Lawyer and Judge Shopping, and the Matrimonial Bar

Are concepts of confidentiality and disclosure mutually exclusive? With the concepts we have discussed in the last two installments in mind, some have argued that there is really no issue of confidentiality left to protect in a matrimonial case. There is a mandate of full and broad disclosure (DRL '236B(4)), long described as “searching exploration” of the parties finances. Kaye v. Kaye, 102 AD2d 682 (2nd Dept. 1984). Further, in the Third and Fourth Departments, discovery is permitted on issues of grounds and custody. Also, 22 NYCRR 130-1.1-a requires the certification of papers that “to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances: the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart.” A New York State Ethical Opinion has stated that a material omission or fraudulent representation in a Statement of Net Worth must be corrected or the lawyer must withdraw from representation. NY State Bar Association Committee On Professional Ethics, Opinion 781 (12/8/04). And, on March 20, 2009, the Preliminary Conference Rules were amended to formally provide for the consideration of the “method and scope” of electronic discovery in the Preliminary Conference Order. 22 NYCRR 202.12(c)(3).