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IN THE DISTRICT COURT OF NITA
NEW YORK STATE BAR,
Petitioner,
v.
Harriet Cooperman,
Attorney at Law,
Respondent.
MEMORANDUM OF LAW IN SUPPORT OF A MOTION TO QUASH A SUBPOENA DUCES TECUM
INTRODUCTION
The State bar brought an action under ' 3101 of the code to quash a subpoena duces tecum. This subpoena duces tecum has been made by Harriet Cooperman ( Cooperman). This memorandum of law is submitted in support of Petitioner=s motion to quash the subpoena duces tecum. Pursuant to '90(10), petitioner request that the motion to quash be granted.
STATEMENT OF FACTS
The New York State Bar filed a motion to quash a subpoena duces tecum issued by Cooperman to obtain a taped conversation between an associate of the New York State Bar and James Duran, a potential witness that the New York State Bar wanted to use.
The original case arose during the representation of David Engels (Engels) by Harriet Cooperman, attorney at law, in a personal injury dispute. Unsatisfied with her representation, Engels filed a complaint with the New York State Bar. The result of the complaint was a private reprimand.
During the investigation, several persons have been interviewed. James Duran ( Duran) made a deposition concerning his relation to Engels. Prior, an associate of the New York State Bar interviewed him. The conversation was taped with the assurance to Duran that this conversation would be confidential if no public hearing occurred. This never happened.
Engels, after the settlement for a private reprimand, brought an action of malpractice against Cooperman alleging that she had a duty to him to act as a reasonable prudent lawyer as prescribed by the New York Canons of law of Professional Conduct. The subpoena duces tecum has been delivered during the malpractice suit.
Furthermore, Cooperman is considering bringing an action against Duran for defamation, because Cooperman thinks that this document would help her in this action. The New York State Bar moved to quash the subpoena duces tecum in consideration of the foregoing facts.
STATEMENT OF ISSUES
A. Does a taped conversation between an associate of the New York State Bar and a potential witness for a disciplinary proceeding against an attorney have any relevancy and materiality to the malpractice suit filed by the injured client?
B. Is the material asked for confidential in the meaning of section 90(10) of NY Jud? If so, should the subpoena duces tecum nevertheless be granted?
ARGUMENT
A. The motion to quash should be granted, because C.P.L.R. ' 2304 and section 90(10) requirement of showing good cause on the part of the party asking for the document cannot be met.
Section 90 (10) reads, in relevant parts, as follows:
10. Any statute or rule to the contrary notwithstanding, all papers, records and documents ( . . . ) shall be sealed and be deemed private and confidential. However, upon good cause being shown, the justices of the appellate division having jurisdiction are empowered, (. . . ) to permit to be divulged all or any part of such papers, records and documents. (. . . ) [S]uch order may be made either without notice to the persons or attorneys to be affected thereby or upon such notice to them as he may direct. (. . . ).
If the general discovery provisions or/ and case law contradict New York Judiciary law '90(10), the latter preempts them. Nevertheless, there is no conflict as these two provisions call for the burden of proof to be on the part of the party that seeks the document.
In the case at hand, the burden of proof would be on the party seeking the document. Section 90(10) provides that the party seeking the documents, records, or papers shall show good cause in order to discover these documents. The courts that have interpreted ' 2304 have required the same.
Showing good cause means that the party who asked for the document to be discovered has the burden of proof. In Virag v. Hynes 54 N.Y.2d 437, 430 N.E.2d 1249, 446 N.Y.S.2d 196 ( 1981), the Court of Appeals of New York decided that:
[A]n office subpoena is subject to challenge ( . . . ) on the grounds that the materials sought are irrelevant, ( . . .) It is incumbent upon the issuer to come forward with a >factual basis= which establishes the relevancy of the items sought to the subject matter before a witness will be compelled to comply with the subpoena=s mandate.
This is applicable because the subpoena issued in the present case is a non judicial subpoena duces tecum as it does not implicate a trial but the records of the State Bar. Thus, contrary to the presumption that exists when judicial subpoena are concerned, here there is no such presumption. Thus, the burden is not on the party moving to quash but the party who issued the subpoena.
As the burden of proof is on the respondent, she has to show good cause. That means that respondent has to prove the relevancy of the material sought. In Application of Raymond Lee Organization, Inc. v. Lefkowitz 400 N.Y.S.2d 541(1978), the New York court of Appeals decided that the Arelevancy of the items is the reasonable relation to the subject-matter under investigation and to the public purpose to be achieved@. It is, no doubt, a very low standard to meet. Nevertheless, this case is distinguishable from the present case. In Lefkowitz, the defendant had been tried on fraud charges. The attorney general who had made those charges issued a subpoena duces tecum to obtain certain documents in connection with the same case but in action brought by another administrative agency. The Court of Appeals denied the motion to quash because of there was no Areasonable relation to the subject-matter@.
