter/Passover weekend with the Defendant's family. Upon their return, she dropped the Defendant and the children at the Defendant's car, which was parked in the parking lot of Mr. Liotti's office. Later that day, the Defendant called Ms. G and told her that Mr. R was parked outside her home and she feared that the Nassau County police were "coming to get her." Ms. G also spoke to Mr. Liotti and it was decided that Mr. Liotti would transport the Defendant to Ms. G's home. Ms. G received a subsequent phone call from the Defendant wherein the Defendant stated that she was in Mr. Liotti's car and needed directions to Ms. G's home. The Defendant also expressed her concern about being followed by Mr. R. The Defendant told Ms. G that "S is following us." She also heard the Defendant tell the children "you didn't do anything wrong" and "you could sit up." When asked if she overheard Mr. Liotti speaking at any time, Ms. G testified that she did not. During cross-examination, Ms. G testified that, during the call, she and the Defendant discussed "the event that was going on" and that the Defendant was "quite hysterical about that." The conversation lasted approximately twenty minutes. Mr. Liotti's car arrived at Ms. G's house approximately ten minutes after the call ended. Upon their arrival the Defendant, the children and their nanny were greeted by Ms. G and went inside her house. Mr. Liotti did not get out of the car.
Contrary to her earlier testimony, during cross-examination, Ms. G testified that she did not recall who initiated the telephone call between her and the Defendant and that she did not recall a telephone conversation between her and Mr. Liotti on April 2, 2018.
In Camera Interview of the children
The issue of whether the Court should disqualify the Defendant's counsel from representing her based upon his alleged unauthorized contact with the parties' children warrants careful consideration. Consequently, the Court found it both relevant and helpful to conduct an in camera interview of both children prior to rendering a determination on the matter. To that end, pursuant to this Court's Short Form Order dated October 2, 2018, on October 3, 2018, the Court conducted two individual in camera interviews of the children, each in the presence of the AFC.
The court found both children to be outgoing and articulate. Both children stated that they did not know their father's lawyer but verified that they knew their mother's lawyer, "Tom", and that he indeed was her lawyer. From the interview, it was clear that there were conversations between Mr. Liotti and the children during the car ride from the house in Lido Beach to Ms. G's home in Plainview. Those conversations included discussions about what was happening with the private investigator. Additionally, the children were aware that the private investigator was hired by the Plaintiff. This information was provided to them by the Defendant.
Discussion
As set forth above, the Plaintiff moved by Order to Show Cause (Mot. Seq. 07) for an Order disqualifying Mr. Liotti as counsel for the Defendant for, allegedly, having violated Rule 4.2 of the Rules of Professional Conduct ("Rule 4.2"). The Plaintiff alleged that Mr. Liotti had ex parte contact with the parties' children on April 2, 2018, without notifying Mr. Green, the Attorney for the Children. In reviewing the Defendant's Affidavit and Mr. Liotti's Affirmation, which were submitted in opposition to the Plaintiff motion, and in-court statements made by Mr. Liotti in connection with the same, the Court discovered numerous inconsistent statements concerning the interaction between Mr. Liotti and the children and conversations between him and the Defendant in front of the children on April 2, 2018. In a Decision and Order dated June 1, 2018, this Court held that a hearing was necessary to determine whether Mr. Liotti's communications with and/or in front of the children violated Rule 4.2.
Rather than explaining the inconsistencies, in their testimony during the hearing, Mr. Liotti and the Defendant further contradicted their earlier statements. For example, prior to the submission of the Plaintiff's motion, Mr. Liotti stated, in court, that he knew the parties' children from the Atlantic Beach Club prior to representing the Defendant. Yet, during the hearing, when asked if Mr. Liotti had ever seen the children before, he stated "I don't think so. Maybe at the Atlantic Beach Club, you know, just in passing, perhaps I may have seen them, but I don't have a specific recollection of that." When asked if he believed that he and the children were strangers to each other, Mr. Liotti answered "I believe so." The Defendant testified that the children may know Mr. Liotti from their beach club and that they likely know that he is her attorney, since the Plaintiff disparaged him by name in front of them. She further testified that she maintains an office in Mr. Liotti's office suite and that the children have been in the parking lot multiple times and may have been in Mr. Liotti's waiting room. Yet, later, when asked if the children know Mr. Liotti's name, the Defendant testified that she had "no idea." In her Affidavit attached to her Sur-Reply, the Defendant claimed that, on April 2, 2018, Mr. Liotti said "hello" to the children and "made one or two other superfluous remarks to and or in response to my children." Yet, during her testimony at the hearing, when asked if Mr. Liotti had any conversations with the children, the Defendant testified "none." At the hearing, both the Defendant and Mr. Liotti testified that they did not discuss the private investigator in front of the children, yet in the Defendant's Affidavit in Opposition, she alleged that, while in Mr. Liotti's car with the children and their nanny, she spoke to Mr. Liotti to give him directions and "about the private investigator." Such inconsistencies were not limited to statements about the interaction between Mr. Liotti, the Defendant and the children.
