Lee v Cintron

[*1] Lee v Cintron 2009 NY Slip Op 52023(U) [25 Misc 3d 1210(A)] Decided on October 6, 2009 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2009
Supreme Court, Queens County

Bonnie Lee, Plaintiff

against

Jose Miguel Cintron, Defendant.



59992008



For the Plaintiff: Morgan Lewis & Bockius, by Martha B. Stolley, Kevin T. Rover, and Ryan Cooper, Esqs., 101 Park Avenue, NY, NY 10178

For the Defendant: Heidi J. Henle, PLLC, 42-40 Bell Blvd., suite 301, Bayside, NY11361

Charles J. Markey, J.

Upon the foregoing papers it is ordered that the motions and cross motion are determined as follows:

This is an action to recover damages on claims of assault, battery, intentional infliction of emotional distress, and gender-motivated violence in violation of Administrative Code of the City of New York § 8-904. On March 6, 2008, plaintiff commenced the within action by filing a summons and complaint. On March 13, 2008, service was effected upon defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at defendant's place of residence. Defendant failed to timely appear in the action and, on March 11, 2009, plaintiff made the subject motion to obtain a default judgment against defendant. On March 27, 2009, defendant retained Heidi J. Henle, Esq. to represent him in the present litigation. On May 28, 2009, plaintiff informed her counsel that, in April 2007, she previously met with Ms. Henle seeking an attorney to represent her in a custody and support case concerning the child she has in common with defendant. Although plaintiff received a contract for representation in the Family Court matter, plaintiff did not formally retain Ms. Henle and obtained other representation. On June 25, 2009, plaintiff promptly moved to disqualify Ms. Henle as defendant's counsel in this action.

Plaintiff's motion to disqualify Ms. Henle from representing defendant in the present litigation due to a conflict of interest should be granted. Disqualification of an attorney is a matter which rests within the sound discretion of the court (see Aryeh v Aryeh, 14 AD3d 634 [2005]). A party's entitlement to be represented by counsel of his or her own [*2]choosing is a valued right which should not be abridged absent a clear showing by the movant that disqualification is warranted (see Horn v Municipal Info. Servs., 282 AD2d 712 [2001]). When faced with a disqualification motion, the court's function is to take such action as is necessary to insure the proper representation of the parties and fairness in the conduct of the litigation (see Solomon v New York Prop. Ins. Underwriting Assn., 118 AD2d 695 [1986]). Moreover, any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification (see Sirianni v Tomlinson, 133 AD2d 391 [1987]). An attorney must avoid not only the fact but also the appearance of representing conflicting interests (see Sellouk v USAA, 166 AD2d 641 [1990]).

Initially, this court finds that the Rules of Professional Conduct, which took effect on April 1, 2009, do not apply to this case because the present disqualification issue arose before that effective date, when Ms. Henle met with plaintiff in April 2007 and was later hired by defendant on March 27, 2009. Instead, the Code of Professional Responsibility is applicable here and, thus, plaintiff's reliance on Rule 1.18 of the Rules of Professional Conduct, which relates to the duty owed to prospective clients, is misplaced.

In support of her motion, plaintiff submitted an affidavit, in which she stated that, as a prospective client in a prior custody and support matter concerning the child she has in common with defendant, she disclosed to Ms. Henle during the preliminary consultation information regarding her relationship with defendant and the abuse she experienced throughout that relationship. Although no formal attorney-client relationship resulted, it is well-established that the fiduciary relationship existing between attorney and client extends to a preliminary consultation by a prospective client with a view toward retention of the attorney, even where actual employment does not arise (see Burton v Burton, 139 AD2d 554 [1988]; Seeley v Seeley, 129 AD2d 625 [1987]; Code of Professional Responsibility EC 4-1). Moreover, the disclosures made during the preliminary consultation bear a substantial relation to the issues presented at bar (see Leisman v Leisman, 208 AD2d 688 [1994]). While the ultimate issues are not identical, both the prior child custody and support action, for which plaintiff originally sought legal services from Ms. Henle, and the present litigation involve, at their core, the nature of the relationship between plaintiff and defendant. Although the parties dispute what was actually disclosed during the preliminary consultation and Ms. Henle denies any recollection that confidential secrets had been revealed to her, plaintiff has alleged the disclosure of the type of information that could, even inadvertently, provide a strategic advantage to defendant in this case (see Rose Ocko Foundation, Inc. v Liebovitz, 155 AD2d 426 [1989]). It is also reasonable to infer that, during the course of the preliminary consultation, Ms. Henle obtained confidential or strategically valuable information about the parties' allegedly abusive relationship (see Burton, 139 AD2d at 555, I Heng Ngan v Wei Su, 13 Misc 3d 1229(A), 2006 NY Slip Op 52049(U) [Sup Ct, Queens County 2006]). In light of the similarity of issues and considering the settled principle that any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (see Seeley, 129 AD2d at 626), the prudent action under the circumstances is to disqualify Ms. Henle from further representation of defendant in this action. [*3]

Accordingly, plaintiff's motion to disqualify Ms. Henle is granted. In accordance with CPLR 321(c), the action is stayed for a period of 30 days from the date of personal service of a copy of this order with notice of entry on defendant to permit the retention of another attorney. In addition, plaintiff's motion to obtain a default judgment and defendant's cross motion to vacate the default are denied without prejudice to renewal following the expiration of the stay period.

Dated: October 6, 2009

Hon. Charles J. Markey

J.S.C.

APPEARANCES: