Warmus v Heit

[*1] Warmus v Heit 2006 NY Slip Op 51603(U) Decided on July 18, 2006 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006
Supreme Court, New York County

Carolyn Warmus, Plaintiff,

against

Julia P. Heit, Esq., Defendant.



401663-2006

Carol R. Edmead, J.

MEMORANDUM DECISION [FN1]

Plaintiff, Carolyn Warmus ("plaintiff"), pro se, commenced what essentially amounts to a legal malpractice action against defendant, Julia Heit, Esq., ("defendant"), based on defendant's handling of plaintiff's appeal of her conviction in the infamous, "Fatal Attraction" murder case. According to her complaint, plaintiff retained defendant in early 1995 to, among other things, obtain transcripts of the first and second trials, pre-trial and CPL §440 ("440")[FN2] hearings, and reargue the 440 motion and include the reargument on appeal with plaintiff's direct appeal. Plaintiff also claims that defendant was hired to reinvestigate certain issues, perform DNA, ballistic, and forensic tests, and file plaintiff's direct appeal, including claims for prosecutorial misconduct, tampering with evidence, and illegal police activities. Defendant allegedly agreed to perform her services for a flat fee, and accept payments from others on plaintiff's behalf. However, according to plaintiff, defendant never obtained, read, or digested all of the transcripts, billed the plaintiff for services that were never performed, over-billed plaintiff for services previously performed, pursued an appeal without having first pursued the 440 motion, lost files from the criminal cases, and failed to turn over her work product to plaintiff's new appellate counsel.

Plaintiff's Order to Show Cause [FN3] [*2]

Plaintiff now moves by order to show cause, requesting that the Court assign an attorney to the plaintiff, free of charge, to help her litigate this action against the defendant. In support of this request, plaintiff alleges that she is indigent and that the legal issues associated with the instant case are "very complex and complicated."

Plaintiff also seeks an Order sealing Complaint Exhibits 3, 4, 5, 6, 7, 8, and 9 from the public because they "pertain to sensitive and confidential matters involving the Joint Committee on Fee Disputes and Conciliation, pending Departmental Disciplinary charges against [defendant], and/or confidential attorney-client privileged correspondence and legal strategy information pertaining to [plaintiff's] pending criminal appeal and an upcoming CPL §440 motion."[FN4] Plaintiff further argues that since she is not waiving the attorney-client privilege, any other confidential material filed subsequently by the plaintiff in this action also be filed under seal.

Defendant's Opposition

In opposition to plaintiff's request for government-appointed counsel, defendant argues that granting plaintiff's application would set a "bad precedent," and is unsupported by case law. Defendant argues that granting plaintiff's application would set a shocking precedent, opening the flood gates of requests by state prisoners who have complaints against their attorneys. Equal protection under the law would require that other state prisoners be granted similar relief. Further, the State of New York simply cannot afford to support state prisoners by providing government-appointed attorneys. Defendant additionally points out that government-appointed and state-paid counsel are generally not provided by the State in most civil actions, including divorce cases, personal injury cases, and malpractice claims. Only in unique cases will the court assign government-appointed counsel, and this case is not unique. Defendant contends that if plaintiff, a convicted murderer, is granted government-appointed counsel to prosecute her monetary claim while civil indigent litigants are forced to proceed pro se, it would deeply outrage the public. Therefore, defendant asserts, this court should not assign government-appointed counsel to plaintiff in her pursuit of the instant action.

Defendant also opposes plaintiff's request to seal the pleadings and proceedings from the public. Defendant reasons that the Disciplinary Committee did not find defendant derelict in her representation of plaintiff and found that the issues boiled down to a fee dispute. Therefore, [*3]contrary to plaintiff's belief that sealing is for defendant's benefit, defendant strongly opposes sealing of the records.

Defendant further contends that plaintiff must be deemed to have waived the attorney-client privilege, since statements made by plaintiff to defendant during the past eight years might be relevant to defendant's defense.

Defendant argues that plaintiff's contention that she does not want her legal strategies revealed by publicly filing the instant action is neither supported by case law nor by a legitimate reason. Accordingly, defendant asserts that plaintiff's undocumented fears of publicity cannot be a basis for sealing the record from the public. Defendant argues that no specific authority supports sealing the records in a simple civil proceeding, such as this case, wherein the plaintiff seeks the return of legal fees paid to an attorney. Further, plaintiff has already perfected the appeal of what is an already highly publicized case to the Appellate Division, Second Department in a public filing. Plaintiff also disclosed her intention to contest all the forensic evidence to the District Attorney's office in Westchester County. Therefore, whether plaintiff seeks to file a CPL §440 motion would not reveal her strategy.

