Conflict of Interest Waived Where Respondent Knew of the Conflict and Participated in Prior Proceedings for Some Time

he Fourth Department determined a disqualifying conflict of interest existed between respondent and petitioner’s attorney, but that respondent had waived the conflict by participating in prior aspects of the case without objection:

…[R]espondent established that she had a prior attorney-client relationship with petitioner’s attorney, that the issues in the two litigations are substantially related, each involving ownership of the same parcel of property, and that her interests are adverse to those of petitioner … . Usually, that would create an “irrebuttable presumption of disqualification” …, but many courts have nevertheless denied disqualification upon finding that a party has waived any objection to the purported conflict of interest … .

In determining whether a party has waived any objection to a conflict of interest, “courts consider when the challenged interests became materially adverse to determine if the party could have moved [for disqualification] at an earlier time . . . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation . . . Further, where a motion to disqualify is made in the midst of litigation where the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage”… . Matter of David C Peters, 2015 NY Slip Op 00042, 4th Dept 1-2-15