OPINION OF THE COURT
In this matter, the husband in a divorce matter seeks to disqualify an attorney who represents his wife because she previously represented him in two child support proceedings in the last half decade. In pretrial proceedings in this case, the husband brought a motion seeking disqualification of his wife’s selected attorney because, he alleges, he disclosed confidential information to his then-attorney when she represented him in the prior Family Court proceedings. The attorney, in response, produced her own affidavit, opposing the disqualification, arguing that the wife had the right to choose her own counsel over the husband’s objection and, she avers, the husband never made any сonfidential disclosures to her. The paradox inherent in this matter is evident: how does this court decide whether such confidential information was disclosed without conducting a hearing to determine which declarant—the husband or his former attorney—is being truthful, and at the same time, preserve the confidential nature of those discussions?
Some of the essential facts are undisputed. The wife’s attorney represented the husband in several Family Court matters before 2015. The documents before the court indicate that the attorney represented the husband in a disputed child support matter involving a child from a prior marriage, which resulted in a support order in September 2010. At the time of this procеeding, the husband was married to his current wife. In 2014, the husband retained the attorney again, this time to represent him in a child custody matter involving the emancipation of the child from the prior marriage. The attorney appeared in Family Court with the husband. The Family Court matter was resolved through an order dated July 25, 2014. A year later, the husband’s current wife commenced an action for divorce against him and retained the attorney who had previously represented the husband in the Family Court litigation.
At this point, the facts diverge. The husband, in his affidavit before the court, states that he had “personal and private conversations with the attorney regarding himself, his wife, and his child, his ex-wife, his finances and other matters too numеrous to set forth herein.” He provides no further elabora
The rules on disqualification of counsel are easily stated. The decision to disqualify an attorney from representation rests with the discretion of this court. (Cardinale v Golinello,
In deciding whether a conflict of interest requiring disqualification exists, the court must consider whether the lawyer or law firm that previously represented the party or entity which is seeking to disqualify that attorney obtained, in the course of that representation, confidential information which would be disclosed or could be used against the former client in the current litigation. (Cardinale v Golinello,
“The Code of Professional Responsibility does not in all circumstances bar attorneys from representing parties in litigation against former clients. Rather, DR 5-108 sets out two prohibitions on attorney conduct relating to former clients. First, an attorney may not represent ‘another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client’ (Code of Professional Responsibility DR 5-108 [A] [1] [22 NYCRR 1200.27 (a) (1)]). Second, an attorney may not use ‘any confidences or secrets of the former client except as permitted by DR 4-101 (C) or when the confidence or secret has become generally known’ (Code of Professional Responsibility DR 5-108 [A] [2] [22 NYCRR 1200.27 (a) (2)]).” (Jamaica Pub. Serv. Co. v AIU Ins. Co.,92 NY2d 631 , 636 [1998].)
In other words, as originally constructed by the Court of Appeals, there was a two-tiered test applicable here: if the pend
It is not essential that the prior client establish that confidential information will necessarily be disclosed in the course of the litigation. Rather, a “reasonable probability of disclosure” may suffice. (Narel Apparel v American Utex Intl.,
“Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client’s former attorney. (Drinker, Legal Ethics, pp 109, 115.) The standards of the profеssion exist for the protection and assurance of the clients and are demanding; an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” (id. at 296; see also Gould v Decolator,131 AD3d 448 [2d Dept 2015]).
The Court of Appeals put icing on that cake in Greene v Greene (
“An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer’s former client (e.g., Hatch v Fogerty, 40 How Pr 492, 503). 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.” (Id. at 453; Jamaica Pub. Serv. Co. v A1U Ins. Co.,92 NY2d 631 , 637 [1998] [duty not to divulge a former client’s confidences undеr DR 5-108 (A) (2) is broader than the attorney-client privilege].)
While these commands from the Court of Appeals tend to suggest disqualification should be almost presumed in this matter, this court notes that the burden of proof to establish the factual predicate for disqualification rests with the husband. (Gulino v
Before analyzing the legal and factual disputes in this case, this сourt notes three changes in the legal scape involving disqualification. First, the Rules of Professional Conduct involving disqualification have been changed since most of the Court of Appeals pronouncements cited above. In particular, the definition of “confidential information”—possession of which by an adverse counsel can trigger disqualification—has been restated and codified as: “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidеntial.” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.6 [a].) “Confidential information” does not ordinarily include a lawyer’s legal knowledge or legal research, or information that is generally known in the local community or in the trade, field or profession to which the information relates. (Id.; Mayers v Stone Castle Partners, LLC,
In this respect, the fact that this case involves a matrimonial matter means the notion of confidential information—under the control of the husband—must be weighed against the statutory and regulatory requirements for full disclosure—to this wife—of husband’s assets and income. (Domestic Relations Law § 236 [B] [4] [a]; Family Ct Act § 424-a; 22 NYCRR 202.16
A third change, of recent vintage, also colors this court’s analysis. On repeated occasions, the New York appellate courts have directed that a “clear showing” of access to confidential facts is required to justify disqualification. (Matter of Sosa v Serrano,
Despite this apparent trend, the reports of the death of the “appearance doctrine” are, in the often-misquoted words of Mark Twain, “greatly exaggerated.” The Second Department has announced contradictory opinions on this subject. In 2009, the Second Department seemed to entomb the “appearance” concept: “Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney.” (Matter of Lovitch v Lovitch,
These seemingly subtle changes in the standards to be utilized in a motion to disqualify an attorney with whom the husband in this case had a prior attorney-client relationship are crucial in this matter because the facts here could easily support the conclusion of an “appearance of a conflict,” but not meet the “clear showing” standard. The current action involves a claim for no-fault divorce. (Domestic Relations Law § 170 [7].) Therе are no children. The prior action in which the wife’s attorney represented the husband involved a child support proceeding for the husband’s child from a prior marriage. The 2010 Family Court proceeding, involving the husband and his former wife, was settled through a consent order. Based on the Family Court order, it appears there was financial disclosure made by the husband during the proceeding. These disclosures, made through his current wife’s attorney, were made to his former wife. It is difficult to consider this information, dated more than five years ago, as currently confidential. There is no allegation, in the papers before this court, that the husband’s financial or other confidential information, extant in 2010, would still be relevant to any financial issues involved in this 2015 divorce proceeding.
