Lawyer and Judge Shopping, and the Matrimonial Bar

Failure to show that relevant confidential information was actually obtained during the course of the earlier representation or to demonstrate that allowing the continued representation of the new client would create the appearance of impropriety warrants denial of the application. Dillon v. Valco American Corp., 14 AD3d 589 (2d Dept. 2005). Inasmuch as full disclosure is mandated in an action for divorce, it is often difficult to determine what, if any, financial information may be claimed to be confidential or secret, which would permit disqualification. Bongiasca v. Bongiasca, 254 AD2d 217 (1st Dept.1998); Messina v. Messina, 175 AD2d 866 (2d Dept. 1991).

In Grunstein v. Grunstein, 201 AD2d 621 (2nd Dept 1994), however, the defendant moved to disqualify the plaintiff's law firm on the ground that members of that firm had previously represented him in a criminal matter. The plaintiff did not dispute the prior representation, but argued that disqualification was not required because no confidences had been breached. The court found:

An attorney is prohibited from representing a party in a lawsuit when an opposing party is the lawyer's former client (see Greene v. Greene, 47 NY2d 447). This prohibition is imputed to current and former members of the same firm (see Cardinale v. Golinello, 43 NY2d 288) and has been applied to those instances in which an attorney who represented one spouse in a prior criminal action and represents interests adverse to those of his former client in a subsequent matrimonial action (see Watson v. Watson, 171 Misc. 175; see also, Forbush v. Forbush, 107 AD2d 375; Code of Professional Responsibility DR 5-108 (22 NYCRR 1200.27)).

In I. Heng Ngan v Su, 13 Misc3d 1229 (Sup Ct, Queens Cty. 2006), the court, in disqualifying counsel and citing to Burton v. Burton, 39 AD2d 554 (2d Dept 1988), held that a one hour and 20-minute consultation was sufficient to disqualify the firm from later representing the adverse spouse. The court stated, “[D]efendant here claims that he discussed all of the relevant issues surrounding his pending matrimonial action including the parties' employment, education, property, their marriage, defendant's expectation of the action's result, as well as possible legal strategy.” The Burton court went on to say, “Given the unusual nature of matrimonial practice, it is often necessary for a party to provide this type of sensitive and confidential information to a prospective attorney before the two agree on representation and a retainer agreement is executed. To compel the defendant in this action to allege with specificity the actual confidential matters discussed with Wong, Wong & Associates would not only vitiate the protection provided by the attorney-client relationship but would require the disclosure of the very confidential, personal matters sought to be protected. Accordingly, the court finds that defendant has alleged a sufficient factual predicate to support his application.”

Lastly, and perhaps most significantly, the Burton court specifically held that “it makes no difference that the defendant did not formally retain [the attorney with whom he spoke].” Id. at 555, 54; see also Desbiens v. Ford Motor Co., 81 AD2d 707 (3d Dept 1981) (plaintiff entitled to “freedom from apprehension” from defendant's retention of law firm that had previously examined plaintiff's file but was never retained); Kaufman v. Kaufman, 63 AD2d 609 (1st Dept 1978) (disqualified attorney representing defendant was personal friend of plaintiff, to whom “he imparted all the facts and circumstances surrounding his financial and matrimonial problems”). In light of the foregoing, the consultation in question established, at a minimum, a relationship between defendant and Wong, Wong & Associates that violates the notion of forestalling even the appearance of a potential conflict of interest, which makes it improper for that firm to represent plaintiff in this action. See Edelman v Levy, 42 AD2d 758, 346 NYS2d 347 (2d Dept 1973). To hold otherwise would have effectively striped the litigants of any assurances of confidentiality when interviewing prospective attorneys, severely compromising the adversarial process in matrimonial matters.

In Mondello v. Mondello, 118 AD2d 549 (2nd Dept 1986), the court pointed out that in disqualification situations, any doubt is to be resolved in favor of disqualification. Just as importantly, the Mondello court was concerned that in these proceedings, the attorney may become a necessary witness, causing a second disqualification issue. See also Chang v. Chang, 190 A.D.2d 311 (1st Dept 1993).

