Not every representation of one spouse during a marriage will disqualify an attorney from representing the other spouse in the couple’s divorce. Such was the holding of the Second Department in its December 5, 2012 in Gabel v. Gabel. In doing so, the appellate court reversed Richmond County Supreme Court Justice Barbara Irolla Panepinto’s disqualification of the husband’s counsel in this divorce action. The wife had moved to disqualify her husband’s counsel based on counsel’s formation of the wife’s corporation.

A party seeking disqualification of the adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse.

However, the Second Department noted the advice of the Court of Appeals against the “mechanical application of blanket rules,” in favor of the careful appraisal of the significant competing interests inherent in attorney disqualification cases. A party’s entitlement to be represented 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.

Here, the wife failed to show that the prior representation was substantially related to the current representation. The wife did not argue that the prior representation concerned any confidential information regarding the value of the corporation. There were no facts in the record to support such a finding, nor was the attorney provided with any information that was not contained in the corporate filing itself. Further, the wife refused to provide the husband with discovery concerning the corporation, contending that the corporation was “closed” and that the wife never realized any profits from it.

Under the particular circumstances of this case, there was nothing to suggest an appearance of impropriety concerning the attorney’s representation of the plaintiff in the divorce action. The wife’s motion for disqualification should have been denied.

John Z. Marangos, Esq., of Staten Island, represented the husband.