Legal Briefs | NYC Attorneys

We are often asked what materials an attorney should bring to a large and complex, customer versus brokerage firm, securities arbitration hearing besides evidentiary documents. Below is a list of five things every practitioner should not be without:

1. Exhibit Binders and Tabs

You?d be surprised how many attorneys come to arbitration proceedings without bringing binders and tabs for the arbitrators to hold exhibits. It?s a mistake. Arbitrators appreciate the organized presentation of exhibits. Bring one for opposing counsel and a witness binder as well.

2. Discovery Binder

There are often discovery disputes during arbitration hearings. Make sure you have a binder with all of the document requests, document responses, motions to compel and their responses, orders by the Panel and indices of what documents have been produced by both sides.

3. Securities Arbitration Desk Reference

Professors Seth Lipner and Joe Long have put together an essential reference book which all attorneys should bring to the hearing. The Securities Arbitration Desk Reference has the arbitration statutes, SRO arbitration and conduct rules, the Blue Sky Laws, the Securities Acts and insightful commentary by two experienced securities arbitration professionals.

4. Federal Rules of Evidence

Along with the Reference by Professors Lipner and Long, attorneys should bring a copy of the Federal Rules of Evidence. One never knows how stringent a panel will follow the rules of evidence in a securities arbitration. It?s good to know you have the FRE with you.

5. Calendar

Unfortunately, large and complex securities arbitration hearings often take longer than the amount of days scheduled. Therefore, always remember to have your calendar with you to potentially schedule more hearing dates. Hopefully, tips one through four will help you avoid needing tip five.

One of the most important aspects of securities arbitration proceedings is choosing your arbitrators. It is more art than science. Securities arbitration attorneys ought to spend a ton of time researching and vetting potential panel members. This includes not only reviewing prior awards but assessing value to said awards.

It is essential that attorneys review all of the arbitrators? prior awards, not just the ones from the NASD. NYSE and AAA awards are available from the Securities Arbitration Commentator. NYSE awards are available on the NYSE website and on Westlaw.

Attorneys should not just review the awards from securities cases. Employment awards may be important too. For example, whether an arbitrator has awarded punitive damages in an employment case would be important to know.

Pro se cases should be disregarded unless there is big award given to a pro se claimant which is very rare.

Counsel must also study the attorneys involved in each arbitration award. You can?t just look at the awards. For example, there are some claimants? attorneys who are known for bringing a high volume of weaker cases. A zero award for an attorney like that doesn?t tell me much; but if it?s a zero on a case brought by someone with a strong reputation, that would interest me.

Finally, call attorneys who have appeared before the arbitrators to get their first hand commentary on arbitrators. Awards often don?t tell the whole story on their face. There is nothing more helpful than hearing the war story from a trial attorney.

The first meeting between you and your prospective divorce attorney is critical. As a lawyer, I want to know as much as possible about a potential new client’s life and background, as well as the circumstances which bring him or her into my office for advice or representation. One of the ways I use to get to know and understand the man or woman sitting in my office is by listening very carefully to the questions they ask me. The questions themselves tell me a great deal about the type of person sitting in my office, and what he or she knows or thinks they know about their spouse, children, and the law.

From a client’s perspective, questioning a potential divorce lawyer during the initial consultation is a wonderful way to evaluate the lawyer and help decide whether he or she is a good fit for your particular case.

Here is a link to an interesting article about choosing a divorce attorney written from the client’s point of view.

A common provision in many divorce agreements is that the former marital residence will be sold upon certain terms and conditions and the net proceeds of the sale be divided between the former spouses. Many times, however, the parties cannot manage to cooperate in the sale of the house or one party decides not to honor the terms of the agreement and refuses to participate in the sales process.

When these disputes, one party will often ask the Court to enforce the terms of the divorce agreement. One tool available to the Court is an order appointing a receiver to sell the home. A receiver is an agent of the Court who is empowered by Court order to effectuate the sale of the home by those means authorized by the Court.

The costs of the receiver (commissions, legal fees for the receiver’s attorney, decreased sale price) are allocated between the parties by the Court. If the Court finds that one party is particularly at fault in the dispute over the sale of the home, it can require that party to pay all of the costs associated with the receiver.

In Lutz v. Goldstone, the New York State Appellate Division, Second Department, approved the appointment of a receiver. However, it found that both parties were sufficiently at fault so that they each were charged with one-half of the cost of the receiver. 

Nobody marries with the expectation of failure. Couples never contemplate that the person they once loved could eventually become an adversary and an enemy. Yet, statistics paint an alarmingly bleak. Approximately 4 out of 10 marriages today end in divorce.

One of the greatest contributors to divorce is the issue of "control" - either financial or personal. Who controls the bank account? Who decides what to buy and when to buy it? When one partner to a marriage "controls", the other partner loses their sense of self. A divorce becomes imminent as the controlled partner tries to regain their self-esteem.

Here are six (6) steps you can take to protect yourself financially if you believe your marriage is in jeopardy:

1. Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include:

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

2. Establish Your Own Credit

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

3. Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

4. Time Your Divorce

The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.

5. Close Joint Accounts

If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed.

You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.

6. Hire an Experienced Divorce Lawyer

It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that is knowledgeable and right for you. Ask about their experience in family practice and specifically divorce. Ask the attorney to explain the legal issues as well as the legal process in your particular county.

For additional information on divorce planning, visit DivorceNet.com or DivorceSupport.com

Disputes between parents over where and with whom their children spend the holidays can be highly emotional, complex, and stressful to both parents and children. The visceral feelings associated with the holidays, the pressures on parents to provide the ‘perfect’ holiday for their children, and the incredible time constraints faced by all concerned parties combine to make resolving these problems more difficult than usual. Some of these issues will inevitably require Court intervention because the parents either will not or cannot come to an agreement by themselves.

If you find yourself in the position of having to go to Court to resolve an issue regarding child holiday visitation, following these five suggestions should help get you through your ordeal with the least amount of trouble and the best chance of success:

1.    Have multiple copies of the current visitation order or schedule: Courts, attorneys, and Law Guardians dealing with holiday visitation problems will instinctively ask for the schedule or order that is in effect. This is the baseline from which all decisions will be made concerning your issue.

2.    Ask for what you want in clear and concise language: Example: I want to take my son to see his grandparents in Florida for Christmas. The Court generally does not need to know the entire history of your relationship with the other parent.

3.    Tell the Court why it should rule in your favor: If your order or schedule gives you the right to the relief you are seeking, tell the Court the specific page or paragraph numbers which support your position. If it does not, you need to tell the Court why it is fair or right to alter the schedule in this one instance.

4.    Be Reasonable: If you ask the Court to alter the agreed upon schedule and therefore deprive the other parent of time which they are otherwise entitled to, offer to make some concession to them on another visitation issue or provide some additional time to them in the future.  If you are asking the Court to enforce the agreed upon order or schedule, and if doing so would cause the other parent some harm or problem, propose a realistic plan to make that problem as manageable as possible. A judge is much more likely to be sympathetic to a party who is attempting to be reasonable and accommodating than it is to someone it perceives to be overly rigid and doctrinaire. 

5.    Provide Advance Notice: One of the biggest challenges to handling holiday visitation issues is the lack of advance notice and planning by parents. Some of this is the unavoidable result of the conduct of one of the parents, such as refusing at the very last minute to send or receive a child or to honor a agreed to change in the schedule. But, if you know there is going to be a problem which needs to be resolved (your holiday time conflicts with the other parents regular time or your plans require the other parents consent to take the child out of the state), it is important to deal with the matter well in advance of the planned visitation. Asking a Court to deal with a problem on the eve of a holiday visitation not only greatly increases the stress on you, your attorneys, and the Court, but it also increases the likelihood that the Court will not have enough time to thoroughly consider your request and enter any appropriate orders or directives.