Nonetheless, this court must carefully consider the husband’s factual claim that he disclosed “confidential facts too numerous to describe” to his wife’s current attorney. In response, the wife’s current attorney, in addition to her claim that she did not engage in confidential communications with the husband, argues that there are few confidential or privileged issues in the pending case. First, the couple have no children together, which means the child support issues, present in the prior Family Court proceedings, are not present here. Second, the couple in this divorce are both public employees, so there is likely little dispute over income amounts and, even if there were any disputes, both sides are entitled to financial disclosure during the proceeding. There are, in the affidavits and submissions currently before the court, recent disputes over the conduct of the parties prior to and during the pendency of the action. But these disputes are factual in nature, and the court cannot foresee how they would require the wife’s attorney’s disclosure of any confidential information obtained from the husband. Based on these conclusions, the wife’s attorney argues the husband has failed to meet his burden of proof that she possesses confidential information proffered by the husband during privileged communicatiоns in the prior representation sufficient to justify disqualification.
From this court’s perspective, the husband’s allegations regarding the transfer of confidential information in this case are thin. He simply recites that he engaged in conferences with his prior counsel—now representing his wife—“too numerous to mention” regarding his finances and other allegedly personal and confidential information. He details no specific disclosure— financial or otherwise—that he made confidentially to his prior attorney. While these allegations may be somewhat light, they
If this court were to decide the issue of disqualification solely on the basis of the current affidavits, the court would be choosing between two inchoate versions of the facts and crediting one version or the other—simply put, it is a “client says, attorney says” conundrum. Traditionally, when faced with different versions of the contested facts, this court would deny both applications and refer the matter to a hearing, as apparently other New York courts have done. (Olmoz v Town of Fishkill,
“This is simply not the test. The rule ‘does not require the “former” client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure the rule is intended to protect. It is the possibility of the breach of confidence, not the fact of the breach that triggers disqualification’. . . Moreover, ‘It has long been recognized that where ethical considerations are concerned, disqualification should be ordered not only where it is clear that the attorney will be adverse to his former client, but also where it appears that he might. [Citations.] . . . Disqualification is proper here to avoid any appearance of impropriety.’ ” (2004 WL 1260035 , *4, 2004 Cal App Unpub LEXIS 5450, *11 [emphasis omitted].)
Other courts in other states have grappled with trying to establish proof of confidential communications without exposing the information. In O Bldrs. & Assoc., Inc. v Yuna Corp. of NJ (206 NJ 109, 19 A3d 966 [2011]), the New Jersey Supreme Court recognized the moving party’s dilemma when a factual
“To be sure, a movant seeking disqualification of opposing counsel always is presented with a Hob-son’s choice in respect of the disclosure of confidential information.. In those instances where the disclosure of confidential information must be made so that the court can grapple fairly with the issues, the parties may protect the confidentiality of their information by, among other means, requesting that the record be subject to a protective order and the movant may further request that the application be considered in camera. Furthermore, in those instances, as the one presented in this appeal, where the lawyer whose disqualification is sought denies ever receiving the claimed confidential information, an appropriate screening device would be to engage substitute counsel to oppose the disqualification motion.” (206 NJ at 129, 19 A3d at 978 [citations omitted]; see also Trone v Smith, 621 F2d 994, 999 [9th Cir 1980].)
The state courts have considered referring the hearing on confidential materials to another judge. (Burch & Cracchiolo, P.A. v Myers, 237 Ariz 369, 376,
This court acknowledges that other New York courts, in attempting to decide disqualification questions, have held hearings to evaluate the allegations regarding the transfer of confidential and privilеged communications. (Walker v Steinberg,
In exercising discretion in this case, the court declines to hold a hearing in this matter. The “clear showing” that recent New York courts have imposed as a predicate to such motions is, in this court’s view, a reaction to the tsunami of disqualifica
The motion to disqualify the wife’s attorney is denied.
Notes
. The motion to disqualify counsel was brought at the initial stages of this proceeding and thus the court draws no adverse inference from the motion. (Matter of Valencia v Ripley,
. Domestic Relations Law § 236 (B) (4) (a).
. See Star Trek: First Contact, Paramount Pictures (1996); Articles of the Federation, ch I, art II, ¶ VII.
. (Joseph Heller, Catch-22 [1961].) This manufactured metaphor for an unsolvable conundrum is widely referenced among New York judges. (See e.g. Matter of Jessica L. [Errol M.—Diane L.],
. This court acknowledges an exception to the disqualification rules “where withdrawal would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case.” (Salomone v Abramson,