Lastly, defendant asserts that public trials not only assure fairness and openness but also enable either litigant to discover vital information through other witnesses that come forward. Defendant contends that the case is framed in a time period of eight years, involving numerous people including prison officials. Therefore sealing of the case could incur potential prejudice against defendant. Accordingly, defendant requests that plaintiff's application to seal the pleadings and proceedings from public be denied.

Plaintiff's Reply [FN5]

In further support of an appointment of counsel, plaintiff asserts that defendant lacks

standing to oppose her request because unlike the State, the defendant will not incur any costs associated with the appointment of counsel. Further, defendant's claim that the public would be outraged if plaintiff obtained free counsel is unfounded, since the public did not object to her appointment of free counsel in other civil cases. Plaintiff also notes that the Corporation Counsel of the City of New York has not opposed her request.[FN6]

Plaintiff also claims that the appointment of government-funded counsel will not set an unwelcome precedent because this case is unique in that, to her knowledge, no similar suits have ever been filed (e.g., a New York State inmate filing a legal action against her appellate attorney to recover unearned legal fees), with such a large amount of money at stake. Plaintiff notes that [*4]since most inmates use Legal Aid or court-appointed attorneys for their appeals, equal protection guaranteed by the Constitution would not be violated.

Plaintiff informs the Court that she is currently in isolation, which prohibits access to both outside libraries and the prison law library. She notes that this isolation distinguishes her case from that of indigent non-inmates who are denied Court-appointed counsel but have access to legal resources, such as libraries and clinics. She additionally points out that a federal §1983 action regarding her lack of access to legal resources is pending. Plaintiff also notes that her isolation inhibits her ability to investigate facts, noting that, as the defendant also asserts, new witnesses may come forward with information that is pertinent to this case.

Plaintiff also argues that under federal case law, given the factual and legal complexity of this case, the merit of her claims, her inability to investigate facts, research, and present her case, the extensive discovery required, and need for cross examination of defendant, counsel should be appointed. Specifically, plaintiff notes that the "very long time" it took the Disciplinary Committee to sort through the facts before determining that a legitimate fee dispute was at issue demonstrates the complexity and merit of plaintiff's claims. Plaintiff also points to the number of claims alleged in her complaint, further indicating the legal complexity of the case. The merits of plaintiff's case are also demonstrated by the defendant's opposition to the request for an attorney, as well as the Disciplinary Committee's concurrence that this is a legitimate fee dispute case. Plaintiff argues that a court-appointed attorney is required to "level the playing field" with defendant, given defendant's legal expertise in comparison to plaintiff's lack thereof. In addition, a court-appointed attorney would be instrumental in developing a "record of the facts" for this Court and/or an appellate court, thus facilitating the fact-finding hearing and, potentially, the appellate review.

Plaintiff asserts that although she prefers to settle this matter, her prior attempts to resolve this conflict "informally and formally" were unsuccessful, as defendant refused to participate in voluntary resolutions of the dispute. Thus, assigned counsel would be instrumental in facilitating a settlement, so that a trial would be unnecessary.

Plaintiff additionally contends that, "the judiciary has an obligation to insure that attorneys are fair and that they abide by a canon of ethics" to protect the reputation of the legal community. Plaintiff contends that refusal to provide her with counsel to fully assert her claim would essentially be condoning the defendant's wrongdoing.

With regard to the sealing issue, plaintiff clarifies that her request for sealing is limited to Exhibits No. 3, 4, 5, 6, 7, 8, and 9 of the complaint, and defendant's contentions to the contrary demonstrate defendant's tendency to "lie[] and mislead[]."

Plaintiff also argues that the legal basis supporting the decision by the Departmental Disciplinary Committee and Joint Committee on Fee Disputes and Conciliation to keep the records confidential is applicable to her request in this action, which raises far more issues than the matter before such agencies.

