Tina X. v. John X.

ment conference with the Family Court Judge’s court attorney in September 2013, the parties agreed to resolve the pending petitions and stipulated to an order providing for joint legal custody, with primary physical custody to the father and parenting time to the mother. The following month, after obtaining new counsel, the mother moved to disqualify Bielicki and vacate the stipulation and order on the grounds that Bielicki suffered from a conflict of interest and had coerced her into entering into the stipulation by “fraud, duress and/or undue influence.” Following oral argument and written submissions on the conflict issue, Family Court (Revoir, J.) found that no conflict of interest existed precluding Bielicki from serving as the attorney for the children and partially denied the mother’s motion.^[1] The mother appealed.

Although Bielicki’s representation of the children continued on this appeal (see Family Ct Act § 1120 [b]), he did not file a brief on the children’s behalf. Instead, Bielicki retained private counsel who, in turn, submitted a brief on his behalf solely addressing the accusations of unethical behavior and conflict of interest. For that reason, we withheld decision and ordered the appointment of a new attorney for the children ( 132 AD3d 1173 [2015]). New appellate counsel was thereafter assigned for each of the two younger children,^[2] who now appear on their behalf.

Relying on a rule of this Court and various Rules of Professional Conduct, the mother contends that Bielicki’s prior involvement in prosecuting her on the child endangerment charge created a per se conflict of interest that precluded him from serving as the attorney for the children in this matter and warrants vacatur of the stipulation and order. 22 NYCRR 835.3 (c) provides, in pertinent part, that “[a]n attorney who serves as district attorney, county attorney, or municipal corporation counsel, or as an assistant in . . . such office, shall not be assigned or accept assignment in any court as an at

torney for the child in the county where the attorney so serves in any type of proceeding in which such office could represent a party” (Rules of App Div. 3d Dept [22 NYCRR] § 835.3 [c] [emphasis added]). As Family Court noted, this provision is inapplicable here inasmuch as there is no circumstance under which a District Attorney’s office could represent a party in a custody proceeding. District Attorneys prosecute crimes and offenses occurring in the county where elected and, even in that capacity, act not on behalf of any particular person, but on behalf of the State of New York (see County Law §§ 700, 927; Della Pietra v State of New York, 71 NY2d 792 , 796 [1988]; Matter of Matthew FF., 179 AD2d 928 , 928-929 [1992]). In short, the subject portion of this Court’s rule was meant to prevent a governmental attorney from serving as an attorney for the child in a Family Court proceeding in which his or her office could appear on behalf of a party — such as in a juvenile delinquency or Family Ct Act article 10 neglect or abuse proceeding (see Family Ct Act §§ 254, 254-a, 301.2 [12]; 1032) — a situation that plainly does not exist here. Thus, 22 NYCRR 835.3 (c) did not bar Bielicki from serving as the attorney for the children in these proceedings.

The mother also argues that Bielicki’s representation of the children violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c), which provides that “a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” The rule defines confidential governmental information as “information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.11 [c]).

It is undisputed that Bielicki, in his capacity as Assistant District Attorney, was personally involved in the prosecution of the child endangerment charge against the mother,^[3] that such

charge was deemed dismissed as a result of an adjournment in contemplation of dismissal (see CPL 170.55) and, therefore, the records of that criminal prosecution were sealed (see CPL 160.50 [1], [3] [b]). It is also evident that such confidential governmental information obtained by Bielicki in his capacity as Assistant District Attorney could be used to the disadvantage of the mother in this custody proceeding. That said, the mere appearance of impropriety, standing alone, is insufficient to warrant vacatur of the underlying stipulation and order (see Matter of Lovitch v Lovitch, 64 AD3d 710 , 711 [2009]; Christensen v Christensen, 55 AD3d 1453 , 1455 [2008]; see also Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465 , 466 [2006]). Rather, the mother was required to show actual prejudice or a substantial risk of an abused confidence (see People v Herr, 86 NY2d 638 , 642 [1995]; Matter of Lovitch v Lovitch, 64 AD3d at 711 ; Christensen v Christensen, 55 AD3d at 1455 ; Matter of Stephanie X., 6 AD3d 778 , 779-780 [2004]).

Here, there is nothing in the record to indicate that Bielicki used any information obtained during the prior criminal action to gain an unfair advantage in this custody proceeding (see Matter of Richard UU., 56 AD3d 973 , 978 [2008]; Matter of Matthew FF., 179 AD2d at 928-929 ; see also Matter of Aaron W. v Shannon W., 96 AD3d 960 , 962 [2012]). Indeed, it was the father who disclosed the existence of the child endangerment charge, as well as the facts underlying such charge, in both his petition to modify custody and subsequent order to show cause. Nor is there anything in the record suggesting that Bielicki was biased in representing the children based upon his knowledge of the facts surrounding the mother’s prosecution (see Matter of Hurlburt v Behr, 70 AD3d 1266 , 1266-1267 [2010], lv dismissed 15 NY3d 943 [2010]; Matter of Lovitch v Lovitch, 64 AD3d at 712 ; compare Davis v Davis, 269 AD2d 82 , 85-86 [2000]).^[4] Thus, while Bielicki’s assignment as attorney for the children in this matter was contrary to the standards set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c) — and, for that reason, Family Court (McDermott, J.) should not have permitted Bielicki to serve in that capacity — such error, without more, does not warrant vacatur of the stipulation and order.