Fredman Baken & Kosan LLP, By: Ellen Jancko-Baken, Esq., Attorneys for Plaintiff
Daniel D. Molinoff, Esq., Attorney for Defendant
ALAN D. SCHEINKMAN, Justice of the Supreme Court
In this matrimonial action, Defendant seeks to disqualify Ellen Jancko-Baken, Esq.  as counsel for Plaintiff based on his contention that she represented Plaintiff in a "Collaborative Law" process prior to the commencement of this action.
The parties were married on August 28, 1998. They have three minor children. Defendant moved out of the marital residence on October 1, 2011. At the time Defendant moved out of the residence, he was working as an attorney at a law firm earning base salary of approximately $260, 000.00 and Plaintiff was volunteering as a social worker and earning no income.
In late October of 2011, Plaintiff contacted Defendant to notify him she had retained counsel to commence a divorce and was interested in pursuing a "Collaborative Law" process. This is a form of dispute resolution in which the parties retain counsel specially trained in collaborative law and enter into a contract to negotiate a settlement without involving the Court or a third party arbitrator. As part of the process the parties may agree to engage neutral experts to assist them, such as accountants or appraisers.
One of the principal features of the process is that, if the matter is not resolved, the attorneys who represented the parties in the unsuccessful effort to collaborate upon a settlement may not represent the parties in the ensuing litigation. The theory is that pre-litigation posturing is eliminated and clients have a greater degree of influence in candid negotiations in which the clients participate directly (see Cochran, Legal Ethics and Collaborative Practice Ethics, 38 Hofstra L Rev 537, 542 ). Another way of looking at it is that the prospective expense of having to hire new lawyers if the matter has to go to court will motivate the parties to continue working toward a mutually agreeable resolution (see Office of Court Administration, Collaborative Family Law Center, http://www.nycourts.gov/ip/collablaw/index.shtml). Having counsel agree to absent themselves from any future litigation makes it clear that counsel are committing themselves to the process of dispute resolution by limiting their engagement to that endeavor and counsel have an economic incentive to stick with the process (Lavi, Can the Leopard Change His Spots?! Reflections on the Collaborative Law' Revolution and Collaborative Advocacy, 13 Cardozo J. Conflict Resol. 61, 68-69 ). Further, counsel have no incentive to abandon the process since their role, and their fees, would end. Conversely, counsel have no personal monetary incentive to encourage litigation.
On November 1, 2011, Ms. Jancko-Baken wrote to Defendant to advise him that the firm of Fredman Baken and Kosan had been retained by Plaintiff. Ms. Jancko-Baken's letter expressed her client's desire to resolve issues relating to the divorce using the Collaborative Law process. However, the letter also stated Plaintiff's insistence that her immediate interim financial concerns be addressed before moving forward with the process, to wit, "While this need not be, and in fact, should not be, adversarial, if the temporary issues are not addressed and resolved immediately, I see no other option" (Affirmation of Daniel Molinoff, Esq., dated March 5, 2012 ["Molinoff Aff."], Ex. A). The retainer agreement between Plaintiff and her attorneys expressly contemplated representation in settlement negotiations and representation in contested litigation. As to the latter, the retainer agreement covered such matters as the payment of a trial retainer, disbursements for deposition and court transcripts, and applications to the court for an award of legal fees.
Defendant then retained counsel trained in collaborative law and signed a Collaborative Law retainer with the firm of Kramer Kozek. The retainer agreement between defendant and his counsel was entitled limited scope retainer for collaborative law. While it covered some litigation-related activities, such as the expenses of court reporters and stenographers, it specifically stated that the law firm "will not be permitted to represent you in any court-related matter against your spouse" and that the firm had no obligation to represent the defendant in any litigation or appeal.
The parties and their counsel met on November 17, 2011. Plaintiff's counsel prepared and circulated an agenda for the meeting. One of the first issues on the agenda for the meeting was a review of the "Participation Agreement". In Collaborative Law, the participation agreement is the contract which binds the parties to abide by the rules of the process. The agenda recited that the parties and counsel were to discuss the ground rules of collaborative law meetings, describe the alternatives to Collaborative Law, describe the roles of the parties and counsel in the process, and ask each person why he or she has chosen to participate in the collaborative law process and record the answers. After this process was complete, the agenda called for: "Ask if there are any final questions and then all sign the Participation Agreement in four duplicate originals". According to the agenda, after the Collaborative Law process was confirmed and established, the parties were to proceed to resolve the immediate issues, establish timetables for financial disclosure, discuss a valuation date, determine the agenda for the next meeting, and develop their "homework" assignments.
It is undisputed that the Participation Agreement was not signed on November 17, 2011. In his affirmation in support of the motion, Defendant's present counsel, who was not present at the meeting, states (without providing any factual basis for his assertion) "apparently it was understood that this would be done at the next meeting, which was scheduled for two weeks later" (Molinoff Aff. ¶24). According to Defendant, the parties read aloud the ground rules and repeated their statements to each other so that each understood what the other had said. Defendant states that after two hours of discussion a substantial amount had been accomplished but the "Participation Agreement was not signed by the parties and was left, instead to the next session, which was scheduled for November 30, 2011" (Affirmation of Mitchell G. Mandell, dated March 5, 2012, ¶8 ["Mandell Aff."]).  Defendant does not assert what was discussed in relation to the Participation Agreement nor provide an explanation as to why the execution of the document was deferred.
Plaintiff's attorney alleges that the Participation Agreement was not signed because Defendant refused to enter into an interim support agreement acceptable to Plaintiff (Affirmation of Ellen Jancko-Baken, dated March 22, 2012, ¶14 ["Jancko-Baken Aff."). Plaintiff herself states that her attorney told her that an honest commitment to the collaborative law process could not be made if one party perceived that the other party was unwilling to make an interim support arrangement so that the parties could focus discussions on the ultimate resolution of the issues (Affidavit of Monica Mandell, sworn to March 23, 2012, ¶6). She asserts further that she agreed with her attorney that they would not sign the Participation Agreement until they were both satisfied that Defendant made an honest commitment to the process by agreeing to a resolution of the interim support dispute (id., ¶7).
While the minutes of the meeting of November 17, 2011 prepared by the plaintiff's counsel (Molinoff Aff., Ex. F) confirm that interim support was discussed without a firm resolution, and that review of the Participation Agreement was placed on the agenda for the next meeting, the minutes do not indicate that there was any discussion of the Participation Agreement at all, much less any discussion as to why the parties had not signed it. Defendant denies Plaintiff's attorney ever stated that the start of collaborative discussion was being delayed due to the dispute over interim support; Defendant also denies that the plaintiff's counsel ever disclaimed that the collaborative law process had not, in fact, started (Mandell Aff., ¶9). This being said, Defendant does not deny knowing that the November 17, 2011 meeting ended without the Participation Agreement being signed. He also does not deny that he proceeded with the discussions of interim issues and other matters on November 17, 2001 knowing that the Participation Agreement had not been signed.
Defendant concedes that he was advised prior to the start of the next meeting that Plaintiff's counsel would not sign the Participation Agreement because she wanted to reserve the option of moving for interim support if the collaborative process fell apart (id., ¶10). Despite having knowledge of the position of Plaintiff's counsel, Defendant elected to proceed with the second meeting, on the theory that "we were clearly ...