Cite as: Estate of Denise O'Brien, 2010-1027, NYLJ 1202638744020, at *1 (Surr., RI, Decided December 23, 2013)


Surrogate Robert J. Gigante

Decided: December 23, 2013




In this administration proceeding, the law firm of Kuhn & O'Toole, LLP, counsel for the administrator James O'Brien (hereinafter "Administrator") made the within motion to have the law firm of Gabor & Marotta LLC disqualified from the proceeding. Gabor & Marotta are the attorneys for the brother of the decedent and the aunt of the decedent, Beatrice Fulciniti and Louis Ciccardini.

Denise O'Brien ("hereinafter "Decedent") died on September 1, 2010, survived by her spouse and two children, one of whom is a minor. The contested issue in this estate came about pursuant to a discovery proceeding commenced by the Administrator against Gabor & Marotta's clients, wherein it was alleged, inter alia, that Beatrice Fulciniti and Louis Ciccardini caused the Decedent to transfer her one-half interest in real property to the Beatrice Fulciniti Irrevocable Trust by undue influence, fraud, mistake, or duress.

Kuhn & O'Toole urges the Court to disqualify Gabor & Marotta inasmuch as the firm was instrumental in the preparation of the documents for the transfer of real property owned by the Decedent into the Beatrice Fulciniti Irrevocable Trust (hereinafter "Trust"), for the benefit of Louis Ciccardini, with her children as remaindermen. Kuhn & O'Toole contends that the Law Firm of Gabor & Marotta, specifically Richard Gabor, Esq., having done all this, is a necessary witness in the




discovery proceeding. As such, Mr. Gabor and the law firm of Gabor & Marotta should be disqualified from the continuing representation of Beatrice Fulciniti and Louis Ciccardini.

In addition, Kuhn & O'Toole seeks the dismissal of Gabor & Marotta pursuant to Rule 1.7 (a) of the New York Professional Rules of Conduct in that the firm should not be permitted to represent both the Trustee and the beneficiary of the Trust, clients with adverse interests.

Gabor & Marotta claims that there are other persons who can testify as to the Decedent's capacity and state of mind at the time the real property was transferred, specifically the notary public who witnessed her signature on the transfer documents. Further, because there is no attorney-client relationship between the Administrator and their firm, disqualification is improper based upon a conflict of interest.

Rule 3.7 (a)

The rules for disqualification are clear. In S&S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437 (1987), Judge Kaye stated:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance, should be disqualified during litigation.

A court, therefore, must balance the disqualification rules as set forth in the Code of Professional Responsibility against the general policy favoring a party's right to representation by counsel of choice. Indeed a court must also be aware that disqualification motions, unfortunately, have been used as a litigation tactic to gain strategic advantage over an adversary (id.).

Disqualification is required only where the testimony by the attorney is




considered necessary. "Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (id.; see also Old Saratoga Square Partnership v. Compton, 19 A.D.3d 823 [3d Dept. 2005]).

Further, an attorney and his firm are only prohibited from continuing to represent a client where the attorney is to be called other than on behalf of his client and the testimony is, or may be, prejudicial to the client (Rule 3.7 of the New York Professional Rules of Conduct; Code of Professional Responsibility DR 5-102). However, where the attorney expects to be called as a witness on a client's behalf, he is not prohibited from representing the client in pretrial proceedings, although he is prohibited from acting as the client's advocate at trial (Estate of Giantasio, 173 Misc.2d 100 [Surr. Ct. Bronx Cty. 1997]).

Here, Kuhn & O'Toole contends that Gabor's testimony is essential as to the Decedent's physical and mental condition around the time she planned and executed the transfer documents at issue in the discovery proceeding. Kuhn & O'Toole have established that the decedent was ill and confined to a nursing home at the time the documents were drafted, and therefore, that her mental capacity is a highly pertinent issue. The fact that the notary public who witnessed the Decedent's signature is willing to testify regarding the Decedent's capacity on the date of execution does not cover the lacking, yet extremely relevant, testimony Richard Gabor, Esq. has as to the Decedent's capacity around the time the transfer documents were being discussed and prepared. Accordingly, the Court finds that Richard Gabor, Esq. is a critical source of facts as to the Decedent's state of mind and therefore dismissal of the firm of Gabor & Marotta is warranted pursuant to Rule 3.7 (a) of the New York Professional Rules of





Rule 1.7(a)

Assuming arguendo, however that Mr. Gabor was not a necessary witness, Gabor & Marotta would still be disqualified due to the apparent conflict of interest. In pertinent part, Rule 1.7 (a) of the New York Professional Rules of Conduct provides that "a lawyer shall not represent a client if a reasonable lawyer would conclude that the representation will involve the lawyer in representing different interests."

Here, Kuhn & O'Toole alleges that Gabor & Marotta cannot effectively represent both Beatrice Fulciniti and Louis Ciccardini because Beatrice Fulciniti, as the Trustee of the Trust, has a fiduciary obligation to not only Louis Ciccardini as the beneficiary of the Trust, but also to the Decedent's children as the remaindermen of the Trust. However, the Trust gives the Trustee the discretion to liquidate and distribute the entire corpus to the lifetime beneficiary. This presents an apparent conflict, as Gabor & Marotta cannot adequately represent a lifetime beneficiary whose needs may require depletion of the Trust, as well as a Trustee who has an obligation to preserve assets for the remaindermen.

The term "differing interests" within Rule 1.7 (a) is defined under Rule 1.0 (f) to "include every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest." The possibility of conflicting loyalties, which the rules seeks to prevent, is apparent here. Based upon the foregoing, the motion to disqualify the firm of Gabor & Marotta from representing both Beatrice Fulciniti and Louis Ciccardini is granted.

Upon due consideration of all the papers heretofore submitted herein, both in support of and in opposition to the relief requested, the Court hereby disqualifies




Richard Gabor, Esq., and the law firm of Gabor & Marotta LLC from continuing representation of Beatrice Fulciniti and Louis Ciccardini. The portion of the motion of Kuhn & O'Toole requesting costs is denied.

This matter is restored to the Court's calendar of February 19, 2014, at 9:30 a.m. at which time Kuhn & O'Toole and new counsel for Beatrice Fulciniti and Louis Ciccardini shall appear.

Settle Order.

Dated: December, 2013