THE PEOPLE OF THE STATE OF NEW YORK : NOTICE OF MOTION TO DISQUALIFY COUNSEL. -against- :

Transcription

1 DISTRICT COURT : COUNTY OF NASSAU FIRST DISTRICT PART DVM : HEMPSTEAD, NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK : NOTICE OF MOTION TO DISQUALIFY COUNSEL -against- : DOMINIC BARBARA : Docket Numbers Defendant. : 2012NA NA NA NA X PLEASE TAKE NOTICE, that on the annexed affirmation of Assistant District Attorney THERESA TEBBETT, duly affirmed on the 15 th day of March, 2013 the People will move this Court on April 2, 2013, before the Honorable Helen Voutsinas, or as soon thereafter as counsel may be heard, for an order to disqualify counsel for the defendant. Respectfully submitted, KATHLEEN M. RICE DISTRICT ATTORNEY NASSAU COUNTY 99 Main Street Hempstead, NY By: Theresa Tebbett Assistant District Attorney Dated: March 15, 2013 Mineola, New York

2 DISTRICT COURT : COUNTY OF NASSAU FIRST DISTRICT PART DVM : HEMPSTEAD, NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK : -against- : MOTION TO DISQUALIFY COUNSEL DOMINIC BARBARA : Docket Numbers Defendant. : 2012NA NA NA NA X I, THERESA TEBBETT, being an attorney at law admitted to practice in the Courts of this State and an Assistant District Attorney of the County of Nassau, of Counsel to KATHLEEN M. RICE, DISTRICT ATTORNEY of the County of Nassau, attorney of record for the People of the State of New York, do hereby affirm the statements herein to be true under the penalties of perjury, except such as are made upon information and belief, which matters I believe to be true. The sources of such information and belief are: your affirmant s review of the files of the District Attorney in connection with these cases; review of the accusatory instruments and supporting depositions filed in connection with these cases; review of the police paperwork relevant to these cases; conversations I have had with the complaining witness in this case, Leslie Barbara; conversations I have had with the witness in this case, Frank Perrone; the sworn affidavit of Leslie Barbara which is annexed hereto, supporting documentation as referenced in Ms. Barbara s affidavit and annexed thereto, and my review of same; and conversations I have had with Assistant District Attorney Kyle Rose-Louder, Bureau Chief of the Special Victims Bureau of the Nassau County District Attorney s Office. STATEMENT OF FACTS AND PROCEDURAL HISTORY 1. On September 5, 2012, the defendant, Dominic Barbara, was arrested and charged with one count of Criminal Contempt in the Second Degree in violation of P.L (3), for allegedly violating an order of protection the previous day. The defendant was before the court on

3 September 6, 2012 for arraignment on Docket 2012NA and the matter was adjourned to the DVM part for October 3, Upon information and belief, in the beginning of September 2012, attorney Bruce Barket contacted ADA Kyle Rose-Louder, Bureau Chief of the District Attorney s Office Special Victims Bureau, on behalf of the complaining witness in this case, Leslie Barbara. Sometime around the week of September 4 th 11 th, 2012, ADA Rose-Louder had a telephone conversation with Mr. Barket on behalf of Ms. Barbara, about what action if any would be taken by the District Attorney s office in response to allegations Ms. Barbara was raising against the defendant. 3. On October 3, 2012, the defendant appeared in the DVM part without an attorney, announced ready for trial, waived all discovery, and the case was adjourned at the People s request for October 29, On October 29, 1012, the case was administratively adjourned to October 31, 2012, due to Hurricane Sandy. 5. On October 31, 2012, the defendant did not appear nor did any counsel appear on his behalf, and the case was adjourned for conference to November 19, On November 19, 2012, neither the defendant nor any counsel appeared, and the case was again adjourned, with the court to notify the defendant, to December 12, On December 4, 2012, the defendant was arrested and charged with two counts of Aggravated Harassment in the Second Degree in violation of P.L (1), one count of Stalking in the Fourth Degree in violation of P.L (2), one count of Stalking in the Fourth Degree in violation of P.L (3), and one count of Attempted Grand Larceny in the Fourth Degree, in violation of P.L. 110/155.30(6). The nature of the allegations that comprise these charges are