Plaintiff further argues that her "federal and state constitutional right to the attorney-client privilege" and the sealing of "substantive issues relating to [her] criminal murder case" do not interfere with defendant's defense of this action, especially since defendant has access to all of the sealed materials. Plaintiff denies having made any incriminating statements in the criminal case, and asserts that any alleged incriminating statements would be irrelevant to the current case. Plaintiff suggests that defendant's reference to incriminating statements is [*5]actually a "thinly veiled threat[]" to unnecessarily reveal confidential information, presumably to sabotage plaintiff's criminal appeal. Plaintiff also denies ever informing the District Attorney's office that she intended to "lodge a full scale attack against all of the forensic evidence." Plaintiff additionally points out that certain exhibits from her criminal trial were not made public, thereby warranting their continued absence from the public realm.

Finally, plaintiff argues that defendant is attempting to prejudice the Court against plaintiff, and that in light of defendant's use of previous negative press regarding this case, her request is not based on "undocumented fears of publicity." Plaintiff asserts that she is not arguing that there should not be a public trial, and if defendant feels she can draft and file her pleadings without revealing confidential information about the criminal case, plaintiff would not seek to seal her pleadings. However, if any of the pleadings contain "substantive information or details relating to [defendant's] representation of [plaintiff] or to [plaintiff's] criminal case or post-conviction strategies or information," then such items should be sealed to the public.Analysis

Assignment of Counsel

Plaintiff, having been granted "poor person" status pursuant to an order by the Court (Gangel-Jacob, J.), dated May 3, 2006, may be eligible to receive free counsel to pursue a private matter.[FN7] CPLR §1102 [a], entitled "Privileges of poor person," provides that the "court in its order permitting a person to proceed as a poor person may assign an attorney." Thus, while caselaw holds that private litigants have no absolute right to assigned counsel, courts have discretion to provide uncompensated representation for indigent civil litigants in a "proper case" (Matter of Smiley, 36 NY2d 433, 369 NYS2d 87 [1975], citing CPLR 1102[a]).

As for the federal constitutional right to counsel, this right, which originated in the criminal context (see, e.g., Gideon v Wainwright, 372 US 335 [1963]; People v Witenski, 15 NY2d 392 [1965]), has been extended to civil proceedings in which one's physical liberty is at stake or where "liberty interests" are at issue, such as cases involving constitutional rights concerning parenthood and the family, and rights to bodily integrity (Matter of St. Luke's-Roosevelt Hosp. Center, 159 Misc 2d 932, 934-40, 607 NYS2d 574, 576- 80 [Sup.Ct. N.Y.Co. 1993], modified and remanded, 215 AD2d 337, 627 NYS2d 357 [1st Dept 1995]; Lassiter v Department of Social Servs., 452 US 18 [1981] ["It is the defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendment right to counsel in criminal cases, which triggers the right to appointed counsel"]). However, the matter at hand is not such a case, since the situation it presents is not one wherein the plaintiff is faced with a "grievous forfeiture or loss of a fundamental right" (Wills v City of Troy, 258 AD2d 849, 686 NYS2d 154 [3d Dept 1999] [stating that denial of plaintiff's request for court appointed counsel to litigate claim that plaintiff suffered personal injuries as a result of police harassment was proper; Morgenthau v Garcia, 148 Misc 2d 900, 561 NYS2d 867 [Sup. Ct. New York County 1990] [holding that denial of prisoner's request for an appointment of free legal counsel to defend the State's civil forfeiture case was proper]). Though plaintiff seeks the return of money tendered to defendant in order to compensate her new appellate counsel, it must be noted that plaintiff's personal freedom is at stake in the appeal of her criminal conviction, for which [*6]government-paid counsel is available. No personal freedom is at stake in this proceeding, which seeks the recovery of funds for legal malpractice. And, any facts forming the basis of the legal malpractice in this action, might possibly be asserted in the appeal of her criminal case in the form of an "ineffective assistance of counsel" claim. It is the outcome of plaintiff's criminal appeal that affects her "liberty interests," not the present matter.

Since this civil action does not directly involve plaintiff's personal liberty or freedom, or a liberty interest, a different analysis must be undertaken to determine whether government funded counsel may be appointed (Application of St. Luke's-Roosevelt Hosp. Center, 159 Misc 2d 932). In this regard, the court must look to and balance the private interests at stake, the government's interests, and the risk that the procedures used will lead to erroneous decisions (Application of St. Luke's-Roosevelt Hosp. Center, 159 Misc 2d 932, 607 NYS2d 574 [Sup. Ct. New York County 1993]).

