Opinion
46317/07S.
Decided April 28, 2009.
Defendant Ruthi Kuris (hereinafter the movant) moves, pursuant to DR § 5-105 of the Code of Professional Responsibility and the general supervisory powers of the court, to disqualify plaintiff's counsel, the Law Offices of Bukh Associates, PLLC (hereinafter "the Bukh Firm") from continuing to represent the plaintiffs and to either dismiss the complaint or impose sanctions. Plaintiffs oppose the motion. Co-defendant Gennadiy Kuris has not appeared and has neither answered the complaint nor the motion.
UNDISPUTED FACTS
The plaintiffs are married. Defendant Gennadiy Kuris is the plaintiffs'son and co-defendant Ruth Kuris is their daughter-in-law. On December 20, 2007, plaintiffs commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The plaintiffs by the attorneys, the Bukh firm, allege that the defendants breached an agreement to repay a debt. The Bukh Firm commenced the instant action on the plaintiffs' behalf. During 2008, the Bukh firm has represented defendant Gennadiy Kuris, in two matrimonial matters between him and his wife, in the State of New Jersey. Co-defendant Ruth Kuris alleges that these facts warrant the disqualification of the Bukh firm as plaintiffs' counsel and either dismissal of the complaint or imposition of sanctions.
MOTION PAPERS
Defendant Ruthi Kuris' motion papers consist of an affirmation in support and three exhibits. Exhibit A is a copy of the instant summons and complaint. Exhibit B contains two letters from the Bukh firm dated June 3, and 6th 2008, respectively. The letters are from the Bukh firm as counsel to Gennadiy Kuris and pertain to two case pending in the State of New Jersey between Gennadiy Kuris and his wife. The first letter is addressed to Leonard Sukherman, counsel to Ruthi Kuris, the second letter is addressed to Ruthi Kuris directly. Exhibit C is a copy of a letter dated June 15, 2008 from Mr. Sukherman to the Bukh Firm advising that the Bukh firms' representation of Gennadiy Kuris is a violation of the rules of professional conduct because the firm is suing its own client in the instant action.
Plaintiffs have opposed the motion with an affirmation of counsel and three exhibits. Exhibit A is a blank copy of a retainer agreement from the Bukh Firm. Exhibit B is a copy of a letter dated October 2, 2008 from the Bukh Firm disclosing the firm's representation of Gennadiy Kuris. Exhibit C is a copy of a form dated December 1, 2007, purportedly signed by Gennadiy Kuris.
Defendant Ruthi Kuris' reply consists of an affirmation by counsel.
APPLICABLE LAW
CPLR § Rule 2214 provides in pertinent part as follows: . Motion papers; service; time. (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
22 NYCRR § 1200.1 [b] states:
Law firm includes, but is not limited to, a professional legal corporation, a limited liability company or partnership engaged in the practice of law, the legal department of a corporation or other organization and a qualified legal assistance organization.
DR § 5-105(a) states:
A lawyer shall decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment.
DISCUSSION
Defendant Ruthi Kuris seeks disqualification of Bukh firm claiming that the firms simultaneous representation of the plaintiffs and her husband, co-defendant Gennadiy Kuris, presents an improper conflict of interest. Plaintiffs counsel do not dispute that they represent the plaintiffs and have represented co-defendant Gennadiy Kuris in two matrimonial actions in the courts of the State of New Jersey. While it unclear whether the Bukh firms is representing Gennadiy Kuris as of the date of the motion, there is no dispute that the firm has represented him as of June 8, 2008, six months after commencing the instant action on behalf of the plaintiffs.
Plaintiffs oppose the motion on three distinct grounds. The first is that Ruthi Kuris has no standing to seek disqualification because she is not aggrieved or harmed by the alleged adverse representation. The second is that no conflict exist because the Bukh firm is a referral agency for independent contracting attorneys. The clients are allegedly apprised of the firms structure and the independent contracting attorneys preserve the confidence of each referred client. The firm contends that since it is acting as a referral agency, the code of professional responsibility, as it pertains to conflicts of interest, is inapplicable. The third is that defendant Gennadiy Kuris was made aware of the law firms' structure and has waived any potential conflict.
