Opinion
01 CIV. 5743 (DLC).
July 23, 2001.
For Petitioner: Barbara Bevando Sobal, New York, NY.
For Respondent: William S. Beslow, New York, NY.
OPINION AND ORDER
On June 22, 2001, petitioner Tjitske ("Lidy") Knigge ("Knigge") brought a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the "Hague Convention" or "Convention"), to seek the return of her daughter to the Netherlands. Respondent Brian James Corvese ("Corvese") had taken the daughter from the Netherlands on June 17, 2001, without the consent or prior knowledge of Knigge. Knigge and Corvese are in the midst of contested divorce proceedings in the Netherlands and the child is their daughter.
During the litigation of Knigge's petition, Corvese brought this motion to disqualify counsel for Knigge, which was denied on July 16, 2001, with the notice that an opinion would follow. This Opinion sets forth the Court's reasons for denying Corvese's motion to disqualify. On July 19, 2001, this Court held that, in violation of the Convention, Corvese wrongfully removed his sixteen month old daughter from the Netherlands.
BACKGROUND
Corvese sought to disqualify Barbara Bevando Sobal ("Sobal") and any other counsel associated with her law firm, The Law Office of Barbara Bevando Sobal, from acting as counsel for Knigge. Alternatively, Corvese sought to enjoin William M. Hilton ("Hilton"), who he alleges is acting "of counsel" to Sobal, from communicating with Knigge, Sobal, or any other attorney associated with Sobal's law firm about this proceeding. The basis for Corvese's motion is that he formed an attorney-client relationship with Hilton through "conversations" in 2000, or alternatively through one telephone message he left for Hilton on June 25, 2001, and that Sobal's representation of Knigge is in conflict with Hilton's representation of Corvese.
Hilton lives in California, has practiced law for 27 years, and is a recognized expert on the Hague Convention. He has been a California Board Certified Specialist in family law for over 20 years.
Hilton apparently conducts much of his legal practice via telephone. Hilton's office voice mail system includes a prerecorded message from Hilton, which explains the nature of Hilton's practice and billing rates. Specifically, the message explains that Hilton's office handles interstate and international child custody jurisdiction cases, and states that his billing rate "[f]or general telephone advice to a party or counsel [is] a hundred and fifty per hour." The message states that "since there is no staff at this office, . . . unless other arrangements are made, you'll always interface with my voice mail system." The message further states: "I check my voice mail about once an hour . . . and return calls accordingly. It is requested that you leave enough information so that I will have an idea about the nature of your call." Hilton maintains a telephone log of calls to and from his office.
On August 2, 2000, Corvese left a telephone voice mail message for Hilton, which Hilton logged as:
Message from Brian Corvese, N.Y. City, child custody, US and Netherlands, wants to retain as a consultant, Apy and Arenstein. Has retained Apy, maybe Arenstein. 212 265 8385 or cell: 917 734 7903.
Corvese left four other telephone voice mail messages for Hilton in August 2000 — two on August 3 and two on August 4. As reflected in Hilton's telephone log, in these messages Corvese left his telephone numbers and requested that Hilton return his calls. Although Corvese alleges without any specificity that he actually spoke with Hilton on one occasion in 2000, Hilton has no record or recollection of such a conversation, and it is undisputed that Corvese never paid Hilton any money. In August 2000, Corvese was litigating custody of Laura in New York state court and did not use Hilton as an attorney.
On June 17, 2001, Corvese removed Laura from the Netherlands and flew to New York. As noted above, Knigge filed the petition for Laura's return to the Netherlands on June 22, 2001. On June 25, 2001, after Knigge had retained Sobal as her attorney and after both parties had appeared before this Court, Corvese left a telephone message for Hilton, which was logged as:
Message from Brian Corvese 212 265 8385 or 917 734 7903 in NYC. Hague case, took [child] from Holland to NYC, Art. 13(b). Discuss the subject with him. Call.
Article 13(b) refers to Article 13(b) of the Hague Convention, which sets forth defenses to the wrongful removal of a child from her habitual residence. Hague Convention, art. 13(b).
As noted in his telephone log, Hilton did not respond to this message.
In late June or early July 2001, Sobal contacted Hilton to be an expert witness with respect to the Hague Convention. By letter dated July 5, 2001, Hilton responded to Sobal's request to retain him as an expert. In that letter, Hilton advised Sobal that "Brian Corvese has left voice mail messages with this office," but stated that "[n]o information other than a request that this office contact him was left in the [ ] voice mail messages." Hilton also informed Sobal that Corvese sent several e-mail messages to him in June 2001, "all of which were deleted un-read."
After learning that Hilton was working with Sobal, Corvese sent an e-mail message to Hilton. In the e-mail message, Corvese advised Hilton that his discussions with Knigge and Sobal were inappropriate in light of Corvese's prior "conversations" with Hilton. On July 4, 2001, the e-mail message was returned to Corvese "unread."
DISCUSSION
Motions to disqualify counsel are subject to strict scrutiny because of their potential to be used for tactical purposes. Lamborn v. Dittmner, 873 F.2d 522, 531 (2d Cir. 1989). As the Second Circuit has explained:
"[D]isqualification has been ordered only in essentially two kinds of cases: (1) where an attorney's conflict of interests . . . undermines the court's confidence in the vigor of the attorney's representation of his client, . . . or more commonly (2) where the attorney is at least potentially in a position to use privileged information concerning the other side through prior representation . .Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764-65 (2d Cir. 1990) (quoting Board of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). "A failure to disqualify counsel will be overturned only upon a showing that the district court abused its discretion." Id. at 764.
