Reitzel v Hale
Annotate this CaseDecided on June 30, 2006
Supreme Court, Suffolk County
Sabrina Reitzel and Matthew Reitzel, Plaintiffs,
against
Theodore Hale, MARTIN MATALON, GARY KASTEN, MEDICAL ARTS OBSTETRICS & GYNECOLOGY P.C. and GOOD SAMARITAN HOSPITAL, Defendants.
2001-28224
John L. Juliano, Esq.
John L. Juliano P.C.
Attorneys for Plaintiffs
39 Doyle Court
East Northport, New York 11731
Jennine Gerrard, Esq.
Bower Sanger & Lawrence P.C. Attorneys for Defendants 261 Madison Avenue New York, New York 10016
Jeffrey Arlen Spinner, J.
ORDERED, that the application of the Plaintiffs is hereby granted in its entirety for the reasons set forth herein, and the law firm of BOWER SANGER & LAWRENCE P.C. is hereby disqualified from representing the Defendants or any of them in this case and this action is stayed for a period of sixty days so as to enable the Defendants to retain separate successor counsel.
The Plaintiffs commenced this action on December 11, 2001to recover for injuries allegedly sustained by the Plaintiff SABRINA REITZEL as a result of medical malpractice and negligence on the part of the respective Defendants. Issue was joined on December 28, 2001 and a Notice of Medical Malpractice was filed on February 22, 2002. Since that time, this matter has moved forward in a somewhat contentious manner, at one point necessitating the appointment of a Court Attorney Referee to supervise discovery.
The instant application by Plaintiffs' counsel requests disqualification of the single law firm (Bower Sanger & Lawrence P.C.) that is representing all five of the Defendants upon the ground that there exists an irremediable and non-waivable conflict of interest because of the adverse interests of each [*2]of the Defendants to the others. The Plaintiff invokes the provisions of 22 NYCRR § 1200.24 (also denominated as DR 5-105) as the statutory basis for its motion herein.
Counsel for the Defendants has submitted a rather verbose and hectoring Affirmation In Opposition to the application. Said Affirmation baldly asserts that the Plaintiff's application is, for all intents and purposes, baseless. Counsel further states that the Plaintiff's counsel is utilizing the motion as a vehicle to concoct or create a conflict that is non-existent. The Affirmation questions, albeit incorrectly, whether Plaintiff's counsel has standing to make such an application to the Court. The Affirmation is replete with unnecessary and unfair characterizations of Plaintiff's counsel as making "...a spurious argument" and "...somewhat clumsily trying to assert..." certain matters, none of which are deserved. Moreover, counsel appends sworn statements by Defendant HALE as well as the Risk Manager of the Defendant GOOD SAMARITAN wherein they claim that there exists no legal conflict. The Court is compelled to ignore these Affidavits as they are without legal efficacy. In short, counsel's self-serving and conclusory Affirmation attempts to improperly and unfairly portray Plaintiff's counsel as one who has contrived the entire issue of a conflict. It appears that Defendant's counsel has failed to fully familiarize herself with the applicable provisions of the Lawyer's Code of Professional Responsibility, codified as 22 NYCRR § 1200.1 et. seq. and does not even refer to the same in her papers.
Plaintiff's counsel has responded with a brief Reply Affirmation which correctly asserts that there is a conflict of interest in this matter and that the purpose of the application at this stage is to avoid a mistrial together with the time and expense necessarily engendered by the same.
The gravamen of the Plaintiff's application is that the Defendants herein have differing and conflicting interests sufficient to warrant disqualification. A fair reading of the Affirmation In Opposition by defense counsel leads the Court to conclude that it actually supports the Plaintiff's position. Indeed, paragraph 4 of the Affirmation describes the differing roles (and hence, the different exposure faced by each) of each of the Defendants, which clearly amplifies the perceived conflict of interest.
The members who are admitted to the practice of a profession (medicine, law, accounting or otherwise) are bound by certain rules and standards and, failing to adhere thereto, they may be disciplined or otherwise sanctioned. The legal profession is one that is both ancient and honorable. Today its members are governed by the Code of Professional Responsibility, codified in Part 1200 of Title 22 of the New York Code of Rules & Regulations, having been adopted as Joint Rules of the Appellate Divisions of the Supreme Court. Each duly admitted member of the bar is required to subscribe thereto as a condition of continued good standing in the profession. The Code of Professional Responsibility sets forth the parameters within which lawyers must conform their conduct and, should there be a breach thereof, the Appellate Division of the Supreme Court may compel compliance and impose discipline, Matter of New York Criminal & Civil Courts Bar Ass'n v. Jacoby 61 NY2d 130 (1984), Matter of Estate of Weinstock 40 NY2d 1 (1976). An additional, [*3]and equally important function of the Code is to protect, preserve and nurture the sacrosanct relationship between an attorney and his or her client, In Re Rouss 221 NY 81 (1917).
The section of the Code of Professional Responsibility which is relevant to resolution of the instant matter is found at 22 NYCRR § 1200.24(a) [DR 5-105] and entitled "Conflict of Interest; Simultaneous Representation," which reads, in relevant part, as follows:
"(a) A lawyer shall decline proffered employment if the exercise of independent
professional judgment on behalf of a client will be or is likely to be adversely
affected by acceptance of the proffered employment, or if it would be likely to
involve the lawyer in representing differing interests..."
In compliance with the foregoing, a lawyer may not undertake simultaneous representation of parties with interests that are or may be adverse to each other, Eisemann v. Hazard 218 NY 155 (1916), Greene v. Greene 47 NY2d 447 (1979). This is so in order to protect the attorney-client relationship as well as to ensure that lawyers represent each of their clients zealously and diligently within the bounds of the law, Eisemann v. Hazard supra.
The most instructive precedent for the Plaintiff's claim was clearly articulated by our Court of Appeals in a scholarly opinion by Judge Cooke in the matter of Greene v. Greene 47 NY2d 447 (1979). In fact, this Court believes that the holding in Greene is dispositive herein. In that matter, the Court of Appeals opined that "...the lawyer owes a duty to each client to advocate the client's interests zealously. Yet, to properly represent either one of the parties, he must forsake his obligation to the other." 41 NY2d 447, at 451.
Based upon the individual and unique facts and circumstances of this proceeding and in light of the provisions of the Code of Professional Responsibility and the precedent cited herein, it is the determination of this Court that counsel for the Defendants must be disqualified because of irremediable conflict.
It is, therefore
ORDERED that the firm of Bower Sanger & Lawrence P.C. shall be and is hereby disqualified from representing the Defendants or any of them, in this cause only, effective immediately; and it is further
ORDERED that prosecution of this cause shall be stayed for a period of thirty (30) days from the [*4]date this Order is served with Notice of Entry so as to enable each of the Defendants to retain separate successor counsel; and it is further
ORDERED that counsel for the Plaintiffs shall serve a copy of this Order with Notice of Entry upon Bower Sanger & Lawrence P.C. and the Calendar Clerk of the Court within fifteen days from the date of entry hereof.
Dated:Riverhead, New York
June 30, 2006
____________________________________
HON. JEFFREY ARLEN SPINNER, J.S.C.
FINAL DISPOSITION NON-FINAL DISPOSITION
SCAN DO NOT SCAN
TO:
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