When asked why he did not notify Mr. Green, the Attorney for the Children, about his interaction with the children, Mr. Liotti testified that he was focused on his client and the presence of the children was a "non-event." Later, when asked the same question, he testified that, since the Plaintiff's counsel and Mr. Green were working "hand in hand," he believed Mr. Green would be notified by the Plaintiff's counsel. Mr. Liotti also testified about the existence of taped conversation between the Plaintiff and a third party. When asked who taped the conversation, Mr. Liotti answered, "I am not sure" and "I believe it was just taped in his car." When asked who played the recording for him, Mr. Liotti answered "maybe my client, I don't' recall." Later that same day, Mr. Liotti was again asked how he gained access to the recording. This time, Mr. Liotti testified that he "got it from Mrs. A" and "she told me that her daughter had given it to her." He further testified "I believe her daughter did the taping." Though inconsistent statements about an audio recording and Mr. Liotti's decision not to notify Mr. Green do not speak directly to the content of conversations held with or in front of the children, they are helpful in assessing Mr. Liotti's overall credibility. People v. Berry , 27 N.Y.3d 10, 29 N.Y.S.3d 234, 49 N.E.3d 703 (2016) ; Christopher C. v. Bonnie C. , 40 Misc.3d 859, 968 N.Y.S.2d 855 (Sup. Ct. Suffolk County 2013).
Accordingly, based on their inconsistent statements, their tone and demeanor during the hearing, and the in camera interviews with the children, the Court finds the Defendant and Mr. Liotti's claims that Mr. Liotti did not communicate directly with and in front of the children about the private investigator not to be credible. Their feigned uncertainty about whether the children know Mr. Liotti is equally absurd. The Defendant and the children frequented the Atlantic Beach Club, where Mr. Liotti holds a leadership role. The Defendant shares an office suite with Mr. Liotti, the location of which is known to the children. Indeed, the Defendant testified that the children have been outside the office and may have gone inside as well. She even left her vehicle in the office parking lot when going to Connecticut for Easter with the children and Ms. G. Moreover, Mr. Liotti has been inside the Defendant's home with the children present and drove with them in a car for approximately 40 minutes. Both parties and Mr. Liotti have testified to the children's exceptional intelligence. Having conducted an in camera interview with the children, this Court agrees. The notion that they could have seen Mr. Liotti at the beach club, visited his office, seen him in their home and driven in his car without inquiring about him is improbable and belied by the children's credible testimony during the in camera interview.
The credible evidence establishes that on April 2, 2018, the Defendant feared that the Plaintiff, the police and the private investigator were working together to engineer her arrest. She and Mr. Liotti decided that he would drive the Defendant, the children and their nanny from the Defendant's home in Lido Beach to Ms. G's home, in Plainview. After spending several minutes in the Defendant's home, Mr. Liotti met the Defendant, the children and their nanny at his vehicle. A second nanny, Ms. C, arrived to relieve the first. The children sat in the backseat of Mr. Liotti's car and Ms. C sat between them. The Defendant sat in the front passenger seat. When everyone was in the car, Mr. Liotti drove to Ms. G's house in Plainview. The private investigator followed Mr. Liotti's vehicle. During the drive, the Defendant called Ms. G to get directions and to discuss their situation. The Defendant was upset; Ms. G described her as being "hysterical."
The children knew Mr. Liotti as "Tom" and understood him to be the Defendant's attorney. During the drive from Lido Beach to Plainview, conversations were held between Mr. Liotti and the children. Those conversations included discussions about the private investigator. The children were aware that the private investigator following them had been hired by the Plaintiff. This information was provided to them by the Defendant. Upon arriving at Ms. G's home, the Defendant, the children and the nanny exited Mr. Liotti's vehicle and went inside Ms. G's home. Mr. Liotti drove away.
Rule 4.2 of the Rules of Professional Conduct states, in pertinent part, that
(a) In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.
(b) Notwithstanding the prohibitions of paragraph (a), and unless otherwise prohibited by law, a lawyer may cause a
client to communicate with a represented person unless the represented person is not legally competent, and may counsel the client with respect to those communications, provided the lawyer gives reasonable advance notice to the represented person's counsel that such communications will be taking place.
Rule 4.2 of the Rules of Professional Conduct prohibits communications between counsel and represented parties about the subject of their representation. § 99(1) of the Restatement (Third) of the Law Governing Lawyers states that Rule 4.2 "prohibits all forms of communication, such as sending a represented nonclient a copy of a letter to the nonclient's lawyer or causing communication through someone acting as the agent of the lawyer." See Miller v. Lewis , N.Y. Misc. LEXIS 6874 (Sup. Ct. Kings County 2013). This "anti-contact rule applies to any communication relating to the lawyer's representation in the matter, whoever initiates the contact and regardless of the content of the ensuing communication." Id . What constitutes the "subject of representation" pursuant to Rule 4.2 depends on the circumstances. § 99(1) of the Restatement (Third) of the Law Governing Lawyers; Miller v. Lewis , N.Y. Misc. LEXIS 6874 (Sup. Ct. Kings County 2013).