A recent New York Law Journal article I read reported that the average caseload for a matrimonial judge in Suffolk County was 500 cases. Since most of my current matrimonial caseload is in Suffolk County, I found that statistic interesting but not surprising. I have been counseling my clients for years on the operating assumption that a matrimonial judge has a caseload of over 350 cases. The heavy caseload of a matrimonial judge has very real and meaningful implications for litigants in the Suffolk County Supreme Court. Here are the four (4) most important tactical and strategic points which are affected by the fact that a matrimonial judge has approximately 500 cases at any given time:

1. FIRST IMPRESSSIONS ARE CRITICAL The Court will form a first impressionof you and your case. It will do so extremely quickly because it has to given the sheer number of cases it has to deal with. Once that impression is made, it will most likely remain fixed in the Court’s mind for a very long period of time. Therefore, you and your attorney must very carefully plan and consider how and under what circumstances you will initially present yourself to the Court.

2. PRIORITIZE ISSUES The Court’s caseload limits its ability to focus intently on every facet of every case. It simply does not have the time to engage in an extensive analysis of every issue, and therefore it will spend the most time on what to the Court is most important. In my experience, serious issues regarding minor children receive the Court’s undivided attention. At the other end of the Court’s attention span are cases in which there are no minor children and the only issues concern finances. In order to successfully move your case through the Court system, you must prioritize the issues in your case and focus on the most important ones.

3. APPEAR REASONABLE: Because the Court does not have the time to cover every issue in depth, it will almost always look to avoid a conflict (which takes time to resolve) in favor of a negotiated arrangement. The more a party appears to the Court to be reasonable and willing to avoid open conflict, the more favorably the Court is disposed to look kindly upon that party when it makes its decisions on matters that must be litigated.

4. BE PREPARED: Having the right information at the right time is critical to the success of your case in a Court with a very heavy caseload. The ability to quickly and accurately respond to questions from the Court and from the other side can and does influence the Court’s decision making process.

I recently came across an interesting decision in a case which highlights the problems and liabilities which arise from inept or ill-advised divorce planning by business owners and their families.

The case comes from the Nassau County Supreme Court and was reported in the New York Law Journal on January 8, 2008.

The parties were married in 1996. In 2001, the wife’s father sold her all of his stock in an automobile dealership he owned  for $1.4 million. The wife made a down payment of $150,000.00, using funds provided to her by her husband, and executed promissory notes for the balance.   The husband claimed he paid a total of $785,000.00 to the wife’s father on account of the notes, and that he and his wife agreed that the shares in the dealership and certain other assets would be jointly owned by them.

Six months before filing for divorce, the wife defaulted on the notes and then transferred the shares in the dealership to her father. In the divorce action, the wife claimed she had no interest in the dealership.

The husband brought multiple claims against the wife, her father, and various corporations owned by the father and the wife. The claim which survived the defendants’ motion to dismiss was for a fraudulent conveyance in violation of Debtor and Creditor Law 276-a transfer made with actual intent to defraud a creditor.

The Court found that the plaintiff’s claims regarding the wife’s intentional default on the notes six months before commencing a divorce action, the surrender of the shares to her father were sufficient to defeat a motion to dismiss the complaint.

I wonder what advice the wife received, if any, and from whom. It appears from the decision that the planning for the divorce was clumsy at best. This case is an excellent example of the need for sound and professional divorce planning by business owners and their families.

A recent article in Newsday contained some interesting information regarding marriage and divorce on Long Island. The piece notes that:

1.    In 2005, there were 7,104 divorces recorded in Nassau and Suffolk counties, and 15,444 marriage licenses issued.

2.    Between 1997 and 2005, the number of marriage licenses fell from 22, 113 to 15,444.

3.    Between 1997 and 2005, the divorce rate fell approximately 5 per cent.

4.    There are approximately 500,000.00 married couples on Long Island, according to 2006 US Census Bureau figures.

5.    Nationally, the median age for marriage is  27.5 years for men and 25.5 year for women, according to 2006 US Census Bureau data.

What can we learn from this information? I suppose we can take from these figures that couples are marrying less frequently and later in life, and that there are fewer divorces as a percentage of marriages. Whether these trends are related to each other is a subject for another day.

A New York judge recently ruled that using MySpace to contact a person covered by a Family Court order of protection is a violation of the order. In People v. Fernino, Judge Matthew A. Sclarrino, Jr., of the Richmond Criminal Court denied a defense motion to dismiss an accusatory instrument, finding that:

In this case, the defendant used MySpace as a conduit for communication prohibited by the temporary order of protection issued  by the Family Court.

The interesting aspect of the decision is that the Court noted that the contact was by means of a ‘friend request’ which the defendant sent to the victim.   The Court observed that even though the victim had the option to refuse the ‘friend request’ and not have any contact with the defendant , the mere fact that the request was sent at all constitutes a violation of the ‘no contact’ provisions of the order of protection. Unfortunately, the Court’s opinion did not reveal whether the victim accepted or rejected the ‘friend request.’

This decision is yet another example of the way in which family law practice is being affected and shaped by the internet.

A New York Supreme Court Justice has ruled that a lesbian couple married in Canada can be divorced in New York. A copy of the Court’s decision will be available on Friday. 

In Beth R. v. Donna M., Acting Supreme Court Justice Laura E. Drager held that the Canadian marriage of the couple was properly recognized under New York law. Therefore, they are entitled to be divorced in New York.

Justice Drager relied upon the case of Martinez v. Monroe, a Fourth Department case which recognized the validity of a Canadian marriage. Daniel Clements’ New York Divorce Report has a good post on the Martinez case.

The most interesting aspect to this case, in my opinion, is Beth R’s claim regarding the custody of Donna M’s two children. Apparently, Donna M. did not allow Beth R. to adopt the children, although Donna did name Beth as the guardian for the children in her will. Also, the couple jointly raised the children financially and emotionally.

On July 22, 2008, New York State Governor David A. Patterson signed into law a bill permitting the Family Court to issue orders of protection to persons in ‘intimate relationships.’

Prior to the new legislation, the Family Court had jurisdiction to grant orders of protection only to victims of domestic violence and other family offenses who were:

1.         Married to or divorced from the alleged perpetrator.

2.         Related to the alleged perpetrator by blood or marriage.

3.         Had a child in common with the alleged perpetrator.

Under the new law, the Family Court may now issue an order of protection in favor of a person who is in an ‘intimate relationship.’ The law defines an ‘intimate relationship’ as:

Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the Court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”

The new law is intended to encompass dating relationships and couples who live together. Both heterosexual and homosexual relationships are included in the law.  

This increased access to the Family Court for victims of domestic violence brings New York law into line with that of the other 49 states, all of which currently have similar provisions for orders of protection.

Tricia Walsh-Smith has lost her divorce case after the Court found that her husband, Philip Smith, established that Ms. Walsh-Smith engaged in conduct which constitutes cruel and inhuman treatment under New York Law.   A good portion of the Court’s opinion focused on the video Ms. Walsh-Smith posted on You Tube in April of 2008. The video and its effect on Ms. Walsh-Smith’s divorce case was the subject of two posts by Daniel C. Clement in his New York Divorce Report.

Despite the publicity and curiosity surrounding the video and Ms. Walsh-Smith’s unusual conduct in the case, the Court’s decision may in my opinion be ripe for a legal challenge on appeal.

My reading of the opinion suggests that the Court granted Mr. Smith his divorce in part, perhaps a large part, based on the You Tube video. However, the video was posted in April of 2008, which is well after the divorce action was commenced in October of 2007. 

The Court cannot rely on post-commencement actions by either party in determining whether grounds for divorce existed as of the commencement of the action. Either the plaintiff did or did not have grounds for divorce on the day she filed her action or she did not. She cannot ‘acquire’ grounds after the commencement of the case.

So, what will happen if Ms. Walsh-Smith appeals the Court’s ruling? Stay tuned, and we will see.

A recent case from the New York State Appellate Division, First Department, highlights the conflict between trying to use creative alternative billing arrangements in divorce cases and the harsh reality of the current rules governing matrimonial fee agreements.

In Sheresky Aronson & Mayefsky v. Whitmore, decided on July 8, 2008, the Appellate Division ruled that Ms. Whitmore’s attorneys could not enforce a clause in her retainer agreement relating to a ‘premium fee.’   That clause stated:

We reserve the right to discuss with you at the conclusion of your matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent.

The complaint filed by Sheresky against its client was dismissed as a matter of law by the trial court, and the Appellate Division affirmed the decision. The Appellate Division held that the clause violated the plain language and specificity provisions of the New York rules governing fee agreements in matrimonial cases. The Court also found that Ms. Whitmore’s oral agreement to pay Sheresky a premium fee of $150,000.00 was not enforceable because of those same rules.

