The prospective husband’s attorney who drafted a couple’s prenuptial agreement was not disqualified from representing the husband in the couple’s divorce action, nor in the action to set aside the prenuptial agreement that had been joined for trial. So held the Appellate Division, Second Department, in its August 15, 2018 decision in Lombardi v. Lombardi. Moreover, it was held that an interim award of counsel fees to the wife was improper.
In 2004 the parties entered into a prenuptial agreement setting forth their rights and obligations in the event of a divorce. The wife commenced this action for a divorce in 2011.
Approximately one year later, the wife commenced a separate action to set aside the prenuptial agreement on the grounds of duress, coercion, undue influence, and unconscionability, and to recover damages for legal malpractice against the husband’s attorney, Dorothy Courten, who had drafted the prenuptial agreement on the husband’s behalf.
On a prior motion, Supreme Court, Suffolk County, Justice Hector D. LaSalle granted the husband’s motion to dismiss the complaint in the second action. On appeal, the Second Department modified that order by denying those branches of the motion which were to dismiss the causes of action alleging fraudulent inducement against the husband and seeking to set aside or rescind the prenuptial agreement on the basis of duress, coercion, undue influence, and unconscionability (see, Lombardi v. Lombardi, 127 A.D.3d 1038, 7 N.Y.S.3d 447 ). However, the award of summary judgment dismissing the complaint insofar as asserted against Ms. Courten was affirmed.
Thereafter, the wife moved to consolidate this divorce action with the second action, to disqualify Ms. Courten and her law firm from representing the husband, and for an award of interim counsel fees. Justice James F. Quinn joined the two actions for trial, disqualified Ms. Courten and her law firm from representing the husband, and awarded the wife $10,000 interim counsel fees.
On this appeal, the Second Department held that Justice Quinn had improvidently exercised his discretion when disqualifying Ms. Courten and her law firm from acting as the husband’s counsel.
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, and the movant bears the burden on the motion.
Here, the wife contended that although Ms. Courten was no longer a defendant in the plenary action, she may be required to testify as a fact witness in light of her involvement in the negotiation and execution of the prenuptial agreement. The appellate court disagreed.
Rule 3.7 of the Rules of Professional Conduct (22 N.Y.C.R.R. 1200.0) does provides that, unless certain exceptions apply, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” However, in order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that:
(1) the testimony of the opposing party’s counsel is necessary to his or her case, and
(2) such testimony would be prejudicial to the opposing party.
Here, the wife failed to demonstrate that Ms. Courten’s testimony will be necessary to her case.
Moreover, the Second Department held that it was improper to award interim counsel of $10,000 pursuant to Domestic Relations Law §237. That statute does not permit the recovery of fees for legal work performed on nonmatrimonial matters, including, as here, actions to set aside a prenuptial agreement.