The New Rules and the Old Rules

How do we then reconcile the new Rules with the existing law? Notwithstanding the broad and sweeping financial disclosure that governs this area of practice, we remain governed (unlike others) by our own set of specialized “Matrimonial Rules” whose purpose is to protect the client (often to our own detriment) and to preserve the integrity of the system. There are provisions in the Matrimonial Rules that require us to provide a Statement of Client's Rights and Responsibilities. They instruct as to what must be in the Retainer, including the requirement that the Retainer itself repeat what was referenced in the Statement of Client's Rights and Responsibilities. These are clear examples of the mandate to maintain transparency in the process ' to avoid the appearance of impropriety. Broad disclosure, which may serve to limit confidentiality, cannot serve to eliminate the confidentiality of thoughts, strategies and ideas, or a chilling effect occurs. It should not be used to permit lawyers to avoid disqualification when confidences are at hand and positions at odds.

As to the malevolent consulter, we have a new Rule in place that does not provide protection to him. I submit that it provides no protection for the attorney who dares take up his wife's representation either. Is the innocent spouse then left to fend with “inferior” counsel? Unless there is a sudden shortage of matrimonial attorneys, it is unlikely, absent a truly nefarious and exhaustive effort to completely corner the market. Further, if the conniver is the monied spouse ' as is usually the case ' there are available remedies. A hefty award of interim counsel fees in accordance with Prichep v. Prichep, 52 AD3d 61 (2nd Dept 2008), and Penavic v. Penavic, 60 AD3d 1026 (2nd Dept 2009), together with a sanction for frivolous conduct is within the court's clear discretion; perhaps even a consideration of pre-action misconduct which affects equitable distribution as well.

The Judge Shopping Network

And now, for something not quite completely different. In this age of Internet research, support groups, the ever-present network of friends and relatives who have also been divorced, and of course the attorneys' “book” on judges, the client can get a pretty good dossier on their local Supreme Court matrimonial part. Word travels quickly, and Ms. Malevolent is concerned that she will get a judge who has a reputation for being “husband friendly.” She then hears that a certain attorney is persona non grata before this judge. What better to do than retain counsel whose presence and prior conduct before the bench causes the court's blood to boil to the point where the judge recuses himself on all the attorney's cases. Ms. Malevolent has now improved her chances of getting a more sympathetic arbiter of her claim.

Same issue, but this time, the case has been going on for a few years and Mr. Entitlement does not like the fact that his attorney is telling him that he cannot get what he thinks he is “entitled” to. Moreover, the court has not been receptive to these claims and trial is approaching. Mr. Entitlement has a fight with his attorney and needs new counsel, which delays the trial. Who does he manage to find to represent him? Yes, the same attorney whose presence sends the court heading for the nearest roll of Tums and places the matter back on the wheel for reassignment. But, it was unintentional he claims. “I only found out the judge's history of recusal at my consultation, and I did not search for my attorney on that basis.” Mr. Entitlement, though, is smiling wryly at his good fortune. The existing law is quite clear: In such a circumstance; the judge stays and the lawyer goes. In Re Federal Communications Commission, 208 F3d 137 (2000); People v. Mackey, 175 AD2d 346 (3rd Dept 1991), lv. denied 78 NY2d 969 (1991).

The argument that the choice of counsel whose retention causes the court's recusal was without malice aforethought, even if true, is nevertheless inconsequential. The appearance of impropriety and the integrity of the judicial system remain paramount. As the court held in Shomron v Fuks, 286 AD2d 587 (1st Dept 2001): “We need not find that Fuks engaged in arbitrator-shopping to find that Moses & Singers's appearance before Mr. Spiro tainted the proceeding (see People v Mackey, supra, at 348, 572 MYS2d 424 (“the question of motivation is not the most important issue here. What is important here as a matter of public policy is the avoidance of any appearance of improper 'Judge-shopping.' (Emphasis in original)).

