41 Misc. 3d 931
N.Y.C. Fam. Ct.2013Background
- LAS conflict-of-interest motion in Bronx Family Court regarding representation of Jalicia G.; current respondent is Jacquelin G.; prior LAS representation of Ms. G. in Queens foster-care case (1999–2008) by LAS Juvenile Rights Practice staff; current LAS attorney Nevergold advocates against Ms. G. in a case substantially related to the Queens matter; no informed consent obtained from Ms. G.; LAS staff who previously represented Ms. G. are largely no longer in contact, and no cross-county file access occurred; court found substantial relation between the Queens and Bronx matters due to potential confidential information about Ms. G.’s mental health and cognitive issues becoming relevant; Court denied motion to disqualify LAS entirely but disqualified two LAS attorneys and implemented screening measures; trial continued with 1028 proceedings and fact-finding ongoing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LAS should be disqualified under rule 1.9/1.10 | G. argues substantial risk of confidential information flowing to Nevergold | LAS contends no meaningful risk given screening and no cross-flow of information | No full firm disqualification; individual attorneys disqualified and screening required |
| Whether the current Bronx matter is substantially related to the Queens matter | Potential confidential information about G. relevant to current issues | Matters are distinct in time and issues; not substantially related | Yes, substantially related; need to disqualify at least some LAS personnel |
| Whether there is an appearance of impropriety requiring disqualification | LAS actions create appearance of impropriety | Screening protocols mitigate appearance of impropriety | Appearance not sufficient to disqualify firm; screening and limited disqualification adequate |
| What remedies should apply given partial conflict | Disqualify more LAS personnel to protect confidences | Partial disqualification with screening is sufficient | Disqualify Mitler and Famular; Nevergold screened; LAS may continue with protections |
| Whether appearance can be avoided given large firm structure | Not applicable beyond existing screening measures |
Key Cases Cited
- Cardinale v Golinello, 43 N.Y.2d 288 (1977) (confidentiality and loyalty duties to former clients; imputed conflicts)
- Solow v Grace & Co., 83 N.Y.2d 303 (1994) (continuing duty of confidentiality; loyalty concerns)
- Kassis v Teacher’s Ins. & Annuity Assn., 93 N.Y.2d 611 (1999) (test for implied conflict and duty to avoid disclosing confidences)
- Nimkoff v Nimkoff, 18 A.D.3d 344 (1st Dept 2005) (screening to protect confidences; firm-wide disqualification not automatic)
- People v Wilkins, 28 N.Y.2d 53 (1971) (free flow of information within large firms is limited; relevance to conflicts in mega-firms)
- S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 N.Y.2d 437 (1987) (disqualification decisions must balance ethics with litigation efficiency)