By the way, Sheresky was the firm who represented Peter Cook in his highly publicized divorce case against Christie Brinkley. 

I think the Court’s decision was correct under the rules, and I also think the rules are incredibly inhospitable to success or premium fees in matrimonial matters. In order for a premium or success fee to pass muster under the rules, the manner in which the fee is to be calculated must be spelled out in clear and plain language. That is nearly impossible in matrimonial practice, because of the inherently unpredictable and volatile nature of the work. 

So, while premium fees might be welcome and appropriate in business or corporate law transactional matters or even certain types of civil litigation, they appear to be unwelcome in New York matrimonial practice.

In my practice, I often represent men who whose wives or girlfriends have orders of protection against them or are seeking to obtain one in Court. One of the more interesting aspects of this area of practice is explaining to my clients how orders or protection are used or abused, and how they are enforced.

I typically tell my clients that when it comes to orders of protection the police have a mandatory arrest policy: if the person who has an order of protection call the police and tells them you violated the order, the police will arrest you first and ask questions later. It’s that simple. There is no discussion, no debate, and no appeal. This policy was created and authorized by elected officials and whether you, the defendant, are guilty or innocent is at the very bottom of their list of concerns. When you get back to Court, you will be charged with either a class A misdemeanor or a class E felony, depending on how the prosecutor decides to charge the case.

Now, I have a new way of making my point to my clients. I came across this story today. A man and his ex-wife decided to remarry, but it turns out she had an order of protection against him from a prior dispute and it was never vacated. At the wedding, the groom got into an argument with a guest, and the police were called. When the police arrived, they discovered that the bride had an order of protection against the groom, and he was arrested and charged with criminal contempt for violating the order. He was charged with felony contempt has held without bail.

This unfortunate incident just goes to show how strictly police enforce orders of protection and how careful clients need to be when faced with a petition for an order of protection or an actual order.

A trial judge in New York City recently ruled in Moore v. Moore that a wife seeking a divorce can use evidence of her husband’s internet activities with another woman which she found on a computer she took from her husband’s car.

The Moore’s were married in 1963, and are now retired. He was an information technology consultant and she was a school teacher.

 In Moore,  the wife took a laptop computer out of her husband’s car just before she commenced her divorce case. According to the wife’s attorney, she was searching the computer for financial information when she came upon a large number of salacious instant messages which the husband exchanged with a woman in Texas.   The wife’s attorney told the husband’s attorney she had the computer, and the parties agreed to make copies of the computer’s hard drive. The materials found on the hard drive were repeatedly referred to by the wife in affidavits submitted to the Court without objection by the husband. Eventually, the case was transferred to another judge, and the defendant moved to suppress the contents of the hard drive.

The Court denied the motion, finding that the wife die not commit a crime or otherwise violate the husband’s rights in taking the computer and copying its contents. The Court noted that the attorneys for the parties specifically agreed to copy the hard drive, and the defendant did not move to suppress the contents of the computer when the wife first bean referring to items found on the computer in at least two (2) affidavits she submitted to the Court at least six (6) months prior to his suppression motion.

The Court determined that the computer was a family computer as claimed by the wife and not a work computer as alleged by the husband. The Court also found that the taking of the computer was appropriate since it was done before the commencement of the case and the machine was taken from the family car. Finally, the Court also noted that the parties agreed in writing and through their attorneys that the computer’s hard drive should be copied and made available to both sides.

This case is another interesting example of the way in which computers and technology affect divorce and family law cases. It is also a reminder that some people will do a lot of preparation and planning prior to beginning a divorce-remember, the wife was searching for financial information on the computer when she stumbled upon the explicit instant  messages.

Finding right attorney for your family law matter requires asking specific questions to determine which attorney may be best for you. Choosing the wrong attorney may ultimately you a great deal of time, stress, and money in the end.

Divorce can be an intimidating process.  There is no area of the law which cases requires more paperwork or forms, and which involves as much raw human emotion. As a result, a divorce proceeding can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make in your entire case.

Not every lawyer is a good fit for every person. You must be sure that your philosophy of how to approach and handle your case matches the temperament and practice philosophy of your lawyer. As a result, you must ask questions that reflect your specific concerns.

A good lawyer will:

-help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;

-help you to prepare for court proceedings in advance;

-provide prompt and courteous responses to your questions;

-provide information and methods to help you reduce your legal fees.

To choose an attorney you should find more than one candidate to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form your friends.  Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.

Remember that finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.

Interviewing candidates

It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.

Remember, it is your case!

Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, if you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.

Some questions you may wish to ask include the following:

-How long have you been a lawyer?
-What is your primary area of practice?
-Do you have any other practice areas?
-What percentage of your caseload is dedicated to divorce?
-Have you handled cases with issues similar to mine?
-Do you have a heavy caseload and do you have time for my case?
-Have you handled many divorce cases in my county?
-What is the divorce process in my county?
-What are the likely obstacles and issues in my case?
-What are my alternatives in resolving the issues?
-Is there any process you would recommend and why?
-Approximately how long will the process take?
-What are your rates and how often will you bill me?
-What are the costs I can expect in this case?
-What are the legal fees I can expect in this case?
-Will the lawyer accept payments on any outstanding balance?
-How will you keep me informed of the progress in my case?
-What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative?
-Who else in the office will be working on my case and what is their rate?
-Is there anything I can do to keep my legal fees down?

Selecting your lawyer

When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?

To discuss your divorce or family law matter or schedule a free initial consultation, please call my office at 631-467-4177 or e-mail me at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Just because an agreement between spouses splits assets in an unequal or one-sided basis does not render the agreement unconscionable.

It has long to the policy of courts to hold parties to the terms of their agreements. An agreement between spouses, which is fair on its face, will be enforced even if one party received less than one half of the value of the marital assets unless there is proof of fraud, duress, overreaching, or unconscionability.

In the recently decided case of Shultz v. Shultz, the Appellate Division detailed what makes an agreement unconscionable:

An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.  However, an agreement is not unconscionable "merely because, in retrospect, some of its provisions were improvident or one-sided" and simply alleging an unequal division of assets is not sufficient to establish unconscionability.

The reason for this strict standard is obvious-no agreement would be free from attack if it could, in retrospect, be reviewed for fairness

In Shultz, the Court cited two factors why it found the claims of unconscionability to be lacking. First, the defendant was represented by independent counsel during negotiations involving the parties' post nuptial agreement. Secondly, the agreement recited that the defendant entered into it "freely, voluntarily and with full knowledge of its consequences.

It has been a grueling, but eventful week. Not only was I busy practicing law, but I moved my office to new quarters. During this time, a television interview I had given aired.

As part of the move, I had to go through the files of my past clients, which gave me cause to reflect. In many respects, my practice in transitory - when the matrimonial issue is resolved, absent some new legal issue, my daily contact with the client ends and we lose contact. It would great to know what happened in my clients’ post divorce lives.

A while ago, I was interviewed for the PBS (and, in Europe, CNBC) show World Business about the economy and divorce. The interview can be viewed here.

Next week, I resolve to resume blogging on a regular schedule.

U.S. Court of Appeals for the Eleventh Circuit: NAACP v. Evon Billups, Superintendent of Elections

The great voter-photo controversy continues. This time in Georgia.

Just how burdensome is it to individuals living in the 21st Century to produce a photo before they can vote? According to the plaintiffs who challenged Georgia law requiring such onerous measures as proving you are who you say you are with an ID (even a free one paid for by the State if you somehow managed to live your life in America without possessing some sort of photo ID), it is the equivalent of a poll tax and worse, and therefore in violation of the Twenty-Fourth Amendment, of the Equal Protection Clause, of the Fourteenth Amendment, of the Civil Rights Act of 1964, of Section 2 of the Voting Rights Act of 1965 and of the Georgia Constitution.

A photo ID?

Have we become so sensitive (senseless?) that merely requiring voters to show a confirming photo to vote could be thought so burdensome and discriminatory as to invoke monumental claims of constitutional and legislative infringements? Or are we not prepared to deal with the fact that voter fraud might be occurring right here in the good ole U.S. of A.

