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ATTORNEY WHO HAD PREVIOUSLY PROSECUTED MOTHER FOR ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN APPOINTED TO REPRESENT MOTHER’S CHILDREN IN A CUSTODY MATTER; IN THE ABSENCE OF EVIDENCE MOTHER WAS PREJUDICED BY CONFIDENTIAL INFORMATION MOTION TO VACATE CUSTODY STIPULATION ON CONFLICT OF INTEREST GROUNDS PROPERLY DENIED.

The Third Department determined Family Court should not have allowed an attorney who, as an assistant District Attorney, prosecuted mother for endangering the welfare of a child, to serve as the children's attorney in a custody matter. Mother moved to vacate the custody stipulation, in part based upon the attorney's (Bielicki's) conflict of interest. The fact that Bielicki should not have been appointed, in the absence of evidence of actual prejudice to mother from the use of confidential information, did not warrant vacation of the stipulation:

The mother … argues that Bielicki's representation of the children violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c), which provides that “a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” The rule defines confidential governmental information as “information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public” … . * * *

Bielicki's assignment as attorney for the children in this matter was contrary to the standards set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c) — and, for that reason, Family Court … should not have permitted Bielicki to serve in that capacity — such error, without more, does not warrant vacatur of the stipulation and order. Matter of Tina X. v John X., 2016 NY Slip Op 02874, 3rd Dept 4-14-16


DISQUALIFICATION OF ATTORNEY APPROPRIATE TO AVOID THE APPEARANCE OF IMPROPRIETY.

In a dispute about easements used by property owners to gain access to their properties, the Third Department determined disqualification of an attorney based upon avoiding the appearance of impropriety was appropriate, even though the mandatory conflict-of-interest disqualification criteria may not have been met:

… [E]ven in instances where … disqualification is not mandatory, disqualification nonetheless may be warranted depending upon the particular facts and circumstances of a given case … . In this regard, “[i]t is well settled that an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” … . To that end, “[a]n attorney may not place himself [or herself] in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . “The disqualification of an attorney is a matter that rests within the sound discretion of the court” … , and the case law makes clear that “[a]ny 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”… . McCutchen v 3 Princesses & AP Trust Dated Feb. 3, 2004, 2016 NY Slip Op 02703, 3rd Dept 4-7-16


DEFENDANTS WAIVED ANY OBJECTION TO PLAINTIFF’S ATTORNEY BY PARTICIPATING IN THE LITIGATION FOR MORE THAN TWO YEARS AND EIGHT MONTHS WITH KNOWLEDGE OF THE ALLEGED CONFLICT OF INTEREST.

The Second Department determined the Brach defendants' motion to disqualify counsel for the plaintiff limited-liability-company (Goldberg) was properly denied. Plaintiff sued defendant Brach, a member of the company, alleging Brach violated his duties to the company. After more than two years and eight months of litigation, the Brach defendants moved to disqualify Goldberg, alleging a conflict of interest. The Brach defendants were aware of the alleged conflict from the beginning. Therefore the Brach defendants had waived any objection to Goldberg's representation. The Second Department explained the relevant law:

“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 the party moving for disqualification knew or should have known of the facts underlying the alleged conflict of interest for a prolonged period 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 brought in the middle of litigation where the moving party was aware of the alleged conflict of interest well before bringing the motion, it can be inferred that the motion was made to secure a tactical advantage … . Ike & Sam's Group, LLC v Brach, 2016 NY Slip Op 02620, 2nd Dept 4-6-16


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DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a concurring opinion by Judge Pigott, rejected defendant’s challenge to the use at trial of recordings of his phone calls made from Rikers Island during pre-trial incarceration. Prosecutors routinely request recordings of nonprivileged inmate phone calls and pour through them for use at trial. The Court of Appeals did not condone the practice, and the concurring opinion laid out how access to the phone calls prejudices defendants who cannot make bail:

In order to properly address and frame defendant’s legal claims, we first clarify what defendant does not allege on this appeal. He does not allege that any conversations with his defense counsel were recorded and admitted at trial, or that the Department permits such monitoring. To the contrary, defendant recognizes that the Operations Order expressly prohibits the recording and monitoring of conversations with an inmate’s attorney. Nor does defendant assert that the intention of the City’s regulation or the Department’s Operations Order is to create and collect information strictly for use by the prosecution against a detainee at trial. Defendant candidly admits that the Department has a legitimate interest in recording and monitoring detainee telephone communications.

