Matter of Gordon

[*1] Matter of Gordon 2007 NY Slip Op 52395(U) [18 Misc 3d 1103(A)] Decided on December 14, 2007 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 24, 2007; it will not be published in the printed Official Reports.

Decided on December 14, 2007
Surrogate's Court, Nassau County

In the Matter of Probate Proceeding, Will of Hannah Gordon, Deceased.



320533



Michael K. Feigenbaum, Esq.

Ruskin, Moscou, Evans & Faltischek, P.C.(For petitioner, Eleanore Gordon Bass)

1425 Rex Corp Plaza, East Tower, 15th Floor

Uniondale, NY 11556

Leonard Leeds, Esq.

Leeds, Morelli & Brown, P.C.(For distributee, Lawrence Gordon)

One Old Country Rd., Suite 347

Carle Place, NY 11514

Stephen B. Hand, Esq.

Jaspan, Schlesinger, Hoffman, LLP (For objectants, Jon Gordon & Laura Gordon)

300 Garden City Plaza

Garden City, NY 11530

Steven P. Lerner, Esq.

Kassoff, Robert & Lerner, LLP(For distributee, Mabel Brodell and Michael

100 Merrick Rd., Suite 508WBrodell)

Rockville Centre, NY 11570

Richard A. Gould, Esq.

199 Main Street(For distributee, Mabel Brodell) White Plains, NY 10601

John Barnosky, Esq.

Farrell Fritz, PC(For beneficiaries, Jeffrey Bass and Paul Bass)

1320 Rex Corp. Plaza, West Tower

Uniondale, NY 11556

John B. Riordan, J.

This is a motion to disqualify petitioner's counsel in this contested probate proceeding based on the Code of Professional Responsibility Canon 9, DR 9-101 (22 NYCRR 1200.45), DR1-102 (22 NYCRR 1200.4) and Public Officers Law §73(8).

Petitioner is currently represented by the firm of Ruskin, Moscou, Falticheck, P.C. Peter Kelly, who is presently employed by the firm was, until recently, employed as a Court Attorney-Referee in this court. The movant alleges that as a Court Attorney-Referee he had access to information "regarding this very case which is currently before the Nassau County Surrogate's Court."

The provisions of Public Officers Law §73(8) restrict practice before State administrative agencies by former executive branch employees (Forti v NY State Ethics Commission, 75 NY2d 596 [1990]["Public Officers Law §73(8) was intended to apply to former executive branch employees" [at p. 611]; "The limited restrictions on plaintiff's right to practice before State administrative agencies do not constitute violations of their due process" [at p. 617]).

"Public Officers Law 73(8) is not directed specifically at admitted attorneys, but rather is aimed at all former executive branch employees" (Forti at 615) . On the other hand, DR9-101 of the Code of Professional Responsibility is directed specifically at attorneys (Forti at 611). DR9-101 provides in part: "A lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee."

The meaning of "participated personally and substantially" has received an interpretation in DR9-101's former version where the language "substantial responsibility" was employed. NY State Bar Assoc. Comm. on Professional Ethics, Opinion 502, quoting American Bar Association Opinion 342, defines the phrase "substantial responsibility" as follows:

"substantial responsibility" envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question . . . . it is not necessary that the public employee or official shall have personally and in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally substantially involved in the investigative or deliberative processes regarding that matter . . .". [*2]

Since the court may take judicial notice of its own records, a list of the dates on which this proceeding has appeared on the calendar of the court has been compiled together with the matters addressed and the court personnel involved. While there are references to a member of the Law Department, of which there are a number, holding conferences, in no instance is there any mention of Mr. Kelly. In addition, normally only the Court Attorney originally assigned to a case and familiar with the matter will continue to follow it until its termination and the shear number of matters handled makes it virtually impossible for any one Court Attorney to be familiar with all of the pending cases. Moreover, while objectant's counsel obviously has intimate knowledge of all the various proceedings taken in this matter, his affidavit is bereft of any assertion that Mr. Kelly "participated personally and substantially" in this proceeding. The motion is therefore denied.

This is the decision and order of the court.

Dated: December 14, 2007

John B. Riordan

Judge of the

Surrogate's Court

Uniondale, NY 11556