4 detailed in the accusatory instruments and supporting depositions filed in connection with these charges, that are annexed to the instant motion as Exhibit 1. The defendant was brought before the court for arraignment on these charges under Docket numbers 2012NA027200, 2012NA and 2012NA on December 4, 2012, and the matters were adjourned to the DVM part on December On December 12, 2012, the defendant did not appear in part DVM, nor did any counsel appear on his behalf. A bench warrant was ordered by the Hon. Ferrell. 9. Upon information and belief, said bench warrant was executed on December 14, 2012 by Deputy Sheriffs from the Nassau County Sheriff s Department and the defendant was arrested in the Family Court building at 1200 Old Country Road, Westbury. 10. The defendant was brought before the District Court on December 15, 2012, the warrant was vacated, and the matter was adjourned back to the DVM part for December 18, On December 18, 2012, the defendant appeared in the DVM part without counsel, and the matter was adjourned to January 17, 2013 at the defendant s request. 12. On January 17, 2013, the defendant appeared in the DVM part again without counsel and requested an additional 2 weeks to retain an attorney. The cases were adjourned to January 31, 2013 at the defendant s request. 13. On January 31, 2013, the defendant appeared in the DVM part again without counsel and requested additional time to retain an attorney. The cases were adjourned to February 27, 2013 for that purpose at the defendant s request. 14. On February 27, 2013, the defendant appeared in the DVM part again without counsel and requested additional time to retain an attorney. The cases were adjourned to March 6, 2013 for that purpose at the defendant s request.

5 15. Upon information and belief, on March 5, 2013, Ms. Barbara received a telephone call from Mr. Barket wherein he indicated that the defendant had requested that Mr. Barket represent him at his next court appearance scheduled for the following day. Ms. Barbara advised Mr. Barkett during that conversation that she would not consent to him appearing on behalf of the defendant. 16. That same day, Ms. Barbara sent Mr. Barket a letter objecting in writing to representation of the defendant by him or anyone associated with his firm. A copy of said letter is attached to the instant motion as Exhibit Mr. Barket responded to Ms. Barbara in writing. A copy of said letter is attached to the instant motion as Exhibit On March 6, 2103, attorney Aida Ferrer Leisenring from the firm of Barket, Marion, Epstein and & Kearon, LLP, appeared on the defendant s behalf in the DVM part. 19. This case was conferenced with the Hon. Helen Voutsinas and the issue of a conflict of interest with this representation was raised, both at a bench conference and on the record. As a result of the People raising this issue at that time, a motion schedule was set by the Court and the People now file the instant motion. DISQUALIFICATION IS REQUIRED PURSUANT TO THE NEW YORK RULES OF PROFESSIONAL CONDUCT Pursuant to the New York Rules of Professional Conduct, specifically Rule 1.7: Conflict of Interest: Current Clients; Rule 1.8: Current Clients: Specific Conflict of Interest Rules; Rule 1.9: Duties to Former Clients; Rule 1.10: Imputation of Conflicts of Interest; and Rule 1.12: Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or Other Third-Party Neutrals (attached as Exhibit 4), the People assert that the law firm of Barket, Marion, Epstein & Kearon, LLP must be disqualified from representing defendant Dominic Barbara in the cases

6 currently before this court. Because the complaining witness in this case, Leslie Barbara, had an attorney-client relationship with Bruce Barket prior to an associate from his firm appearing before this Court on the defendant s behalf, a conflict of interest exists and the firm s continued representation of the defendant implicates an ethical violation of the New York Rules of Professional Conduct. AN ATTORNEY CLIENT RELATIONSHIP EXISTED BETWEEN THE COMPLAINING WITNESS AND A NAMED PARTNER IN THE FIRM THAT NOW SEEKS TO REPRESENT THE DEFENDANT The People assert that an attorney-client relationship was formed between the complaining witness in this case and attorney Bruce Barket, a named partner of the firm Barket, Marion, Epstein & Kearon, LLP, that now seeks to represent the defendant by way of an associate in the firm, attorney Aida Ferrer Leisenring. This relationship was initiated by Ms. Barbara when she reached out to Mr. Barket for assistance and advice concerning the actions of her ex-husband, the defendant Dominic Barbara, as evidenced by the attached affidavit of Leslie Barbara (Exhibit 5, and its supporting documentation Exhibits A through E). An attorneyclient relationship arises only when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services. Matter of Priest v. Hennessy, 51 N.Y.2d 62, (1980). The attorney-client relationship between Ms. Barbara and Mr. Barket arose when she first contacted him in July 2012, seeking advice. Formality is not essential to create a legal services contract. Therefore, it is necessary to look to the words and actions of the parties to ascertain if an attorney-client relationship was formed. Talansky v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003) (citation omitted); see also Wei Cheng Chang v. Pi, 288 A.D.2d 378 (2d Dept. 2001), lv. denied 99 N.Y.2d 501 (2002); McLenithan v. McLenithan, 273 A.D.2d 757 (3d Dept. 2000). Even if counsel did not execute a formal retainer agreement with the complainant, that does not foreclose the possibility that counsel and the complaining witness entered into a de facto attorney-client relationship. See People v. Fairman, 35 Misc.3d 1243(A) (Sup Ct Bronx Co 2012), citing Matter of Priest v. Hennessey, 51 N.Y. 2d at Whether or not the complaining witness paid Mr. Barket a retainer fee is also not controlling here. It should be

