Zappin v. Comfort et al
Filing
92
OPINION re: 61 MOTION to Disqualify Counsel; 48 LETTER MOTION for Extension of Time to File Answer: For the reasons set forth herein, Plaintiff's motion to unseal and Plaintiff's motion for disqualification are denied. (Signed by Judge Robert W. Sweet on 1/30/2019) (jwh)
,'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------x
ANTHONY ZAPPIN
Plaintiff,
18 Civ. 1693
OPINION
-againstCLAIRE COMFORT, et al.,
Defendants.
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APPEARANCES:
Attorney for Plaintiff
PRO SE
347 Adams Avenue Suite 3
Huntington, WV 25701
USDC SDNY
CUMENT
ELECTRONlC Al.l Y FILED
D C #: - ---,1.~---ll---- D ATE FrLED: ~ =---:.- --+-+-
Attorney for Defendant Claire Comfort
PRO SE
1212 4th Street SE
Apt. 801
Washington, DC 20003
Attorneys for Defendant Robert M. Wallack
The
444
New
By:
Wallack Firm, P . C
Madison Avenue
York, NY 10022
Robert M. Wallack
Attorneys for Defendant The Wallack Firm, P.C.
The Wallack Firm, P.C
444 Madison Avenue
New York, NY 10022
•
Attorneys for Defendant Harriet Newman Cohen
Rivkin Radler LLP
926 Rexcorp Plaza
Uniondale, NY 11556
By:
Caro l A. Lastorino
Janice J. DiGennaro
Attorneys for Defendant Cohen Rabin Stine Schumann LLP
Rivkin Radler LLP
926 Rexcorp Plaza
Uniondale, NY 11556
By:
Carol A. Lastorino
Janice J. DiGennaro
Attorneys for Defendant Comprehensive Family Services ,
Inc.
Fumos o , Kelly, Deverna, Snyder, Swart & Farrel
110 Marcus Boulevard
Happauge, NY 11788
By:
Scott Gerard Christesen
Sweet, D.J.
On July 19, 2018, Plaintiff prose, Anthony Zappin
("Zappin" or the "Plaintiff") moved to unseal the motions to
dismiss and supporting exhibits of Defendants Harriet Newman
Cohen and
Cohen Rabin Stine Schumann LLP (the "Cohen
Defendants"); Comprehensive Family Services ("CFS"); and Robert
M. Wallack and the Wallack Firm, P.C.
(the "Wallack
Defendants") . 1 See ECF No. 46. The motion was heard and marked
fully submitted on August 8 , 2015. Zappin also moved to
disqualify Rivkin Radler LLP ("RR") as counsel for the Cohen
Defendants. See ECF No. 61. The motion was heard and marked
fully submitted on September 26, 2018.
Based on the conclusions set forth below, the motions
of the Plaintiff are denied.
The Motion of the Plaintiff to Unseal is Denied
Although Zappin's current position is that the Court
improperly sealed documents cit ing to, quoting from, or
otherw ise related to the underlying custody proceeding (the
By Order dated July 19 , 2018 , this Court treated Zappin ' s letter as a
motion to unseal the documents . See ECF No . 47 .
1
"Custody Proceeding"), it is Zappin who sought to seal such
documents in four other federal proceedings relating to the
Custody Proceeding. 2 Zappin's prior applications to seal those
motion papers relied on both Domestic Relations Law§ 245 and
New York Court Rule 202.5(e) (1) (v).
Zappin has not met his burden of any special
circumstances warranting unsealing of the documents made
confidential under D.R.L. § 245 as required by New York courts.
This is particularly so, where, as here, he not only insisted
upon sealing in the above-referenced prior federal court
actions, but he has access to all of the sealed documents for
use in this action.
The Motion of the Plaintiff for Disqualification is Denied
Factual Background
On or about May 30, 2018 , Jan ice J. DiGennaro, Esq.
("DiGennaro"), a partner at RR, was contacted by the Cohen
Defendants in connection with representing Harriet Newman Cohen
The four federal court actions are Zappin v. Cooper , 16 Civ . 5985
(KPF) ; Zappin v. Daily News L . P . d/b/a The Daily News , 16 Civ . 8762 (KPF) ;
Zappin v . NYP Holdings Inc. d/b/a/ The New York Post , 16 Civ . 8838 (KPF) ; and
Zappin v . Cohen , et al. , 15 Civ . 7271 (PKC) (JCF) .