Defendant instead challenges what he describes as the Department’s practice of “automatic, unmonitored harvesting of intimate conversations of pre-trial inmates,” and the subsequent dissemination of the Department’s recordings to District Attorneys’ offices for use in criminal prosecutions. Defendant claims the practice violated his right to counsel, exceeds the scope of the Department’s regulatory authority, and was conducted without defendant’s consent. The claims are either without merit or unpreserved and therefore do not warrant reversal and a new trial. People v Johnson, 2016 NY Slip Op 02552, CtApp 4-5-16

CRIMINAL LAW (EVIDENCE, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/EVIDENCE (CRIMINAL LAW, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)/INMATES (RECORDED PHONE CALLS, DEFENDANT’S CHALLENGES TO THE HARVESTING FOR USE AT TRIAL OF RECORDINGS OF PHONE CALLS MADE BY INMATES DURING PRE-TRIAL INCARCERATION REJECTED; THE PRACTICE HOWEVER WAS NOT CONDONED AND THE PREJUDICE TO DEFENDANTS WHO CANNOT MAKE BAIL WAS EXPRESSLY NOTED)

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DEFENSE COUNSEL’S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over an extensive two-judge dissenting opinion, determined defense counsel's failure to request the reopening of the suppression hearing based upon trial testimony did not constitute ineffective assistance. The Appellate Division had previously reversed the trial court's suppression of defendant's statements. At trial the detective who took the statements from the defendant gave an account which differed from the detective's hearing testimony. The inconsistent testimony related to the second of the two statements made by the defendant during interrogation. In response to defendant's motion to vacate the judgment of conviction on ineffective-assistance grounds, the People provided an affidavit from defense counsel which explained the strategy underlying the decision to forego a request to reopen the suppression hearing. “… Counsel averred that he had believed that defendant's second statement would almost certainly be admitted into evidence at trial and that therefore he had focused on using the exculpatory preface of the first statement to cast doubt on the probative worth of defendant's more incriminating subsequent comments.” The court found the explanation of the defense strategy to be sound:

Defense counsel did not deprive defendant of the effective assistance of counsel when he decided not to move to reopen the suppression hearing … . Because the Appellate Division had rejected counsel's original arguments for suppression of the [second] statement prior to trial and cited a number of factors that remained extant throughout the proceedings in this case, counsel reasonably thought that the statement would be admitted into evidence regardless of any new developments, and instead of making what he sensibly thought was a longshot motion to reopen the hearing, he decided to use the exculpatory portion of defendant's first statement to undermine the credibility of the second statement and place it in context. People v Gray, 2016 NY Slip Op 02476, CtApp 3-31-16

CRIMINAL LAW (DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL'S DECISION TO FOREGO A REQUEST TO REOPEN THE SUPPRESSION HEARING BASED UPON TRIAL TESTIMONY WAS SUPPORTED BY A SOUND STRATEGIC REASON, COUNSEL WAS THEREFORE NOT INEFFECTIVE)

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FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE.

The Court of Appeals determined defendant, who was charged with criminal possession of a weapon, was not afforded effective assistance of counsel in that defense counsel did not move to suppress the weapon. The matter was remitted for a suppression hearing. The underlying facts were not addressed in the decision. People v Bilal, 2016 NY Slip Op 02475, CtApp 3-31-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS WEAPON CONSTITUTED INEFFECTIVE ASSISTANCE)

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PROCEDURE USED TO EXCUSE PROSPECTIVE JURORS ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR; FAILURE TO OBJECT TO PROSECUTOR’S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion by Judge Rivera, determined the procedure used by the trial judge to excuse prospective jurors on hardship grounds was not a mode of proceedings error warranting reversal in the absence of preservation. At the outset of jury selection, the judge told the prospective jurors the trial might take five days. Anyone who felt they could not sit for five days was then allowed to leave the courtroom with the clerk who would evaluate the extent of the hardship.  The Court of Appeals held the hardship questioning occurred prior to formal voir dire and did not concern a prospective juror's fitness to serve, thereby distinguishing cases where the judge was absent during formal voir dire. The Court of Appeals further determined defense counsel's failure to object to the prosecutor's remarks in summation which appealed to gender bias did not constitute ineffective assistance of counsel. The defendant in this assault /burglary case was a woman, as was the victim. The victim's boyfriend was the father of defendant's children. To counter the defendant's argument that the attacker was a male, the prosecutor told the jury the case was about “jealousy” and “obsession” and “only a woman” would inflict “this kind of injury.” With respect to the juror-hardship issue, the court explained:

Preservation is particularly important in a case like this because the defense, faced with the prospect that certain prospective jurors were claiming that they were unable to serve due to hardship, may very well have made a strategic decision not to challenge the procedure because he did not want to risk having those prospective jurors end up on the jury when it became apparent that they did not wish to serve. If defense counsel had an objection to the procedure employed by the trial court, he should have voiced it so that the court could have corrected any alleged error. People v King, 2016 NY Slip Op 02278, CtApp 3-29-16

CRIMINAL LAW (ALLOWING CLERK TO EVALUATE JURORS' REQUESTS TO BE EXCUSED ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/APPEALS (CRIMINAL LAW, ALLOWING CLERK TO EVALUATE JURORS' REQUEST TO BE EXCUSED FROM SITTING ON HARDSHIP GROUNDS WAS NOT A MODE OF PROCEEDINGS ERROR)/ATTORNEYS (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (FAILURE TO OBJECT TO PROSECUTOR'S APPEAL TO GENDER BIAS DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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INADEQUATE INQUIRY PRECEDING FATHER’S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL.