Courts have often found disqualification unwarranted in cases in which the party moving for disqualification was not the party likely to be harmed by the adverse representation ( Sapienza v. New York News, Inc., 481 F.Supp. 676 [DC NY 1979]). However, lack of standing, where a conflict of interest is demonstrated, must be subsumed by a broader protection that adequately ensures both clients and the general public that lawyers will act within the bounds of ethical conduct ( Code of Professional Responsibility Disciplinary Rule § 1-103 (A); 22 NYCRR 1200.4 [a]). Accordingly, it has been held that disqualification can be raised by the trial court, sua sponte, and that the authority to require the Bar to adhere to their ethical obligations may be exercised whenever it has been brought to the attention of the court ( In the Matter of Vera, 49 AD2d 883 [2nd Dept 1975]) While Ruthi Kuris may not have been the preferred party to raise the Bukh firm alleged violation of the Code of Professional Responsibility, Disciplinary Rules, now that the issue has been brought to the court's attention, the court has the ability and indeed the obligation to determine the issue ( Rosen v Rosen, 2003 NY Slip Op 51736(U), NY Sup 2003).
There is no dispute that the Bukh firm commenced the instant action and are opposing the instant motion as plaintiffs counsel. Furthermore, the affirmation of Tania Redman (hereinafter Redman), submitted in opposition to the motion, states that she is an associate of the Bukh firm, the attorneys for the plaintiffs in this action. These facts alone belie the claim that the Bukh firm is a referral agency and not acting as attorneys. There is no question that the firm is acting as counsel to the plaintiffs. Redman further alleges that the referral structure of the firm is made known to all potential clients by the use of a retainer letter identical to the form annexed as exhibit A. Redman alleges that Arkadiy Kuris signed such a statement in December of 2007. It is noted that Redman is silent on whether Dora Kuris or Gennadiy Kuris signed such an agreement. It is also noted that the plaintiffs did not annex a copy of the retainer agreement signed by anyone. Redman also annexes a letter dated October 8, 2008 from Kent Arthur in which he states that he is an attorney and an independent contractor of the Bukh firm and that he represented Gennadiy Kuris in two New Jersey cases made against him by his wife. Redman also claims that Gennadiy Kuris signed exhibit C which she contends is evidence of Gennadiy Kuris' knowledge and consent to the Bukh firms' simultaneous representation of him and his parents.
The court finds the Bukh firm is a law firm and not simply a referral agency, making it obligated to follow the Code of Professional Responsibility. Being such, while lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so under New York Court Rules §§ 1200.20 (a), 1200.24(a) or (b), 1200,27 (a) or (b), or 1200.45 (b) ( see Tavarez v Hill 2009 Slip Op 29002, 870 NYS2d 774 [NY Sup. 2009]). A lawyer cannot circumvent the cannon of the legal profession by the mere expedience of holding itself out as a referral agency. Therefore, the argument that the Bukh firm is not capable of violating the Code of Professional Responsibility because of its structure as a referral agency is rejected. As such, the court need not address the admissibility of Kent Arthur's letter. The court merely notes that it was neither an affidavit nor an affirmation and, therefore, of no probative value . The court further notes that nothing in the motion papers demonstrates a consent by Gennadiy Kuris to reveal the confidential information contained in Arthur Kent's letter.
The Bukh firm claims that Gennadiy Kuris knew of the firms structure and waived any potential conflict. The document submitted in support of this position was a disclosure form purportedly signed by Gennadiy Kuris. The document contains several defects which renders it inadmissible. In particular, the document begins by stating that the undersigned affirms certain facts under the penalty of perjury. Inasmuch as Gennadiy Kuris is not alleged to be a physician, osteopath or dentist he may not affirm a document pursuant to CPLR § 2106. Furthermore. The signature on the document is not acknowledged. An acknowledgment involves two important elements: "the oral declaration of the signer of the document and the written certificate of acknowledgment endorsed by an authorized public officer attesting to the declaration" ( Matter of Estate of O'Brien, 23 AD2d 561, 562 [3rd Dept 1996] citing Newman v. Newman, 192 AD2d 924 [3rd Dept 1993]). The lacks of an acknowledgment prevents the document from serving as prima facie evidence that Gennadiy Kuris signed it. Morever, the text of the document does not identify, with any particularity, the alleged actual or potential conflict of the Bukh firms' simultaneous representation of Gennadiy Kuris and the plaintiffs. The court finds no evidence that Gennadiy Kuris was made aware of actual or potential conflict of the Bukh firms' simultaneous representation of him and the plaintiffs. A fortiori, the court finds no evidence that he knowingly and intelligently waived the conflict. As such, the court does not need not to reach the issue of whether the conflict may be waived.
