J.G., Plaintiff, v. L.G., Defendant. (2025)

In this Action for Divorce before this Court, the Defendant-Wife, by Order to Show Cause dated May 16, 2025, seeks an order awarding her the following relief:

a. Pursuant to Rule 1.18 of the Rules of Professional Conduct (NYCRR 1200), and the inherent powers of the Court, disqualifying Plaintiff's attorney and the Law Offices of Plaintiff's attorney as counsel to J.G.;

b. Staying all proceedings and litigation pending decision of the instant application pursuant to CPLR Sec. 2201;

c. Issuing a protective order pursuant to CPLR Sec. 3103 pending decision of the instant application;

d. Pursuant to DRL Sec. 237, directing the Plaintiff to pay to the Defendant's attorneys, within 20 days of an Order directing same, the minimum sum of fees in the sum of $20,000.00 as and for interim attorney's fees, without prejudice for further application for same up through judgment of this matter; and

e. For such other and further relief as this Court may deem just and proper.

The Court, in its deliberations, has considered the following:

• Defendant's Order to Show Cause and supporting papers;

• Plaintiff's Opposition and supporting papers;

• Defendant's Reply and supporting papers.

In the instant matter, Defendant seeks disqualification of Plaintiff's counsel and cites various instances and arguments to support disqualification. These include, but are not limited to the following:

• Plaintiff and Plaintiff's counsel are “best friends” and were previously brother in laws through marriage;

• Defendant and her husband are close personal friends of Plaintiff's counsel;

• The Plaintiff's children refer to Plaintiff's counsel as “Uncle Jim”;

• They attend family events together;

• Defendant, Plaintiff, and Plaintiff's counsel are in the same “social circle;”

• Plaintiff's counsel's sister acted as the real estate agent for the sale of the Defendant's pre-marital residence;

• Plaintiff's counsel updated Plaintiff's Last Will;

• Plaintiff's counsel represented the Defendant in 2015 in a child support modification proceeding;

• Defendant has discussed specific aspects of her life with Plaintiff's counsel which include changes in income, potential changes in both her and Plaintiff's income as they approach retirement, and deeply personal confidential information;

• Plaintiff's counsel has personal knowledge of all Defendant and Plaintiff's assets.

In opposition, the Plaintiff states that the Defendant's claim of close personal ties to his attorney is false. He states that his attorney and his attorney's wife have not attended holiday parties in their home, nor have the parties attended same in his attorney's home. He states that the Defendant attended one dinner over the past 13 years where the husband's brought their wives. He admits the Defendant did attend a conference in which the Plaintiff discussed his will and estate with Plaintiff's counsel, however, the Defendant's estate was not discussed, and in fact, Defendant stated she would hire her own attorney regarding her estate. He states that the Defendant's claims of having a close personal relationship and using Plaintiff's counsel as her legal counsel for many years is simply false.

Counsel for the Plaintiff also refutes the Defendant's claims, and in so doing states as follows:

• Neither himself nor a member of his family have ever spent a holiday with the Defendant;

• He attended one party and the weddings of his two nephews in which the Defendant was present, but they were not seated together.

• Defendant has never been invited nor attended any of his immediate family gatherings, holidays, or religious events since Plaintiff and Defendant married;

• Neither the Plaintiff nor the Defendant were present at the weddings of his three children since the Plaintiff and his wife's sister divorced;

• He did represent the Defendant by conducting a hearing for a Family Court support matter (upward modification) in either 2014 or 2015 as a favor to Defendant's attorney;

• He has never received or reviewed any income or financial statements or tax returns of the Defendant since the 2015 support hearing;

• He believes he has had contact with the Defendant no more than 8 times during the past 13 years, and if he was her close friend and legal adviser, as she states, why did he not represent her in the sale of her home and the purchase of another residence.

