Sequel to Lightman v. Flaum re: Confidentiality -- Defendants' Counsel Disqualified

LIGHTMAN v. LIGHTMAN, N.Y.L.J., May 4, 1999, p. 35, col. 6
(Sup. Ct. Queens Co.)

Flug, J.:

Plaintiff moves in this matrimonial action to disqualify defendant's attorney.

A brief history of the case is necessary to bring this request into perspective. The action was commenced on February 2, 1996, and as of March 4, 1999 had advanced to the trial calendar of this Court. Plaintiff's third attorney, by affidavit dated December 14, 1998, has moved to disqualify defendant's attorney based on that firm's representation of the defendants in a case brought by this plaintiff against Rabbi's Flaum and Weinberger (Index No. 2169/97).

That case (hereinafter referred to as the "disclosure case") addresses the issue of whether those defendants (the Rabbi's) "had illegally breached the clergy-penitent privilege and violated CPLR 4505," (Schwartz affidavit, Dec. 14, 1998). By order dated November 18, 1998, (Goldstein, J) held that "a valid cause of action does exist for breach of the fiduciary duty of confidentiality, which arises from the violation of the clergy-penitent privilege." The Judge further went on to state that in his view the actions were "not only improper ... but 'outrageous and most offensive'."

The affidavits that the Rabbi's had signed were used by defendant's attorney in this matrimonial action in March 1996 before another judge. Notwithstanding their use in 1996 and the decision in the "disclosure case" in November of 1998, counsel waited literally to the eve of trial to bring this motion. It is readily apparent to the Court that this is a last ditch trial effort on behalf of the plaintiff to gain leverage in the case. At present the main contention between the parties is the custody and visitation with the four infant issue. In addition to seeking disqualification of the attorneys, counsel also seeks to disqualify the law guardian. That branch of the motion is summarily denied, as it has been in the past when sought by prior counsel. It is based solely on speculation and conjecture. It should be noted that the law guardian is the only person involved in this action who has in any way sought to protect and foster the best interests of the children involved. Neither the attorneys (whom the Court recognizes to be mere adversaries) nor the parents themselves have approached this case with any sensitivity to the severe

emotional damage that has been and continues to be inflicted upon these children, notwithstanding that they are on notice via the psychological and educational reports that have been received by the Court indicating such damage.

Defendant's attorney opposed the motion, claiming that it is patently specious; having been interposed for no purpose other than to prejudice the defendant. They bring to the Court's attention that the alleged conflict of interest has been in existence since May of 1997; and the Court notes that neither of plaintiff's two prior attorneys sought to raise this issue. Defendant further questions whether the statements were confidential, and relies on the fact that since they did not represent the defendant in the initial stages of this action and played no role in obtaining the statements, they have not obtained any confidential information from the plaintiff.

The Court would agree as noted before that the conflict has existed for over two years and that this delay makes the plaintiff guilty of laches. The Court, however, disagrees with regard to the confidentiality of the information imparted to the Rabbi's (based on the law as established in the "disclosure case") and strongly disagrees with the conclusion that the attorneys never received any confidential communication.

For all the sound and fury that plaintiff has asserted in making this motion, it is quite clear to the Court that the affidavits of the Rabbi's contain confidential information. These are in the defendant's attorney's file and would accordingly be turned over to any new attorney. In addition they are part of the existing Court files. Further, they have been a source of common knowledge in the tightknit religious and geographic community in which the parties reside, as well as having been publicized in the local press (as had most other incidents regarding this battling couple). Although the law requires disqualification, it will in essence not change anything except cause a delay, which as noted is not in the best interests of the children. The leading case in this area is Tekni-Plex, Inc. v. Tang, 89 NY2d 123 (1996), in which the Court of Appeals laid out the elements necessary to disqualify an attorney under DR 5-108(A). Those elements are: 1) The existence of a prior attorney-client relationship between the moving party and opposing counsel;

2) That the matters involved in both representations are substantially related; and

3) That the interests of the present client and former client are materially adverse.

While the instant matter differs from Tekni-Plex, the second and third prongs of the test both apply. The cases are clear in establishing the principal that where there is a reasonable possibility that attorneys have acquired confidential or strategically valuable information which would enable them to use secrets and confidences against a party, disqualification is required. (See, Severino, et al. v. Dr. Iorio, et al., 186 AD2d 178 [2nd dept., 1992]; Thomson U.S. v. Gosnell, 181 AD2d 558 [1st Dept., 1992]). Denials by the firm that it possessed such information or assertions that the materials were garnered by the previous attorney representing the Rabbi's are not enough. Attorneys, like "Caesar's wife" must be above suspicion and must "guard against not only the fact, but also the appearance of impropriety" (Lopez v. Precision Papers, Inc., 99 AD2d 507 [2nd Dept., 1984]).

Accordingly, the motion to disqualify defendant's attorney is granted. The defendant is directed to secure a new attorney by May 11, 1999; more than thirty (30) days from the date of this decision. Plaintiff is stayed from bringing any further proceedings pending retention of new counsel.

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