2
2
("Cohen") and her firm in this action. Cohen is sued herein by
Zappin for alleged acts or omissions taken in her role as the
court-appointed attorney for the child (the "AFC") in Zappin's
underlying state court matrimonial action (the "Matrimonial
Action") between Plaintiff and his former wife, Claire Comfort
( "Comfort" ), also a defendant herein. See DiGennaro Deel. ! 2,
ECF No. 78-1. RR was specifically chosen by the Cohen Defendants
to represent them.
Id.
A conflicts check was run and it was determined that
RR never represented Zappin and had no conflict of interest in
representing the Cohen Defendants in this matter.
Id. ! 3. It
was also discovered that RR had previously handled a matter in
which RR was adverse to Zappin and represented the law firm
Aronson Mayefsky & Sloan LLP ("AMS " ).
Id. ! 4. Th e publicly-
filed amended complaint in that action, captioned Zappin v.
Aronson Mayefsky
&
Sloan, LLP, 16 Civ. 7417
(LGS), revealed that
Zappin sued AMS for malpractice in connection with AMS's
representation of Zappin in the early stages of the Matrimonial
Action (the "Malpractice Action"). See DiGennaro Deel. !! 4-5
Ex. A, ECF Nos. 78-1, 78-2.
According to Zappin's amended complaint in the
Malpractice Action, AMS represented Zappin for roughly five
3
&
months, from February 11, 2014 to July 9, 2014. DiGennaro Deel.
Ex. A~ 1, ECF No. 78-2. The issues raised by Zappin in his
prior discontinued action against AMS asserted legal malpractice
and a breach of contract claims, among others, for AMS's alleged
misrepresentation, including the alleged failure to petition for
and secure a pendente lite order of unsupervised visitation,
agreeing to the appointment of an unqualified forensic custody
investigator, agreeing to supervised visitation without Zappin's
consent, agreeing that Zappin should bear the full cost of
supervised visitation without Zappin's consent, advising him
that he need not pay child support, and overbilling him. See id.
~
71. The Malpractice Action was settled and closed in April
2017. See DiGennaro Deel.
~
4, ECF No. 78-1.
Zappin's claims in the instant action involve Cohen's
alleged actions, omissions, motivations, and billing in the
custody proceeding occurring after August 2014. See AC~~ 59,
61-62, 66, ECF No. 68. Zappin alleges in this action that the
Cohen Defendants entered a purported conspiracy with Comfort and
her lawyer, Robert Wallack ("Wallack"), to harm Plaintiff's
relationship with his child and deliberately multiply the
custody proceedings so as to improperly churn fees.
id.
~~
See, e.g.,
67-68, 72-73, 84, 86. These allegations serve as the
predicate for Zappin's claims against the Cohen Defendants for
4
fraud,
conspiracy to defraud, abuse of process, conspiracy to
abuse process, interference with Zappin's parental and
contractual rights, and violation of New York Judiciary Law§
487. See id.
~~
158-94, 201-13. All of those alleged acts
occurred before AMS's termination in July 2014 and before the
AFC's appointment in August 2014. Id.
~
1.
Neither DiGennaro nor Carol Lastorino, Esq.
("Lastorino")--the only RR attorneys who work on the instant
action--had any involvement in the representation of AMS in the
Malpractice Action or reviewed the settlement agreement in that
action. See DiGennaro Deel.
~~
8, 10, ECF No. 78-1. RR partner
Jonathan Bruno ("Bruno") and his associate Deborah Isaacson
("Isaacson") handled the AMS action out of RR's New York City
office.
Id. DiGennaro and Lastorino work out of RR's Long Island
office.
Id.
Additionally, AMS disclosed 48 pages of emails
exchanged between Zappin and AMS attorneys in the underlying
custody action in support of its motion to dismiss Zappin's
Malpractice Action. See DiGennaro Deel.
~
10 & Ex. B, ECF Nos.
78-1, 78-3. Zappin also disclosed the content of privileged
communications with AMS in his amended complaint in the
Malpractice Action, and in his opposition to AMS's motion to
5
dismiss that action. See DiGennaro Deel.
~
11 & Ex.
C. at 7 n.3,
17, 21-23, ECF Nos. 78-1, 78-4.