In this Court's opinion, the appointment of government-funded counsel to litigate the plaintiff's private interests in recovering plaintiff's legal expenses is outweighed by the possibility of endless numbers of inmates who would also seek government funded attorneys to recover funds expended on private defense attorneys who fail to obtain acquittals, or to recover monetary damages for claims not involving any fundamental liberty interests.

Further, the court cannot require a municipality to pay the fee of any counsel assigned to plaintiff in this action, as there is neither constitutional nor statutory authority for such a direction (Jacox v Jacox, 43 AD2d 716, 350 NYS2d 435 [2d Dept 1973]). Some statutes require the appointment of counsel, at the expense of the government, in specific types of civil proceedings (see, e.g., County Law § 722, persons accused of crime or parties before the Family Court or Surrogate's Court; Fam. Ct. Act § 261, indigent persons involved in certain Family Court proceedings, facing the infringements of fundamental interests and rights; Fam. Ct. Act §262, indigent adults in Family Court proceedings, and Fam. Ct. Act §1120, "Counsel or law guardian on appeal" of proceedings in Family Court; SCPA §407, counsel for indigent adults in Surrogate's Court proceedings; Mental Hyg. Law §81.10, court must appoint counsel in certain Article 81 proceedings, but source of payment for attorney for indigent is not specified). Further, there exists statutory authority for compensating and reimbursing counsel for expenses for assignments to represent (1) persons accused of crime (County Law, art. 18-B), (2) indigents who bring on habeas corpus proceedings (Judiciary Law, s 35), Family Ct. Act, ss 245, 248, (3) as law guardians, minors in Family Court neglect and juvenile delinquency proceedings, and (4) certain parties in Family Court matters (see Family Ct. Act, ss 621, 831, 1043; Laws of 1973, ch. 615; see, also, McKinney's County Law ss 722, 722-b, private attorneys will be appointed by the court to defend indigent persons accused of crimes in the event the Legal Aid Society cannot]).

There is no authority for the Court in the instant case for legal malpractice, fraud, deceit, and breach of agreement to make such an award. And, except as set forth above, indigent civil litigants appear to have no absolute right to assigned counsel (Morgenthau v Garcia, 148 Misc 2d 900, supra , citing Matter of Smiley, 36 NY2d 433, supra ).

Nor is there any system in place in which government funded attorneys may be assigned to represent such indigent litigants in civil cases (see Morgenthau v Garcia, 148 Misc 2d 900, supra ). Thus, while the court has discretion to assign counsel under CPLR 1102, if it were to assign such counsel in this civil action, there is no method by which the court may direct the county, the state or any other agency to pay his or her fee (id). The New York Court of Appeals [*7]has recognized that the lack of a statutory scheme to provide publicly-funded counsel to indigent civil litigants may require some of them to come into court without counsel, but has balanced this against "the undue burden which may be placed on the private Bar by assignments under CPLR 1102, [which] may also become intolerable and some might say rank as a violation of the constitutional rights of lawyersúúúú" (citations omitted) Matter of Smiley, supra 36 NY2d at 441, 369 NYS2d 87 [ ], citations omitted). For this reason, the Court in Smiley found that courts should not routinely assign private counsel without compensation under CPLR 1102 except in a "proper case" (id.), which includes cases where indigent civil litigants are confronted with a grievous forfeiture or loss of a fundamental right.

This Court recognizes that attorneys admitted to the New York State Bar have a duty to provide uncompensated services for the indigent (Application of Farrell, 127 Misc 2d 350, 486 NYS2d 130 [Sup. Ct. Westchester County 1985], citing Code of Professional Responsibility, Canon 2, EC 2-25, 2-29). However, "the response to this obligation generally comes from within the Bar itself, and not by way of judicial mandate" (Morgenthau v Garcia, 148 Misc 2d 900, supra ). Although the proceeding herein might involve a large sum of money to plaintiff (or her family who paid the defendant), this risk cannot be said to be "more worthy of the assignment of uncompensated counsel than, e.g. the risks faced by indigent civil litigants in proceedings brought to discontinue public assistance payments, or the risks faced by indigent civil litigants in matrimonial proceedings" where the assignment of counsel was denied (Morganthau v Garcia, 148 Misc 2d 900, supra , citing Brown v Lavine, 37 NY2d 317, 372 NYS2d 75 [1975] and Matter of Smiley, supra ). The claims in plaintiff's civil action for the recovery of funds is neither as critical, nor does it involve such a grievous forfeiture or loss of rights as to constitute a "proper case" in which to appoint uncompensated counsel on her behalf.