At the Defendant and Mr. Liotti's insistence, conversations about the private investigator are related to the parties' ongoing litigation and Mr. Liotti's representation of the Defendant. Both the Defendant and Mr. Liotti testified that they were concerned that the private investigator was working with the Plaintiff and the police to engineer her arrest to influence the outcome of their custody dispute. Mr. Liotti attempted to subpoena Mr. R and LR, who both work for XXX and the Plaintiff testified that he hired XXX to surveil and investigate the Defendant in connection with their ongoing litigation. Therefore, conversations with the children about the private investigator constitute inappropriate ex parte communication. See In re Marvin Q ., 45 A.D.3d 852, 846 N.Y.S.2d 356 (2d Dept. 2007).
It is well established that a party's entitlement to be represented by counsel of their own choosing is an important right which should not be abridged absent a clear showing that disqualification is warranted. Matter of Madris (Oliviera) , 97 A.D.3d 823, 949 N.Y.S.2d 696 (2d Dept. 2012). Though the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions thereof to be carefully scrutinized. Id. Whether or not to disqualify an attorney or law firm is a matter which rests in the sound discretion of the court. Mondello v. Mondello , 118 A.D.2d 549, 499 N.Y.S.2d 9 (2d Dept. 1986).
The appointment of a Law Guardian to protect the interests of a child creates an attorney-client relationship. In re Marvin Q. , 45 A.D.3d 852, 846 N.Y.S.2d 356 (2d Dept. 2007)citing Campolongo v. Campolongo , 2 A.D.3d 476, 768 N.Y.S.2d 498 (2d Dept. 2003). Mr. Liotti's conversations with the children about the private investigator on April 2, 2018 without the presence or consent of their attorney deprived the children of their due process rights. Id. Even if the conversations in the car had been benign, which they were not, Mr. Liotti's actions might still warrant his disqualification. His contact with the children was not of a social nature, unrelated to his representation of the Defendant. According to his own testimony, Mr. Liotti drove to the Defendant's home and transported her therefrom to protect her legal rights. Thus, his presence and any conversations between him and the Defendant held in that context, to which the children were captive listeners, are related to his representation of the Defendant. See Carey v. Carey , 13 A.D.3d 1011, 788 N.Y.S.2d 210 (3d Dept. 2004) (upholding the disqualification of an attorney who accompanied his client to the marital residence to retrieve property knowing that the adverse represented party would be present without their counsel) citing Campolongo v. Campolongo , 2 A.D.3d 476, 768 N.Y.S.2d 498 (2d Dept. 2003).
On April 2, 2018, the children witnessed Mr. Liotti purporting to rescue their mother from an unlawful arrest and shielding them from a private investigator they knew was employed by their father. Attempts to influence the children's opinion of a parent during a custody dispute is adverse to the best interest's of the children. Fontaine v. Smielak , 92 A.D.2d 880, 459 N.Y.S.2d 865 (2d Dept. 1983) (holding that a mother's efforts to influence a child against the father may be used against her in deciding custody). Despite the absence of credible evidence supporting the existence of a plot to arrest the Defendant, Mr. Liotti chose to play the role of savior. The parties' two children are eight and ten years old. By purporting to rescue their mother, in their presence and without their counsel, from an unlawful arrest engineered by their father, Mr. Liotti risked influencing the children to think favorably of him and the Defendant and unfavorably of the Plaintiff. In doing so, he acted against the best interests of the children. Id . Since Mr. Liotti failed to notify the Attorney for the Child, Mr. Green, who was appointed to protect the children's interests, was unable to act.
Even if Mr. Liotti believed, as he testified, that his presence at the Defendant's home was necessary to thwart her possible arrest, his failure to notify Mr. Green, before or after the events of April 2, 2018, and his obstinate defense of the same, evidence his indifference to the attorney-client relationship existing between the children and their counsel. His disqualification is therefore necessary to protect the rights of the children. See In re Marvin Q ., 45 A.D.3d 852, 846 N.Y.S.2d 356 (2d Dept. 2007).
Therefore, having considered the totality of the facts and circumstances, including the credible evidence, the in camera interviews with the children, and with a sound and substantial basis in the record, it is hereby
ORDERED , that Thomas F. Liotti, Esq. is disqualified as counsel for the Defendant in the above-captioned matter; and it is further
ORDERED , that all proceedings in this matter are hereby stayed for thirty (30) days from the date of this order; and it is further
ORDERED , that counsel for the Plaintiff shall serve a copy of this Order, within FIVE (5) days of the date of this Order, upon the disqualified counsel for the Defendant, Thomas F. Liotti, Esq., and upon the Attorney for the Children, pursuant to CPLR § 2103 (b) (1), (2) or (3) and shall provide the Court with proof of the service thereof prior to December 3, 2018; and it is further
ORDERED , that upon the expiration of the thirty (30) day stay, this matter shall appear in Part 28 of this Court for a continuation of the Hearing on Temporary Custody on December 3, 2018 at 9:30 a.m.
This constitutes the Court's Decision and Order.