Summary
finding no abuse of discretion in order conditionally disqualifying attorney unless client repaid loans attorney had made to her
Summary of this case from Rubio v. BNSF Railway Co.Opinion
March 3, 1986
Appeal from the Family Court, Rockland County (Stanger, J.).
Order, as amended, affirmed, insofar as appealed from, without costs or disbursements. The petitioner's time to reimburse her attorney for all moneys advanced to her by him is extended until 60 days after service upon her of a copy of the order to be made hereon, with notice of entry.
The petitioner obtained a support order from the Family Court, Rockland County, in January 1984, directing the respondent to pay support to her and her children. Pursuant to a settlement, the respondent agreed to pay the petitioner the sum of $23,000, but only paid $5,000. Thereafter, the petitioner's attorney, who had already been retained in the Family Court proceeding, advanced sums of money to the petitioner so that she could pay an automobile insurance premium and certain mortgage payments and thereby prevent cancellation of her automobile insurance and foreclosure of the mortgage on her home. These loans served as the basis for the respondent's motion to disqualify the petitioner's attorney.
There is nothing in the record to indicate that the advances of money by the petitioner's attorney to the petitioner were motivated by anything other than her attorney's genuine concern for his client's financial plight; indeed, these particular advances of money apparently would have been proper under the former Canons of Ethics (see, Opns of Comm on Professional Ethics of Assn of Bar of City of N.Y., No. 391, Nov. 10, 1936; cf. Louisiana State Bar Assn. v. Edwins, 329 So.2d 437 [La]). Nevertheless, these advances of money by the petitioner's attorney to the petitioner do violate presently applicable Code of Professional Responsibility, DR 5-103 (B). That section provides that "[w]hile representing a client in connection with * * * pending litigation, a lawyer shall not advance * * * financial assistance to his client".
Accordingly, the Family Court did not abuse its discretion in conditionally granting the respondent's motion to disqualify the petitioner's attorney (see, Matter of Erlanger [Erlanger], 20 N.Y.2d 778, 779; Matter of Huie [Gottfried], 2 A.D.2d 163, 165). Mangano, J.P., Thompson, Brown and Weinstein, JJ., concur.