Opinion
Index No. XXXXXX/20XX
05-09-2022
G.K., Plaintiff, v. S.T., Defendant.
Unpublished Opinion
KATHLEEN WATERMAN-MARSHALL, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 143, 144, 145, 146, 147, 221 were read on this motion to/for DISQUALIFY COUNSEL.
Upon the foregoing documents, the motion by Defendant S.T. ("Husband") for an order disqualifying [XX] as the attorneys for Plaintiff G.K. ("Wife"), disgorging any fees paid to [the attorneys], and for other relief, is denied. Upon the same record, the motion by Wife for Rule 130-1.1 sanctions for frivolous motion practice, is granted.
Brief Background
On May 12, 2021, ACS started an investigation into allegations that Husband engaged in excessive corporal punishment of the parties' daughter A. Wife is not alleged to have engaged in the alleged excessive corporal punishment but is named in the investigation. ACS referred Husband to parenting classes; it did not refer Wife for services or take any actions against her. ACS ultimately did not recommend court action.
Wife retained [XX] ("the firm") to represent her in the ACS investigation and made a $5,000 retainer payment. She thereafter retained the firm to represent her in this divorce action.
Husband claims that the firm - specifically, [B.W. of the firm] - represented both parties in the ACS investigation. He bases his claim on his version of a May 13, 2021 phone call that B.W. had with Wife, a part of which Husband listened in to with the permission of Wife; some texts between himself and Wife regarding the ACS investigation; phone records showing calls between Wife and B.W.; and a footnote in one of Wife's affidavits. B.W. and Wife dispute Husband's version of the May 13 phone call; point out the infirmities in Husband's purported proof that B.W. was his attorney at any time and for any purpose; and submit their own documents showing the absence of an attorney-client relationship between Husband and B.W.
Discussion
The law on disqualification based upon an attorney's purported prior representation of a party is well-settled. As "[d]isqualification denies a party's right to representation by the attorney of its choice," it is "a valued right and any restrictions must be carefully scrutinized." S & S Hotel Ventures Ltd. P'ship v 777 S.H. Corp., 69 N.Y.2d 437, 443 (1987). Therefore, a party seeking to have opposing counsel disqualified must make a clear showing of the "existence of a prior attorney-client relationship between the moving party and opposing counsel, that the matters involved in both representations are substantially related, and that the interests of the present client and former client are materially adverse." Janczewski v Janczewski, 169 A.D.3d 795, 796-97 (2nd Dept 2019); see also, Dev. Don't Destroy Brooklyn v Empire State Dev. Corp., 31 A.D.3d 144, 151 (2nd Dept 2006) (each factor "must be present to warrant disqualification"). Any "doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety." Janczewski v Janczewski, supra.
Husband failed to make a clear showing that disqualification of the firm and B.W. as Wife's attorneys is warranted. Husband did not establish the existence of a prior attorney-client relationship between himself and B.W., or any other attorney at the firm. There is no retainer agreement or fee arrangement between B.W. and Husband. There is no proof that B.W. actually represented Husband in the ACS investigation or gratuitously performed legal services on his behalf; not a single document submitted in connection with the ACS investigation, including the ACS report, lists or mentions B.W. as Husband's attorney. There is no proof that B.W. excluded Husband from the ACS investigation in order to protect Wife; to the contrary, the record shows that both parties fully cooperated with ACS, individually and without interference. See generally First Hawaiian Bank v Russell & Volkening, Inc., 861 F.Supp. 233, 238 (S.D.N.Y. 1994) (factors courts consider in determining whether attorney-client relationship exists include: "1) whether a fee arrangement was entered into or a fee paid; 2) whether a written contract or retainer agreement exists indicating that the attorney accepted representation; 3) whether there was an informal relationship whereby the attorney performed legal services gratuitously; 4) whether the attorney actually represented the individual in one aspect of the matter (e.g., at a deposition); 5) whether the attorney excluded the individual from some aspect of a litigation in order to protect another (or a) client's interest; 6) whether the purported client believes that the attorney was representing him and whether this belief is reasonable" [internal citations omitted]).
The parties' texts submitted by Husband are insufficient to establish that Husband had an attorney-client relationship with B.W. or the firm, or that Husband could have reasonably believed that B.W. represented him. The texts upon which Husband so heavily relies unequivocally show that Wife was the only person who spoke with B.W. Thus, Husband's own purported proof flatly contradicts his claim that B.W. was his "Rabbi." If B.W. was indeed Husband's "Rabbi" the record would be replete with proof that they were in contact; yet Husband submit no evidence that he communicated directly with, or obtained direct and specific advice from, B.W. as to the ACS investigation or any other issue. Husband does not deny that he had no communications with B.W. other than that part of the May 13 call that he listened in to.
The fact that Wife relayed certain of the content of her conversations with B.W. to Husband is too attenuated to be of any consequence and did not create an attorney-client relationship between Husband and B.W. Nor did Wife's statement that she found "an attorney to represent us," create an attorney-client relationship between Husband and B.W. Indeed, in his reply affidavit on the instant motion, Husband flatly rejected Wife's ability to engage an attorney for him. Thus, Husband's claim on this motion that he somehow believed that B.W. represented him in the ACS matter is without merit. See generally Solondz v Barash, 225 A.D.2d 996, 998 (3rd Dept 1996) ("It is true that an attorney-client relationship may arise by words and actions of the parties; however, one party's unilateral beliefs and actions do not confer upon him or her the status of client. Here, there is nothing in the record to indicate that Barash either affirmatively led plaintiff to believe that he was acting as plaintiff's attorney or knowingly allowed plaintiff to proceed under that misconception").
