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Awareness of a Conflict of Interest for Eight Months Constituted a Waiver of Any Objection to Opposing Counsel

In a custody proceeding, the Second Department determined mother’s motion to disqualify father’s counsel, based upon a conflict of interest, should not have been granted. The mother was aware of the conflict for eight months prior to making the motion and therefore had waived any objection to father’s counsel:

The disqualification of an attorney is a matter which lies within the sound discretion of the court … . “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 absent a clear showing that disqualification is warranted. While the right to choose one’s counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized” … . Where a party seeks to disqualify counsel of an adversary in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved 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” … . Here, the mother brought the issue of the potential conflict to the court’s attention in April 2014, even though the record reflects that she had been aware of this issue for at least eight months at that time. Therefore, the mother waived any objection to the father’s choice of counsel. Matter of Valencia v Ripley, 2015 NY Slip Op 03852, 2nd Dept 5-6-15

 

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