The Fourth Department reversed Family Court's order finding father willfully violated a support order because of the court's inadequate inquiry into father's waiver of his right to counsel:

At the parties' initial appearance, the Support Magistrate informed the father only that he had “the right to hire a lawyer [or] talk for [himself],” asked the father to choose between those options, and conducted no further inquiry when the father chose to proceed pro se. The Support Magistrate thus failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney … , and also failed to engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel … . Matter of Soldato v Caringi, 2016 NY Slip Op 02265, 4th Dept 3-25-16

FAMILY LAW (INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)

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ATTORNEYS’ FEES NOT AVAILABLE TO INSURED WHO BRINGS AFFIRMATIVE ACTION TO SETTLE RIGHTS UNDER A POLICY; CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF CAUSE OF ACTION FOR BREACH OF CONTRACT.

The Second Department, reversing Supreme Court, determined the insured's motion for summary judgment dismissing the demand for an attorney's fee should have been granted. When an insured brings an affirmative action to settle rights under an insurance policy, the insured cannot recover attorneys' fees. The court further held the action for breach of the covenant of good faith and fair dealing was not duplicative of the breach of contract cause of action and the insurer's motion for summary judgment on that ground was properly denied:

Implicit in every contract is a covenant of good faith and fair dealing which encompasses any promise that a reasonable promisee would understand to be included … . In the context of an insurance contract, “a reasonable insured would understand that the insurer promises to investigate in good faith and pay covered claims” … . Here, the defendant failed to eliminate all triable issues as to whether it investigated the loss in good faith and timely paid covered claims … . Further, contrary to the defendant's contention, the cause of action alleging breach of the covenant of good faith and fair dealing is not wholly duplicative of the cause of action alleging breach of contract … .

“[A]n insured may not recover the expenses incurred in bringing an affirmative action against an insurer to settle its rights under the policy” … . The defendant established its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as sought an award of an attorney's fee by demonstrating that the plaintiffs were insureds under the policy and that they commenced this action to settle their rights under the policy … . Doody v Liberty Mut. Group, Inc., 2016 NY Slip Op 01798, 2nd Dept 3-16-16

INSURANCE LAW (ATTORNEYS FEES, INSURED CANNOT RECOVER ATTORNEYS FEES IN AFFIRMATIVE ACTION TO SETTLE RIGHTS UNDER A POLICY)/ATTORNEYS FEES (INSURANCE LAW, INSURED CANNOT RECOVER ATTORNEYS FEES IN AFFIRMATIVE ACTION TO SETTLE RIGHTS UNDER A POLICY)/INSURANCE LAW (CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF CAUSE OF ACTION FOR BREACH OF CONTRACT)/CONTRACT LAW (INSURANCE LAW, CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF CAUSE OF ACTION FOR BREACH OF CONTRACT)/COVENANT OF GOOD FAITH AND FAIR DEALING (INSURANCE LAW, CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING NOT DUPLICATIVE OF CAUSE OF ACTION FOR BREACH OF CONTRACT)

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STATEMENTS MADE BY ATTORNEY IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED, DEFAMATION ACTION PROPERLY DISMISSED.

The Second Department determined the defendant-attorney's motion to dismiss the defamation complaint was properly dismissed for failure to state a cause of action. The allegedly defamatory statements were made in an affidavit submitted to the court and concerned the will at the center of the proceedings. The statements, therefore, were absolutely privileged:

An otherwise defamatory statement may be “privileged” and thus not actionable … . Insofar as is relevant herein, an absolute privilege is accorded statements made at all stages of a judicial proceeding in communications among the parties, witnesses, counsel, and the court, provided that the statements may be considered in some way “pertinent” to the issue in the proceeding … . “The test of pertinency [to the litigation] is extremely liberal so as to embrace [ ] anything that may possibly or plausibly be relevant or pertinent'” … . This privilege applies to all statements made in or out of court and regardless of the motive for which they were made … .

Here, the complaint alleges that the defendant, who was counsel for the executor in a probate proceeding, made allegedly defamatory statements in an affirmation in support of a motion in that proceeding to compel a continued examination pursuant to Surrogate's Court Procedure Act § 1404. The statements concerned the very subject of the probate proceeding, the contested last Will and Testament of the decedent. Therefore, the subject statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action … . Brady v Gaudelli, 2016 NY Slip Op 01793, 2nd Dept 3-16-16

ATTORNEYS (DEFAMATION, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/DEFAMATION (STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)/PRIVILEGE (ATTORNEYS, STATEMENTS MADE IN AFFIDAVIT SUBMITTED TO THE COURT WERE ABSOLUTELY PRIVILEGED)

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