7 noted however that the complainant offered to pay Mr. Barket for his legal services and he declined, as indicated in her affidavit. The existence of a relationship is not dependent on the payment of a fee or an explicit agreement. See Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 99 (1 st Dept. 2008). An attorney-client relationship can even encompass a preliminary consultation where the prospective client does not ultimately retain the attorney. See id. This Court must examine the actions of both Ms. Barbara as client and Mr. Barket as attorney to determine if such a relationship existed. Ms. Barbara and Mr. Barket communicated with each other concerning the actions of the defendant and what Ms. Barbara s legal options were in response to those actions, as evidenced by her affidavit and its supporting documents. She sought his advice and his assistance in effecting the arrest of the defendant, and she sought his advocacy on her behalf to the District Attorney s Office to bring additional charges against the defendant. She provided him with documentation of the defendant s actions and other written communications that now form the basis of the charges pending before the Court against the defendant. In addition, Mr. Barket held himself out as her attorney through his actions in calling the District Attorney s Office and speaking with the Bureau Chief of the Special Victims Bureau on Ms. Barbara s behalf. As stated in the People s affirmation as well as Ms. Barbara s affidavit (Exhibit 5) and her supporting documentation (Exhibit B), Mr. Barket spoke with ADA Rose-Louder in early September 2012, he held himself out as an attorney acting on her behalf when he called to inquire about what if any additional charges would be brought against the defendant. All of these facts establish the clear existence of an attorney-client relationship between Ms. Barbara and Mr. Barket at the inception of the current criminal proceedings against the defendant. Therefore the first prong of seeking disqualification of counsel, namely, establishing the existence of an attorney client relationship, has been met here. THE ATTORNEY CLIENT RELATIONSHIPS ARE BOTH MATERIALLY ADVERSE AND SUBSTANTIALLY RELATED Clearly the attorney-client relationships are adverse to each other. The interests of Ms. Barbara as the complaining witness, and the defendant, both clients of Mr. Barket and his firm,

8 are materially adverse to each other in the context of a criminal prosecution. Neither party s interests can effectively be represented when they are opposed to each other. Ms. Barbara seeks prosecution of the defendant in these cases, and Mr. Barket and his firm now seek to defend the defendant in that same matter. Obviously these matters are substantially related as well, because they are the very same matters. Ms. Barbara sought Mr. Barket s legal assistance on the very matters that are now the subject of the charges against this defendant before this Court, on which Mr. Barket and his firm are seeking to represent the defendant. Acting on Ms. Barbara s behalf, Mr. Barket advocated to both the police and the District Attorney s Office for those entities to take action against the defendant in response to the criminal acts he was committing against Ms. Barbara. A conflict of interest exists when a defendant s attorney represents a prosecution witness. See People v. Green, 74 A.D.3d 1899, 1900 (4th Dept. 2010). The Court of Appeals held that perhaps the most pervasive source of conflict remains the victim. People v. McDonald, 68 N.Y.2d 1, 11 (1986) An attorney s decision whether and how best to impeach the credibility of a witness to whom he or his law partner - owes a duty of loyalty necessarily places the attorney in a very awkward position, where prejudice to defendant need not be precisely delineated but must be presumed. Id., citing People v. Mattison, 67 N.Y.2d 462, 470 (1986); see also People v. Carncross, 14 N.Y.3d 319, 328 (2010). Reversal is required where defense counsel represents both the defendant and the primary prosecution witness. See People v. Harris, 99 N.Y.2d 202, 210 (2002). Defense counsel s concurrent representation of an important prosecution witness on an unrelated civil matter gave rise to a conflict that warranted reversal. See People v. Wandell, 75 N.Y.2d 951, 952 (1990). In People v. Gordon, 272 A.D.2d 133, 134 (1st Dept. 2000), the court properly exercised its discretion in disqualifying defense counsel before trial where the attorney had previously represented a witness who testified against the defendant at trial, and whom the attorney has accompanied at an interview with the prosecutor. See id. The court found that continued representation of defendant by this attorney would create an actual conflict of interest. Id. When continued representation by an attorney would work unfair prejudice to either the prosecution or the defense, counsel should be disqualified. See People v. Twedt, 7 Misc.3d 665 (Sup Ct Bronx Co 2005).