Disciplinary Rule 5-108 provides:
[A] lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure:
(1) 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.
(2) Use any confidences or secrets of the former client except as permitted by section 1200.19(c) of this Part, or when the confidence or secret has become generally known.
N.Y. Comp. Codes R. Regs. tit. 22, § 1200.27(a) (McKinney 1999) (emphasis supplied).
While Hilton is a California attorney, Sobal is admitted to the bar of the State of New York. Since this motion ultimately seeks to disqualify Sobal because of her association with Hilton, it is unnecessary to undertake a choice of law analysis to determine whether California law should also be applied here.
"The formation of an attorney-client relationship "hinges upon the client's [reasonable] belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.'" Diversified Group. Inc. v. Daugerdas, 139 F. Supp.2d 445, 454 (S.D.N.Y. 2001) (quoting Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir. 1978)). Formality is not, however, "an essential element in the employment of an attorney." Catizone v. Wolff, 71 F. Supp.2d 365, 368 (S.D.N.Y. 1999). Instead, courts must "look at the words and conduct of the parties." Id. Courts have considered several factors in determining whether an attorney-client relationship exists, including whether a fee arrangement was entered into or a fee was paid, whether a written retainer exists, whether the attorney actually represented the individual, for example at a deposition, or performed legal services for the individual, and whether the purported client reasonably believed that the attorney was representing him. Id. A party's "unilateral belief" that he is represented by counsel "does not confer upon him the status of client unless there is a reasonable basis for his belief." Id. at 371. "To establish a fiduciary or implied attorney-client relationship, the putative client must show that he submitted confidential information to a lawyer with the reasonable belief that the lawyer was acting as his attorney." Diversified Group, 139 F. Supp. at 454.
Here, there is no evidence that an attorney-client relationship between Hilton and Corvese ever existed. While Corvese baldly asserts that he "consulted" with Hilton by telephone and e-mail in 2000, "communicated to him private, confidential information about this matter, and sought his professional advice concerning this matter," these "consultations" appear to have been the telephone voice mail messages Corvese left for Hilton in August 2000, in the hope of getting a return telephone call. With respect to these voice mail messages, Corvese's counsel conceded at a July 16, 2001 conference before the Court that the "proceedings in the past were obviously different" from the instant proceeding and that disqualification based on those prior "discussions" would not be necessary.
Nor has Corvese shown that an attorney-client relationship was formed as a result of the telephone message left on June 25, 2001. Telephone advice is not the traditional method of providing advice, but even within the context of that practice, Corvese could have had no reasonable belief that an attorney- client relationship existed or was created through his unilateral decision to leave a voice mail message of June 25, 2001. The entire purpose of that call was to obtain a return call, which never occurred. Hilton states unequivocally that Corvese was "never a client of this office." It is undisputed that Corvese retained the services of other attorneys in this litigation.
Corvese has not shown that he and Hilton entered into a retainer agreement, and he admits he never sent Hilton any money for legal advice. Nor has Corvese shown that Hilton actually represented him in any proceeding. Even accepting Corvese's assertion that he believed he had an attorney-client relationship with Hilton, the Court does not find this belief to be reasonable. See. e.g., Bobal, 916 F.2d at 765 (no disqualification of defense attorney who was the former Legal Aid Society Board of Directors president where plaintiff contacted Legal Aid Society staff attorney about possible representation, but plaintiff's case was not accepted). Accordingly, there was no attorney-client relationship between Corvese and Hilton requiring either Hilton or Sobal to disqualify themselves from representing the petitioner in this case.
Because there is no basis on which to disqualify Hilton, the rule of imputed disqualification does not bar Sobal from representing the petitioner. See Disciplinary Rule 5-105(D), N.Y. Comp. Codes R. Regs. tit. 22, § 1200.24(d) (McKinney 1999).
To the extent that Corvese relies on his alleged disclosure of confidential information in the June 25, 2001 voice mail message to support Hilton's disqualification, Corvese has not met the "high standard of proof" a party moving for disqualification on that ground must shoulder. Interpetrol Bermuda, Ltd. v. Rosenwasser, No. 86 Civ. 5631 (JFK), 1988 WL 140801, at *2 (Dec. 20, 1988). "If during pre-retention consultations confidences are divulged with an expectation that they remain secret, the attorney client relationship is implicated." Id. (emphasis supplied). Hilton's pre-recorded message cannot reasonably be understood as a representation by Hilton that he would represent every person who left a message for him. Indeed, it is not even clear that Corvese would have chosen to retain Hilton even if they had spoken, since he was contacting several attorneys at this same period of time. Consequently, Corvese has not shown that he had a reasonable basis to expect that any statement he made in his telephone message would remain secret.
In any event, Corvese has not shown that he communicated any confidential information in that voice mail message or indeed any information beyond that already laid on the public record as of June 25, 2001. There was no need to convey confidential information, since the purpose of the call was to have Hilton return his call so that they could determine whether Hilton's counsel would be of benefit to Corvese and whether Corvese should retain Hilton.
CONCLUSION
For the reasons stated, respondent's motion to disqualify petitioner's counsel is denied.
SO ORDERED