LLC v. David Joseph and Miriam Salat, Defendants. (2025)

On this motion, defendants' counsel, the Roth Law Firm, PLLC, moves to withdraw as counsel for defendant Miriam Joseph. The firm represents that it may no longer represent Ms. Joseph, because it serves as counsel for defendant David Joseph in divorce proceedings between Mr. and Ms. Joseph. The firm represents that it believed that plaintiff, Catalpa Development LLC, was no longer pursuing this action, and therefore that the firm was free to represent Ms. Joseph in the divorce proceedings.¹ The firm contends that continuing its representation of Ms. Joseph poses a conflict of interest.

Ms. Joseph, on the other hand, represents that the conflict of interest began when the firm began to represent Mr. Joseph in the divorce proceeding, which was commenced after this action began. She also represents that she never knew that there was an action against her or that Mr. Roth was retained as her attorney and that, in any case, she never consented to the firm's representation of Mr. Joseph in the divorce proceedings.  ² She argues that the firm should turn over its file in this action for her review so she can decide whether the firm should be relieved as counsel.

Rule of Professional Conduct 1.7 provides that a conflict of interest is not waivable in cases where the representation involves "the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal." Here, should the firm continue to represent Ms. Joseph, it would be doing so while there is a pending divorce proceeding between herself and Mr. Joseph. Ms. Joseph's contention that she should be able to decide whether to keep Roth as counsel in this action is unavailing in light of the unwaivable nature of this conflict. The motion to withdraw is therefore granted.

Accordingly, it is

ORDERED that the request for leave to withdraw as counsel for Ms. Joseph made by the Roth Firm PLLC is granted; and it is further

ORDERED that former counsel serve promptly a copy of this order with notice of its entry on all other parties appearing in this matter by e-filing on NYSCEF; and to serve notice of entry on Ms. Joseph by email and by overnight delivery service on Ms. Joseph's last-known address by certified mail, return receipt requested; and it is further

ORDERED that to afford Ms. Joseph the opportunity to retain new counsel, the action is stayed until 30 days from service of the notice; and it is further

ORDERED that The Roth Law Firm PLLC turn over copies of all documents pertaining to its representation of defendants in this action to Ms. Joseph or to her new counsel.

DATE 1/17/2025

FOOTNOTES

1.   Notably, the firm does not say whether it sought to confirm that the action was discontinued before agreeing to represent Mr. Joseph in the divorce proceedings. It did, however, make this motion to withdraw before the divorce proceedings went to trial.

2.   Ms. Joseph represents that she objected to the firm's representation of Mr. Joseph in the divorce proceeding; the court in that proceeding referred the issue to a special referee; and the special referee concluded that the firm could nonetheless proceed as Mr. Joseph's counsel in that action.

Gerald Lebovits, J.