Well, there is still some common sense afoot in the common law and the Court of Appeals ruled that the minimal burden imposed by the voter-photo law was far outweighed by the state?s interest in ?protecting ?the integrity and reliability of the electoral process.??

Here?s the bottom line: ?The ordinary burdens of producing a photo identification to vote, which the Supreme Court described as ?arising from life?s vagaries,? do not ?raise any question about the constitutionality of? the Georgia statute.? Accordingly, voters in Georgia, as in Indiana (and 5 other states), will have to reach into their wallet for their picture before they cast their ballots. Hopefully, they will survive the trauma.

But will the nation survive this negative assault on our electoral process? Is this a portrait of an empire in decline entering the darkroom of disenfranchisment? Or merely a snapshot that has exposed the voter to the brutal truth that the camera doesn?t lie, even if some voters do.

Show ?em a picture already!

With so many hotly contested elections and legal challenges ending in photo finishes, maybe we should all just smile and say ?cheese? before we poke a few chads or pull the lever.

That?s how I vote on this one.

Courts throughout New York continue to expand the rights of parties in same-sex marriages. For the first time, a judge has ruled that the survivor of a legal same-sex marriage is entitled to inherit from his spouse's estate.

Although New York will not recognize a same-sex marriage performed within the state, with a few exceptions, courts and state agencies will recognize marriages solemnized in Canada, Massachusetts and other states where same sex marriage is legal.

In Matter of the Estate of H. Kenneth Ranftle, Surrogate Judge Kristin Booth Glen designated J. Craig Leiby as the "surviving spouse and sole distributee" of H. Kenneth Ranftle, who died on Nov. 1, 2008, just five months after they married in Quebec.

This decision confirms that a person may provide for his/her same sex spouse to inherit his/her estate as a spouse. But this decision, raises an interesting question- in New York, a spouse cannot be dis-inherited. Each spouse has a right of election to take a prescribed minimum percentage of his/her spouse’s estate. This right of election ensures that one spouse inherits something from the other.

The question then becomes, what would happen if Mr. Ranftle died with a will that made no provision for his spouse, Mr., Leiby- would the court allow Mr. Leiby to assert his right of election? It seems to me it would be that it would be inconsistent not to.

Likewise, had Mr. Ranflte died without a will (intestate), would Mr. Leiby have the right to inherit as his spouse, as would be the case in a heterosexual marriage?

If New York is going to recognize, as valid, marriages lawfully performed in jurisdictions that permit same sex marriages, then, Courts will have to recognize and enforce all of the rights that arise from a lawful marriage. It follows that same sex spouses should have the rights of election and to inherit in cases of intestacy.
 

To the list of things Bernard L. Madoff has been blamed for ruining — retirements, lives, reputations — add another: a clean breakup.”

The New York Times is reporting that a husband (a lawyer), who, entered into a settlement agreement distributing marital assets, which included an investment in Madoff’s hedge fund, is seeking contribution from his ex wife for the post-divorce losses sustained in the Ponzi scheme.

Rather than splitting an investment in the Madoff hedge fund, the husband gave the wife $2.7 million in cash and held onto the account. Of course, the account is now worthless. The husband wants his ex wife to share in his loss.

Good luck!

Had the wife participated with Madoff in the fraud or had knowledge of the wrong-doing, the husband might have a case. But, the husband simply made an unfortunate choice and, through no fault of the wife, lost his investment.

Had the account value gone up, it is doubtful that husband would have shared the profits with his ex-wife. Alternatively, had the wife poorly invested the cash she received from the husband, she would have no claim against the ex-husband for her loss. And what about all the people who bargained for the marital home, which is now worth substantially less than it was one year ago-should they look to have their former spouses share in the loss?

There is a practical reason why the husband cannot win this case-if the mere fact that some former marital asset lost value could subject a settlement agreement to attack, there would be no finality to divorce. Every agreement would be at risk for a post divorce attack. In order for there to be finality, in absence of fraud, duress or coercion etc, agreements must be enforced, without the benefit of hindsight
 

Within the last month, the Appellate Division, Second Department, has decided several interesting family law cases. One, in particular, directly answers a question I am frequently asked, which, in some form, goes like this: My son refuses to visit me; do I have to pay child support for him?

The answer, as supplied by the Court in the case of Gold v. Fisher, is- it depends.

. . . .a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation" may forfeit any entitlement to support In contrast, where it is the parent who causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent.

The parent seeking to have the child “constructively emancipated” has the burden of proof. From my experience, given that this is a drastic remedy, which may punish the custodial parent (who may or may not be at fault) as much as the child, courts strive to discover the true origins of breakdown of non custodial parent-child relationship.

If the evidence shows that the non-custodial parent is in any way at fault for the estrangement, the application will be denied and the obligation to pay support will continue. If the non-custodial parent is blameless, support will be terminated.
 

Despite overwhelming support to adopt a no-fault or irreconcilable grounds for divorce, New York remains the only state in which a party must allege and prove marital fault in order to obtain a divorce.

By far, the most common fault based ground for divorce in New York is constructive abandonment. In the recent case of Mehl v. Mehl, the Appellate Division defined the elements of this ground for divorce.

It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basic obligations arising from the marriage contract and that the abandonment continued for at least one year.

“Basic obligations arising from the marriage” is legalese for sexual relations.

In order to rise to the level of constructive abandonment, the refusal to engage in intercourse must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'"

Further, as the Mehl case illustrates, the person seeking the divorce cannot be the party who refused to have sex.
 

Human organs are not assets to be distributed in a divorce. Thus is the ruling in  Batista v. Batista, the case in which a Long Island doctor sought compensation for donating a kidney to his wife,

The National Law Journal reports that:

At its core, the defendant's claim inappropriately equates human organs with commodities," Referee A. Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05. Grob noted that while the term "marital property" is "elastic and expansive ... its reach, in this Court's view, does not stretch into the ether and embrace, in contravention of this State's public policy, human tissues or organs.

Public Health Law §4307 makes it a felony for "any person to knowingly acquire ... for valuable consideration any human organ for use in human transplantation.”

While morally repugnant and questionably legal, the doctor’s claim for compensation for “sacrificing” his kidney is creative. Even the court noted that while it will not directly compensate the husband for his kidney, his “altruism” may be considered in distributing other marital assets.

While the court order provides that  Dr. Batista may not offer economic proof of the value of his organ donation, the Court did  "not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend [to the organ donation], are beyond the pale or lack relevancy."
 

U.S. Supreme Court: Pleasant Grove City, Utah v. Summum

Hard to evaluate this decision. For now, score one for the like-minded. Five or ten years from now, the score could change dramatically, and so too could the way we look at this decision.

Pioneer Park is in Pleasant Grove City Utah. There are a variety of permanent monuments and displays in the park, just as there are in Central Park, the Boston Commons and Grant Park in Chicago. Cities everywhere put up monuments, either with their money or with privately donated funds. So here?s the question: Once a city puts a monument in its park, must it put up other monuments if they are donated, paid for and inoffensive? And where exactly on the free speech scale do monuments fall?

The short answers are that cities do not have to put up other monuments, and there are no free speech issues involved. Because monuments are a form of ?government speech? and therefore, ?not subject to scrutiny under the Free Speech Clause? of the Constitution.

Pioneer Park already had 15 permanent displays, 11 of which were donated at no cost to the City. Included among its stone and granite collection was a Ten Commandments monument given to it by the Fraternal Order of Eagles in 1971.

Along comes Summum, a religious organization based in Salt Lake City that dates back to ancient 1975. Its president twice asked Pleasant Grove City permission to erect a stone monument which would contain ?the seven Aphorisms of SUMMUM.? According to Summum theology,

So the Ten Commandments were the next best thing. This isn?t exactly the Biblical account, but then the Summumites have an absolute right to believe whatever they want. They just don?t have an absolute right to say it in stone. And now, for the Summumites, history repeats itself as Pleasant Grove City, like Moses before it, also rejected the Seven Aphorisms. In response, the Summumites sued (which may be an eighth aphorism?someone should look into this) insisting the City must accept and place their monument in the park, particularly since it was going to be Summum simoleons that were footing the bill.

