The firm representing a suspended attorney accused of trying to steal from his ex-wife is challenging a disqualification attempt by Nassau County prosecutors, arguing that contact between a firm partner and their client’s ex-wife before the start of the government’s case did not rise to the level of a "substantive or de facto attorney-client relationship."
The Nassau County District Attorney’s Office has moved to disqualify Barket, Marion, Epstein & Kearon of Garden City from representing suspended divorce attorney Dominic Barbara, who faces charges of stalking and extortion attempts against his ex-wife Leslie Barbara, who is also an attorney. Prosecutors contend the firm is conflicted because name partner Bruce Barket previously entered an attorney-client relationship with Ms. Barbara after the two discussed Mr. Barbara’s behavior, and Barket made a call to a prosecutor about Mr. Barbara’s case.
Mr. Barbara is represented by Aida Leisenring, an associate at Barket Marion. The firm says Bruce Barket is not involved in the case.
In April 9 court papers, the firm rejected the notion that Barket had established an attorney-client relationship with Ms. Barbara, saying Barket "repeatedly and pointedly" told Ms. Barbara he would not be her attorney and even refused her payment attempts during the "few phone calls" and a single brief face-to-face meeting.
"It is simply not true that Ms. Barbara ever was a client of [Barket's] in any way, shape or form. In fact, Mr. Barket did nothing more than listen to her complaints about Mr. Barbara, give a little off-the-cuff generalized non-legal advice, consider and then reject the possibility of attempting to reason a little bit with Mr. Barbara, and make a single telephone call to a friend of some 25 years standing in the District Attorney’s Office to inquire about the status of the matter," wrote Leisenring, in People v. Barbara, 2012NA020220. She added a "conflict wall" had been established whereby she had no communication with Barket on his communication with Ms. Barbara.
The defense supplemented its motion with an affirmation from Kenneth Gartner, a former Nassau County District Court judge, who is now with Lynn, Gartner, Dunne & Covello and also teaches on legal ethics.
In his affirmation, Gartner pointed to New York Rules of Professional Conduct 1.18, which pertains to "Duties to Prospective Clients." Under the rule, a person does not qualify as a prospective client if they "communicate information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship." If the court credited Barket’s "express declination" of retention, Gartner said, Ms. Barbara could not be viewed as a "prospective client."
Hal Lieberman, a legal ethics expert, Law Journal columnist and partner at Hinshaw & Culbertson who is not involved in the Barbara case, said Gartner is a "reputable ethicist and I certainly agree with his opinions."
Ms. Barbara approached Barket in July 2012, seeking, as prosecutors wrote in their motion, "assistance and advice" about Mr. Barbara’s actions. Beginning in March 2012, Mr. Barbara allegedly was texting his ex-wife with money demands.
In an affidavit, Barket said he met Ms. Barbara as "a favor" to a private investigator and added he knew Mr. Barbara for nearly 20 years but had not talked with him recently.
Barket said he told Ms. Barbara from the start he would not represent her, adding,"She seemed to be seeking a mediator, or perhaps counselor, more than a lawyer. I spoke with her in part because I thought that I might be able to help the two of them move beyond their problems and because my friend, the investigator, asked me to speak with her."
Barket said he never took notes, opened a file or tracked his time when talking to her. Ms. Barbara left a "booklet" with Barket chronicling all of Mr. Barbara’s actions but he said he never read it. She also gave the booklet to police and prosecutors.
In Sept. 5, 2012, Mr. Barbara was arrested and charged with second-degree criminal contempt for violating an order of protection (NYLJ, Sept. 7, 2012).
Prosecutors argued that Barket "held himself out" as Ms. Barbara’s attorney when calling the chief of the Special Victims Bureau about what action if any would be taken in response to allegations Ms. Barbara was raising.
Barket said when he made the call, he told the prosecutor he was not representing anyone and merely calling as a "favor" to Ms. Barbara "to see what the status of the matter was."
Mr. Barbara was arrested a second time for allegedly trying to extort $200,000 from Ms. Barbara (NYLJ, Dec. 5, 2012).
At court appearances, Mr. Barbara appeared pro se and sought more time to retain counsel.
In early March, Barket called Ms. Barbara, saying Mr. Barbara asked him to represent him at a court date scheduled for the next day.
Ms. Barbara told Barket she would not consent to his appearance and reiterated her opposition in a letter.
Barket responded with a letter saying he did "not agree" and was "sorry" Ms. Barbara had taken the position she did.
Barket never appeared for Mr. Barbara, according to Leisenring.
The prosecution argued the attorney-client relationship began when Ms. Barbara first approached Barket in July. Lack of payment in the interaction did not matter, the prosecution said, noting the relationship can attach for even "preliminary consultation where the prospective client does not ultimately retain the attorney."
But Ms. Barbara was "never even a prospective client," Leisenring asserted. Barket was acting on a favor "simply to talk" to her, having the "impression that she was reaching out to him as someone who knew Mr. Barbara, and might have some influence over him."
Barket, in an affidavit, said Ms. Barbara never told him anything that was not in the public record.
Leisenring, in her motion, said that even if Ms. Barbara had revealed information, Barket did not have a fiduciary duty to her. When an attorney "specifically refused" to represent a person disclosing secrets, his obligations were no different to that person than to anyone else, Leisenring said.
"Revealing a secret to a lawyer does not, ipso facto, establish an attorney-client relationship with its attendant privileges. On the contrary, the relationship must already exist in order to trigger the privilege," Leisenring argued. Moreover, Ms. Barbara waived the privilege herself when supplying the police and prosecution with the same booklet she gave Barket.
Mr. Barbara’s interests in retaining the counsel of his choice "far outweigh[ed]" Ms. Barbara’s interests, Leisenring said, pointing out that Mr. Barbara faced jail time, the permanent loss of his law license and a criminal record that "could essentially render him unemployable for the remainder of his life."
Mr. Barbara has pleaded not guilty to all pending criminal charges against him. He was suspended by the Appellate Division, Second Department, in February 2011 for 18 months and was eligible for reinstatement in March 2012 but has not yet done so.
In an interview, Leisenring emphasized that the court needs to balance Mr. Barbara’s interests against Ms. Barbara’s interests.
In an interview, Barket said that "lost in all this is a tragic tale of an attorney who has fallen pretty far in relative short amount of time. Whether it’s his fault or not, it’s still sad…I would love to see him recover personally and professionally." That aim, said Barket, was driving the firm to fight to stay on the case.
A spokesman for the Nassau County District Attorney’s Office declined to comment other than to point to the prosecution’s disqualification motion.
Assistant District Attorney Theresa Tebbett appeared for the office.
Ms. Barbara did not return a call for comment.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.