Recitation, as required by CPLR §2219(a), of the papers considered in the review of the order to show cause as indicated below: Papers Numbered Pre-Answer Notice of Motion to Dismiss, Affirmation in Support & Exhibits 1 Affirmation in Opposition & Exhibits 2 Affirmation in Reply & Exhibit 3 DECISION/ORDER Upon the foregoing cited papers the Decision/Order on this motion is decided as follows: The plaintiff commenced this divorce action on June 12, 2020. She now moves to disqualify the defendant’s counsel from further representation in this matter based on a conflict of interest between her and the defendant’s firm. The defendant opposes the motion and argues that the plaintiff has not met the high burden required to disqualify his attorney. The plaintiff argues that the defendant’s attorney currently employs Ms. Gulden who previously worked for the plaintiff’s firm Perskin & Associates, P.C., (hereinafter “P & A”), creating a conflict of interest. Ms. Gulden worked at P & A as a legal intern from May 21, 2018 through March 2020 and as a law school graduate from August 1, 2020 through September 9, 2020. The plaintiff claims that while Ms. Gulden was employed by P & A she sat at a desk within three feet of Ms. Clancy, Esq. who is the primary attorney for the plaintiff in this divorce action. As the plaintiff’s attorney Ms. Clancy engaged in telephone calls with the plaintiff, sent emails, drafted letters and settlement proposals. On February 10, 2020 Ms. Gulden filed a settlement letter in this action after Ms. Clancy had a lengthy conversation over the phone with the plaintiff to discuss terms and offer legal advice. The plaintiff contends that many of the terms that did not go into the letter are privileged and confidential. The plaintiff argues that Ms. Gulden had access to the physical file which contained impressions and notes taken by Ms. Clancy as a result of discussions with the plaintiff. Annexed to the plaintiffs motion is a copy of a billing invoice for February 2020 indicating that Ms. Gulden filed a letter, scanned and saved a retainer agreement. The plaintiff claims that the defendant’s firm hired Ms. Gulden around October 1, 2020 and it was the responsibility of defendant’s firm to screen her from working on this action to avoid a conflict of interest. The plaintiff argues that the Rules of professional Conduct do not apply to nonlawyers but the conduct of nonlawyers is held to the same professional standard as lawyers. She argues that a nonlawyer may not be permitted or directed to engage in any conduct that a lawyer would be prohibited from doing (see Rules of Prof. Con., Rule 5.3 Cmt. 2., and N.Y. State Ethics Opinion 774 [2004]). The plaintiff contends that there is a prior attorney-client relationship between plaintiff and the defendant’s firm by virtue of Ms. Gulden’s agency. She also claims that the matters involved in both representations are substantially related, as it is the same matter. The plaintiff also argues that the interests of the defendant and plaintiff are materially adverse. In opposition, the defendant argues that the plaintiff fails to meet the high burden to disqualify opposing counsel. The defendant claims that there is no allegation of the existence of a prior attorney-client relationship between plaintiff and the defendant’s firm. The defendant claims that the conflict that the plaintiff seeks to disqualify the defendant’s firm is an email sent by Ms. Gulden in which she emailed a dropbox link to the plaintiff’s discovery in the matter. The defendant contends that Ms. Gulden, a non-attorney, engaged in minimal administrative tasks on the case and this is insufficient to disqualify counsel. The defendant also states that the Rules of Professional Conduct do not apply to non-attorneys. He argues that the Plaintiff seeks to apply the rules to a non-attorney and impute an alleged conflict of interest from a non-attorney employee to the defendant’s attorney. The defendant claims that “for purposes of the imputed disqualification rules, absent special circumstances, law students who clerk in law firms should be considered non-lawyer employees of the firm whose duties of confidentiality are not imputed to subsequent employers.” (Restatement [Third] of The Law Governing Lawyers, §123, Comment f [2000]). The defendant also argues that conclusory allegations of “possible” exposure to confidential information by a non-attorney are insufficient to impute conflict to a firm. The defendant relies on Mulhern v. Calder (196 Misc. 2d 818 [2003]) for the proposition that “generalized assertions of ‘access of confidences and secrets’” by virtue of previously working at another office and possibly being exposed to confidential information is not sufficient to disqualify the defendant’s attorney. He also claims that plaintiff is seeking to disqualify the defendant’s attorney in order to gain a tactical advantage by causing a delay in deposing the plaintiff. The Court of Appeals determined that “A party seeking disqualification of its adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse.” (Tekni-Plex, Inc., v. Meyer and Landis, 89 N.Y.2d 123, 131 (1996) citing Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 308 [1994]). In the instant matter, Ms. Gulden’s prior employment as a legal intern with P & A does not constitute a prior attorney-client relationship between P & A and the defendant’s attorney. Therefore, the plaintiff failed to meet