IN RE: MARVIN Q. (Anonymous).

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: MARVIN Q. (Anonymous). Nassau County Department of Social Services, petitioner-respondent; Rafael Q. (Anonymous), appellant, et al., respondent.  (Proceeding No. 1) In the Matter of Nashly Q. (Anonymous). Nassau County Department of Social Services, petitioner-respondent; Rafael Q. (Anonymous), appellant, et al., respondent.  (Proceeding No. 2).

Decided: November 27, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Thomas F. Liotti, Garden City, N.Y., for appellant. Lorna B. Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), for petitioner-respondent.

In related child abuse and neglect proceedings pursuant to Family Court Act article 10, Rafael Q., the maternal uncle of the subject children, appeals from an order of the Family Court, Nassau County (Schwartz Zimmerman, J.), dated January 24, 2007, which, inter alia, granted the Law Guardian's motion to disqualify his attorney from representing him in the proceedings.

ORDERED that the order is affirmed, with costs.

 The disqualification of an attorney is a matter which rests within the sound discretion of the court (see Campolongo v. Campolongo, 2 A.D.3d 476, 768 N.Y.S.2d 498;  Olmoz v. Town of Fishkill, 258 A.D.2d 447, 684 N.Y.S.2d 611;  Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 839).   Although “[a] party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged,” such right will not supersede a clear showing that disqualification is warranted (Campolongo v. Campolongo, 2 A.D.3d at 476, 768 N.Y.S.2d 498;  see Horn v. Municipal Info. Servs., 282 A.D.2d 712, 724 N.Y.S.2d 320).

 In the case at bar, the appellant's attorney, whose office represented the appellant in the Family Court, violated Code of Professional Responsibility DR 7-104(A)(1) (see 22 NYCRR 1200.35[a][1] ) by, without the Law Guardian's knowledge and consent, allowing members of his law firm to interview the subject child and by procuring an affidavit from the child regarding the pending Family Court proceedings.  “The appointment of a Law Guardian to protect the interests of a child creates an attorney-client relationship, and the absence of the Law Guardian at the subject interview constituted a denial of the child's due process rights” (Campolongo v. Campolongo, 2 A.D.3d at 476, 768 N.Y.S.2d 498;  see also Matter of Samuel H., 208 A.D.2d 746, 747, 618 N.Y.S.2d 42;  Family Ct. Act § 241).

Accordingly, under the circumstances of this case, there was a clear showing that disqualification was warranted.   Thus, the Family Court providently exercised its discretion in granting the Law Guardian's motion to disqualify the appellant's counsel.   The court also properly precluded use of the child's affidavit in the Family Court proceedings (see Campolongo v. Campolongo, 2 A.D.3d at 476, 768 N.Y.S.2d 498).

The appellant's remaining contentions are without merit.

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