In People v Mackey, the defendant's right to retain counsel of his choice in a criminal matter was surmountable in order to preserve judicial integrity and avoid the appearance of judge-shopping. Id. at endnote 42. This, even though the right to counsel was a fundamental constitutional right and the defendant was a predicate felon about to go back to prison. The recusal of the judge was not an appropriate remedy in light of the judge's intimate involvement in the matter almost from its inception and the attorney's status as newcomer to proceedings. The court in People v Mackey, held:

The difficulties pertaining to Ackerman's appearance before Judge Harris are well documented in the record and are beyond dispute. As thoroughly explained to defendant prior to the disqualification, recusal of the Judge at that time was not an appropriate remedy in that instance in light of Judge Harris' intimate involvement in the matter almost from its inception and Ackerman's status as a newcomer to the proceedings. According to the defendant, Ackerman's name was simply selected from the yellow pages by chance and no improper motives existed for the choice. However, the question of motivation is not the most important issue here. What is important here as a policy matter is the avoidance of any appearance of improper “Judge-shopping.” This principle is consistent with Opinions Nos. 511 and 574 of the State Bar Association's Committee on Professional Ethics and also the broad dictates of the Code of Professional Responsibility and the Code of Judicial Conduct. While the right to counsel is absolute, the right to specific counsel of choice is not (see Matter of Abrams, 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). This right is flexible and will yield in the face of an “overriding competing public interest” (Id. at 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). Here, the interests of judicial economy, preservation of the integrity of our court system and defendant's own interest in being sentenced before a Judge familiar with his case all point in favor of Ackerman's disqualification. Since we find that the most appropriate response to a difficult situation was taken under the circumstances, we decline to disturb the disqualification order. (Emphasis in original.)

The U.S. Court of Appeals for the Second Circuit specifically addressed the issue of judge shopping in In Re Federal Communications Commission, 208 F3d 137 (2000), although in the context of an appeal:

Once the members of a panel assigned to hear an appeal become known or knowable, counsel thereafter retained to appear in that matter should consider whether appearing might cause the recusal of a member of the panel. We make no finding as to good faith or intent by the estimable lawyers of Gibson, Dunn. It is clear, however, that tactical abuse becomes possible if a lawyer's appearance can influence the recusal of a judge known to be on a panel. Litigants might retain new counsel for rehearing for the very purpose of disqualifying a judge who ruled against them. As between a judge already assigned to a panel, and a lawyer who thereafter appears in circumstances where the appearance might cause an assigned judge to be recused, the lawyer will go and the judge will stay. This practice preserves the neutral and random assignment of judges to cases, and it implements “the inherent power of this Court to manage and control its docket.” Johnson v. Morgenthau, 160 F.3d 897, 899 (2d Cir.1998) (per curiam). So the failure of counsel to consider in advance the known or knowable risk of a judge's recusal may result in the rejection of the appearance by that lawyer or firm.

We appreciate that there are circumstances in which a lawyer may unwittingly provoke a judge's recusal and that the application of this rule may therefore inflict hardship in some cases. But we announce this rule in a case in which there could be no unjust hardship. The lawyer who argued the appeal remains. We assume that lawyers know who their partners are and have been. And we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a judge assigned to the case. (Emphasis added)

Conclusion

The recusal of the court under these circumstances would greatly prejudice the interests of justice, and undermine the confidence of the non-offending litigant in the process. As with the serial consulter, these actions have the potential to contravene the integrity of the court system and the interests of public policy, and courts are not letting litigants get away with them. Attention shoppers ' the store is now closed.

Lee Rosenberg, a member of this newsletter's Board of Editors. is a partner with Saltzman Chetkof & Rosenberg LLP in Garden City. He is a fellow of the American Academy of Matrimonial Lawyers.

Are concepts of confidentiality and disclosure mutually exclusive? With the concepts we have discussed in the last two installments in mind, some have argued that there is really no issue of confidentiality left to protect in a matrimonial case. There is a mandate of full and broad disclosure (DRL '236B(4)), long described as “searching exploration” of the parties finances. Kaye v. Kaye , 102 AD2d 682 (2nd Dept. 1984). Further, in the Third and Fourth Departments, discovery is permitted on issues of grounds and custody. Also, 22 NYCRR 130-1.1-a requires the certification of papers that “to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances: the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart.” A New York State Ethical Opinion has stated that a material omission or fraudulent representation in a Statement of Net Worth must be corrected or the lawyer must withdraw from representation. NY State Bar Association Committee On Professional Ethics, Opinion 781 (12/8/04). And, on March 20, 2009, the Preliminary Conference Rules were amended to formally provide for the consideration of the “method and scope” of electronic discovery in the Preliminary Conference Order. 22 NYCRR 202.12(c)(3).