the high standard to disqualify the defendant’s counsel as set forth by the Court of Appeals. The plaintiff’s attorney also relies on the Rules of Professional Conduct, Rule 5.3 entitled “Responsibility for Conduct of Nonlawyers” to disqualify the defendant’s counsel. She claims that the purpose of this rule is to ensure that the conduct of nonlawyers is held to the same professional standard as lawyers. This rule states that a lawyer is responsible for the work of any nonlawyer and that they must supervise their conduct and work. The rule states that “lawyers typically employ nonlawyer assistants in their practice, including secretaries, investigators, law student interns and paraprofessionals. Such nonlawyer assistants, whether they are employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A law firm must ensure that such nonlawyer assistants are given appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose confidential information — see Rule 1.6(c)”. Rule 1.6(c) requires lawyers to take reasonable care to avoid unauthorized disclosure of confidential information. The confidential information in Rule 1.6(c) of the Rules of Professional Conduct is confidential information related to current clients, former clients and prospective clients. The defendant’s attorney does not currently represent the plaintiff nor did he previously represent the plaintiff. Therefore the plaintiff’s application of the Rules of Professional Conduct Rule 5.3 is simply misplaced as it does not apply to the facts of this case. Ms. Gulden’s access to the physical file containing attorney work product, the limited amount of time and administrative duties she had while working at P & A are insufficient to disqualify the defendant’s attorney. The total amount of time she spent scanning and filing a letter and scanning a copy of the retainer agreement totaled .20 hours. The Supreme Court in Raffaeli v. Raffaeli, 41 N.Y.S.3d 721 [Sup Ct, Westchester County 2016] disqualified counsel based on a paralegal’s conflict of interest due to her “deep historical involvement” of over 500 hours of working on a matrimonial action at her previous firm. The paralegal in Raffaeli was present and participated in conversations where strategies and theories were discussed. The amount of time spent and the nature of Ms. Gulden’s duties do not rise to the level of the extreme involvement as the paralegal in Raffaeli and the plaintiff’s reliance on Raffaeli is incorrect. The plaintiff also asserts that on February 10, 2020 Ms. Gulden was present during a 40 minute telephone conversation that Ms. Clancy had with her client. Ms. Gulden states in her affidavit that she did not work at P & A on Mondays. The telephone conversation and the filing of a letter on February 10, 2020, occurred on a Monday. The plaintiff’s other conclusory allegations that Ms. Gulden had access to the files of this action at P &A and confidential information are also inadequate to impute a conflict of interest to the defendant’s attorney (see Mulhern v. Calder at 820). The plaintiff failed to show any type of specific access that Ms. Gulden had to confidential information or work attorney product. Ms. Gulden’s administrative task of filing a letter and scanning a retainer do not create a conflict of interest for the defendant’s attorney. In Nimkoff v. Nimkoff, 18 A.D.3d 344 (1st Dept. 2005), the defendant failed to show that confidences were revealed and could be used to his detriment by an attorney working at the plaintiff attorney’s firm who previously was employed by the defendant attorney’s firm. The plaintiff in the instant matter also fails to show that confidences were revealed to Ms. Gulden and that they can be used to her detriment. “Disqualification during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants [and] denies a party’s right to representation by the attorney of its choice” (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 [1987]). The right to counsel is “a valued right [and] any restrictions must be carefully scrutinized” (Id.). Furthermore, where the rules relating to professional conduct are invoked not at a disciplinary proceeding but “in the context of an ongoing lawsuit, disqualification can create a strategic advantage of one party over another (Id.; Ullman-Schneider v. Lacher & Lovell-Taylor PC, 110 A.D.3d 469 [2013]). The court notes that the plaintiff indicates in her reply that the defendant’s counsel offered to screen Ms. Gulden from the case. It is common for counsel to erect a “figurative wall” around the employee or intern to avoid the appearance of impropriety or any possible conflict. The defendant’s firm should do the same in this case and it is encouraged to construct a “wall” around Ms. Gulden in this matter. Although the plaintiff did not meet her burden for disqualifying the defendant’s counsel, a “wall” is appropriate. The plaintiff’s motion to disqualify the defendant’s attorney is denied. The case is adjourned to October 12, 2021 at 11:30 a.m. for a compliance conference. Based on the foregoing it is hereby: ORDERED AND ADJUDGED, that the plaintiff’s motion to disqualify the defendant’s counsel from further representation in this matter is denied, and it is further, ORDERED AND ADJUDGED, that the plaintiff shall serve a copy of this decision/order upon the defendant within twenty (20) days of the notice of entry. This constitutes the decision and order of the court. Dated: July 7, 2021
