A high-profile Long Island defense firm has been disqualified from representing a suspended attorney accused of stalking his ex-wife and trying to steal from her after a judge concluded a name partner advised the complainant in the same case.
District Court Judge Helen Voutsinas in Nassau County ruled that Barket, Marion, Epstein & Kearon in Garden City was conflicted in its representation of Dominic Barbara on charges that the once-prominent divorce lawyer tried extorting money from his ex-wife, Leslie Barbara. The judge held that Ms. Barbara's attorney-client privilege attached in Bruce Barket's dealings with Ms. Barbara before prosecutors pressed their case.
Barket hotly contended that he had made it clear to Ms. Barbara, a partner at Davidoff Hutcher & Citron, he was not representing her in the months before a Barket Marion associate took up her ex-husband's defense.
But Voutsinas was not convinced. The judge noted Barket's conversations with Ms. Barbara, his call to a prosecutor about her case and his acceptance of a notebook documenting her ex-husband's behavior. In People v. Barbara, 2012NA020220, the judge wrote, "Despite Mr. Barket's assertion that he did not represent the complainant, his actions establish otherwise, and Ms. Barbara reasonably believed that an attorney-client relationship existed. In the course of that relationship, she conveyed confidential communications to him in furtherance of her complaint against the defendant. Based on the totality of the circumstances, the Court finds these confidential communications are privileged and, the privilege not having been waived by the complainant remains in effect and bars Mr. Barket's representation of the defendant."
In her Aug. 13 decision, Voutsinas directed Mr. Barbara to appear with a new attorney at a Sept. 12 court date.
Barket said in an interview that his firm would challenge the "deeply flawed" and "flagrantly wrong" ruling, either through a motion to renew and reargue or through an action before the Appellate Division, Second Department.
Though Barket said he was "fairly certain" Voutsinas would have called a hearing to determine the factual question of his denial that he represented Ms. Barbara, no hearing was ordered.
"She really did ignore the fact I told Dominic's ex-wife I would not represent her," Barket said. "We don't do work for free for partners in law firms," he said, adding he refused payment attempts and he did not keep billing records.
Ms. Barbara approached Barket in July 2012 for guidance on what to do about Mr. Barbara, who allegedly had been texting her with money demands since March 2012.
In court papers, Barket said he agreed to hear out Ms. Barbara as "a favor" to a private investigator. Barket also said in court papers he knew Mr. Barbara for about 20 years but had not spoken with him of late.
Ms. Barbara said she had "numerous conversations" with Barket, but Barket, in court papers, said there were a "few phone calls" and one quick face-to-face meeting.
During a meeting between Ms. Barbara and Barket, he contacted an assistant district attorney about the status of the case and Ms. Barbara gave him a booklet with allegedly confidential information. Contact between the two ceased in December 2012.
Three months earlier, Mr. Barbara had been arrested and charged with second-degree criminal contempt for violating an order of protection (NYLJ, Sept. 7, 2012).
Later that year, he was arrested for allegedly trying to extort $200,000 from his ex-wife by threatening to file false police reports and seek an order of protection against her, among other things (NYLJ, Dec. 5, 2012).
As court appearances on the case ensued, Mr. Barbara repeatedly showed up without counsel and asked for more time to get an attorney. He has pleaded not guilty to all charges related to his ex-wife.
In March, Barket called Ms. Barbara to inform her Mr. Barbara wanted Barket to represent him at an upcoming court appearance. Barket asked for her consent and she refused.
Nevertheless, Aida Ferrer Leisenring of Barket Marion appeared for Mr. Barbara at the next court date and the Nassau County District Attorney's Office responded with a disqualification motion, saying the firm was in "an untenable position" (NYLJ, April 5).
Leisenring countered that no attorney-client relationship was formed between Ms. Barbara and Barket, who offered "a little off-the-cuff generalized non-legal advice." Besides, Leisenring said she had no discussions with Barket about the case and would take steps to ensure no such thing occurred (NYLJ, April 11).
In her decision, Voutsinas said the showing of an attorney-client relationship requires demonstration the complainant contacted the attorney seeking legal advice or services. It also had to show any information intended to be given to the attorney was for the purpose of getting legal services and that the purported client did not waive the status.
Voutsinas said Ms. Barbara initiated the contact but Barket "continued communications" with her "for at least six months."
Moreover, he accepted a notebook "containing facts of a confidential nature with respect to this case" and contacted the D.A.'s office.
"Most compelling in support of an attorney-client relationship is Mr. Barket's request of the complainant that she waive any conflict of interest. These actions, in totality, created an attorney-client relationship," the judge said, brushing off assertions from Barket Marion that there was no relationship because Barket was not paid or retained.
The firm asserted attorney-client privileges were vitiated when information was disclosed to third parties; here, it argued Ms. Barbara waived the attorney-client privilege when she gave the police and prosecution the same booklet she provided to Barket.
To allow such a waiver in this case "would create an adverse ripple effect in all Domestic Violence cases by allowing broad subject matter waivers to be implied every time a complainant speaks to the District Attorney's office," Voutsinas wrote. " Such a policy is dangerous and contrary to the very foundation, formation and purpose of the Domestic Violence Courts. Such a determination would also leave the complainant without protection after speaking with private counsel. Victims of Domestic Violence cases often seek counsel prior to making a formal complaint with the District Attorney's Office, and instituting such an automatic waiver would create a chilling effect in all Domestic Violence cases," she added.
Voutsinas acknowledged there were constitutional implications in the disqualification of a defendant's attorney in a criminal case.
But a defendant's choice was "not absolute," she said, noting the Barbaras possible testimony was "substantially and materially adverse" and the firm's continued involvement was not in either person's best interest.
"We welcome the decision," said a spokesman for the D.A.'s office.
Assistant District Attorney Theresa Tebbett appeared for the prosecution.
Ms. Barbara said she was "pleased" with the ruling.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.