People v Barbara
Annotate this CaseDecided on August 13, 2013
District Court of Nassau County, First District
The People of the State of New York, Plaintiff(s),
against
Dominic Barbara, Defendant(s).
2012NA020220
Kathleen M. Rice, District Attorney
Nassau County
Attorney for People
262 Old Country Road
Mineola, New York 11501
516-571-3800
Barket, Marion, Epstein & Kearon, LLP
Attorneys for Defendant
666 Old Country Road
Garden City, New York 11530
516-745-1500
Helen Voutsinas, J.
The People, by Assistant District Attorney Theresa Tebbett, move for an Order disqualifying the law firm of Barket, Marion, Epstein and Kearon LLP, (hereinafter "the law firm"). Specifically, the People seek to disqualify Aida Leisenring from representing [*2]the defendant, Dominic Barbara, pursuant to the New York Rules of Professional Conduct. (22NYCRR 1200) The defendant opposes the motion.
Background
The defendant was arrested on September 5, 2012, and charged with one (1) count of Criminal Contempt in the Second Degree in violation of Penal Law§ 215.50(3). The defendant was arraigned on September 6, 2012 and the matter was adjourned to the Domestic Violence Misdemeanor Part (hereinafter "DVM").
The defendant appeared on October 3, 2012, without an attorney, announced that he was ready for trial, and the case was adjourned to October 29, 2012 for trial. On October 29, 2012, the case was administratively adjourned to October 31, 2012, due to Hurricane Sandy. On October 31, 2012, neither the defendant, nor counsel on his behalf appeared, and the case was adjourned to November 19, 2012. On November 19, 2012, the defendant again failed to appear and the case was adjourned to December 12, 2012.
On December 4, 2012, the defendant was arrested and charged with two (2) counts of Aggravated Harassment in the Second Degree in violation of Penal Law § 240.30 (1), and one (1) count each of Stalking in the Fourth Degree in violation of Penal Law § 120.45(2), Stalking in the Fourth Degree in violation of Penal Law § 120.45(3), and Attempted Grand Larceny in the Fourth Degree, by extortion, in violation of Penal Law §110/155.30(6), under Index Nos. 2012NA027200, 2012NA027201 and 2012NA027202. The defendant is alleged to have threatened and to expose details of the complainant's sexual relationships and to disclose explicit compromising photos if she didn't pay him. The case on these new charges was adjourned to December 12, 2012. The defendant then failed to appear, and a bench warrant was issued. The bench warrant was executed, and the defendant was arrested and brought before this Court on December 15, 2012.
Thereafter, the case was adjourned on numerous occasions for the defendant to retain counsel. On March 6, 2013, defense counsel Aida Ferrer Leisenring, an associate with the law firm of Barket, Marion, Epstein & Kearon, LLP, appeared on behalf of the defendant.The People now make this motion to disqualify the law firm and its associates.
The People's Position
The People allege that the law firm must be disqualified from representing the defendant because: 1) the complainant in the instant case had an attorney-client relationship with Bruce Barket, a partner in the same law firm in which Aida Leisenring is an associate; 2) the relationship is both materially adverse and substantially related to the instant case, creating a clear conflict of interest; and 3) the complainant has refused to provide the consent necessary to allow Mr. Barket's firm to represent the defendant.
The People further allege that the law firm must be disqualified because the Honorable Elaine Jackson Stack, who formerly presided over the family offense petition [*3]filed by the complainant in Family Court, is now counsel to the firm.
In support of their motion, the People submit an affidavit from Leslie F. Barbara, the complainant. In her affidavit, Ms. Barbara states that in July of 2012, she called Mr. Barket, seeking advice with regard to the defendant's alleged actions commencing in March 2012. She inquired as to whether crimes were being committed against her, whether she should seek to have the defendant prosecuted, and also sought general advice on how to handle the matter. Ms. Barbara states that she had numerous conversations with Mr. Barket and the relationship with him continued for months as the defendant's actions continued. Ms. Barbara alleges that she provided Mr. Barket with personal and confidential details of her relationship with the defendant. She states that in addition to the phone calls with Mr. Barket, she met with him at his law firm, wherein Mr. Barket contacted the District Attorney on her behalf. Ms. Barbara provided Mr. Barket with a booklet containing alleged confidential information. In September 2012, upon advice of counsel Mr. Barket, Ms. Barbara filed a complaint with the District Attorney Offices which commenced an investigation of the defendant.Communications between Ms. Barbara and Mr. Barket continued until December 2012. She alleges that she never signed a retainer with Mr. Barket, and when she offered compensation for his services, he declined. She also maintains that she did not consent to Mr. Barket's representation of the defendant. Ms. Barbara asserts that she disclosed facts to Mr. Barket that she did not disclose to anyone else. In her affidavit, she states they also discussed other remedies, including seeking an Order of Protection from Family Court. Ms. Barbara states that Mr. Barket contacted her on March 5, 2013, seeking her consent to represent the defendant, and she refused.