Is There Any Confidentiality Remaining?

With this comprehensive mandate of production, is there anything that is so undiscoverable in modern matrimonial law that there is any confidentiality truly remaining, except again as may relate to grounds and custody in the “downstate” departments? If there are no children and the parties are seeking a “conversion divorce,” or if grounds will not be contested, is there still a confidentiality issue, even downstate? Will the “subsequent representation” disqualification rules apply then? What then of the “appearance of impropriety”?

Failure to show that relevant confidential information was actually obtained during the course of the earlier representation or to demonstrate that allowing the continued representation of the new client would create the appearance of impropriety warrants denial of the application. Dillon v. Valco American Corp. , 14 AD3d 589 (2d Dept. 2005). Inasmuch as full disclosure is mandated in an action for divorce, it is often difficult to determine what, if any, financial information may be claimed to be confidential or secret, which would permit disqualification. Bongiasca v. Bongiasca , 254 AD2d 217 (1st Dept.1998); Messina v. Messina , 175 AD2d 866 (2d Dept. 1991).

In Grunstein v. Grunstein , 201 AD2d 621 (2nd Dept 1994), however, the defendant moved to disqualify the plaintiff's law firm on the ground that members of that firm had previously represented him in a criminal matter. The plaintiff did not dispute the prior representation, but argued that disqualification was not required because no confidences had been breached. The court found:

An attorney is prohibited from representing a party in a lawsuit when an opposing party is the lawyer's former client ( see Greene v. Greene , 47 NY2d 447). This prohibition is imputed to current and former members of the same firm ( see Cardinale v. Golinello , 43 NY2d 288) and has been applied to those instances in which an attorney who represented one spouse in a prior criminal action and represents interests adverse to those of his former client in a subsequent matrimonial action ( see Watson v. Watson , 171 Misc. 175; see also, Forbush v. Forbush , 107 AD2d 375; Code of Professional Responsibility DR 5-108 (22 NYCRR 1200.27)).

In I. Heng Ngan v Su , 13 Misc3d 1229 (Sup Ct, Queens Cty. 2006), the court, in disqualifying counsel and citing to Burton v. Burton , 39 AD2d 554 (2d Dept 1988), held that a one hour and 20-minute consultation was sufficient to disqualify the firm from later representing the adverse spouse. The court stated, “[D]efendant here claims that he discussed all of the relevant issues surrounding his pending matrimonial action including the parties' employment, education, property, their marriage, defendant's expectation of the action's result, as well as possible legal strategy.” The Burton court went on to say, “Given the unusual nature of matrimonial practice, it is often necessary for a party to provide this type of sensitive and confidential information to a prospective attorney before the two agree on representation and a retainer agreement is executed. To compel the defendant in this action to allege with specificity the actual confidential matters discussed with Wong, Wong & Associates would not only vitiate the protection provided by the attorney-client relationship but would require the disclosure of the very confidential, personal matters sought to be protected. Accordingly, the court finds that defendant has alleged a sufficient factual predicate to support his application.”

Lastly, and perhaps most significantly, the Burton court specifically held that “it makes no difference that the defendant did not formally retain [the attorney with whom he spoke].” Id . at 555, 54; see also Desbiens v. Ford Motor Co. , 81 AD2d 707 (3d Dept 1981) (plaintiff entitled to “freedom from apprehension” from defendant's retention of law firm that had previously examined plaintiff's file but was never retained); Kaufman v. Kaufman , 63 AD2d 609 (1st Dept 1978) (disqualified attorney representing defendant was personal friend of plaintiff, to whom “he imparted all the facts and circumstances surrounding his financial and matrimonial problems”). In light of the foregoing, the consultation in question established, at a minimum, a relationship between defendant and Wong, Wong & Associates that violates the notion of forestalling even the appearance of a potential conflict of interest, which makes it improper for that firm to represent plaintiff in this action. See Edelman v Levy, 42 AD2d 758, 346 NYS2d 347 (2d Dept 1973). To hold otherwise would have effectively striped the litigants of any assurances of confidentiality when interviewing prospective attorneys, severely compromising the adversarial process in matrimonial matters.

