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July 29, 2015

An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”


An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”
Tartakoff v New York State Educ. Dept., 2015 NY Slip Op 06276, Appellate Division, Third Department

One of the issues raised by Raymond Tartakoff in his appeal of an adverse decision following an administrative hearing before the State Department of Education’s Office of Professional Discipline [OPD] was the disqualification of his attorney from representing him in the hearing.

Tartakoff contended that he did not receive a fair hearing because his chosen counsel was disqualified. The Appellate Division disagreed, noting that Tartakoff had retained the attorney who was already representing another individual, JC, in a separate civil rights action against her employer in federal court.

The court explained that to represent Tartakoff, the attorney would have had to effectively cross-examine JC, who was a key witness in OPD's case against Tartakoff. . The attorney’s simultaneous representation of JC in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Further, said the court, in the Tartakoff proceeding the attorney would be attempting to diminish JC’s credibility, whereas an opposite result would be pursued in the federal action. There, ruled the Appellate Division, was a sufficient conflict of interest to justify disqualifying Tartakoff’s attorney in the administrative proceeding.

In the words of the court, "When the representation is simultaneous, the burden shifts to the attorney to demonstrate that no actual or apparent conflict in loyalties exists" and any  "[D]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification."

The decision is posted on the Internet at:

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