In the case at hand, the document that respondent seeks to discover has little bearing on the malpractice suit, because Cooperman had already received a private reprimand. The proceedings between the State Bar and Cooperman have been terminated. Furthermore, the taped conversation was made prior to Duran=s deposition. In other words, respondent does not need this record, because it is logical to think that what Duran said during this informal conversation was a summary of what he said when he gave his deposition. Finally, even if Engels sued for malpractice, there is no connection between the two proceedings, one being administrative, the other being civil.
Finally, even if the court should decide that there is a reasonable relation to the subject-matter, it has been decided that if a less intrusive means can be used to obtain the information, then the subpoena duces tecum should not be granted. In The People v. Marin, 86 A.D.2d 40, 448 N.YS.2d 748 (1982), the Second Department of the Appellate Division of the Supreme Court of New York decided that:
A
(. . .) counsel for defendant failed to satisfy his burden of demonstrating >by fair preponderance of the evidence including all reasonable probability or likelihood that the information sought by the subpoena was material and relevant to his defense, that it could not be secured from any less intrusive source, and the defendant had a legitimate need to see and otherwise use it=.@Marin was a case involving work-product. It has to be distinguished with the case at hand on that particular pattern. Nevertheless, Marin can be used in the sense that if a less intrusive means can be used to obtain the document, then the motion to quash should be granted.
In the present case, Duran made a deposition that is available to Cooperman. Depositions and interrogations are a less intrusive source than a subpoena duces tecum. Thus, it would be preferable if Cooperman sought what Duran said during this conversation through a deposition or an interrogation.
The motion to quash should be granted, because respondent would certainly fail in proving the low standard of relevancy. Even if she does not, then the motion should be granted on the basis that it is not the simplest means of discovering.
B. The motion to quash should be granted, because the taped conversation is confidential in the meaning of section 90(10).
Judiciary Law Section 90(10) provides that all records, documents, or papers shall be deemed sealed. The language of the statute is mandatory. There is no exception to the rule except if it is in the interest of the public to divulge the documents.
This black letter rule has been affirmed by the courts. In Silverman v. The City of New York 171 A.D.2d 414, 566 N.Y.S.2d 640 (1991), the First Department of the Appellate Division of the Supreme Court decided that AJudiciary Law Section 90(10) provides for the confidentiality of disciplinary proceedings. ( . . .), the documents and papers which were submitted on the motion and cross-examination are not protected by confidentiality.@
In this case, the attorney who was the subject of disciplinary proceedings requested the sealing of the records. In the case at hand, the situation, being a little different, is quite similar. Actually, Duran whose conversation was taped asked for the confidentiality of his statement. Furthermore, the associate who was in charge of the investigation promised him the confidentiality of his statement if no public hearing occurred.
However, this black letter rule does not apply if the person requesting discovery is the subject of the record. In the Matter of Elliot B. Pazik 114 Misc.2d 397, 451 N.Y.S.2d 570 ( 1982), the Supreme Court, Special Term decided that AAll the reported decisions citing the statute,(. . .), deal with non-parties to disciplinary proceedings seeking access to records of those proceedings. (. . .) The statute by its terms does not appear to apply to the person or attorney who is subject of the record at issue.@ Thus, when the attorney who was the subject of the records request its release, the confidentiality protection does not apply. In this case, the person requesting the release of the records was a student who passed the bar exam and after being formally accepted ( i.e. pass the fitness and character inquiry). He actually requested the divulgation of his own scores. The State Board Examiner accepted to give him his general scores concerning the multi-state part but refused to give the specifics of his scores. The actual nexus of the case as Section 90(10) did not apply was the application of the New York Freedom of Information Law (FOIL). On appeal, the court decided that as the State Board of Law Examiners was a body of the judiciary, it was exempted from giving the information.
In the present case, Cooperman is the attorney who is the subject of the records. Thus, the confidentiality protection provided by Judiciary Law section 90(10) does not apply to our case. The State Bar should, as result, be compelled to release the taped conversation to Cooperman.
Nevertheless, Pazik can be applied in its entirety. When the court decided that the State Board of Law Examiners was a body of the judiciary and thus was exempted from giving the information, it implies that any body of the judiciary could be exempted under FOIL from giving the information. As a result, the New York State Bar could still refuse to comply with the subpoena duces tecum on the basis that FOIL provides specifically for its exemption.
New York Judiciary Law section 90(10) does not apply to the case at hand. The record is confidential regarding non-parties to the disciplinary proceedings. Nevertheless, the motion to quash should be granted, because the New York State Bar is exempted to release the document on the basis of FOIL.
CONCLUSION
For the foregoing reasons, The New York State Bar requests this court grant the motion to quash the subpoena duces tecum.
By:
Carine,
Associate of the New York State Bar.