In Mondello v. Mondello , 118 AD2d 549 (2nd Dept 1986), the court pointed out that in disqualification situations, any doubt is to be resolved in favor of disqualification. Just as importantly, the Mondello court was concerned that in these proceedings, the attorney may become a necessary witness, causing a second disqualification issue. See also Chang v. Chang , 190 A.D.2d 311 (1st Dept 1993).

The New Rules and the Old Rules

How do we then reconcile the new Rules with the existing law? Notwithstanding the broad and sweeping financial disclosure that governs this area of practice, we remain governed (unlike others) by our own set of specialized “Matrimonial Rules” whose purpose is to protect the client (often to our own detriment) and to preserve the integrity of the system. There are provisions in the Matrimonial Rules that require us to provide a Statement of Client's Rights and Responsibilities. They instruct as to what must be in the Retainer, including the requirement that the Retainer itself repeat what was referenced in the Statement of Client's Rights and Responsibilities. These are clear examples of the mandate to maintain transparency in the process ' to avoid the appearance of impropriety. Broad disclosure, which may serve to limit confidentiality, cannot serve to eliminate the confidentiality of thoughts, strategies and ideas, or a chilling effect occurs. It should not be used to permit lawyers to avoid disqualification when confidences are at hand and positions at odds.

As to the malevolent consulter, we have a new Rule in place that does not provide protection to him. I submit that it provides no protection for the attorney who dares take up his wife's representation either. Is the innocent spouse then left to fend with “inferior” counsel? Unless there is a sudden shortage of matrimonial attorneys, it is unlikely, absent a truly nefarious and exhaustive effort to completely corner the market. Further, if the conniver is the monied spouse ' as is usually the case ' there are available remedies. A hefty award of interim counsel fees in accordance with Prichep v. Prichep , 52 AD3d 61 (2nd Dept 2008), and Penavic v. Penavic , 60 AD3d 1026 (2nd Dept 2009), together with a sanction for frivolous conduct is within the court's clear discretion; perhaps even a consideration of pre-action misconduct which affects equitable distribution as well.

The Judge Shopping Network

And now, for something not quite completely different. In this age of Internet research, support groups, the ever-present network of friends and relatives who have also been divorced, and of course the attorneys' “book” on judges, the client can get a pretty good dossier on their local Supreme Court matrimonial part. Word travels quickly, and Ms. Malevolent is concerned that she will get a judge who has a reputation for being “husband friendly.” She then hears that a certain attorney is persona non grata before this judge. What better to do than retain counsel whose presence and prior conduct before the bench causes the court's blood to boil to the point where the judge recuses himself on all the attorney's cases. Ms. Malevolent has now improved her chances of getting a more sympathetic arbiter of her claim.

Same issue, but this time, the case has been going on for a few years and Mr. Entitlement does not like the fact that his attorney is telling him that he cannot get what he thinks he is “entitled” to. Moreover, the court has not been receptive to these claims and trial is approaching. Mr. Entitlement has a fight with his attorney and needs new counsel, which delays the trial. Who does he manage to find to represent him? Yes, the same attorney whose presence sends the court heading for the nearest roll of Tums and places the matter back on the wheel for reassignment. But, it was unintentional he claims. “I only found out the judge's history of recusal at my consultation, and I did not search for my attorney on that basis.” Mr. Entitlement, though, is smiling wryly at his good fortune. The existing law is quite clear: In such a circumstance; the judge stays and the lawyer goes. In Re Federal Communications Commission, 208 F3d 137 (2000); People v. Mackey , 175 AD2d 346 (3rd Dept 1991), lv. denied 78 NY2d 969 (1991).

