Matter of NYS v. Philip B., 2566/2012
Cite as: Matter of NYS v. Philip B., 2566/2012, NYLJ 1202577563279, at *1 (Sup., DU, Decided October 24, 2012)
Justice Christine A. Sproat
Decided: October 24, 2012
Attorneys for Petitioner: Robert Conflitti, Esq., New York State Office of the Attorney General, Poughkeepsie, NY.
Attorneys for Respondent: Eugenia Brennan Heslin, Esq., Mental Hygiene Legal Service, Poughkeepsie, NY.
Respondent Philip B. moves for an order disqualifying the New York State Attorney General's Office from representing the petitioner in this proceeding on the ground that such representation is improper and precluded because an assistant attorney general was the respondent's defense attorney in an underlying criminal prosecution.
The following papers were read:
Notice of Motion Affirmation of Eugenia Brennan Heslin, Esq. Annexed Exhibits 1-3
Robert J. Conflitti, Esq.'s Affirmation in Response Respondent's Memorandum of Law Annexed Exhibits 4-6
Reply Affirmation of Eugenia Brennan Heslin, Esq. 7
Upon the foregong papers it is hereby ORDERED that the respondent Philip B.'s motion for disqualification of the New York State Attorney General's Office from
representing the petitioner is denied.
In the instant Mental Hygiene Law Article 10 proceeding, respondent requests that the New York State Attorney General's Office be disqualified from representing the petitioner. Said request for disqualification is based upon now assistant attorney general Jonathan Sennett's former representation of the respondent in criminal proceedings. The representation of the respondent occurred in 2008 while Mr. Sennett was in private practice. Respondent argues that the prior representation of the respondent in criminal proceedings by Mr. Sennett precludes the entire New York State Attorney General's Office from representing the State in this civil proceeding. However, "it cannot be said that there is a unity of interest among Assistant Attorneys General throughout the State as there presumably is among members of a private law firm, so as to require disqualification" (NY Jud. Adv. Op. 08-107, 2008 WL8113239 (NY Adv. Comm. Jud. Eth. quoting Opinion 98-14).) It is undisputed that there are approximately 633 attorneys working in the Office of the Attorney General. It is further undisputed that Mr. Sennett works within the Organized Crime Task Force Unit of the Attorney General's Office in White Plains, NY and not in the Poughkeepsie, NY Attorney General's Office which is handling this matter. In fact, the Organized Crime Task Force does not have personnel in the Poughkeepsie regional office (Affirmation of Assistant Attorney General Robert J. Conflitti, Esq., page 2.) In addition, the assistant attorney general who is assigned to the instant proceeding, Robert J. Conflitti, Esq., has never met Mr. Sennett and has never had any contact with Mr. Sennett about this matter or any other matter. (Id.) Mr. Sennett "is not responsible for the prosecution of the instant proceeding and, the [Attorney General's Office has] implemented screening procedures which effectively insulate [Mr. Sennett] from participation in the prosecution of [this matter]…Further, the attorney assigned to prosecute this proceeding has averred that he has had no conversations with [Mr. Sennett] and that [Mr. Sennett] is not in any way involved in [this matter]. Since the record reveals that respondent has failed to demonstrate any actual prejudice or a substantial risk that revealed confidences would be disclosed or used against [him] in the pending matter, disqualification of the entire [Attorney General's Office]…is unnecessary" (Matter of Stephanie X., 6 AD3d 778 (3rd Dept., 2004); see also, Matter of Jimmy D., 302 AD2d 892 (4th Dept., 2003).) Accordingly, the respondent's motion must be denied.
This matter is adjourned to November 8. 2012 at 9:30 a.m. for a Pre-Trial Conference. So Ordered.