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 [2015]). 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.


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In a 3-1 decision on February 4, 2015 in Cohen v. Cohen, the Second Department disqualified a prominent Long Island matrimonial firm from representing the wife in this 2011 divorce action.

It was disputed whether in November 2010 the husband had consulted Steven J. Eisman, senior partner in Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP. The husband was unable to substantiate his allegation that he consulted with Mr. Eisman. Mr. Eisman stated that while the husband had scheduled an appointment for a consultation, he canceled it. Mr. Eisman further asserted that the husband had consulted with various top matrimonial attorneys in the area to prevent the wife from hiring an attorney.

However, it was not disputed that the husband’s brother met with Mr. Eisman in July, 2010. The brother stated that he had shared with Mr. Eisman confidential information concerning various businesses the husband and his brother owned and in which they shared common interests. This included detailed information concerning the day-to-day operations of the businesses which he operated jointly with the husband, illustrated by a diagram, described how the businesses earned a profit, and provided his opinion as to the value of the businesses. Mr. Eisman acknowledged that he had discussed with the husband’s brother “surface details” concerning, among other things, the husband’s brother’s employment, the brother’s marriage, residence, and children.

The brother (and obviously the husband) never retained the law firm as his counsel. The wife did. The husband moved to disqualify Mr. Eisman’s firm.

The Second Department first noted that the disqualification of an attorney is generally a matter resting within the sound discretion of the court. In his ruling below, Supreme Court Justice Norman Janowitz had denied that motion.

Nonetheless, the Second Department reversed, noting “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.” The appellate court held that here, Justice Janowitz should have granted the husband’s motion to disqualify the law firm. Given the undisputed evidence of the consultation between Mr. Eisman and the husband’s brother, as well as the nature of the matters disclosed there was a resulting substantial risk of prejudice.

The very appearance of a conflict of interest was alone sufficient to warrant disqualification of the law firm as a matter of law without an evidentiary hearing, and notwithstanding the existence of a factual dispute as to whether Eisman met with the [husband].


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Collaborative Practice Logo.jpgMonica and Mitchell Mandell were married in 1998. They have three children. After Mr. Mandell moved out last year, his wife retained attorney Ellen Jancko-Baken to represent her. Ms. Mandell was interested in pursuing the “Collaborative Law” process.

After three perhaps “preliminary” meetings, the contemplated Collaborative Process fell apart. Ms. Mandell used her same attorney to commence a divorce action. Her husband, then, looked to disqualify his wife’s lawyer, claiming such representation was barred by the rules of Collaborative practice.

As noted by Westchester Supreme Court Justice Alan D. Scheinkman in his June 28, 2012 decision in Mandell v. Mandell, the Collaborative Process is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court.

As Justice Scheinkman noted, one of the principal features of the Collaborative Process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to reach a settlement may not thereafter represent the parties in contested litigation. Among other benefits, this hallmark of the process:

  • eliminates pre-litigation posturing;
  • provides clients with a greater degree of influence in candid negotiations in which the clients participate directly;
  • motivates the parties to continue working toward a mutually agreeable resolutiont due to the prospective expense of having to hire new lawyers if the matter has to go to court;
  • makes it clear that counsel are committing themselves to the process of dispute resolution by having counsel agree to absent themselves from any future litigation;
  • gives counsel an economic incentive to stick with the process;
  • discourages counsel from abandoning the process since their role, and their fees, would end; and
  • conversely, provides counsel with no personal monetary incentive to encourage litigation.

In light of his wife’s interest in using the Collaborative Process, the husband retained Neil Kozek. Both Ms. Jancko-Baken and Mr. Kozek are members of the International and New York Associations of Collaborative Professionals.


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