Opinion
No. 2010–98817/C.
2010-07-14
In the Matter of the PROCEEDING TO DIRECT TURNOVER TO TEMPORARY ADMINISTRATOR OF ALL BANK ACCOUNTS IN the NAME OF Mark J. POWER HELD AT KEYBANK, POUGHQUAG, NEW YORK, In the Estate of Mark J. Power, Deceased.
John K. Gifford, Esq., Van Dewater & Van Dewater, LLP, Sally Ann Thurston, Poughkeepsie, Attorneys for Petitioner. Daniel D. Molinoff, Esq., Former Attorney for Respondent/Cross–Petitioner.
John K. Gifford, Esq., Van Dewater & Van Dewater, LLP, Sally Ann Thurston, Poughkeepsie, Attorneys for Petitioner. Daniel D. Molinoff, Esq., Former Attorney for Respondent/Cross–Petitioner.
Eve Boehlke Decker, Larchmont, Eve Boehlke Decker, Cynthia Decker Kling, Waterford, WI, Eve Boehlke Decker, Hubertus, WI, Cross–Petitioner/Respondent.
JAMES D. PAGONES, J.
The petitioner and temporary administratrix, Sally Ann Thurston, moves for an order disqualifying attorney Daniel Molinoff from representing the respondent and cross-petitioner, Eve Boehlke Decker, in the pending proceedings.
Petitioner Sally Ann Thurston married decedent Mark J. Power on July 31, 1999. The petitioner has two children, both of whom are in their minority. It is alleged that in August, 2005, the petitioner learned that the decedent was addicted to crystal meth which was one of the contributing factors to his death on March 18, 2010. The petitioner commenced an action for divorce in 2008. It is alleged that during the last two years of his life, the decedent lived with his girlfriend, cross-petitioner/respondent Eve Boehlke Decker, in a second home owned by petitioner Thurston. From the Fall of 2009 through the date of his death, the decedent was represented in all negotiations involving a settlement of the pending divorce by attorney Daniel Molinoff. This included several stipulations from November, 2009 to January, 2010 regarding substantial monetary transfers made by petitioner Thurston to the decedent which were considered advances towards any future equitable distribution. The several stipulations specifically provide that the advanced funds “shall be deemed an advance equitable distribution payment to (decedent) and shall be credited against any ultimate equitable distribution award he may receive at the conclusion of the divorce action.” Each of these stipulations was signed by attorney Molinoff as well as the decedent. Each of the stipulations also provided that advanced sums would be remitted by wire transfer into the decedent's “individual bank account.”
On or about March 17, 2010, the petitioner wired $100,000.00 to the decedent's bank account in KeyBank in Poughquag, New York for the intended purpose of allowing the decedent to make a down payment on a house in Long Beach, New York. A proposed stipulation, which contained terms consistent with all the prior stipulations, was forwarded to attorney Molinoff on or about the same date. After the wire transfer had been effected but before the stipulation had been executed, on March 18, 2010, the decedent died of an overdose as a result of excessive alcohol and heroin consumption. Petitioner Thurston was appointed temporary administratrix of the decedent's estate on March 24, 2010. On April 7, 2010, the petitioner instituted a proceeding to enjoin KeyBank from permitting any withdrawals from the decedent's account and to obtain a turnover of assets in that account to the temporary administratrix. On April 28, 2010, Eve Boehlke Decker cross-petitioned for an order permitting her access to the funds from the subject account and for an order sanctioning the petitioner for frivolous conduct.
After learning that attorney Molinoff intended to represent Eve Boehlke Decker in the pending proceeding, the petitioner's counsel raised the issue of Mr. Molinoff's conflict of interest and requested that he decline to represent Ms. Decker. Mr. Molinoff does not acknowledge any conflict and has refused to withdraw from representation of Ms. Decker, compelling the instant application.
22 NYCRR § 1200.9(a)
Professional Conduct Rule 1.9
“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a 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.”
The decedent, Mark J. Power, died intestate survived by his wife and two children. Pursuant to EPTL § 4–1.1(a)(1), the property of an intestate decedent survived by a spouse and issue results in a distribution of $50,000.00 and one-half of the residue to the spouse and the balance to the issue by representation.
The petition and cross-petition concur that the transfers made into the decedent's bank account by Ms. Thurston were, pursuant to stipulation, intended for Power individually and that even attorney Molinoff signed off on language specifically stating that the money was to be deposited in the decedent's “individual account.” Because Mr. Power died intestate, his spouse and children are entitled to inherit all of his assets. The question before the court in the pending petitions are whether the assets in the KeyBank account belong to the decedent or to Eve Boehlke Decker. On this application, the movant has established that attorney Molinoff had a prior attorney-client relationship with the decedent Mark J. Power related to his receipt of those funds and their deposit into the subject KeyBank account, the same issue which Eve Boehlke Decker is contesting before this court. (Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 308 [1994].) Under such circumstances, the presumption of disqualification is irrebuttable. ( Solow, supra at 313.) In a letter to this court, attorney Molinoff acknowledges that Eve Boehlke Decker's interests are “clearly ... adverse to that of Mr. Power's estate.” The court concurs and notes that, at this juncture, Mr. Power's estate is the legal embodiment of the decedent and its challenge as to the status of an asset is the same as if Mr. Power's individually was challenging.
