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A consultation with a law firm to “possibly” represent a husband in a divorce does not automatically bar the firm from representing the wife in the same case, a Long Island judge has ruled, especially if the consultation was solely an attempt to disqualify the firm. “The blanket assertion that a consultation between a matrimonial attorney and a prospective client should result in a per se disqualification, is inaccurate,” Supreme Court Justice Robert A. Ross of Nassau County held in Limprevil v. Limprevil, 200242-09, in ordering a hearing to determine the extent of the consultation. The Nassau CountySupreme Court decision appears on page 27 of the print edition of today’s Law Journal. Fred Limprevil, a substitute teacher, sued for divorce from his wife, Claude, who is a nurse, in May 2009. But approximately a year ago, he consulted with David Vallone of Gervase & Vallone, the Garden City law firm now representing his wife, to inquire whether they would represent him, according to the decision. According to Mr. Limprevil, “there is clearly a conflict of interest and the only way to resolve same would be for [the firm] to be disqualified as my wife’s attorney.” Mr. Vallone acknowledged he had had a consultation with Mr. Limprevil but offered his notes, which “purportedly reflect that they had only a general conversation about divorce,” according to the decision. While Justice Ross noted that the substance of the actual conversation was a fact in issue, if Mr. Vallone’s description was accurate, the information is “unlikely to be significant or material in the litigation,” citing Kassis v. Teacher’s Insurance & Annuity Association, 93 NY2d 611. Justice Ross then cited the New York Lawyers’ Code of Professional Responsibility, which had governed lawyer conduct since 1970, before being replaced with the Rules of Professional Conduct in April (NYLJ, May 18). Under the Code, DR §5-108, an attorney is prohibited from representing a client if the attorney has previously represented an adversary in a related matter and obtained confidential data. DR §5-105 of the code also provides that no attorney in the same firm could handle the matter, under the rebuttable presumption of “shared confidences.” But that presumption can be rebutted, Justice Ross said, referencing Kassis, the 1999 case in which the Court of Appeals held that a “Chinese Wall” isolating an attorney with confidential information could allow other attorneys in the same firm to handle a matter without a conflict of interest. Further, under the new Rules of Professional Conduct, communication with a lawyer in order to create a conflict is not grounds for automatic disqualification, the judge wrote, citing Rule 1.18, which provides that a person who consults an attorney “for the purpose of disqualifying a lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client.” The judge set a hearing for July 14 to determine whether Mr. Limprevil’s consultation was made solely to disqualify Mr. Vallone and his firm and whether “the information he imparted is a ‘protected confidence.’” Jill Altarac, Mr. Limprevil’s lawyer, said her client had a legitimate meeting with Mr. Vallone to inquire about a serious matter. “It wasn’t just a real estate deal,” she said. Ms. Altarac, of Garden City’s Davis & Altarac, said she believed Ms. Limprevil may have retained the Vallone firm after learning of her husband’s consultation. “I think that she probably was aware that he went there­—it’s a little odd—there are so many matrimonial attorneys on Long Island,” Ms. Altarac said in an interview. Calls to Mr. Vallone were not returned. @

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