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A New York Supreme Court justice presiding over a contentious divorce should not have barred the husband, who is also an attorney, from representing himself, a Manhattan appeals court has ruled. Though the Appellate Division, 1st Department, said the right to represent oneself is not absolute, it stressed that deprivation of the right “must be extremely well supported.” “Here, even though defendant’s interests might be better served with representation by another attorney, and his self-representation may make the litigation process more difficult or unpleasant, the record was inadequate to justify barring him from acting as his own counsel,” a unanimous panel wrote in Nimkoff v. Nimkoff, 6157. To ensure no problems arise during confrontations, such as depositions, the appeals court said those scenarios should be supervised by a special master or referee. The court also overruled an “out-of-hand denial” of overnight visitation rights by the trial judge, Supreme Court Justice Laura Visitacion-Lewis. “There was no indication that defendant’s relationship with the child was such that overnight visitation would not be in the child’s best interest,” the panel wrote. “The court’s observations of defendant’s demeanor and conduct in court should not be the focus when considering the visitation arrangement.” The ruling arises out of a divorce between Ronald A. Nimkoff of Nimkoff Rosenfeld & Schechter, and his wife, Nancy Waldbaum Nimkoff. The couple have been separated since 2002 and have engaged in strenuous litigation over alleged conflicts by attorneys, visitation and Mr. Nimkoff’s desire to proceed pro se. Mr. Nimkoff is also challenging a contempt finding by Visitacion-Lewis. He said the finding, based on his courtroom conduct, was for interrupting the judge, an allegation he denies. Mr. Nimkoff had been represented by a small firm before deciding to handle the case on his own. Soon afterward, Allison Keil, an attorney at that firm, joined Esanu Katsky Korins & Siger, which represents Ms. Nimkoff. Mr. Nimkoff said Keil was privy to confidential information about him and argued that she and her firm ought to be disqualified from representing Ms. Nimkoff. Visitacion-Lewis agreed that Keil could not work on the case, but declined to impute her conflict to the firm. On appeal, the 1st Department agreed, saying that imputed disqualification pursuant to the Code of Professional Responsibility can be rebutted. “Consideration must be given to the significant hardship that might result to one client as a result of ‘abusive invocation [of the rule] purely to seek tactical disadvantages in a lawsuit,’” the court wrote, citing Kassis v. Teacher’s Ins. & Annuity Assn., 93 NY2d 611. “Although an in-court conversation between Keil and [Ms. Nimkoff] may have had the appearance of a breach of the so-called ‘Chinese Wall’ erected by counsel’s firm, under the circumstances we are satisfied that it had no effect on defendant’s rights and does not warrant the firm’s disqualification,” the panel added. As for Mr. Nimkoff, the appeals court stressed that his approach to the litigation and his demeanor in court should not influence rulings about visitation. “The focus must be solely on the child’s best interest, which is normally best protected by allowing the development of the fullest possible healthy relationship with both parents,” the court wrote. The panel ordered immediate commencement of overnight visitation of the couple’s 3-year-old daughter on alternate weekends. Presiding Justice John T. Buckley and Justices David B. Saxe, Betty Weinberg Ellerin, Eugene L. Nardelli and Milton L. Williams concurred on the ruling. Dennis C. Krieger of Esanu Katsky represented Ms. Nimkoff.

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