The following papers were read on this motion: Plaintiff’s Order to Show Cause, Affidavit and Affirmation in Support, and Exhibits 1 Defendant’s Affidavit and Affirmations in Opposition and Exhibits 2 Defendant’s Affidavit and Affirmation in Reply and Exhibit 3 DECISION & ORDER PRELIMINARY STATEMENT Plaintiff moves by Order to Show Cause seeking an order disqualifying the law firm of Fass & Greenberg, LLP as counsel for the Defendant in this action. Defendant opposes the motion. BACKGROUND The parties were married on April 22, 1988. The instant action was commenced in 2018 by the Plaintiff. On November 2, 2023, the Defendant signed a Consent to Change Attorney Form (NYSCEF Document No. 391) wherein the firm of Fass & Greenberg, LLP was substituted as attorneys of record for the Defendant in place of Cindy A. Prusinowski, Esq., Defendant’s previous attorney. On November 6, 2023, a Notice of Appearance was filed (NYSCEF Document No. 392) wherein the firm of Fass & Greenberg, LLP (“the Firm”) appeared in the instant divorce action on behalf of the Defendant. Plaintiff now moves to disqualify the Firm as counsel for the Defendant. In support of her request. Plaintiff indicates that in the end of April 2018 or the beginning of May 2018, she met with Elena Greenberg, Esq., an attorney of the Firm, for a consultation related to commencing a divorce proceeding against Defendant. Plaintiff indicates that the consultation lasted approximately an hour and a half. Plaintiff maintains that another woman participated during portions of the consultation, who she believes to be, Florence Fass, Esq., the Defendant’s current counsel. Plaintiff details the conversations that she had during said consultation and maintains that she disclosed “a substantial amount of sensitive and confidential information to the Firm concerning important issues that bear directly on this proceeding.” Plaintiff maintains that Ms. Greenberg took a substantial amount of notes during the consultation. Plaintiff indicates that she paid the Firm for the consultation, and upon information and belief paid for the consultation through the Defendant’s business. Plaintiff states that in the few weeks that followed the consultation she and Ms. Greenberg had multiple additional email communications regarding Plaintiff’s possible retention of the Firm to represent her in a divorce proceeding. Plaintiff provides copies of those emails as Exhibit “B” to her application. Plaintiff further states that Ms. Greenberg sent her a proposed retainer agreement for her representation by the Firm, and annexes the same as Exhibit “C” to her application. Plaintiff indicates that she commenced divorce proceedings against the Defendant on September 19, 2018. Plaintiff states that she ultimately decided not to retain the Firm to represent her in the divorce action. Plaintiff argues that the discussions that she had with the Firm in anticipation of the filing of the instant divorce action would make the Firm’s representation of the Defendant in this matter completely inappropriate. Plaintiff maintains that a substantial amount of what she discussed with the Firm in confidence during the consultation goes to the very subject matter that will be part of the upcoming trial in this action. As such, Plaintiff seeks for the Firm to be disqualified from representing the Defendant in this action. Defendant opposes Plaintiff’s motion. Defendant claims to have no knowledge that the Plaintiff met with Ms. Greenberg and paid her with a check from his business. Defendant maintains that he will be prejudiced if Plaintiff’s motion is granted in that “[t]he Plaintiff has had at least six (6) lawyers represent her in the past five (5) years. Surely, I am entitled to two (2).” Defendant’s Counsel, Florence Fass, Esq., files an Affirmation in Opposition to the Firm’s disqualification. Ms. Fass indicates that she has no recollection of having met with the Plaintiff, and that there are no records or any other notes or documents retained by the Firm with respect to the content of such a meeting. Ms. Fass argues that the meeting between Plaintiff and Ms. Greenberg took place 5 ½ years before the Defendant retained the Firm, prior to the commencement of the instant action. Ms. Fass further maintains that “Plaintiff has not articulated any prejudice which might befall her from information which has not already been disclosed in this action, or should have been disclosed by her or the Defendant”. Elena Greenberg, Esq., also files an Affirmation in connection with Defendant’s opposition to the instant motion. Ms. Greenberg states that she has no memory of meeting with the Plaintiff and that she does not have any notes from the meeting. Ms. Greenberg further indicates that she has conducted hundreds of consultations since that meeting took place. Ms. Greenberg further states that she does not recall Ms. Fass ever meeting with the Plaintiff. Ms. Greenberg argues that she does not believe that the Plaintiff has established the grounds necessary to disqualify the Firm and that Plaintiff’s application should be denied. DISCUSSION Rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.00) sets forth, in pertinent part: Duties to Prospective Clients (a) Except as provided in Rule 1.18(e), a person who consults with a lawyer about 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 learned information from a prospective client shall not use or reveal that information, 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 they 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). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing; or (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client; (ii) the firm implements effective screening procedures to prevent the flow of information about the matter between the disqualified lawyer and the others in the firm; (iii) the disqualified lawyer is apportioned no part of the fee therefrom; and (iv) written notice is promptly given to the prospective client; and (3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter. (e) A person is not a prospective client within the meaning of paragraph (a) if the person: (1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or (2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter. In her Affidavit in Support, the Plaintiff credibly indicates that she had a consultation Ms. Greenberg and provides proof of emails between her and Ms. Greenberg regarding possible representation, as well as a proposed retainer agreement between Plaintiff and the Firm. Thus, it is clear to this Court that the Plaintiff was a prospective client of the Firm in 2018 as defined in Rule 1.18 (a). As such, the Firm is bound by the duties to prospective clients as outlined in Rule 1.18 (b) and (c). It is unquestionable that the Defendant has interests that are materially adverse to the Plaintiff’s in this matter. This Court finds that Plaintiff has credibly established that the information that she discussed with the Firm during the consultation could be significantly harmful to Plaintiff in this matter if the Firm was to permitted to continue their representation of the Defendant in the instant divorce action. Furthermore, it is of no consequence whether or not Ms. Fass was part of the consultation. It is undisputed that the Plaintiff met with Ms. Greenberg, who is Ms. Fass’s law partner, and that 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. The Court further notes that the Firm has failed to establish facts supporting any of the exceptions under Rule 1.18 (d) that would render their representation of the Defendant in this action to be permissible. It is well settled that the disqualification of an attorney is generally within the sound discretion of the court (Cohen v. Cohen, 125 A.D.3d 589, 590 [2d Dept. 2015], see Albert Jacobs, LLP v. Parker, 94 A.D. 3d 919 [2d Dept. 2012]). Any “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (Cohen at 590, quoting Mineola Auto., Inc. v. Millbrook Props., Ltd., 118 A.D.3d 680, 680-81 [2d Dept. 2014], quoting Seeley v. Seeley, 129 A.D.2d 625, 627 [2d Dept. 1987]). Here, it is clear to this Court that there exists a conflict of interest that requires the disqualification of the Firm as counsel for the Defendant so as to avoid any appearance of impropriety. This Court is of the opinion that the Firm’s continued representation of Defendant could potentially prejudice the Plaintiff’s interests in this incredibly contentious and acrimonious divorce matter that is likely only to be resolved after trial. Based on all of the foregoing, the Plaintiff’s request is GRANTED, and it is ORDERED that Fass & Greenberg, LLP, is disqualified from representing the Defendant in this matter; and it is further ORDERED, that in the interests of fairness and equity, the matter is hereby stayed for a period of twenty (20) days to permit the Defendant an opportunity to retain new counsel; and it is further ORDERED, that the parties and counsels shall appear In-Person in Part IDV for a conference on this matter on March 7, 2024 at 9:30AM. Dated: February 15, 2024