22 NYCRR § 1200.6(a)
prohibits a lawyer from revealing confidential information unless a client gives informed consent or is otherwise permitted by professional conduct rules, none of which apply in the circumstances before the court. The attorney-client privilege survives Mr. Powers' death and the right to waive the privilege may only be exercised by the decedent's personal representative. ( Mayorga v. Tate, 302 A.D.2d 11, 12 [2d Dept.2002].) It is uncontroverted that the decedent's personal representative, Sally Ann Thurston, has not waived the privilege. Mr. Molinoff has placed himself in a position where his obligation to preserve the decedent's confidential communication is in direct conflict with his obligation to zealously advocate Eve Boehlke Decker's claims to funds which are arguably belong to Mr. Powers as evidenced by the stipulations and representations from Mr. Molinoff at the time. On this application, the movant need not demonstrate that confidential information necessarily will be disclosed by these proceedings but simply that there is a “reasonable probability of (disclosure).” ( Greene v. Greene, 47 N.Y.2d 447, 453 [1979].) The movant has met her burden.
Professional Conduct Rule 1.6.
22 NYCRR § 1200.29(a)
prohibits Mr. Molinoff from appearing in these proceedings because it is likely that he will be a witness on a significant issue of fact. The movant has demonstrated that attorney Molinoff was an active participant and has personal knowledge of the underlying circumstances regarding the transfer of the funds which are at issue and that he ought to be called as a witness. Under such circumstances, any doubt concerning the necessity for his testimony should be resolved in favor of his disqualification. ( Matter of Bianco, 23 Misc.3d 1106A [Surrogate's Court, Nassau County 2009]; Zagari v. Zagari, 295 A.D.2d 891 [4th Dept.2002].)
Professional Conduct Rule 3.7.
Generally, a party's rights to be represented by counsel of her own choosing should not be interfered with absent a clear showing that disqualification is warranted. ( Estate of Epstein v. Mauthner, 255 A.D.2d 582 [2d Dept.1998].) On this application, the movant has established that Mr. Molinoff formerly represented the decedent with regard to the transfer of the same funds which are in dispute on the pending petition and that his representation of Eve Boehlke Decker is materially adverse to the interest of his former client, whose interests are now embodied by his estate. The movant has established that there is a reasonable probability that Mr. Molinoff will necessarily reveal confidential information obtained from the decedent during his representation of Eve Boehlke Decker. The movant has also established that Mr. Molinoff ought to be called as a witness since he was an active participant and had personal knowledge of the transfer of funds at issue.
In response to this motion, Ms. Decker relies entirely upon the self-serving affirmation of attorney Molinoff, who offers no substantive opposition to this application. Instead, counsel devotes his affirmation arguing the merits of his client's cross-petition. Significantly, counsel's affirmation is devoid of even a single citation or reference to any legal authority which would support his client's opposition to disqualification. For all of the foregoing reasons, it is ordered that the application of the temporary administratrix to disqualify Daniel Molinoff, Esq. from representing Eve Boehlke Decker in any proceedings pending before this court is granted. It is ordered that Eve Boehlke Decker shall notify, in writing, this court and counsel for the temporary administratrix within thirty days of the date of this order the name and address of substitute counsel. It is ordered that all pending proceedings are stayed for forty-five days to permit substitution and to allow successor counsel to respond to the pending proceeding. In the event that the court is not notified of substitute counsel in a timely fashion, then in that event, Eve Boehlke Decker shall be deemed to have appeared pro se. It is ordered that the pending petition and cross-petition shall be marked “fully submitted” on September 9, 2010. Adjournments or extensions are only granted with leave of the Court.
The Court read and considered the following documents upon this application:
+------------------------------------------+ ¦PAGES NUMBERED ¦ +------------------------------------------¦ ¦1.¦Notice of Motion ¦1–2 ¦ +--+----------------------------------+----¦ ¦ ¦Affirmation–Thurston ¦1–9 ¦ +--+----------------------------------+----¦ ¦ ¦Exhibits ¦A–H ¦ +--+----------------------------------+----¦ ¦ ¦Memorandum of Law ¦1–13¦ +--+----------------------------------+----¦ ¦2.¦Affirmation in Opposition–Molinoff¦1–7 ¦ +--+----------------------------------+----¦ ¦3.¦Reply Memorandum of Law ¦1–9 ¦ +------------------------------------------+
It is further ordered in the discretion of the court, pursuant to CPLR §§ 8106 and 8202, that petitioner Sally Ann Thurston is awarded costs in the amount $100.00 to be paid by cross-petitioner Eve Boehlke Decker within fifteen days of the date of this order and the petitioner shall have judgment therefore.
The foregoing constitutes the decision and order of the Court.