Disqualification motions are carefully scrutinized because they seek to deny a party's right to representation by the attorney of his choice and thereby limit a valued right of the party ( see S S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437). However, it is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client's interests diligently and vigorously within the limits of the law (Code of Professional Responsibility, canon 7). For this reason, a lawyer may not undertake representation where his independent professional judgment is likely to be impaired by extraneous considerations. Thus, attorneys historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests (see Green v Green, 47 NY2d 447; citing Cardinale v Golinello, 43 NY2d 288, 296; Eisemann v Hazard, 218 NY 155, 159; Code of Professional responsibility, DR 5-105). This prohibition was designed to safeguard against not only violation of the duty of loyalty owed the client, but also against abuse of the adversary system and resulting harm to the public at large.
An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer's former client ( Greene v Greene, supra. 47 NY2d 447. Underlying this rule is the notion that an attorney, as part of his fiduciary obligation, owes a continuing duty to a former client — broader in scope than the attorney-client evidentiary privilege — not to reveal confidences learned in the course of the professional relationship ( Greene v Greene, supra citing Watson v Watson, 171 Misc 175, 176 [NY Sup 1939]). To obtain disqualification of the attorney, the former client need not show that confidential information necessarily will be disclosed in the course of the litigation; rather, a reasonable probability of disclosure should suffice ( Greene v Greene, supra citing Sheffield v state Bar of California, 22 Cal 2d 627; Galbraith v State Bar of California, 218 Cal 329).
Although it is usually recognized that a party to litigation may select an attorney of his or her choosing, this general right is not limitless. The attorney may not accept employment in violation of a fiduciary relationship and may not allow his own interests to conflict with those of his client. To hold otherwise would be to ignore the overriding public interest in the integrity of our adversary system ( Greene v Greene; supra; see also Grunstein v. Grunstein, 201 AD2d 621 [2nd Dept 1994]).
Although the provisions of the Code of Professional Responsibility do not enjoy the status of statutory or decisional law, they do represent the acknowledged standards of the profession and the courts should not denigrate them by indifference' ( In the Matter of Henry Hof, Jr. v Hof, 102 AD2d 591 [2nd Dept. 1984]; Matter of Weinstock, 40 NY2d 1). Under DR 2-110 (B) and DR 5-105, an attorney must withdraw from a case when it becomes apparent that he can no longer serve his client with undivided loyalty. This obligation survives the term of employment itself and extends to all matters substantially related to the prior representation (Code of Professional Responsibility, DR 4-101 [B]). Furthermore, the ethical considerations of avoidance of any possible dilution of the independent judgment and undivided loyalty of the attorney (Code of Professional Responsibility, EC 5-14) and the attorney's duty to preserve the interests of his former clients (Code of Professional Responsibility, EC 4-6) are of particular importance ( In the Matter of Henry Hof v Hof, 102 AD2d 591 [2nd Dept 1984]). The Court takes judicial notice that an attorney representing a party in a matrimonial action pertaining to child support and restraining notices secured by a spouse must reveal to counsel confidential information pertaining to income, assets and debts. The high potential disclosure of such confidential information to the plaintiffs who are suing to collect a debt is apparent. The court finds that the Bukh Firm's representation of the plaintiffs in an action against Gennadiy Kuris while representing Gennadiy Kuris in two matrimonial action is an improper conflict of interest
For the foregoing reasons, the court grants Ruthi Kuris' application to disqualify the Bukh Firm from representing the plaintiffs in this action.
The movants also seek dismissal of the plaintiffs' complaint, or in the alternative sanctions, including the costs and disbursements of the instant motion. The movants do not allege any substantive or procedural infirmity in the underlying merits of the plaintiffs' complaint. The only argument offered in support of the dismissal of the plaintiffs complaint is the ethical conflict of plaintiffs' chosen counsel. An attorney is an agent of his client. The fact that the agent should not have undertaken the representation of the client does not speak to the merits of the clients' underlying case. The motion to dismiss is unsupported and therefore denied.
Contrary to the requirements of CPLR § 2214, the movants cited no authority in support of its application for sanction or cost. It is therefore denied.
The foregoing constitutes the decision and order of the court.