Further, plaintiff's claim that her prison isolation prohibits access to both outside an prison law libraries is one pending before, and fleshed out in the proceedings purportedly pending in another court.[FN8] Therefore, the impact of her isolation is not addressed by this Court. In any event, plaintiff's claim that her isolation inhibits her ability to investigate the facts, including witnesses who may come forward with information pertinent to this case is not compelling. Unlike the facts underlying her criminal case, the facts underlying plaintiff's instant case for legal malpractice, fraud, and deceit stem from the communications between plaintiff, her family, and defendant, the work product of defendant, and other documentary evidence prepared by defendant. Furthermore, although plaintiff claims that she is denied access to the law library, plaintiff's reply papers consist of numerous citations to federal caselaw, which, in any event, is not controlling (cf. Abdulla v Gunter, 949 F2d 1032 [8th Cir. (Neb.) 1991] [determining that plaintiff was entitled to appointed counsel on his First Amendment claim where plaintiff has alleged a valid prima facie claim, the Court is satisfied that plaintiff has in good faith attempted to retain counsel and has been unsuccessful, and where the nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel]; Cooper v A. Sargenti Co., Inc., 877 F 2d 170 [2d Cir. 1989] [discussing the appointment of counsel in plaintiff's race and age employment discrimination case, which was expressly authorized by statute, 42 U.S.C. § 2000e-5 [1976]; Tucker v Dickey, 613 F Supp 1124 [DC Wis 1985][where discovery would be of [*8]substantial benefit in eliciting the facts relevant to plaintiff's civil rights action, plaintiff demonstrated an insufficient understanding of legal and procedural matters, and the legal issues involved are novel, although not extraordinarily complex]; Gatson v Coughlin, 679 F Supp 270 [WDNY 1988] [appointment of counsel to litigate prisoner's § 1983 action against prison officials warranted where he alleged that officials interfered with his mail and visitation rights and obstructed his access to legal process in that allegations may require substantial factual investigation which presumably might not be effectively conducted by prisoner and legal issues involved potential complexity]; Rayes v Johnson, 969 F 2d 700 [8th Cir (Neb.) 1992] [finding an abuse of discretion in failing to appoint substitute counsel for inmate's civil rights suit against prison officials alleging intentional injury and intentional denial of medical care; factual and legal issues were sufficiently complex, plaintiff lacked ready access to a law library, was uncertain about his right to obtain certain records, prisoner lacked legal knowledge, case also featured sharply conflicting testimony among the prison guards and medical staff involved; and the case hinged on witness credibility]).

Plaintiff allegedly retained defendant to perform specific tasks related to plaintiff's criminal appeal, which, were not performed. The critical issues underlying plaintiff's case are not novel or complex. Nor is the discovery pertaining to the issues complex or complicated. In essence, the discovery underlying plaintiff's claim consist of documents within the possession of defendant and/or plaintiff and the depositions of these two parties.

The Court also notes that plaintiff has the same options available to her as are available to other indigent civil litigants. She may request legal assistance by communicating with the Bar of this State to represent her free of charge, or request legal assistance from other voluntary or government-funded legal organizations of this State (e.g., the American Civil Liberties Union) that specifically offer their services to indigent litigants (Morganthau v Garcia, 148 Misc 2d 900, supra ; see also Jacox v Jacox, 43 AD2d 716, supra [stating that absent statutory authority for the payment of assigned counsel in matrimonial actions and the appropriation of funds to implement such authority, counsel must be provided by the Bar to represent the indigent defendants in divorce action]). Therefore, in the absence of legislative mandate, and any statutory or constitutional mandate, the Court need not "put the burden" of plaintiff's representation on the Bar by assigning uncompensated counsel (id., citing Matter of Smiley, supra ).

Thus, plaintiff's motion for an assignment of counsel, free of charge, is denied.

Sealing

Turning to the merits of plaintiff's application to seal Exhibits 3 though 9 of the Complaint, and any subsequently filed papers, it is noted that under 22 NYCRR Rule 216.1, all documents and records filed with the Court are "court records," and, presumptively open to the public. Notwithstanding, 22 NYCRR 216.1(1)(a) provides that: Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard. (Emphasis added)[*9]

Thus, to overcome the presumption of openness, plaintiff bears the burden of demonstrating that good cause exists to seal the court records (22 NYCRR Rule 216.1; see Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1, 8 [1st Dept 2000]; Coopersmith v Gold, 156 Misc 2d 594, 606 [1992]). To demonstrate "good cause," plaintiffs must establish that "compelling circumstances" exist to justify secrecy (Coopersmith v Gold, supra ; Herald Co. v Weisenberg, 59 NY2d 378, 384 [1983]). The Court's task is determining whether sealing is warranted, is to balance the interests of the public as well as of the parties.