It is well settled that the disqualification of an attorney is a matter that rests within the discretion of the court. Cardinale v. Golinello, 43 NY2d 288, 296 (1977); Lauder v. Goldhamer, 122 AD3d 908 (2nd Dept.2014). When asked to disqualify an attorney, the Court looks to the professional rules for guidance to ensure that the rights of a litigant to be represented by the attorney of their choice and the rights of the proponent of disqualification to be free from prejudice as a result of a denial of disqualification are considered. The court is keenly aware that a party's right to be represented by counsel of his or her own choosing is a valued substantive interest which should not be interfered with absent a clear showing that disqualification is warranted. Matter of Epstein, 255 AD2d 582, 680 N.Y.S.2d 655 (2nd Dept. 1998)

Rule 1.18 of the Rules of Professional Conduct provides:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a ‘prospective client.’

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d)”

Rules of Professional Conduct (22 NYCRR § 1200.1.18). The current rules regarding the definition of “confidential information”—possession of which by an adverse counsel can trigger disqualification—have been restated and codified 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.

Courts “are not constrained to read the rules literally or effectuate the intent of the drafters but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake.” Niesig v Team I, 76 NY2d 363 (1990). It is the Court's responsibility to balance the competing interests, and the disqualification of an attorney is a matter that rests within the sound discretion of the Court.

The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination’ ” (Hele Asset, LLC v. S.E.E. Realty Assoc., 106 AD3d 692, 693, 964 N.Y.S.2d 570, quoting Gulino v. Gulino, 35 AD3d 812, 812, 826 N.Y.S.2d 903. Because disqualification denies a party's right to representation by the attorney of their choice, which may create significant hardships, conclusory and vague statements alone cannot form the basis for disqualification. Koumantaros v. Hephaistos Developing, LLC, 203 AD3d 907 (2d Dept 2022).

In the instant matter the Defendant has made it clear that the Plaintiff and Plaintiff's counsel are friends, formally related by marriage, and that Plaintiff's counsel has acted as the Plaintiff's attorney. While Plaintiff's counsel previously represented the Defendant approximately twelve (12) years ago in a child support matter against her former spouse, this Court finds that representation in this unrelated matter involving a different party is insufficient to warrant disqualification. In fact, at the time the Defendant's Family Court matter was concluded, the parties had only been married for approximately 7 months.

Disqualification becomes more unlikely if there is no substantial relationship between the issues in the current and former litigation or where the party seeking disqualification fails to identify any specific confidential information imparted to the attorney. Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98, 851 N.Y.S.2d 19 (1st Dept.2008).

In Lyons v. Lyons, 50 Misc 3d 876, 22 N.Y.S.3d 338, 2015, the Court denied the Husband's application for disqualification of the wife's attorney in a divorce proceeding. In Lyons, supra, the Wife's attorney, within the past 5 years, had previously represented the Husband in two proceedings involving his children from a former marriage. The court, in denying the husband's application for disqualification, found that past doctrines of an “appearance of impropriety” and “doubts in favor of disqualification” have been pushed to the side in favor of a “clear showing” of access to confidential facts being required to justify disqualification. See Matter of Sosa v. Serrano, 130 AD3d 636, 10 N.Y.S.3d 901 (2nd Dept.2015)

The Defendant, in support of her application for disqualification, has made only general and conclusory statements, and has failed to demonstrate sufficient proof or a clear showing that Defendant's counsel has access to confidential facts or information warranting disqualification. Defendant's claim of imparting to Plaintiff's counsel changes in her income and potential future changes in income as she approached retirement, as well as her claim that Plaintiff's counsel has “personal knowledge of all of mine and my husband's assets” is at odds with the statutory mandate for full financial disclosure of all income and assets in a matrimonial proceeding, including but not limited to the filing of a sworn Statement of Net Worth. DRL § 236(B)(4)(a); 22 NYCRR § 202.16(f)(1)(i).

Moreover, the enactment of the grounds for divorce of an irretrievable breakdown in New York under Domestic Relations Law 170(7) only further puts to rest any concerns that might be raised by litigants seeking disqualification who have claimed to impart confidences concerning the demise of the marriage.

Accordingly, the Defendant's application seeking disqualification of Plaintiff's counsel is denied.