The lower court sided with Pleasant Grove City and affirmed its right to reject the Summum offer. The Court of Appeals reversed and held that if you take one view set in stone, you must take the other. Pleasant Grove appealed and the nation?s high court took a look at the statues.

According to the court, ?if petitioners were engaging in their own expressive conduct? when they choose or don?t choose a particular statue, ?then the Free Speech Clause has no application. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.? And, the court said, ?Permanent monuments displayed on public property typically represent government speech.? The high court went on to describe how governments have ?long used monuments to speak to the public.? Whether the statue is of George Washington, Robert E. Lee or Pancho Villa, these monuments communicate government messages. They are a ?means of expression? and the local or national government has a right to pick and choose which monuments say best what they want to say most.

Maybe it?s time to take a hard look at the monuments that surround us and to listen close to what governments are saying now and what they were saying in the past. It may be a clue to the times we live in and what sort of statues we can expect to see in the future. While we might agree with Pleasant Grove?s decision to forgo the Seven Aphorisms for the Ten Commandments, who knows what our governments will be saying in stone ten years from now under their nearly absolute right to free government speech.

And finally, given the nature of monumental government speech, what exactly are the pigeons trying to tell us?

After the bitter fight to acquire valuable assets in your divorce, you may not want to face your own mortality, but should you die and your ex is still designated as the beneficiary of your life insurance or will, all the litigating and negotiating will have been in vain.

Alan Nye in the Maine Divorce Blog offers some sage advice on post divorce estate planning:

Obviously, you should consult with your attorney, tax adviser and financial planner to ensure that your plans are made in an efficient manner.
 

There has been much ado about the effects of the economy on divorce.

Those who need to sell the marital home to fund their fresh start may now feel imprisoned in their marriage. With greater frequency, those unable to sell their home are forced to continue to cohabit with their spouse.

The Daily News featured a story about when a couple cannot afford to separate for which I was interviewed. Follow the link to read the article.
 

Supreme Court, New York County: Schoneboom v. B.B. King Blues Club

What do Kill Your Idols, Sub Zero and the Crumb Suckers have in common? They were all heavy metal bands (no offense to the bands if they take issue with the court?s characterization) playing B.B. King?s on August 3, 2006. Mr. Schoneboom was a big-bad-band fan. For him, you?re never too old for a little ?slam dancing,? the more ?aggressive? form of the ever-popular and intimate ?moshing.? 36-year-old Schoneboom was a veteran of the slam-dance two step, having attended more than a hundred concerts where he frolicked in the mosh pits at least thirty to forty times.

The events in question took place during the Crumb Suckers set (in case you were wondering).

The night had begun pleasant enough. While Kill Your Idols was performing, plaintiff went to the lower level to get a better view of the slam dancing going on. A ?good time? was being had by all as the fans bounced around off each other in a kinetic frenzy of fun and fisticuffs. After the set, plaintiff returned to his seat in the upper level, away from mosh central. Then Sub Zero came on. As Schoneboom describes it, the slam dancing now seemed ?quite a bit more malicious.? Dancers were throwing themselves into non-participants, elbows were being thrown and celebrants were "taking potshots at perimeter people.? For this set, plaintiff remained in the demilitarized zone of the upper level.

But when the Crumb Suckers were about to come on, Schoneboom threw caution to the wind. He found his way to a spot 10 -12 feet from stage, directly in front of the moshkateers. At seven minutes into the performance, plaintiff ?felt a shove from behind into the side of his knee which felt like a kick,? but didn?t see which mosher had mashed him. Plaintiff ended up with a knee injury and surgery. He then sued B.B. King?s.

Much to his dismay, the court slam-danced Schoneboom right out of court.

?If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed his duty? to exercise reasonable care. This is a longstanding rule of law that applies to all sorts of activities, including ball games, horseback riding and even samba dancing.

Schoneboom staked out his turf near the stage and the mosh pit only moments after having observed the more ?malicious? slam-dancing that occurred when Sub Zero was performing. ?Here, plaintiff not only elected to assume the risk of concert-going in a mosh dancing venue but was in the position, given his experience, to fully appreciate the risk.?

As for the injury, that he did not appreciate.

For Schoneboom court was a bust and there would be no dancing for dollars.

Case dismissed.

The accountant for Bernard Madoff was arrested and is out of jail on a $2.5 million bond. David Friehling faces up to 105 years behind bars on charges he "rubber stamped" Madoff?s books. The U.S. Attorney?s Office charged Friehling with securities fraud, aiding and abetting investment adviser fraud and four counts of filing false audit reports to the SEC.

The SEC Complaint recites some juicy facts: the Friehling family invested for many years with Madoff, up to $14 million. David Friehling tried to hide his investment by replacing his name with his wife?s name and later with ?Friehling Investment Fund.? The family withdrew $5.5 million since 2000. And the Friehling firm made $186,000 per year from1991 to 2008 ? that?s over $3 million in fees over 17 years. Also, the SEC Complaint alleges that Friehling lied to the AICPA that didn?t do audit work he claimed to do and lied to the SEC about Madoff?s Form X-17-A-5.

What does this mean? Criminally, it looks like the government started by arresting Friehling: the low hanging fruit. Friehling is an easy one. The big question is who?s next? Likely DiPasquale and the other Madoff Securities employees. What about family? Who knows.

The rights of unmarried fathers of children were in the news with the recent reports about Sarah Palin’s daughter’s break up with her boyfriend. I was, in fact, quoted in one such article that appeared in the New York Daily News.

Like their married counterparts, unwed fathers have the right to custody and visitation of the children. That the parties did not wed does not in any way limit the father’s parental rights As in all cases, the standard of visitation/custody is “best interests of the children.”

The flip side of parenting is the financial responsibilities. The unwed non-custodial parent, whether it be the mother or the father, has the responsibility of paying child support for child. In New York, child support is calculated by applying statutory percentages (17% for one child, 25% for two children, 29% for three children) to the parent’s gross income, with limited deductions.
Click to see the a child support worksheet.
 

One of the most recurring question I am asked  from people considering divorce is:" Am I responsible for my spouse's debts and liabilitie?"     Most recently, i  answered that very question, on Linked In.

Question- I'm about to break up with my wife. While we are separated I do not want to be responsible for debts she may incur. Will I be responsible for her debts?

Answer - You are really asking two distinct questions about debts. The first questions how debts will apportioned between you and your spouse as part of a divorce; the second question asks what is your responsibility for debts to your creditors.

All property acquired during the marriage may be equitably distributed. That means, both the assets and liabilities will be equitably divided between you and you wife. If your wife ran up credit card debt in anticipation of the divorce or wasted marital assets, that will addressed in the distribution of the remaining marital property.

Whatever agreement you and your wife reach about the responsibility for the marital debts, it is not binding on your creditors. Regardless of how you and your wife apportion the debts, your creditors can enforce their contracts against whoever is principally liable. If the obligation is in joint names, the creditor can attempt to collect from either or both of you.

So, for instance, if you have a joint credit card or your wife runs up debt on your charge card, even if your wife agrees to pay the debt for you, the credit card issuer could look to you to make payments.
 

One of the more difficult issues faced by couples who are divorcing in the current economic environment is how to divide retirement or deferred compensation benefits, especially defined benefit plans such as a 401(k), SEP, or IRA.

New York law specifies that the ‘cut off’ date for classifying retirement assets as either martial property or separate property is the date on which a divorce action is commenced. The law also provides for a range of dates for valuing the marital portion of the account, ranging from the commencement date through the trial date.

Courts have developed certain standards for determining which valuation date should be applied to a particular asset class such as retirement and deferred compensation accounts. Under certain circumstances, the Courts may value the asset as of the date of commencement and under others it may use the trial date as the valuation point.

A problem arises in today’s economy where after the commencement of a divorce action the marital portion of the retirement assets declines in value. Disagreements arise over which party should bear the cost of that decline. Some common discussion points are:

1.                  Is the account actively managed (traded) by either or both spouses?

2.                  Which spouse is responsible for selecting the assets held in the account?

3.                  Which spouse should bear the risk of the asset declining during the time the divorce case proceeds in Court.

4.                  How are the post-commencement contributions into the account valued?

Unfortunately, there seems to be very little guidance from the Courts at this time as to how they are dealing with these issues in this new economic environment. In the absence of any definitive authority, it is extremely important for people going through a divorce to have as much factual information about their retirement assets as they can obtain and to carefully think through and negotiate this complex issue.

