With such a limited number of Judges involved in Matrimonial law, Judge shopping is a serious concern. In a recent Suffolk County Court Decision, Justice Donald Blydenburg held that when it appeared a party to a matrimonial action switched attorneys only to cause the presiding judge to recuse himself, that the Judge did not have to recuse himself. Instead Judge Blydenburg ordered the party to hire a new attorney. This decision gives fair warning to those who would try to attempt similar types of Judge shopping. A New York Law Journal article below outlines the decision.
New York Law Journal
Court Calls Bid for New Lawyer 'Impermissible Judge Shopping'
By Vesselin Mitev
A state judge has rejected a Long Island man's attempt to hire a new attorney as "impermissible judge shopping" because the judge had previously reported the attorney to the grievance committee for an alleged disciplinary violation.
In a strongly worded ruling in response to the attorney's request for the judge's recusal in the matrimonial action, Suffolk County Supreme Court Justice Donald R. Blydenburgh (See Profile) said, "The appearance of impermissible and inappropriate Judge shopping is present and the prejudice to the Plaintiff far outweighs Defendant's right to this specific counsel."
The judge ordered the defendant, Salvatore Romanello to hire a different attorney in Gaffney-Romanello v. Romanello, 21508/07.
The Suffolk County Supreme Court decision appears on page 39 of the print edition of today's Law Journal.
Erin Gaffney-Romanello had sued her husband for divorce in 2007 but by 2009 the parties appeared on the verge of settling.
Starting in January 2009, several scheduled conferences were postponed, as the parties told the court they had "reached a settlement" and requested additional time to finalize the deal, according to the decision.
In April 2009, Mr. Romanello fired Schlissel Ostrow Karabatos, the Garden City firm that had been representing him, and retained James F. Hagney, a partner in Reynolds, Caronia, Gianelli, Hagney & La Pinta in Hauppauge.
Mr. Hagney had previously appeared before Justice Blydenburgh in an unrelated matter, where a litigant alleged that Mr. Hagney had violated the attorney disciplinary rules. The decision did not elaborate on the alleged violation.
As a result, Justice Blydenburgh "was compelled to forward the allegation to the Grievance Committee" and had to recuse himself from cases handled by Mr. Hagney while the grievance is pending.
"This recusal has been limited to Mr. Hagney personally, and the Court inquires of Mr. Hagney on the record each time he appears if he intends to represent that particular client, as opposed to his partners," the judge wrote.
Representing Mr. Romanello in April, Mr. Hagney and one of his partners, Peter Caronia, appeared before Justice Blydenburgh and sought his recusal.
The judge declined, writing that doing so would "constitute, in this Court's opinion, impermissible Judge shopping by Defendant of a case that is ready for trial, but represented to have already been settled by the parties."
Ms. Gaffney-Romanello's attorney, Michael P. Vessa, objected to the recusal as well, arguing that he believed the matter was settled based on his prior dealings with Mr. Romanello's former counsel.
Acknowledging that the "right to counsel is absolute," the judge refused to step aside, and cited People v. Mackey, 572 NYS 2d 424, for the proposition that there is no right to specific counsel of one's choice.
In Mackey, the Appellate Division, Third Department, held that an attorney who had "longstanding difficulties" before the judge assigned to the case was properly disqualified and recusal of the judge was inappropriate, given the judge's "intimate involvement in the matter almost from its inception and [the new attorney's] status as a newcomer to the proceedings."
The judge also pointed to a federal ruling, In re FCC v. Nextwave Personal Communications Inc., 308 F3d 137, where the U.S. Court of Appeals for the Second Circuit held that "we expect that lawyers will take pains to avoid appearing in any case in which their appearance may cause disqualification of a Judge assigned to the case."
To avoid disqualification, Justice Blydenburgh asked whether Mr. Hagney's partners or associates could handle the case, noting that Mr. Caronia is a "well respected matrimonial attorney" and pointing to two other lawyers, Catherine Miller and Dawn Hargraves, who are affiliated with the firm and handle matrimonial matters.
Mr. Hagney replied that only he would be working on the case, prompting his disqualification, the judge wrote.
"Clearly the Defendant, who had previous counsel...hired Mr. James Hagney solely to forum shop," Justice Blydenburgh held, in staying the case until September so Mr. Romanello can find a new attorney and get ready for trial, now set for Feb. 1, 2010.
In an interview, Mr. Vessa, of Vessa & Wilensky in Garden City, said the judge "did the right thing in view of the circumstances."
Mr. Hagney could not be reached for comment.
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