Counsel Fees:

Defendant requests an award of interim counsel fees in the sum of $20,000.00. Defendant lists her total income at $104,915.00 from various sources, including wages, pension, investment income, and social security.

Plaintiff's tax return reports income of $178,323.00 from various sources, including pensions, social security, and investment income.

Both parties are collecting pensions, with Plaintiff being 74 years of age and the Defendant 66 years of age. Plaintiff is retired and no longer employed while Defendant continues to be employed in some fashion. Defendant states that she is the less incomed spouse, and the Plaintiff has historically earned double what she is capable of earning.

There are no children of the marriage, and the parties entered into a prenuptial agreement prior to their marriage which deals with support and the distribution of property.

Defendant argues that as the less incomed spouse, she should be awarded counsel fees, and that “absent an award of counsel fees, [she] will not be able to have competent legal representation in this matter ․”

Plaintiff argues that the prenuptial agreement makes it clear that an award of counsel fees is unwarranted, as each party's assets as stated in the prenuptial agreement are adequate to support the lifestyle of each.

The prenuptial agreement sets forth that “․ in the event of a marital separation or dissolution, it is agreed and understood that neither party shall seek or obtain any form of alimony or support from the other, or seek any relief, other than a distribution of their joint property interests or those property interests acquired during the course of the marriage in any manner other than as provided by this Agreement.”

A review of the prenuptial agreement fails to yield that the party's specifically waived the right to seek counsel fees, pendente lite, or otherwise, from the other. It is well settled that agreements waiving counsel fees must be specific to exactly what the parties are intending to waive. See Kashman v. Kashman, 147 AD3d 1034, 47 N.Y.S.3d 442 (2d Dept. 2017); McKenna v. McKenna, 121 AD3d 864, 994 N.Y.S.2d 381 (2d Dept. 2014).

In fact, an agreement containing a general waiver of counsel fees is insufficient to waive a temporary or interim award of counsel fees. See Vinik v. Lee, 96 AD3d 522, 947 N.Y.S.2d 424 (1st Dept. 2012).

Defendant seeks counsel fees under Domestic Relations Law § 237 (a), which states in pertinent part:

“In any action or proceeding brought ․ for a divorce ․ the court may direct either spouse ․ to pay counsel fees ․ directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse ․ Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses.”

The decision to award counsel fees in a matrimonial action lies within the sound discretion of the court, and the issue of counsel fees is controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 AD3d 605 (2d Dept. 2012); see also DeCabrera v. DeCabrera-Rosete, 70 NY2d 879 (1982). An award of interim counsel fees is warranted where there is a significant disparity in the financial circumstances of the parties. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). Interim fees will ensure that the non-monied spouse will be able to litigate on equal footing with the monied spouse to prohibit the monied spouse “from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation.” Id.

A review of the Statement of Net Worth of the Defendant reveals that Defendant has $26,672.98 in checking, $99,929.59 in savings, and $549,524.16 in her 403b account. Plaintiff's Statement of Net Worth lists $24,181.00 in checking, approximately $260,000.00 in savings, and over 1.3 million in a 401k.

The Defendant paid a retainer of $8,500.00 and agreed to pay her attorney at the hourly rate of $625.00 per hour ¹ . While the Plaintiff is the higher monied spoused, the Defendant's income and assets render her far from being in a position such that she is unable to pay her own counsel fees. It appears based upon the evidence before this Court that both parties are financially self-sufficient, and this Court declines to require a party to pay counsel fees simply because one party's income is greater than the other.

Accordingly, the Defendant's application for an award of counsel fees is denied.

NOW, it is hereby

ORDERED, that the Defendant application seeking an Order disqualifying the Plaintiff's attorney is hereby DENIED; and it is further

ORDERED, that Defendant's request for counsel fees in the sum of $20,000.00 is DENIED, and it is further

ORDERED, that all other requested relief is deemed DENIED.

The foregoing constitutes the Order of this Court.

FOOTNOTES

1.   Affirmation states Defendant is billed at $400.00 per hour for Mr. Mitev, however, the retainer agreement executed by the Defendant lists an hourly rate of $625.00.

Alfred C. Graf, J.