Defendant's Position
Defense counsel contends in opposition, that: 1) no substantive or de facto attorney-client relationship ever existed between Mr. Barket and the complainant; 2) the plaintiff's analysis for disqualification is misapplied; 3) Ms. Barbara has waived any privilege by contacting the District Attorney's Office; 4) Judge Stack had only minimal and no substantive past involvement in the Family Court case; and 5) a "conflict wall" has been formed such that Ms. Leisenring has had no communication with Mr. Barket or Judge Stack regarding any communications between Mr. Barket and the complainant.In support, defense counsel submits the affidavits of Bruce Barket, Dominic Barbara, Aida Leisenring and Elaine Jackson Stack.Defense counsel further submits a supplemental affirmation from Kenneth Gartner as a hired expert.
Mr. Barket alleges in his affidavit that the complainant was referred by a friend, who is a private investigator. Mr. Barket states that when the complainant first called, he told her that as a potential witness or complainant she did not need a lawyer. He further states that he told her he would not represent her against the defendant because he had known the defendant for twenty years. According to Mr. Barket, the complainant had requested that he contact the defendant. However, Mr. Barket refused , stating that he [*4]had not spoken to the defendant in several years and would feel uncomfortable contacting him.
It is uncontested that Mr. Barket and the complainant continued to have conversations regarding the instant case. However, Mr. Barket states that on two other occasions, both on the phone and in his office, he affirmatively told the complainant that he would not act as her attorney.
Mr. Barket asserts that nothing stated to him by the complainant was of a confidential nature, but rather matters of public record. He states that he contacted the District Attorney's office as a favor to the complainant, and his willingness to get involved was born solely out of concern for the defendant. Mr. Barket concedes that on March 5, 2013 he sought the complainant's consent to represent the defendant. He states, however, that his request was solely a tactical move "in order to avoid open hostility."
Facts
Beginning in July 2012, and continuing through December 2012, the complainant and Bruce Barket, a partner at the law firm had numerous conversations regarding alleged phone calls from the defendant to the complainant commencing from March 2012 through September 2012.
The complainant met with Mr. Barket in his office to discuss her remedies, including contacting the District Attorney's Office. Thereafter, Mr. Barket did in fact contact, the District Attorney's Office on behalf of the complainant regarding the allegations in this case. The complainant met with the District Attorney's Office, an investigation was commenced, and the defendant was arrested. Mr. Barket and Ms. Barbara spoke thereafter. It is evident that the complainant contacted Mr. Barket every time the defendant attempted to contact her, her friends or her workplace.
In September of 2012, the complainant obtained an order of protection in Family Court, from Judge Stack, who is of counsel to the law firm. The allegations in Family Court were based on the same allegations before this Court.
On March 5, 2013, Mr. Barket contacted the complainant to advise her that his law firm was representing the defendant. He contacted the complainant to request her consent to represent the defendant. On the same date, via letter, the complainant responded by stating that she objected to any representation of the defendant by Mr. Barket or his firm.The complainant never consented to the law firm representing the defendant.
Aida Leisenring joined the firm on October 1, 2012. Ms. Leisenring has never personally spoken with the complainant nor represented her. Neither Mr. Barket nor Ms. Leisenring have spoken with Judge Stack regarding this case.
The complainant contacted Mr. Barket regarding the same allegations for which the defendant is now charged. Although Mr. Barket has known the defendant since before the alleged incidents, he had never represented Mr. Barbara in any prior matter.
