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Attorney's Disqualification From Malpractice Case for Prior Representation

Georgette Franzone, et al., Plaintiffs v. Susan Chana Lask, Esq., Defendant.

The New York Law Journal reported Southern District Magistrate Gorenstein’s opinion in Georgette Franzone, et al., Plaintiffs v. Susan Chana Lask, Esq., Defendant, granting Ms. Lask’s disqualification motion against an attorney who filed that sham malpractice case1.  This is how Ms. Lask asserted disqualification and won that and her motion to dismiss the sham complaint in its entirety.

The New York Law Journal reported Southern District Magistrate Gorenstein’s opinion in granting Ms. Lask’s disqualification motion against an attorney who filed a sham malpractice case[1]. This is how Ms. Lask asserted disqualification and won, and had the entire sham complaint dismissed by the Federal Court.

I. BACKGROUND

         Georgette Smith and Lilian Jones sued each other and had each other arrested in several states involving a $100,000 defaulted promissory note between them. Ms. Lask was one of 15 attorneys asked to help settle their disputes. In 2011, Ms. Lask retained Douglas Dollinger to obtain releases offered between Smith and Jones. There was no monetary exchange for the releases. After he obtained a release from Jones, he unethically switched sides to represent Smith. Unbeknownst to Ms. Lask, Dollinger had a long history of frivolous filings, sanctions and switching sides after obtaining attorney-client privileged communications[2].  In another case, in September, 2014, a Federal Court found that Dollinger committed a fraud by filing another of his sham complaints and sanctioned him $93,365 because he submitted false declarations and fraudulent documents to the court. Indiezone, Inc. v. Rooke, 2014 U.S. Dist. LEXIS 122807 (N.D. Cal. Sept. 2, 2014) [3].

II. DISCUSSION

         It was important for Ms. Lask to first get Dollinger disqualified in her case rather than dismissing the sham complaint with sanctions, as occurred in Indiezone, because she wanted to preserve the integrity of the judicial process. Equally important, Ms. Lask wanted to  prevent an attorney with such a sordid past from committing another fraud in the courts. Ms. Lask argued that Dollinger should be disqualified based upon his prior representation and under the “attorney witness” rule.

         On March 26, 2015, the Court agreed with Ms. Lask that "[t]he authority of federal courts to disqualify attorneys derives from their inherent power to 'preserve the integrity of the adversary process.'" Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (quoting Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). The court balanced the integrity process against a person’s right to choose their own counsel by considering that disqualification motions have a “heavy burden of proof in order to prevail," Gormin v. Hubregsen, 2009 WL 508269, at *2 (S.D.N.Y. Feb. 27, 2009), but that "any doubt is to be resolved in favor of disqualification." Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); accord CQS ABS Master Fund Ltd. v. MBIA Inc., 2013 WL 3270322, at *8 (S.D.N.Y. June 24, 2013);United States v. Oberoi, 331 F.3d 44, 51 (2d Cir. 2003) (noting that the "public's interest in the outcome [of litigation] is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer's representation in a given case").

         The Court weighed the following factors to find Dollinger’s successive representation was a conflict mandating his disqualification:

(1) the moving party is a former client of the adverse party's counsel;(2) there is a substantial relationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client. Id. (quoting Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983)); accord Plumbing Supply, LLC v. ExxonMobil Oil Corp., 2014 WL 6644221, at *3 (S.D.N.Y. Oct. 23, 2014); see also Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) ("The 'substantial relationship' test is indeed the one that we have customarily applied in determining whether a lawyer may accept employment against a former client.")

         The court found the first prong existed as Ms. Lask was a former client of Dollinger who now represented Smith against Ms. Lask. He admitted that in his own papers despite later speciously denying that in his testimony at a subsequent hearing on the issue. The Court found the second prong existed because Dollinger could not rebut the substantial relationship between his former representation of Ms. Lask and the present sham case he filed against her “because the confidential information at issue is the very information that Ms. Lask communicated to Mr. Dollinger.”  Accordingly, the third and last prong of the analysis was immediately resolved because "once it is established that an attorney's role in a prior substantially related case was more than peripheral, such that [he] was in a position to receive client confidences, the inquiry ends." Leslie Dick Worldwide, 2009 WL 2190207, at *14 (internal citations and quotation marks omitted).

         To further protect Ms. Lask’s rights and the integrity of the court, the Court concluded by citing United States v. Quest Diagnostics, Inc., 734 F.3d 154, 2013 U.S. App. LEXIS 21709 (2d Cir. N.Y. 2013). Quest holds that disqualification is not a sanction but a remedy that seeks to avoid prejudice to the party whose confidences have been revealed and, in so doing, promote the integrity of the justice system. Notably, Ms. Lask’s goal was to disqualify Dollinger, not waste time with seeking sanctions because of Dollinger's long list of debts owed to many creditors ahead of her. Of course, a disciplinary complaint should put an end to this bad attorney and jail time would be fitting. 

III. CONCLUSION

         Disqualification rids our courts of unethical attorneys who gain client confidences to use against them by switching sides to sue their clients in a substantially related lawsuit. On August 25, 2016, Ms. Lask successfully won her motion to dismiss the sham complaint filed by this unethical attorney.

KNOW AN UNETHICAL ATTORNEY THAT SHOULD BE DISQUALIFIED. CALL SUSAN CHANA LASK, ESQ.

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 1 This is one of a series of duplicate sham complaints that Dollinger filed in various courts against 30 different parties, all dismissed. Franzone v. City of New York, 2015 U.S. Dist. LEXIS 58199 (E.D.N.Y. May 1, 2015); 0016633/2011;Franzone, Georgette vs City Of New York Et al Kings County0025674/2009

2 Sanctions in Divot Golf Corp. v. Citizens Bank, No. 02-CV-10654-PBS, 2003 U.S. Dist. LEXIS 187, at *4 (D. Mass. Jan. 8, 2003), a 2006 Divot Press release confirms a preliminary injunction against Dollinger issued because he threatened to release client secrets and confidences and he contacted their colleagues to disparage them; see also SDNY Dkt 14-cv-01819-Dr. Victor Schwartz alleges Dollinger extorting his career; In re Charbel Elias, 2014 WL 1248042 (EDNY, 2014)-Dollinger and Franzone deceits on the court.

3 https://docs.justia.com/cases/federal/districtcourts/california/candce/3:2013cv04280/270045/145

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