9 The present case represents a unique set of facts which places an attorney who initially acted as counsel to, and an advocate for, a domestic violence victim, in the untenable position of now defending the perpetrator against the very allegations for which the attorney sought to have the defendant arrested and prosecuted for on the victim s behalf. Domestic Violence prosecutions, in particular, can cause problems which may result in a conflict of interest, and disqualification of counsel. This can occur when a defense attorney engages in lengthy, factbased conversations with the complaining witnesses, and then advocates on behalf of that witness as well as the defendant. People v. Fairman, 35 Misc.3d 1243(A) (Sup Ct Bronx Co 2012). The Court of Appeals has long held that a lawyer who represents two clients with conflicting interests by definition cannot give either client undivided loyalty. See People v. Longtin, 92 N.Y.2d 640, 644 (1998), citing People v. McDonald, 68 N.Y.2d 1 (1986); People v. Mattison, 67 N.Y.2d 462 (1986), cert denied 47 U.S. 984 (1986). Nor are conflict situations limited to simultaneous representations. Potential conflicts may exist between former clients and current clients because an attorney has continuing professional responsibilities to former clients, which include a duty to maintain that client s confidences and secrets even after the representation has ceased. See Longtin at 644, citing People v. Ortiz, 76 N.Y. 2d 652, 656 (1990); People v. Alicea, 61 N.Y.2d 23, 29 (1983); People v. Krausz, 84 N.Y.2d 953 (1994). As evidenced by Ms. Barbara s affidavit, she confided in Mr. Barkett with the understanding that he was representing her, and with the expectation that he would keep her confidence. Courts have held hat conflicts of interest may arise in either the simultaneous representation of clients with adverse interests or in successive representations because of an attorney s duty to maintain the former client s confidences even after the representation has ceased. People v. DiPippo, 82 A.D.3d 786, 789 (2d Dept. 2011), citing People v. Berroa, 99 N.Y.2d 134, 139 (2002) and People v. Ennis, 11 N.Y.3d 403, 410 (2008). A defense attorney s previous representation of a client whose interests conflicted with those of a defendant involves a potential conflict of interest. Ennis at 410. A conflict of interest exists when an attorney s current representation is impaired by the loyalty he owes a former client. United States v. Moscony, 927 F.2d 742, (3rd Cir 1991), People v. Martynov, 36 Misc.3d 1213(A) (Sup Ct Kings Co 2012).

10 Once it is established that a prior attorney-client relationship existed and that the former and current representations are both materially adverse and substantially related, the presumption of disqualification is irrebuttable. See Mancheski v. Gabelli Group Capital Partners, Inc., 22 A.D.3d 532, 534 (2d Dept. 2005); Tekni-plex v. Meyner & Landis, 89 N.Y.2d 123, 131 (1996). Underlying this rule is the notion that an attorney, as part of his fiduciary obligation, owes a continuing duty to a former client broader in scope that the attorney-client evidentiary privilege not to reveal confidences learned in the course of a professional relationship. Id. The irrebuttable presumption is imposed in order to safeguard client confidences and to free the former client from any apprehension that they will be used to the client's detriment in another matter. Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 98, (1st Dept. 2008), citing Solow v. Grace & Co., 83 N.Y.2d 303 (1994). The presumption is also intended to avoid an appearance of impropriety on the part of the attorney or the law firm. Solow v. Grace & Co., at 308. MS. BARBARA DOES NOT CONSENT TO THE REPRESENTATION Without the informed consent of Ms. Barbara, confirmed in writing, it is a clear violation of Rule1.7, 1.8, 1.9, 1.10 and 1.12 for Mr. Barket and his firm to represent the defendant in the instant action. Ms. Barbara has refused to give such consent. She communicated such refusal to Mr. Barket in writing on March 5, 2013, after being informed by him that it was his intention to represent the defendant on these cases and send an associate from his firm to handle the defendant s appearance before this court on March 6, See attached Exhibit 2. Ms. Barbara s letter to Mr. Barket specifically stated I do not waive the conflict Mr. Barket responded in writing, acknowledged receiving her letter and simply stated I do not agree. See attached Exhibit 3. However, it is the client s wishes that control this situation. Absent her consent, Mr. Barket and his firm cannot represent the defendant in these matters. Pursuant to Rule 1.10, Imputation of Conflicts of Interest, no lawyer associated with the conflicted lawyer may accept the engagement. Rule 1.10(a) states: While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein. Only where a law firm can successfully rebut the presumption of disqualification because any