If you or someone you know would like more information on this topic, please feel free to contact my office.

As I predicted in this blog, same sex divorce has come to New York. A Supreme Court judge in Broome County has granted a same-sex Binghamton couple a divorce.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.

In an historic decision, a New York State Supreme Court Justice in Broome County has granted a lesbian couple a divorce. In her decision, Justice Molly Fitzgerald granted the request of Lauren Wells-Weiss to divorce her partner, Shari Weiss. The women were married in Canada in 2004. Shari Weiss was represented by Joseph Meagher. Lauren Wills-Weiss was represented by Judith Osburn.

This decision appears to be the first time a trial judge in New York has approved a same sex divorce.

I spoke with Judith Osburn today, and according to her here is what happened in the case:  Shari Weiss filed a partition action against Lauren Wells-Weiss regarding a home they shared together but which Shari bought about 3 months before the marriage.  Lauren counter-claimed for divorce.  The Court eventually determined that it would try the partition action before the divorce case and would not allow Lauren to make equitable distribution claims concerning the home.  That decision paved the way for a settlement of the divorce action.

The stipulation in the case was placed on the record orally on March 12 or 13.  The Court accepted the stipulation, and the parties are now submitting the final judgment of divorce to the Court.

I wonder what effect this decision will have on the pending actions for divorce among same sex couples, including one case I am now handling in Suffolk County. Perhaps it will be the end of the debate on the question of whether same sex divorce in New York is permissible. Or, it might be the beginning of a process which will ultimately be settled by the Court of Appeals. 

I also know that there are many other attorneys working on similar cases throughout the state.

An item on the front page of today’s New York Law Journal reports that the New York State Court of Appeals has agreed to hear appeals in two cases involving the recognition of same sex marriages validly performed outside of New York. The Court is expected to hear argument in the cases in the fall of 2009.

The two cases are:

Godfrey v. Spano: Motion No. 2009-220: The Second Department upheld the Westchester County Executive’s 2006 order directing that all county departments to honor same sex marriages from other jurisdictions.

Lewis v. New York State Department of Civil Service: Motion No. 2009-219: The Third Department affirmed the grant of health benefits to same sex partners if the marriage was legal when and where it was performed.

Theses appeals will be the first time the Court has considered these issues since its decision in Hernandex v. Robles in 2006.

 In 2008, the IRS amended Code Section 152(e), which addresses child dependency exemptions.  The changes affect the procedures and means for claiming the exemption. The new rules should be carefully followed to ensure that the exemption is taken by the parent entitled to it, and that the appropriate language is contained in divorce or separation agreements to reflect the current state of the law.

In light of these developments, all non-custodial parents who plan to claim the exemption must obtain a signed Form 8332. In addition, divorce or separation agreements should address the potential for a release being improperly revoked after it is given. 

The parent claiming a dependency exemption is also entitled to benefit from a Child Tax Credit and any allowable Hope or LIfetime Learning Educational Tax Credits.  Keep in mind that the exemptions and credits are phased out as the income of the parent increases.  This should be factored into decisions as to when and how to claim the exemption.

For 2009, the Chidl Tax Credit phases out from $75,000.00 to $95,000.00 (of Adjusted Gross Income) and Hope or Lifetime Learning Educational Tax Credits phase out from $48,000.00 to $58,000.00 for single and head of household filers. These credits are generally more valuable to lower and middle income filers than the dependency exemption itself.

As with all tax issues in a divorce or separation agreement, you should consult an experienced tax attorney or accountant in order to full understand all of the ramifications of your agreement.

Gaining the required two-thirds majority by the smallest possible margin, 100-49, Vermont’s House of Representatives voted to override Gov. Jim Douglas' veto of a bill (PDF) allowing gays and lesbians to marry, the Associated Press reports. The House vote was preceded by a Senate vote of 23-5 to override Douglas’ veto.

The Atlantic’s Washington blog reports that the law will go into effect Sept. 1.

Vermont now joins Connecticut, Massachusetts and Iowa in allowing gays to marry. Iowa’s ban was lifted Friday by way of an Iowa Supreme Court ruling.

"Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago, " Dale Carpenter wrote on the Volokh Conspiracy blog.

U.S. Court of Appeals for the Third Circuit: Webb v. City of Philadelphia

How would you feel about getting pulled over by a cop wearing a hijaab?the traditional headcovering worn by Muslim women? That?s the question presented by Officer Kimberlie Webb of the Philly PD. A cop since 1995 and a practicing Muslim, she decided she wanted to wear such a headscarf ?while in uniform and on duty.?

The Philly PD said ?no? based on Department Directive 78 which severely restricts permissible police attire. For the police brass, a hijaab would be an unacceptable official wardrobe malfunction.

Undaunted, Webb filed a Civil Rights complaint with the EEOC and the Pennsylvania Human Relations Commission. Six months later, while that matter was still pending, she made a fashion protest and wore her hijaab to work. She was ordered to remove it, refused, and was sent home. The same thing happened the next day, and the day after. Disciplinary charges were brought against her and she was suspended for 13 days.

She then sued the City, the cops and the Police Commissioner for religious discrimination, retaliation and sex discrimination.

The District Court dismissed all of Officer Webb?s claims, finding that the standards set out in Directive 78 ?promote the need for uniformity, but also enhance cohesiveness, cooperation, and the esprit de corps of the police force.?

The Circuit Court of Appeals explained the law on religious discrimination thusly: the employee must show: ?(1) she holds a sincere belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with a the conflicting requirement.? Both the District Court and the Circuit Court held that Officer Webb satisfied these requirements. But the inquiry doesn?t end there. Once satisfied, the burden shifts to the employer to show ?either it made a good-faith effort to reasonably accommodate the religious belief, or such an accommodation would work an undue hardship upon the employer and its business.?

As the Philly Police Commissioner put it, enforcement of Directive 78 ?is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.? Accordingly, cops cannot wear any religious garments with no exception for hijaabs. As the Court noted, the Commissioner?s reason for refusing wardrobe accommodations were ?sufficient to meet the ?undue hardship upon the employer? threshold that the Philadelphia Police Department was required to show.

Webb?s appeal to the Circuit Court was also dismissed.

As Jack Webb (no relation), Sergeant Joe Friday of Dragnet fame used to say, ?Nothing but the facts, ma'am.?

To paraphrase, "Nothing but the hats, ma'am."

It was been an interesting week in family law practice, which I thought I note before taking a few days off with my family . 

In the same week Governor Paterson announced that he was introducing legislation to recognize same sex marriage, a couple decisions involving the custody rights of same sex marriages were announced.  

In the first, Debra H. v. Janice R., the Appellate Division, First Department, held that the same sex partner of a woman who gave birth did not have standing to assert parental rights after the parties broke up.   The Court ruled that although Debra H., the non biological parent,

 [S]erved as a loving and caring parental figure during the 2 ½ years of the child’s life, she never legally adopted the child. 

Based upon this reasoning, the court held that a party who is neither the biological nor the adoptive parent of a child lacks standing to seek custody or visitation rights under Domestic Relations Law §70.  

 In another case, a woman whose donated egg was implanted in her same-sex partner was permitted to adopt the resulting child. The parties were lawfully wed in Holland.  

  This case presented the novel issue whether a party, who was not legally married to the child’s mother at the time of conception, but who is genetically the mother can legally adopt the child. 

 In Matter of Sebastian, the Surrogate granted the petition, even though alternatives to adoption may have been available.   Two viable alternatives were obtaining an order of filiation or being listed as a parent on the child’s birth certificate. 

 The parties sought an adoption because they felt only an order of adoption would ensure that all the states and the federal government would recognize the adoptive mother as the child’s parent.  

 The Court specifically noted that

 Although it is true that an adoption should be unnecessary because Sebastian was born to parents who marriage was legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the United States.

 These cases further highlight complex child custody issues faced by same sex couples in the absence of legally recognized marriage.

