Surrogate Peter Kelly
Petitioner Esther Hersh sought to disqualify respondents' counsel, Brown and his firm, from representing Mark Hersh and the respondent corporations. Respondents previously sought to disqualify Esther's counsel. The motion was denied on conflict of interest grounds, but granted under the witness-advocate rule. Esther now claimed Brown should be disqualified on the same bases asserted by respondents against her counsel, alleging Brown represented Mark and some corporations, along with Esther, in two prior actions. Brown claimed that in the prior litigations he achieved results there without any communication between himself and decedent. The court noted based on the prior decision on respondents' motion to disqualify, it was law of the case that the interests of Esther and respondents were materially adverse. Yet, unlike the prior motion, the issue of the existence of an attorney-client relationship could not be disputed as it was unchallenged that Brown represented decedent in two prior actions. The court stated Brown's attempt to "compartmentalize" his representation of decedent into just litigation and not negotiation of settlement was "nonsensical." However, it found Brown's representation in those matters was brief and limited, thus disqualification was denied.