Applicable Standard
In determining whether to disqualify counsel, courts
must balance "a client's right freely to choose his counsel"
against "the need to maintain the highest standards of the
profession." Evans v. Artek Sys. Corp.,
Cir. 1983)
715 F.2d 788, 791
(2d
(internal quotation marks and citations omitted).
This Circuit has shown "considerable reluctance to disqualify
attorneys despite misgivings about the attorney's conduct," in
part because "disqualification motions are often interposed for
tactical reasons." Bd. of Ed. of the City of N.Y. v. Nyquist,
590 F.2d 1241, 1246 (2d Cir. 1979)).
Accordingly, the party seeking to disqualify an
opposing party's counsel bears "a high standard of proof." Kubin
v. Miller,
801 F. Supp. 1101, 1114
of India v. Cook Indus.
Inc.,
(S.D.N.Y. 1992)
(citing Gov't
569 F.2d 737, 739 (2d Cir. 1978)).
Although "decisions on qualification motions often benefit from
guidance offered by the American Bar Association (ABA) and state
disciplinary rules, such rules merely provide general guidance
and not every violation of a disciplinary rule will necessary
6
lead to disqualification." Hempstead Video, Inc. v. Inc. Vill.
Of Valley Stream, 409 F.3d 127, 132. Instead, disqualification
of an attorney is "only appropriate where there has been a clear
violation of the Code of Professional Responsibility leading to
a significant risk of trial taint." Colandrea v. Town of
Orangetown, 490 F. Supp. 2d 342, 352
(S.D.N.Y. 2007)
(citation
omitted); see also, e.g., Glueck v. Jonathan Logan, Inc.,
F.2d 746, 748
(2d Cir. 1981)
653
("[Motions to disqualify counsel]
should ordinarily be granted only when a violation of the Canons
of the Code of Professional Responsibility poses a significant
risk of trial taint.");
671, 677
does not
(2d Cir. 1976)
W.
T. Grant Co. v. Haines,
531 F.2d
("[A] violation of professional ethics
. automatically result in disqualification of
counsel."). "'[M]ere speculation' regarding the reasons for
supporting disqualification are insufficient, and a motion for
disqualification should only be granted "if the facts present a
real risk that the trial will be tained." Tour Tech.
Software,
Inc. v. RTV, Inc., No. 17 Civ. 5817, 2018 WL 3682483, at *2
(E.D.N.Y. Aug. 2, 2018)
(quoting Muniz v. Re Spec Corp., 230 F.
Supp. 3d 147, 152 (S.D.N.Y. 2017)).
"One recognized form of taint arises when an attorney
places himself in a position where he could use a client's
privileged information against that client." Hempstead,
7
409 F.3d
at 133. In cases of successive representation, an attorney may
be disqualified if:
(1) the moving party is a former client of
the adverse party's counsel;
(2) there is a substantial
relationship between the subject matter of the counsel's prior
representation of the moving party and the issues in the present
lawsuit; and (3) the attorney whose disqualification is sought
had access to, or was likely to have had access to, relevant
privileged information in the course of his prior representation
of the client. Id.
(citation omitted).
Similarly, the New York Rules of Professional Conduct
("RPC") address a lawyer's duties to a former client and provide
in pertinent part that:
"A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly
represented a client in a matter shall not thereafter
represent another person in the same or substantially
related matter in which that person's interests are
materially adverse to the interests of the former
client unless the former client gives informed
consent, confirmed in writing." RPC 1.9(a).
8
RPC 1.9(c) further provides that, where a lawyer has
formerly represented a client in a matter, or whose present or
former firm has formerly represented a client in a matter, shall
not thereafter "use confidential information of the former
client .
. to the disadvantage of the former client" or
"reveal confidential information of the former client."
The Motion to Disqualify RR is Denied
Zappin's motion for disqualification rests on three
grounds. First, he claims that, because RR previously
represented Zappin's former lawyers, AMS, in defending a legal
malpractice action brought against them by Zappin, RR has a
conflict of interest representing the Cohen Defendants in this
action. Second, he claims that such conflict taints the trial
because RR had access to privileged or confidential information
in connection with that prior representation, which Zappin
speculates that RR may use to his detriment in this action.
Third, he claims that because RR negotiated a confidential
settlement with Zappin on behalf of its client, AMS, RR is in
possession of knowledge relative to the confidential settlement,
which RR may use to Zappin's detriment in this action.
