Rose v. Becker

— Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court should [705] have granted respondent’s motion to disqualify petitioner’s attorneys from representing petitioner in this proceeding to modify an award of child support. Previously, the attorneys had represented respondent’s present wife in a divorce action brought against respondent. That action was discontinued when the parties reconciled. "An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer’s former client” (Greene v Greene, 47 NY2d 447, 453). That rule is based on the rationale that counsel owes a continuing duty to the former client not to reveal confidences learned in the course of the relationship (see, Greene v Greene, supra, at 453). Although respondent was not a former client of the attorneys, his present wife was. An attorney should be disqualified if, as here, there is a reasonable possibility that confidences were exchanged during the attorney’s prior representation of a party’s spouse that could be used in a present action for the benefit of the attorney’s client. "[F]or [the] purposes of the issue of disqualification, the interests of [the spouses] are one and the same” (Sirianni v Tomlinson, 133 AD2d 391, 392, lv dismissed 74 NY2d 792). (Appeal from Order of Supreme Court, Erie County, Sedita, J. —Disqualify Law Firm.) Present — Boomer, J. P., Pine, Boehm, Fallon and Davis, JJ.