Opinion
xxxxxx-2009
04-29-2019
R.M., Plaintiff v. E.M., Defendant.
The following papers have been read on this motion: Notice of Cross-Motion by Attorney for Child, Affirmation X Plaintiff's Affirmation in Opposition, Supplemental Affirmation Exhibits X Defendant's Affirmation Joining the Attorney for the Child's Cross-Motion X Plaintiff's Affirmation in Opposition to Defendant's Affirmation, Exhibit X Reply Affirmation by the Attorney for the Child X
PRELIMINARY STATEMENT
The attorney for the child seeks an order (1) scheduling an immediate hearing to determine which parent shall have final decision-making authority regarding the child, XXXXXXXX's education; and (2) disqualifying attorney XXXXXX, Esq., from representing the Plaintiff in the present action. Defendant joins in the application and Plaintiff opposes the motion. BACKGROUND
This is a post-judgment proceeding involving the minor child of the marriage: XXX, presently 12 years of age. The parties were divorced by Judgment of Divorce dated xxxx, 2011, which incorporated but did not merge the terms of their Stipulation of Settlement dated xxxx, 2010. The matter is currently scheduled for a hearing with respect to the Plaintiff's request for enforcement of the Stipulation of Settlement for the child to attend a Yeshiva, and with respect to the Defendant's request that the child be permitted to remain in public school based upon his social and medical needs.
AFC asserts that she will be advocating for child's position regarding education and desire to stay in public school. She argues that there has been a change in circumstances from the time of the Stipulation since the parties, having mutually agreed to modify the Stipulation to allow the child attend public school, are now unable to reach a resolution going forward. The attorney for the child argues that the Court must modify the existing custody agreement to provide for one party to have final decision making as a result of the issues which have arisen. Child's attorney further argues that the Plaintiff's attorney, who is the child's "step-grandfather," should be disqualified as counsel. She asserts that his representation violates the "advocate witness rule" and that he must be disqualified to ensure her client's rights are adequately represented. The Plaintiff's attorney sees the child at family functions, has witnessed the child's behavior in social settings, and has observed the Plaintiff's responses to the child first-hand. She argues that because Plaintiff's attorney has seen the child's interactions with family members he may likely become a witness. Child's lawyer argues that his continued representation, as a potential witness, violates Disciplinary Rule 5-102 of the Code of Professional Responsibility.
In opposition, Plaintiff's lawyer asserts that the only issue before the Court is whether a Yeshiva can provide the same services to Child that are provided by the present public school. He argues that the Court does not need to address final decision making. Counsel asserts that the child's attendance in public school was only to be temporary and that same is not a change in circumstances. Plaintiff's attorney further argues that he should not be disqualified as the advocate-witness rule is not binding on the courts and the claim that he may be a witness is merely speculative. He asserts that "generalized statements" of his presence at family events or having relevant information is not a substitute for showing the necessity of his testimony or that it would be prejudicial.
Defendant joins the application of the attorney for the child. Defendant argues that Plaintiff's counsel is not only a step-grandparent, but has been an "extra-judicial advocate" to have his step-grandchild attend Yeshiva. He states that counsel has been contacting and communicating with Yeshivas directly as a family member. Defendant agrees that the child's educational issues will not be resolved unless the Court addresses final decision making on matters relating to education.
In opposition to Defendant's submission, Plaintiff's counsel argues that he does not have testimony to give as a witness which would help the Court make a decision in this case. He states that his daughter and Plaintiff have been married for six years and his communications with the Child have been limited to "pleasantries." Plaintiff's counsel acknowledges speaking to Rabbi xxxx regarding whether his Yeshiva can provide certain services and asked him to send a letter, which he asserts is a legitimate action on the part of an attorney.
In Reply, the attorney for the child argues that the Court should not rule on specific disputes regarding custody, but should rather decide which parent will make the final decisions. She notes that everyone conceded there was a change in circumstances during conferences with the Court, negating the need for the Court to now decide same. She further argues that the parties' conflicting opinions over Child's education will consign them to never-ending litigation which would needlessly place the child in a state of uncertainty and confusion. She argues that because Plaintiff's attorney is likely to be a witness, he should be disqualified. Finally, she argues, Plaintiff's counsel has a personal interest in this litigation as it is his interest and the rest of his family's that the child attend a Yeshiva. DISCUSSION
The attorney for the child asks that the Court modify the Stipulation of Settlement and Judgment to determine which parent should have final decision making on the issue of education. An attorney for the child has an interest in the welfare of the child to confer standing to seek a change of custody (Renee B. V. Michael B., 227 AD2d 316 (2nd Dept., 1996); In re Trosset, 32 Misc 3d 198 (Fam Ct., Otsego Co., 2011).