9
Given these arguments, the motion for disqualification
must be judged under the standard used for evaluating successive
representations. Because Plaintiff fails to meet that standard,
his motion to disqualify RR as counsel for the Cohen Defendants
is denied.
As described above, the threshold issue for successive
conflicts under both New York ethical rules and the Second
Circuit is whether the movant has a prior attorney-client
relationship with the lawyer or firm sought to be disqualified.
Here, RR has never represented Zappin. Rather, RR represented an
adversary of Zappin, namely, attorneys AMS. Accordingly, Zappin
fails to meet the first requirement of the test for
disqualification. See Tour Tech. Software, 2018 WL 3682483, at
*5 (finding disqualification unwarranted despite claim that
attorney obtained confidential information during representation
of another client in connection with negotiating a settlement
where the attorney in question had represented another entity
sued by the plaintiff).
Second, there is not a substantial relationship
between the subject mater of the counsel's prior representation
and the issues in the current lawsuit. Although Zappin's former
attorneys, AMS, represented him very briefly in the Matrimonial
10
Action, that representation ceased on July 11, 2014. See
DiGennaro Deel. Ex. A, ECF No. 78-2. However, Cohen was not
appointed to her role as AFC until August of 2014, i.e., after
AMS's representation was terminated by Zappin. See AC~ 11, ECF
No. 68. Thus, there was no temporal overlap between AMS's
representation of Zappin in the Matrimonial Action and Cohen's
work or services as the AFC in that action. Plaintiff has
therefore failed to meet the second requirement of the
disqualification test. See G.D. Searle
&
Co. v. Nutrapharm Inc.,
1999 WL 249725, at *3 (S.D.N.Y. Apr. 28, 1999)
(denying
disqualification of plaintiff's counsel in trademark
infringement action despite claim that plaintiff's counsel had
previously represented defendant's parent company in the
prosecution of trademarks because the trademark dispute in issue
was not substantially related to plaintiff's counsel's
prosecution of the patents for defendant's parent company)
Finally, Zappin cannot satisfy the third prong of the
test for disqualification. Other than speculation as to what
documents RR might have received from its client in the prior
Malpractice Action, Zappin has provided nothing to demonstrate
the existence of a significant risk of trial taint or that any
actual prejudice that would flow to him from RR's access to such
documents. For example, Plaintiff argues that since RR (through
11
its partner, Bruno), is aware of the terms of the prior
settlement with AMS, it could use such knowledge unfairly
against him. See Pl.'s Br. at 10-11, ECF No. 62. However, Zappin
cites no ethics opinion or other authority justifying
disqualification of counsel because he was involved in, and had
knowledge of, a confidential settlement on behalf of another
client against the same plaintiff in a prior action. In fact,
courts have rejected this precise premise. See Tour Tech.
Software, 2018 WL 3682438, at *5-6; Tradewind Airlines, Inc. v.
Soros, No. 08 Civ. 5901, 2009 WL 1321695, at *7-9 (S.D.N.Y. May
12, 2009). Zappin's "heavy burden" of proof is not met by
allegations such as these. Evans, 715 F.2d at 794.
Additionally, having disclosed some of the privileged
communications that he exchanged with AMS, Zappin may not use
the attorney-client privilege as both a "shield and a sword."
U.S. v. Bilzerian,
926 F.2d 1285, 1292 (2d Cir. 1991); Bank
Brussels Lambert v. Credit Lyonnais (Suisse)
S.A., No. 93 Civ.
6876, 1995 WL 598971 (S.D.N.Y. Oct. 11, 1995). The documents
exchanged between AMS and Zappin regarding AMS's representation,
advice, alleged malpractice, and billing, were put at issue by
the Malpractice Action and AMS's defense. Moreover, any
privilege applicable to any documents covering those subjects
12
was waived by Zappin's selective disclosure of other such
documents and communications.
In short, Plaintiff has supplied no facts or law
supporting the conclusion that the trial of this action would be
tainted by any ethical impropriety or disclosure of privileged
merit.
Conclusion
For the reasons set forth herein, Plaintiff's motion to unseal
and Plaintiff's motion for disqualification are denied.
It is so ordered.
New York, NY
January
Jo ,
2019
U.S.D.J.
13
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