With respect to the public's interest, under the First and Sixth Amendments, as applied to the States by the Fourteenth Amendment, the public is generally entitled to have access to court proceedings (Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1, supra ). Among the values of access in civil cases is that "the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud (Danco, supra at 7). Furthermore, the very openness of the process should provide the public "with a more complete understanding of the judicial system and a better perception of its fairness" and serves to "ensure that the proceedings are conducted efficiently, honestly and fairly" (Danco, supra at 7, citations omitted). The public interest in openness is particularly important on matters of public concern, even if the issues arise in the context of a private dispute (Danco, supra at 7, citations omitted), about which secrecy, then, may well prove the greater detriment to the public (see generally, Doggett and Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 Tex L Rev 643, 648 [1991]).

Yet, the right of the public to access, inspect and copy judicial records is not absolute or unfettered, and involves judicial discretion (John Doe 1, supra ). Moreover, access may still be respected in keeping with constitutional requirements while sensitive information is restricted in keeping with "the State's legitimate concern for the well-being" of an individual (Globe Newspaper Co. v Superior Ct., at 609).

In accordance with the presumption against the sealing of court records, plaintiff must demonstrate that the public's access to the records is likely to harm a compelling interest to plaintiff, and that no alternative to sealing can adequately protect the threatened interest (John Doe, supra ).

Plaintiff's interest in maintaining the attorney-client privilege is not without authority. Notwithstanding, the attorney-client privilege "may implicitly be waived when [a party] asserts a claim that in fairness requires examination of protected communications" (Goldberg v Hirschberg, 10 Misc 3d 292, 806 NYS2d 333 [2005], citing United States v Bilzerian, 926 F2d 1285, 1292 [2nd Cir 1991], Schulte Roth & Zabel LLP v Chammah, 251 AD2d 132, 672 NYS2d 736 [1st Dept 1998] ["defendant waived [attorney-client] privilege by placing the subject matter of his attorney's advice in issue by asserting a malpractice counterclaim"]; IMO Indus., Inc. v Anderson Kill & Olick, P.C., 192 Misc 2d 605, 609, 746 NYS2d 572 [Sup.Ct. NY Co. 2002] ["The attorney-client privilege is waived where the client places the subject matter of the communication in issue or when the invasion of the privilege is required to determine the validity of the client's claim or defense and the application of the privilege would deprive the adversary of vital information"]). To the extent that privileged matter has been put in issue by the plaintiff, such privilege is waived. This court has reviewed all of the Exhibits plaintiff seeks to have sealed and which plaintiff claims are shielded by the attorney-client privilege, and determines the following: [*10]

Complaint Exhibit 3 consists of cover letters to and from the plaintiff and the Joint Committee on Fee Disputes and Conciliation, and her 8-page statement to the Joint Committee. Plaintiff's 8-page statement to the Joint Committee on Fee Disputes and Conciliation details the terms under which plaintiff retained defendant, and refers to her intended strategy on appeal, which is pending, to wit: paragraph 12 on page "2", the second paragraph from the bottom of page 5, and the third paragraph of page 7. Exhibit 4 consists of cover letters to and from plaintiff and the Disciplinary Committee, a 10-page "complaint" which incorporates the 8-page statement to the Joint Committee with additional claims of defendant's violation of various Disciplinary Rules, and defendant's answer to the 10-page complaint. In defendant's 18-page response letter to the Disciplinary Committee, dated January 13, 2004, defendant "join[s]" in plaintiff's request that "all papers concerning this matter be sealed" given that the "information contained in these papers could have a prejudicial impact upon [plaintiff's] pending case." Exhibits 3 and 4 contain information sensitive to plaintiff's criminal matter, which is pending on appeal, and defendant acknowledged that the 10-page complaint, which incorporates the 8-page statement, could have a prejudicial effect on defendant's criminal matter. Further, notwithstanding the allegation that plaintiff has perfected her appeal, until there is a final determination on the appellate issues, information concerning plaintiff's strategy should be protected. Therefore, the following documents shall be sealed: the 8-page statement in Exhibit 3 by "C. Warmus"; plaintiff's 10-page complaint and defendant's January 13, 2005 18-page response letter in Exhibits 4. All other documents in Exhibits 3 and 4 shall not be sealed.