The argument that the choice of counsel whose retention causes the court's recusal was without malice aforethought, even if true, is nevertheless inconsequential. The appearance of impropriety and the integrity of the judicial system remain paramount. As the court held in Shomron v Fuks, 286 AD2d 587 (1st Dept 2001): “We need not find that Fuks engaged in arbitrator-shopping to find that Moses & Singers's appearance before Mr. Spiro tainted the proceeding (see People v Mackey, supra, at 348, 572 MYS2d 424 (“the question of motivation is not the most important issue here. What is important here as a matter of public policy is the avoidance of any appearance of improper 'Judge-shopping.' (Emphasis in original)).

In People v Mackey, the defendant's right to retain counsel of his choice in a criminal matter was surmountable in order to preserve judicial integrity and avoid the appearance of judge-shopping. Id. at endnote 42. This, even though the right to counsel was a fundamental constitutional right and the defendant was a predicate felon about to go back to prison. The recusal of the judge was not an appropriate remedy in light of the judge's intimate involvement in the matter almost from its inception and the attorney's status as newcomer to proceedings. The court in People v Mackey, held:

The difficulties pertaining to Ackerman's appearance before Judge Harris are well documented in the record and are beyond dispute. As thoroughly explained to defendant prior to the disqualification, recusal of the Judge at that time was not an appropriate remedy in that instance in light of Judge Harris' intimate involvement in the matter almost from its inception and Ackerman's status as a newcomer to the proceedings. According to the defendant, Ackerman's name was simply selected from the yellow pages by chance and no improper motives existed for the choice. However, the question of motivation is not the most important issue here. What is important here as a policy matter is the avoidance of any appearance of improper “Judge-shopping.” This principle is consistent with Opinions Nos. 511 and 574 of the State Bar Association's Committee on Professional Ethics and also the broad dictates of the Code of Professional Responsibility and the Code of Judicial Conduct. While the right to counsel is absolute, the right to specific counsel of choice is not (see Matter of Abrams, 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). This right is flexible and will yield in the face of an “overriding competing public interest” (Id. at 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). Here, the interests of judicial economy, preservation of the integrity of our court system and defendant's own interest in being sentenced before a Judge familiar with his case all point in favor of Ackerman's disqualification. Since we find that the most appropriate response to a difficult situation was taken under the circumstances, we decline to disturb the disqualification order. (Emphasis in original.)

The U.S. Court of Appeals for the Second Circuit specifically addressed the issue of judge shopping in In Re Federal Communications Commission, 208 F3d 137 (2000), although in the context of an appeal:

Once the members of a panel assigned to hear an appeal become known or knowable, counsel thereafter retained to appear in that matter should consider whether appearing might cause the recusal of a member of the panel. We make no finding as to good faith or intent by the estimable lawyers of Gibson, Dunn. It is clear, however, that tactical abuse becomes possible if a lawyer's appearance can influence the recusal of a judge known to be on a panel. Litigants might retain new counsel for rehearing for the very purpose of disqualifying a judge who ruled against them. As between a judge already assigned to a panel, and a lawyer who thereafter appears in circumstances where the appearance might cause an assigned judge to be recused, the lawyer will go and the judge will stay. This practice preserves the neutral and random assignment of judges to cases, and it implements “the inherent power of this Court to manage and control its docket.” Johnson v. Morgenthau , 160 F.3d 897, 899 (2d Cir.1998) ( per curiam ). So the failure of counsel to consider in advance the known or knowable risk of a judge's recusal may result in the rejection of the appearance by that lawyer or firm.

We appreciate that there are circumstances in which a lawyer may unwittingly provoke a judge's recusal and that the application of this rule may therefore inflict hardship in some cases. But we announce this rule in a case in which there could be no unjust hardship. The lawyer who argued the appeal remains. We assume that lawyers know who their partners are and have been. And we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a judge assigned to the case. (Emphasis added)

Conclusion

The recusal of the court under these circumstances would greatly prejudice the interests of justice, and undermine the confidence of the non-offending litigant in the process. As with the serial consulter, these actions have the potential to contravene the integrity of the court system and the interests of public policy, and courts are not letting litigants get away with them. Attention shoppers ' the store is now closed.

Lee Rosenberg, a member of this newsletter's Board of Editors. is a partner with Saltzman Chetkof & Rosenberg LLP in Garden City. He is a fellow of the American Academy of Matrimonial Lawyers.