Husband's other purported proof that he had an attorney-client relationship with B.W. is either irrelevant or without merit. The phone records show that Wife was calling her attorney. Wife's footnote statement in one of her affidavits that she paid a $5,000 retainer to the firm for work on the ACS investigation does not support the conclusion that she retained the firm for both parties.
Indeed, Wife submitted the retainer agreement between herself, and herself only, and the firm for the ACS investigation. Husband conveniently papers over this retainer and the other documents Wife submitted which show that the firm represented her alone and she sought to find another attorney for Husband for the ACS matter, but that he ignored her efforts in this regard.
The purpose and content of the May 13, 2021 phone call is disputed and requires that this Court, to some extent, assess credibility on competing affidavits. However, having had the opportunity to assess the parties' respective credibility during an April 8, 2022 contempt hearing, and in view of the weakness of Husband's proof and the strength of Wife's proof on the instant motion, this Court has sufficient basis to find that Husband's version of the May 13 call is incredible. The Court rejects Husband's assertions and declines to find that B.W. made any representations to Husband during the call that he was his "Rabbi," his attorney, or otherwise made statements upon which Husband could have reasonably formed the belief that B.W. was representing him in the ACS investigation. Husband's "notes" of the phone call are undated, self-serving, and of little weight.
This Court instead credits B.W. and Wife's rendition of the May 13 call and finds that such call did not create an attorney-client relationship between B.W. and Husband. The Court credits Wife's statements that the call was between her and B.W. and that, against B.W.'s advice, Wife invited Husband to listen in so that he could understand the severity of the ACS investigation. The Court credits B.W.'s statement that that he advised Husband to retain his own attorney and made clear that he did not represent Husband in the ACS investigation. Indeed, if anyone was prejudiced as a result of Husband listening in to the May 13 call, it was Wife as she waived her attorney-client privilege as to the content of the call for which Husband was present. The record also shows that B.W. did not receive any confidential disclosures from Husband during the May 13 call that were later used against him. Husband failed to identify a single fact disclosed during the May 13 call that he did not of his own volition disclose to ACS; nor did he identify any confidential matter used in this litigation against him.
The record is clear, and so this Court finds, that there was no prior attorney-client relationship between Husband and B.W. or anyone else in the firm. Thus, there is no "impermissible conflict of interest," or even the appearance of impropriety, prohibiting the firm and B.W. from continuing as the attorneys for Wife and disqualification of the firm and B.W. as Wife's attorneys is not warranted. See HSBC Bank USA, N.A. v Santos, 185 A.D.3d 475, 477 (1st Dept 2020) ("When the law firm targeted by the disqualification motion has never represented the moving party, that firm owes no duty to that party. It follows that if there is no duty owed there can be no duty breached"); Turner v Owens Funeral Home, Inc., 140 A.D.3d 632, 634 (1st Dept 2016) ("Because plaintiffs never had any attorney-client relationship with Crisci, Weiser & McCarthy, they do not have standing to seek disqualification."); Dev. Don't Destroy Brooklyn v Empire State Dev. Corp., supra (disqualification unwarranted where no prior attorney-client relationship).
Husband's disqualification claim is utterly without merit. Indeed, he does not deny that his prior counsel conceded to the Court (Hon. Lori S. Sattler) that the May 13 phone conversation did not warrant disqualification of the firm as Wife's attorneys. In every way, it appears that Husband has asserted his disqualification claim as an after-thought, to delay this litigation and injure Wife, which appears to be his strategy. This Court already found Husband in contempt based upon his bold flouting of prior Court orders directing him to pay maintenance and child support, to the detriment and prejudice of Wife and the parties' daughters. His delay in waiting months before raising the disqualification claim is more of the same bad faith conduct meant to secure a tactical advantage over Wife. See generally Natiello v Natiello, 209 A.D.2d 389, 389 (2nd Dept 1994) (disqualification motion made "on the eve of trial, was made in bad faith, in order to delay the proceedings, or to secure a tactical advantage"); Lucci v Lucci,150 A.D.2d 650 (2nd Dept 1989). Accordingly, Wife is entitled to sanctions in the form of attorney's fees incurred in making this motion, the sum to be determined upon submission of an attorney affirmation of legal services and supporting legal bills and invoices. See generally Tercjak v Tercjak, 49 A.D.3d 773, 773-74 (2nd Dept 2008) (court providently exercised its discretion in awarding sanctions for frivolous motion practice; motions "were completely without merit in law or fact and were made primarily to harass or maliciously injure another").
According, it is hereby
ORDERED that Husband's motion to disqualify the firm and B.W. as the attorneys for Wife, for disgorgement of legal fees paid to the firm, and for other relief, is hereby denied in its entirety; and it is further
ORDERED that Wife's motion for sanctions pursuant to 22 NYCRR 130-1.1 for frivolous motion practice, is granted. Wife is entitled to an award of legal fees incurred on this motion upon submission of an attorney's affirmation of legal services and supporting legal bills and invoices within thirty (30) days of the date thereof.