I was asked the following question on the Law Guru website

My wife and I are having problems. We are proposing a temp. separation. Things are getting heated, with demands and threats... ''If I don't do as she wishes or says'' she will call 911. I avoid her as much as possible, most of the threats are over the phone. We also have a 5yo child. I don't know what to do. Do I move out per her demands and face abandonment, do I call 911 first??

 If your spouse commits or even threatens to commit an act of violence the police should be immediately summoned. When there has been an act of domestic violence and the police forced to respond, they have no discretion and will make an arrest. 

In cases where each of the parties accuses the other of domestic violence, both parties could find themselves under arrest. The police will arrest both parties and let the court sort out the facts and determine who is the violent offender. When there is an arrest, an order of protection is issued.

In cases where there has been no actual violence, but your spouse still threatens to call 911, it is best to simply leave the home. It is simply too dangerous to remain under the same roof with someone willing to make false accusations of domestic violence. From my professional experience, these threats are carried out. Fights are provoked and the police are called. 

If you are arrested an order of protection will be issued and you will be expelled from the marital home.  As a result, you may have limited access to you children and you unable to retrieve your clothing and other personal property unless escorted by a police officer. 

Given that your personal liberty is a stake, there is no downside to leaving the marital home given the threats.

The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support.

In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce.

The Court in Mahoney-Buntzman v. Buntzman declared that:

Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

Wisconsin Court of Appeals, District IV: State of Wisconsin v. Michael A. Sveum

Technology races ahead as most of us long ago gave up ever trying to program our VCRs. Now there are blackberries, blogs and links, text messages and twitter, GPS Navigation and GPS tracking. The latter is the subject of the case at bar.

Can the police secretly attach a GPS tracking device to a suspect's car in his own driveway without violating his Fourth Amendment right to be free from unreasonable searches and seizures? The Court concludes the cops can and that no Fourth Amendment search or seizure even occurs.

Sveum was a repeat stalker. He did time for stalking Jamie Johnson in 1996 and began stalking her anew (with his sister?s help) even before his release from prison in 2002 (this guy may need a body cavity GPS installed). Police sought and received a warrant to covertly attach a GPS tracker to defendant?s car. Based on data collected, a warrant was obtained to search his home, and Sveum was charged and convicted of aggravated (second offense) stalking. He was sentenced to 7 and a half years. He appealed and challenged the use of the GPS tracking device to gather any evidence against him.

The GPS device in question is battery powered and was affixed to defendant?s car with a magnet and tape while it sat in his driveway. Defendant challenged the cops? entry onto his driveway to install the device. The vehicle was then tracked for about five weeks. Sometimes the car was garaged at home, sometimes at work. The GPS unit was then physically retrieved to obtain a detailed satellite tracking history of its and its host vehicle?s whereabouts. The result was a complete itinerary of the defendant?s travels when he used his car and even where he parked it. He challenged the state's right to know where he parked in private.

What irony: The stalker stalked by satellite.

According to the court, ?no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum?s car that was visible to the general public.? Similarly, that the device was attached to the vehicle while in defendant?s driveway was not enough to render its use illegal; the driveway was not ?protected ?curtilage?? [enclosed land on the property]. And that garage locations were electronically noted hardly amounted to an improper search or violated any real expectation of privacy since old fashioned police observation could have netted the same results

The information gathered by the device gave probable cause for a search warrant of the home, and in the end, a jury found defendant guilty. So too did the Court of Appeals.

The Court did sound the warning about advances in technology, however, and acknowledge that it was

Good for the court. It ruled based on existing law but recommended that the legislature tackle the issue before technology runs amok by well-intentioned but overzealous law enforcement and other inquiring minds.

The rest of the details of this case are like the instructions to your VCR. Important but not relevant.

The bottom line is that there might be something on the bottom of your car and authorities may know exactly where you are at this very moment. So too may your wife or husband, your boss or your mother.

If you're worried, you would be well advised to look both under the hood and under the chassis the next time you pull out of your driveway or you could find your itinerary on YouTube, Google Earth or on a monitor at police headquarters or the Internal Revenue Service.

Welcome to the 21st Century.

In case that seems to be splitting hairs, a judge ruled that emails culled by a wife from her husband’s on-line account did not constitute eavesdropping and were, therefore, admissible at trial.

Had the emails been intercepted while “in transit” to the husband, the wife would have guilty of eavesdropping under Penal Law Sec. 250.00. The law prevents individuals from intercepting a communication, like an email, going from one person to another.

In the case, Gurevich v. Gurveich, (subscription required) the wife had her husband’s email account passwords, and accessed his account. By doing so she was able to obtain emails evidencing a scheme to hide his income. Justice Sunshine ruled that the emails were admissible because the emails were not “in transit” when they were read by the wife-they were already in the husband’s account.

The moral of the story, if you do not want your email communication to be used against you in a divorce, don’t give your spouse your passwords or access to your account. As part of your divorce preparation, change your passwords.
 

Much has ado has been made of the pilots being sued by Continental Airlines because they divorced in order to get partial distributions of their pensions. As reported in Freakonomics:

Continental Airlines is suing nine of its pilots, reports ABC News, claiming they faked divorces in order to draw down their pension funds before retirement. The airline became suspicious when some of the couples continued living together and all nine couples eventually reunited. Continental believes the pilots became worried about the safety of their pension funds, especially after seeing what’s happening at other airlines.

The airline claims that the divorces were shams. The couples all continued to live together and most did not even tell their friends and family about the divorces.

On the other hand, the parties were legally divorced. By getting divorced, even temporarily, they lost the rights afforded married couples, like for instance, the right to continued health coverage. If their tax year ended while they were divorced, the parties could not file joint tax returns.

In fact, the Continental Airline employees gambled that after making generous settlements, their spouses would re-marry them. Indeed, the parties would be hard-pressed to complain that the divorce settlement should be set aside because it was procured by their joint “fraud.”

Many marriage and divorce decisions are economically motivated. Some couples wed to obtain healthcare coverage. Others refrain from marriage to protect their social security status. Still others divorce as part of an elder care plan.

What these Continental employees did was lawful; the employer should not have the right to question the legitimacy of the employees’ marriage or divorce.
 

There are few certainties in life. However, one of life’s certainties is that all marriages will end, whether by death or divorce.

At the end of marriage, whether by divorce or death, disputes over money and the disposition of marital assets may be inevitable. However, a pre-nuptial agreement can help lessen the potential for conflict by clearing identifying the parties separate property and defining the parties’ rights to the marital property.

A recent article illustrated why a Pre-Nup may be a smart money move. 

1. Why are pre-nuptial agreements beneficial?

"One of the common reasons to get a pre-nup is to protect the interests of children from a prior marriage. A sizable portion of assets (called the elective share) may automatically go to a spouse upon death in most states, but this can be avoided by using a pre-nup."

This elective share can be waived in a pre-nup. This is an important consideration, particularly where there are children from a prior marriage.

"Another scenario when a pre-nup makes sense is when there's a significant disparity in wealth. It's also worth considering if you or your spouse-to-be owns a small business or a stake in a family business; a pre-nup can ensure ownership isn't contested in a divorce."

2. Cost

While a pre-nup may be expensive to draw up, the cost of litigating a contested divorce is even greater.

3. What should a pre-nuptial agreement include?

The main purpose of a premarital agreement is sort out who owns what in the event of a divorce.
The agreement may not only define what is a person’s separate property, but it will also specify what assets or debts will be joint or marital and direct how they will be split in the event of divorce.

The agreement can also direct if, and how, alimony or spousal maintenance will be paid.
 

Some agreements even go as far as to provide how household expenses will be paid during the marriage.

It is important to note that the agreement cannot be procured by fraud, coercion or duress and the terms of the agreement cannot be unconscionable.  Crying to the court that “I only signed the agreement because he would not marry me otherwise” is not duress.
 

Niagara County Court, New York: People v. Ryan S. Smith

Tasers electrified the nation last year with the famous, ?Don?t tase me, bro? incident out of the University of Florida. The device is back in another story that is electrifying court watchers.

Defendant Ryan Smith was a suspect in a kidnapping and an armed robbery. DNA evidence had been obtained from a can of soda the kidnapper had helped himself to during the course of the crime. Through good detective work and a series of procedural moves, the DA?s office had a court order to take a buccal swab for DNA from the defendant?s mouth, obtained and lost the sample, then applied for and received a second order to do it again.

