Matter of Tina X. v. John X. ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 14, 2016 519252
____________________________________
In the Matter of TINA X.,
Appellant,
v
JOHN X.,
Respondent. MEMORANDUM AND ORDER
SCOTT BIELICKI,
Respondent.
(And Two Other Related Proceedings.)
____________________________________
Calendar Date: September 15, 2015
Before: Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.
__________
Beth A. Lockhart, Canastota, for appellant.
Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara
of counsel), for Scott Bielicki, respondent.
Donna Chin, Ithaca, attorney for the child.
Margaret McCarthy, Ithaca, attorney for the child.
__________
Peters, P.J.
Appeal from an order of the Family Court of Madison County
(Revoir, J.), entered April 3, 2014, which, in three proceedings
pursuant to Family Ct Act article 6, partially denied
petitioner's motion to, among other things, vacate a stipulation
and order.
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Pursuant to a June 2007 stipulated order, petitioner
(hereinafter the mother) and respondent (hereinafter the father)
shared joint legal custody of their three children (born in 1997,
2000 and 2007), with the mother having primary physical custody
and the father receiving parenting time. In 2012, the mother
filed petitions seeking to enforce and modify the visitation
provisions of that order. When Family Court (McDermott, J.)
notified Scott Bielicki that it intended to assign him to
represent the children in these proceedings, Bielicki disclosed
to the court that he had previously been involved in prosecuting
the mother on a charge of endangering the welfare of a child in
his capacity as a part-time Assistant District Attorney in
Madison County. Notwithstanding this disclosure, Family Court
concluded that there was no conflict that would disqualify
Bielicki from representing the children in this matter and
appointed him as the attorney for the children.
Thereafter, the father petitioned for sole legal and
primary physical custody of the children, and an order was
subsequently entered granting him temporary custody. Following a
settlement 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.
1
A hearing was subsequently held on the mother's claim
that the stipulation and order were procured by fraud, duress
and/or undue influence on the part of Bielicki. In a detailed
decision and order entered on March 15, 2016, Family Court found
the mother's allegations to be "false, fabricated, frivolous" and
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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 attorney 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
contrary to the "credible recollection" of the events as
testified to by the father's witnesses. Accordingly, the court
denied that branch of the mother's motion, concluded that she had
engaged in frivolous conduct and imposed sanctions against her
pursuant to 22 NYCRR 130-1.1.
2
The parties' oldest child, having reached the age of 18
during the pendency of this appeal, is no longer subject to the
custody order (see Family Ct Act §§ 119 [c]; 651). Accordingly,
any issue of custody or visitation with respect to him has been
rendered moot (see Helm v Helm, 92 AD3d 1164, 1164 n 1 [2012];
Matter of Carnese v Wiegert, 273 AD2d 554, 556 [2000]).
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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
3
The record reflects that Bielicki completed a pretrial
notice form and prepared a document offering the mother a six-
month adjournment in contemplation of dismissal. According to
the mother, a different Madison County Assistant District
Attorney appeared in court when her case was called, and she did
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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
not become aware of Bielicki's involvement until after she had
signed the custody stipulation and order at issue here.
4
While Bielicki's knowledge of the facts and circumstances
surrounding the mother's child endangerment prosecution might be
relevant to her claims of duress, coercion and undue influence,
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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.
The mother's claim that Bielicki engaged in an ex parte
communication with Family Court, in violation of the Rules of
Professional Conduct, is similarly unavailing. The challenged
communication occurred prior to Bielicki's appointment as
attorney for the children and, moreover, did not address the
"merits of the matter" (Rules of Professional Conduct [22 NYCRR
1200.0] rule 3.5 [a] [2]; see Costalas v Amalfitano, 23 AD3d 303,
304 [2005]). Nor could any purported violation of Rules of
Professional Conduct (22 NYCRR 1200.0) rule 1.9 serve as a basis
for disqualifying Bielicki or vacating the stipulation and order,
as that rule concerns an attorney's duties to a former client,
which the mother is not. The mother's remaining contentions, to
the extent that they are properly before us, have been reviewed
and found to be lacking in merit.
Lahtinen, McCarthy and Lynch, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
we reiterate that those distinct claims were bifurcated from the
conflict issue and addressed by Family Court in a separate
hearing (see n 1, supra).