Although the Plaintiff asserts that there has been no change in circumstances from the date of the Stipulation to warrant a modification, the Court has already determined that there has been such a change in its Decision and Order dated September 26, 2018. Because of the parties' conflicting views, the Court agrees that one parent should be deemed the final decision maker on issues of education to provide some level of stability for the child. In the absence of same, the parties will find themselves in Court each year and each time an educational issue arises. The parties have demonstrated their inability to jointly reach an agreement with respect to the child's education.
Accordingly, branch (1) of the attorney for the child's motion is GRANTED, and the issue of which parent shall have final decision-making authority regarding the child's education shall be heard at the time of the previously scheduled hearing set for July 8, 2019.
It is well established that a party is entitled to be represented by the attorney of his or her choice. This is a valued right which should not be abridged absent a clear showing that there is a conflict of interest and that disqualification is warranted. (See, Olmoz v. Town of Fishkill, 258 AD2d 447 [2nd Dept. 1999]; Eisenstadt v. Eisenstadt, 282 AD2d 570 [2nd Dept. 2001]). In determining an issue with respect to disqualification, the Court must carefully balance the interest of a client to be represented by the attorney of his choice and the interest of the opposing party to be free from any risk or opposition by an attorney who has been privy to that litigant's confidences. (see: Cardinale v. Golinello, 43 NY2d 288, 294 [1977]; Saftler v. Government Employees Insurance Co., 95 AD2d 54 [1st Dept., 1983]); Gordon v. Obiakor, 117 AD3d 681 [2nd Dept., 2014].
Here, the Plaintiff's attorney is a family member of the child, a step-grandfather, and the child and attorney enjoy family gatherings and social events together.
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.
Although Plaintiff's attorney states that his communications with the child are limited and unrelated to the litigation, they are nonetheless communications had in the absence of the child's lawyer.
"Disqualification may be warranted where an attorney goes to a place, knowing that a represented adverse party will be physically present, and communicates with the adverse party" (Curanovic v. Cardone, 140 AD3d 823 [2nd Dept., 2016]); (see also: Anonymous 2017-1 v. Anonymous 2017-2, 62 Misc 3d 289 [NY Sup. Ct., 2018][the conversation between the wife's attorney and the children without the presence or consent of their attorney deprived the children of their due process rights]; In re Brian R., 48 AD3d 575 [2nd Dept., 2008][father's attorney disqualified where he communicated with one of the subject children and used her as an interpreter when speaking with the parties without the consent of the law guardian]; Carey v. Cary, 13 AD3d 1011 [3rd Dept., 2004] [wife's attorney disqualified in child support and custody proceeding where he accompanied his client to the marital residence to retrieve property and make a photographic "record" of the visit if necessary, knowing the husband would be there]).
In this case, although there is no claim that the Plaintiff's attorney has discussed the case with the child, the child is a minor who suffers from various behavioral and mental health issues. The Court recognizes that a child who may not be privy to or fully understand all of the issues involved in the litigation may not recognize if and when pleasantries turn into communications involving the subject of representation. The child should not be burdened with the risk that the litigation will be discussed when interacting with the Plaintiff's attorney in the absence of his attorney. The Court has further considered the impact on the child of having a family member, whom he presumably trusts, advocate for one parent and not the other. Finally, although the Court cannot say whether the Plaintiff's attorney has testimony to offer at the hearing or not, it is certainly a possibility that he may be called as a witness based upon his familial relationship with the child and the Plaintiff.
For all of these reasons, the Plaintiff's attorney is disqualified. The disqualification of an attorney is generally a matter resting within the sound discretion of the court (see Albert Jacobs, LLP v. Parker, 94 AD3d 919, 919, 942 N.Y.S.2d 597). Accordingly, branch (2) of the attorney for the child's application is GRANTED; and it is
ORDERED, that Plaintiff's counsel, XXXXXXXX, Esq., is hereby disqualified from representing the Plaintiff in the present action, effective immediately; and it is further
ORDERED, that all parties and counsel, if any, shall appear in this Part on May 10, 2019 at 9:30 a.m. for a pre-hearing conference.
This constitutes the Decision and Order of the Court. DATED: April 29, 2019 Mineola, New York
ENTER:
________________________________ HON. EDMUND M. DANE, J.S.C.