Opinion
April 11, 1988
Appeal from the Supreme Court, Suffolk County (Abrams, J.).
Ordered that the order is affirmed, with costs.
It is not disputed that no more than six months before commencement of this action, the defendant husband, on one occasion, consulted Donald Sallah of Marchese Sallah, P.C. in contemplation of matrimonial litigation. It is also undisputed that the defendant and Mr. Sallah discussed the financial status of each of the parties. There is, however, a factual dispute as to whether they discussed the grounds for divorce. Shortly after the plaintiff commenced this action, Marchese Sallah, P.C. was substituted as her counsel. The defendant promptly made application for its disqualification, which application the Supreme Court, Suffolk County, correctly granted.
Contrary to the assertion of the plaintiff on appeal, no evidentiary hearing was required to determine if a conflict of interest actually existed (cf., Poli v. Gara, 117 A.D.2d 786). It is clear that disqualification is necessary to avoid the appearance of impropriety (Code of Professional Responsibility Canon 9). The plaintiff's assertion that where the grounds for divorce are not discussed no confidences are imparted, is without merit (cf., Grover v. Virdi, 130 A.D.2d 710; Mondello v Mondello, 118 A.D.2d 549). From the undisputed facts it is reasonable to infer that, during the interview with the defendant, Mr. Sallah obtained confidential or strategically valuable information about the parties' respective financial conditions (cf., Mondello v. Mondello, supra; see, Matter of Hof, 102 A.D.2d 591; Colonie Hill v. Duffy, 86 A.D.2d 645), and it makes no difference that the defendant did not formally retain him (see, Seeley v. Seeley, 129 A.D.2d 625; Code of Professional Responsibility Canon 4; EC 4-1). Finally, there is no indication that the motion to disqualify was made for mere tactical reasons or that the defendant deliberately brought about the present predicament (see, Poli v. Gara, supra; cf., Lightfoot v. Lightfoot, 123 A.D.2d 746). Mangano, J.P., Bracken, Spatt and Harwood, JJ., concur.