Exhibit 5 consists of a 7-page Memorandum from Mike Morganroth to defendant, dated April 12, 2000. This Memorandum details the issues on appeal. Additionally, two letters from defendant to plaintiff, dated March 4, 1996 and January 31, 2000, contain results of a further investigation by defendant on plaintiff's criminal matter and possible defenses available to plaintiff. Since both letters may affect plaintiff's criminal appeal, it shall not be disclosed to the public. Exhibit 5 also consists of a letter from defendant to plaintiff, dated October 17, 2001, which indicates plaintiff's strategy concerning the § 440 motion and appeal. The balance of Exhibit 5 consists of a cover letter from the Disciplinary Committee to plaintiff, plaintiff's "diary notations," a letter by defendant dated August 1, 1996, a decision by the Second Circuit Court of Appeals, numerous letters between plaintiff and defendant concerning defendant's handling of the appeal and plaintiff's "incarceration" issues, an unsigned retainer agreement for expert services from defendant to Peter Vallas Associates Inc., cover letters from defendant to plaintiff and the District Attorney's office, a program schedule, defendant's letters to the Second Department Appellate Division, and letters by defendant documenting the work she performed for plaintiff, which are all at issue in the instant case or have no bearing on plaintiff's criminal appeal. Therefore, the following documents in Exhibit 5 to the Complaint shall be sealed: the 7-page Memorandum from Mike Morganroth to defendant, dated April 12, 2000; a letter from defendant to plaintiff, dated March 4, 1996; defendant's October 17, 2001 letter to plaintiff with six handwritten notations; a letter from defendant to plaintiff, January 31, 2000; and defendant's October 17, 2001 letter to plaintiff with four handwritten notations. All other documents in Exhibit 5 shall not be sealed.

Exhibit 6 consists of, inter alia, (1) plaintiff's 59-page reply to defendant's answer to plaintiff's complaint to the Disciplinary Committee with plaintiff's cover letter dated March 16, 2004; (2) plaintiff's 5-page interview of defendant, dated June 28, 1994, which contains [*11]plaintiff's strategy of the criminal appeal; (3) plaintiff's 3-page handwritten letter dated April 19, 2003; (4) plaintiff's 2-page handwritten list of "appeal issues" labeled as "Exhibit #

5"; (5) plaintiff's 8-page typed-written list, dated January 28, 1995, of issues for appeal; (6) plaintiff's May 1, 2000 letter (labeled "Exhibit #

12"); (7) plaintiff's January 20, 200 1-page letter to Mr. Malone, (8) handwritten letter "Exhibit #

11," (9) plaintiff's 7-page handwritten letter regarding legal fees and media payments, (10) plaintiff's handwritten letter dated July 21, 2000; (11) December 22, 2000 letter from Peter R. Cherneff to plaintiff; (12) plaintiff's typed-written letter to defendant, dated February 24, 2001, concerning appeal strategies; (13) Peter R. Cherneff's May 24, 2001 letter to Laura A. Brevetti, Esq. concerning his legal opinion of communications with plaintiff; (14) June 16, 2001 letter from Ronald L. Kuby, Esq. to defendant; (15) June 17, 2001 letter from plaintiff to David Breitbarb, Esq.; (16) August 1, 2001 handwritten letter 5-page letter from plaintiff to defendant; (17) November 29, 2001 2-page letter from plaintiff to defendant; (18) April 9, 2002 letter from Anthony R. Dellicarri to plaintiff; (19) January 14, 2003 5-page handwritten letter from plaintiff to several persons; (20) January 14, 2003 letter from "Peter" to plaintiff; and (21) February 1, 2003 9-page handwritten "Overview" by plaintiff. Such documents contain information concerning plaintiff's appeal strategy or her criminal matter, and attorney-client communications with counsel other than defendant. Accordingly, such documents shall be sealed. All other documents in Exhibit 6 shall not be sealed.

Exhibits 7 and 8 consist entirely of supplemental information presented by plaintiff to the Disciplinary Committee and correspondence between plaintiff and the Disciplinary Committee regarding the DDC's determination. Therefore, Exhibits 8 and 9 shall be sealed in their entirety.