Analysis
The burden of establishing the existence of the attorney-client privilege rests with [*5]the party asserting it, and requires a showing that the party claiming client status took affirmative action to contact the attorney for the purpose of obtaining legal advice. Matter of Priest v. Hennessy, 51 NY2d 62 (1980). In order to assert the privilege, one is required, in accordance with CPLR §4503, to establish the following to the Court's satisfaction that: 1) the complainant contacted Mr. Barket in his capacity as an attorney for the purpose of obtaining legal advice or services; 2) that the information sought to be protected from disclosure a "confidential communication" made to the attorney was for the purpose of obtaining legal advice or services; 3) that the client did not waive the privilege. The defendant argues that the People have failed to meet their burden. That assertion, however, must be viewed in the context of New York Professional Conduct Rules 1.6, 1.7, 1.8, 1.9 and 1.18 (22 NYCRR 1200).
Initially this Court must determine whether an attorney-client relationship exists between the Mr. Barket and Ms. Barbara. In doing so, the court must consider the following analysis, which is subjective. First, this Court must ascertain whether the complainant contacted the law firm for the purpose of obtaining legal advice or services. Prior to the complainant contacting Mr. Barket the parties were not known to each other. The complainant was a referral to Mr. Barket from a private investigator. The complainant contacted Mr. Barket in July 2012 and disclosed confidential details of her case.The Court finds that the complainant did initiate contact by actively seeking to obtain legal advice from Mr. Barket. Moreover, unlike a prospective client who seeks initial advice, in the instant case, Mr. Barket continued communications with the complainant for at least six (6)months. The complainant believed that Mr. Barket was providing her advice in the context of an attorney-client relationship. Mr. Barket states that he did not represent the complainant; however, it is apparent to the Court that his actions indicated otherwise.
Mr. Barket continued to communicate with the complainant; he acted on her behalf by contacting the District Attorney's Office, and he accepted the complainant's notebook, containing facts of a confidential nature with respect to this case. These actions continued for six (6) months. Most compelling in support of an attorney-client relationship, is Mr. Barket's request of the complainant that she waive any conflict of interest. These actions, in totality, created an attorney-client relationship. Ms. Barbara reasonably believed herself to be a client, and the Code of Professional Responsibility Rule 1.6 supports this conclusion. This Court specifically rejects Mr. Barket's argument that the complainant was a prospective client pursuant to Rule 1.7, in that since he wasn't retained or paid, a relationship didn't exist. The mere "payment of legal fees by a third party [does not] in and of itself, create an attorney-client relationship." Matter of Priest v Hennessey, 51 NY2d 62 (1980). Clearly, Mr. Barket's actions were that of counsel; therefore, Rule 1.7 is inapplicable in the case at bar.
Furthermore, this Court finds the defense counsel's reliance on Pellegrino v. Oppenheimer & Co., Inc. 49 AD3d 94 (1st. Dept. 2008) unpersuasive. Pellegrino is [*6]distinguishable from the case at bar as it involved co- employees as in-house counsel to a corporation. The parties seeking the attorney-client privilege were "venting" about their emotional states and effect on litigation, rather than seeking legal advice which was neither requested nor provided.
Second, this Court finds that the complainant's communications were made in the course of the representation. Confidential information is defined under Rule 1.6 of the Code of Professional Responsibility as, information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. In reviewing the complainant's affidavit, it is obvious that there is certain information that the complainant would like kept confidential.
The allegations in this case involve extortionmoney for privacy of information which the complainant had only divulged to Mr. Barket in a Domestic Violence case. The complainant expressly stated her concerns about information she wanted to remain confidential. Mr. Barket is correct, that where a person discloses attorney-client communications to a third party the privilege is destroyed in toto. Cavallaro v United States, 284 F3d 236. However, this Court finds that rule inapplicable in the instant case. To permit such a waiver would create an adverse ripple effect in all Domestic Violence cases by allowing broad subject matter waivers to be implied every time a complainant speaks to the District Attorney's Office. Such a policy is dangerous and contrary to the very foundation, formation and purpose of the Domestic Violence Courts. Such a determination would also leave the complainant without protection after speaking with private counsel. Victims of Domestic Violence cases often seek counsel prior to making a formal complaint with the District Attorney's Office, and instituting such an automatic waiver would create a chilling effect in all Domestic Violence cases.