11 information acquired by the disqualified lawyer is unlikely to be significant or material to the litigation, does the issue of screening measures come into consideration, where the firm must then erect adequate screening measures to separate the disqualified lawyer and eliminate any involvement by that lawyer in the representation. See Rodeo Family Enterprises, LLC. V. Matte et al, 31 Misc3d 1227(A), citing Kassis v. Teacher s Ins. And Ann. Assoc., 93 N.Y.2d 611, 617 (1999) No screening measures could ever be adequate in a case such as this, where the information acquired by the disqualified lawyer, namely Mr. Barket, is wholly significant and material to the litigation involved here, because it is the very subject of the charges pending against the defendant. The People further assert that Rule 1.12 may be implicated if Mr. Barkett and/or his firm are permitted to represent the defendant in the matter currently before the Court. The Hon. Elaine Jackson Stack, recently retired from the Family Court, is now of counsel to the firm of Barket, Marion, Epstein & Kearon, LLP, as reflected in their letterhead on Exhibit 3. Judge Stack was the judge who formerly presided over the family offense petition that the complaining witness filed in Family Court in 2012, seeking an Order of Protection, as indicated by Ms. Barbara s attached affidavit. The allegations contained in the Family Court petition are the same allegations that form the basis of the charges now pending before this Court. Throughout the latter part of 2012, upon information and belief, the complainant and the defendant had scheduled court appearances in front of Judge Stack. As indicated by Ms. Barbara s affidavit, their last scheduled court appearance in front of Judge Stack was on December 14, 2012, the same day as the defendant s arrest on the bench warrant issued in connection with these cases, and in fact, the defendant was arrested in the Family Court building. Because the merits of this case are involve the same allegations that comprised the family offenses that were before Judge Stack in Family Court, pursuant to Rule 1.12(a) and (d), this firm must be disqualified from representing the defendant in the instant cases. DEFENDANT S RIGHT TO COUNSEL OF HIS CHOOSING IS NOT ABSOLUTE Although [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, such right will not

12 supersede a clear showing that disqualification is warranted. In Re Marvin Q, 45 A.D.3d 852 (2d Dept. 2007), see also, Carter v. Diaz, 27 Misc.3d 1231(A) (Sup Ct N.Y. Co. 2010). The Court of Appeals held in People v. Carnicross, 14 N.Y.3d 319 (2010), that in protecting a defendant s Sixth Amendment rights, a trial court may, on occasion properly disqualify an attorney of a defendant s choosing due to that attorney s conflicts, actual or potential, even in the face of defendant s waiver of such conflicts. See also People v. Gordon, 272 A.D.2d 133 (2000). Courts always have the responsibility of ensuring that cases before it are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. See Wheat v. United States, 486 U.S. 153, 160 (1988). In conclusion, and for all the reasons outlined above, as supported by the annexed Exhibits, the People respectfully request that this motion be granted in its entirety.

13 WHEREFORE, the People respectfully request that the Court grant the People s motion to disqualify counsel for the defendant. Dated: Hempstead, New York Respectfully Submitted, March 15, 2013 KATHLEEN M. RICE DISTRICT ATTORNEY NASSAU COUNTY BY: THERESA TEBBETT Assistant District Attorney 99 Main Street Hempstead, NY (516) To: Clerk of the Court Hon. Helen Voutsinas District Court Judge First District Court, Part DVM 99 Main Street Hempstead, New York Attorney for the Defendant Bruce Barket, Esq. Aida Ferrer Leisenring, Esq. Barket, Marion, Epstein & Kearon, LLP 666 Old Country Road, Suite 700 Garden City, New York 11530