Exhibit 9 consists of, inter alia, (1) a May 5, 2003 letter from Barry M. Fallick to other counsel and (2) correspondence between the plaintiff and the Disciplinary Committee, dated May 31, 2004, November 30, 2004, and June 27, 2005. Such documents shall be sealed. The balance of the documents in Exhibit 9 do not pertain to legal strategy on appeal, or privileged attorney-client communications.[FN9]

Based on the foregoing, it is hereby

ORDERED that the branch of plaintiff's order to show cause for an order assigning counsel to help her litigate this action against the defendant, free of charge, is denied; and it is further

ORDERED that the branch of plaintiff's order to show cause seeking an order sealing complaint Exhibits 3, 4, 5, 6, 7, 8, and 9 from the public is granted in accordance with the above; and it is further

ORDERED that plaintiff shall serve her reply to defendant's Answer and counterclaim within 60 days of receipt of this order with notice of entry; and it is further

ORDERED that the branch of plaintiff's motion seeking to seal any other material subsequently filed in this matter is denied as premature, without prejudice to renew; and it is further

ORDERED that the parties shall appear for a preliminary conference on October 2, 2006, [*12]2:15 p.m., 60 Centre Street, New York, New York, Part 35; and it is further

ORDERED that defendant serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: July 18, 2006_____________________________________

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1: The Court wishes to thank the 2006 summer interns Tara West of New York University School of Law and Yoori Oh of Benjamin N. Cardozo School of Law, who worked tirelessly on this decision.

Footnote 2: The submissions indicate that the first trial ended in a mistrial due to a hung jury. After the second trial, plaintiff was convicted on June 26, 1992 of murder in the second degree, in violation of NY Penal Law § 125.25, and criminal possession of a weapon in the second degree, in violation of NY Penal Law § 265.03. She was sentenced on June 27, 1992 to concurrent terms of imprisonment for 25 years to life for the murder conviction and 5 to 15 years for the weapon conviction (see Warmus v. Lord, 172 F 3d 39 [2d Cir. 1999]). CPL § 440 provides grounds for which the Court may vacate the judgment of conviction.

Footnote 3: Plaintiff claims that her motion is brought by order to show to cause in order to recover the legal fees she paid to the defendant, totaling approximately $80,000.00, to pay her current appellate attorney and timely file a CPL §440 motion. Yet, according to plaintiff's complaint and Exhibit 10 thereto, because plaintiff was indigent, her relatives and friends made the payments to defendant on plaintiff's behalf.

Footnote 4: Complaint Exhibit 3 consists of plaintiff's complaint to the Joint Committee on Fee Disputes and Conciliation; Exhibit 4 consists of plaintiff's complaint to the Departmental Disciplinary Committee (DDC) of the First Department; Exhibit 5 consists of defendant's answer to plaintiff's complaint to the DDC; Exhibit 6 consists of plaintiff's reply to defendant's answer to plaintiff's complaint to the DDC; Exhibit 7 consists of a supplemental information presented by plaintiff to the DDC; Exhibit 8 consists of correspondence between plaintiff and the DDC regarding jurisdiction of the complaint concerning the DDC's conclusion that the complaint was essentially a "fee dispute"; and Exhibit 9 consists of correspondence between the plaintiff and the DDC, with supplemental Footnote 4 cont'd. information provided to the DDC by plaintiff.

Footnote 5: By letter to the Court dated June 15, 2006, plaintiff also seeks an extension of time to reply to defendant's Answer and Counterclaim until after she is appointed an attorney or given further direction from the Court as to how to proceed and reply. In response, defendant urges the Court to disregard plaintiff's letter as an improper communication to the Court, and states that she will refute the allegations therein in future proceedings. In reply, plaintiff asserts that her June 15, 2006 letter was sent to defendant and therefore, not an improper ex parte communication and that she has been appointed counsel in all of her pro se actions in the Westchester County Court, Appellate Division, Second Department, and the US District Court, Southern District.

Footnote 6: There is no indication in the record that the Corporation Counsel had notice of plaintiff's instant application.

Footnote 7: Defendant does not oppose plaintiff's application to pursue this action as a poor person.

Footnote 8: The record does not disclose the Court in which plaintiff's federal §1983 action is pending.

Footnote 9: The Court does not rest its sealing decision on plaintiff's argument that sealing is for the defendant's benefit in light of the fact that defendant is opposed to sealing. Exhibit 1 also contains plaintiff's strategy for the § 440 motion and appeal, and shall also be sealed.