Morever, in analyzing the law, it is the communication with the attorney which is protected, and which the complainant seeks to protect, not the facts of the underlying case. People v Robinson, 168 Misc 2d 466 (NY Sup. 1990). Waiver does not occur merely because the client testifies about the same facts which she discussed with counsel. The Court of Appeals rejected the notion that a witness protected by immunity or a cooperator waived their attorney-client privilege by speaking to the government in People v Lynch, 23 NY2d 262, 271 (1968) holding: "Testimony about an event... should not be construed as a waiver of the privilege, merely because the subject matter of the testimony may also have been discussed in the privileged communication."
The complainant alleges that she discussed with Mr. Barket "things of a personal nature" relating to the underlying charges in this case. She explains that the information should have been kept confidential as it contained private information that would only be used by Mr. Barket and was not of public record. The complainant alleges some of those communications are in a book, which remains in Mr. Barket's possession. The attorney-[*7]client privilege exists to ensure that the one seeking legal advice will be able to confide freely with her attorney, and safe in the knowledge that it will not be exposed to public view to her embarrassment. This Court rejects the argument that the complainant waived the privilege. It is the underlying facts of the pending charges which the complainant continues to maintain as confidential. Accordingly, this Court finds that the parties maintained an attorney-client relationship. The Court must now consider the public policy considerations. The Sixth Amendment to the United States Constitution
guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ...to have the Assistance of Counsel for his defense." While the Sixth Amendment encompasses a defendant's right to be represented by the lawyer of his choice, the objective of the Sixth Amendment's right to counsel is to ensure an effective advocate for all criminal defendants. Wheat v. United States, 486 US 153 (1988). Thus, a defendant's right to the lawyer of his choice is not absolute, and the court is not required to accept a defendant's waiver of his lawyer's conflict of interest.United States v. Arrington, 867 F.2d 122 (2d Cir. 1989)
A conflict of interest exists where defendant's attorney represents a star prosecution witness, even if the representation was on an unrelated charge. People v Harris, 99 NY2d 202 (2002); People v. Mattison, 67 NY2d 462 (1986); People v. Lombardo, 61 NY2d 97 (1984); People v. Wilkins, 28 NY2d 53 (1971).
A trial court "confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant separate counsel." Wheat v United States, 486 U.S. 153, 161 (1988). The trial court has "an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Id. If the trial court "justifiably finds an actual conflict of interest, there can be no doubt that it may decline [a defendant's] proffer of waiver, and insist that defendants be separately represented." Id at 162.
The question of a conflict of interest is very hard to predict. Therefore, the Supreme Court held that a trial court "must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses". Id at 163.
The trial court in Wheat v United States, 486 U.S 153 (1998) held that the key to the lawyer's disqualification was that his representation would have made him "unable ethically" to provide the cross-examination necessary to a competently represent all of his clients. Although a trial court "must recognize a presumption in favor of [a defendant's] counsel of choice...that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." (Id.)
This Court finds that the potential testimony of the defendant and the complainant [*8]are substantial and materially adverse to each other. A clear conflict exists which this Court must address to protect the interests of both, despite the defendant's waiver. People v Hall, 46 NY2d 873 (1979); People v Gordon 272 AD2d 133 (1st Dept 2000); People v Fairman 35 Misc 3d 1243(A) (2012). The analysis is supported by the facts of this case, particularly in light of Rule 1.9 of the New York Rules of Professional Conduct.
Conclusion
This Court recognizes its responsibility to carefully weigh the constitutional and ethical issues which impact defendant's right to counsel of his choosing and the complainant's right to counsel who is free of any conflicting interests or loyalties.
Despite Mr. Barket's assertion that he did not represent the complainant, his actions establish otherwise, and Ms. Barbara reasonably believed that an attorney-client relationship existed. In the course of that relationship, she conveyed confidential communications to him in furtherance of her complaint against the defendant. Based on the totality of the circumstances, the Court finds these confidential communications are privileged and, the privilege not having been waived by the complainant remains in effect and bars Mr. Barket's representation of the defendant. Such representation is not in the best interests of either the defendant or the complainant. Therefore, pursuant to New York Professional Conduct Rules 1.6, 1.9 and 1.10, Mr. Barket, his law firm and Aida Leisenring, as an associate of the firm are disqualified from representing the defendant.
Accordingly, the People's motion is granted, and defendant is directed to appear with new counsel on September 12, 2013.
So ordered.
Hon. Helen Voutsinas
District Court Judge
Dated: August 13, 2013
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