Defendant declined to submit to the swab when cops approached him on the street, so they took him to police headquarters. Detectives tried to convince defendant to cooperate but Smith ?firmly and obstinately objected to submitting to the authority of the Order. He said he had already given a sample and that they would have to ?tase? him to get another swab.?

Wrong thing to say.

The detective on the case called and conferred with the ADA in charge, who approved the use of necessary ?minimum force? to obtain the sample. Considering their options, the cops ruled out holding the defendant down and forcing his mouth open, believing it potentially injurious to defendant and risky for them. So they set their taser on stun (?drive stun,? the least powerful setting) and asked Smith to reconsider. They told him it would be unpleasant, but he refused to allow them to take a swab. They told him they didn?t want to hurt him. He still refused. And after a final warning and refusal, they tasered as needed (four seconds), recorded the proceeding and got their swab. They then arrested Smith for Obstructing Governmental Administration (as if he didn?t have enough problems).

Citing cases which authorize the use of reasonable force in other circumstances, the court ruled that no Constitutional prohibitions were violated by use of the taser to obtain the swab. This was reasonable force (even if during their pre-taser conference with the DA?s office detectives neglected to mention that they were considering using the device). Now had the taser been used to cause pain to obtain the desired result, this would have drifted into unlawful use of torture. But as the court stated, ?The defendant was forewarned, steps were taken to limit his risk of injury, and the device was used one time for a brief burst. There was no lasting damage or injury.?

For the court, defendant amped up the problem and was shocked by the solution.

As the court noted,

Accordingly, defendant?s motion to suppress was denied and the People could use the evidence obtained from the swab.

A stunning decision which will no doubt cause sparks to fly all over the political spectrum.

Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself.

In the age of social networking, new rules of apply to couples going through divorce.
The rules, as compiled by Time, can succinctly be boiled to one- “Discretion is the better of valor.”

1. Don’t brag.

Your claims of poverty will ring hollow if you brag on Facebook about your purchases of expensive items or post photographs of lavish vacations.

2. Keep the party off-line

Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

3. Guilt by association.

You are who you hang out with. See Rule No 2.

4. Keep the details of the divorce private.

Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

5. Don’t Defriend.

As Time points out, unless it is high conflict, “Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.”
 

So often, the practice of law seems to have devolved into an attorney v. client battle over the work and fees.  Here in Morelli & Gold  LLP v. Altman, NY Slip Op 31492(U) we see a large scale battle over a child support/custody case in which there has been litigation, fees, fee dispute, trial de novo, counterclaims and appeals. All this, and the case has not yet left the pleadings stage.

In her 32 page decision, Justice Edmead goes through a complete primer on:

a.  Rule 137 fee disputes, trial de novo, the pleading requirements for a trial de novo, and the forms used;

b.  Defenses and counterclaims after a fee dispute;

c.  Proper pleadings in legal malpractice counterclaims;

d.  The role of res judicata and collateral estoppel in legal malpractice fee disputes.

It's a long decision,,,look to the link and read through it for a good discussion on these issues.

In the middle of preparing for a complicated custody trial, I was contacted by Smart Money to discuss the divorce considerations of Jon and Kate. (I may have been the only person in America not to know who they are – fortunately, my wife filled me in.)

The article, in which I am extensively quoted, addresses many of the issues to be considered when contemplating divorce. The complexity of the issues is compounded exponentially because of the sheer size of Jon and Kate’s family.

Indeed, the child support calculation is simply “off the charts” as the child support guidelines do not even contemplate families of this size. Moreover, the overnight “celebrity” may skew the child support calculation which will be based on the couple’s reality television income, which I am sure, is substantially higher than their pre-television earnings.
 

Privity of contract is an essential in legal malpractice litigation.  One may not sue the opponent's attorney; only one's own.  What makes for privity of contract?  As all know, no writing is necessary to create a contract.  So, can there be privity of contract without a retainer agreement.  Putting aside Rule 137 questions about the attorney's obligation to provide a writing, in Denise Terio,  v Lance Roger Spodek, Reich Reich & Reich, P.C., 2008-03594, 2008-04435;  SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT; 2009 NY Slip Op 4412; 2009 N.Y. App. Div. LEXIS 4411June 2, 2009, Decided we see a short answer:
 

"To recover damages for legal malpractice, a plaintiff [**4] must prove, inter alia, the existence of an attorney-client relationship (see Velasquez v Katz, 42 AD3d 566, 567, 840 N.Y.S.2d 410; Moran v Hurst, 32 AD3d 909, 822 N.Y.S.2d 564; Wei Cheng Chang v Pi, 288 AD2d 378, 380, 733 N.Y.S.2d 471; Volpe v Canfield, 237 AD2d 282, 283, 654 N.Y.S.2d 160). While a plaintiff's unilateral belief does not confer upon him or her the status of client (see Volpe v Canfield, 237 AD2d at 283), an attorney-client relationship may exist in the absence of a formal retainer agreement (see e.g. Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386, 710 N.Y.S.2d 619). To establish an attorney-client relationship there must be an explicit undertaking to perform a specific task (see Wei Cheng Chang v Pi, 288 AD2d 378, 733 N.Y.S.2d 471; Volpe v Canfield, 237 AD2d at 283)."

In a well-reasoned opinion from the SDNY, Judge Koeltl determined that plaintiff may continue with three claims against the attorneys.  In SMARTIX INTERNATIONAL CORPORATION, a.k.a. SMARTIX INTERNATIONAL, LLC,  - against - GARRUBBO, ROMANKOW & CAPESE, P.C. AND ANTHONY RINALDO, 6 Civ. 1501 (JGK); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2009 U.S. Dist. LEXIS 29114;March 30, 2009, Decided
 

In this case, Smartix, a corporation with certain ticketing intellectual property, was in the business of selling and licensing that technology, and wanted to enter into a contract with Mastercard.  They retained the defendant law firm to advise them on the contract negotiation, to engage in corporate governance, and put one of the attorneys on the board.

Things went wrong with the MC contract and then Smartix was sued by plaintiffs named Metzger.  Plaintiffs retained defendants to defend that suit.  In this blog entry we'll look at the legal malpractice claims, and in tomorrow's we'll look at the unjust enrichment claim.

Plaintiffs complained that defendants failed to advise them correctly on the Mastercard contract negotiation and left them open to Mastercard's exploitation.  Beyond that, they claim malpractice when defendant attorney failed to attend a court ordered mediation session, [as well as the other attorneys] and was open to a sanctions hearing for which they billed plaintiffs.

Judge Koeltl denied summary judgment on both counts. "The plaintiff's first legal malpractice claim is based on the defendants' representation of the plaintiff in the course of the Metzger litigation. The plaintiff alleges that it was billed for the defendants' attendance at a sanctions hearing resulting from Mr. Rinaldo's failure to attend a court-ordered mediation. The defendants [*11] point out that both Metzger parties failed to attend the court-ordered mediation and that no sanctions were ultimately imposed.

The allegation regarding the sanctions hearing raises an issue of material fact with respect to the plaintiff's first legal malpractice claim. The plaintiff has provided evidence that it was billed in connection with a sanctions hearing resulting in part from Mr. Rinaldo's failure to attend a court-ordered mediation.  [T]he failure to follow direct orders from the court would fall below any standard of care. Cf. Logalbo v. Plishkin, Rubano & Baum, 163 A.D.2d 511, 558 N.Y.S.2d 185, 187-88 (App. Div. 1990) (finding in the absence of expert testimony or expert report that attorney who disregarded "clearly defined and firmly imbedded" obligation failed to meet any permissible standard of due care). Moreover, although the defendants point out that the trial judge in the Metzger litigation did not ultimately [*12] impose sanctions on the defendants, they do not argue that this decision by the trial judge precludes a finding of legal malpractice against the defendants, and there is no reason that would be so. Plainly claims for legal malpractice may exist even where attorneys have not been sanctioned for their conduct."
 

"The plaintiff has produced evidence in the form of deposition testimony that the MasterCard Agreement was drafted to the disadvantage of the plaintiff and contained certain vagaries that MasterCard was able to exploit at the expense of the plaintiff. (Katz Dep. at 47-49 ("[The Agreement] was very vague . . . . It did not protect Smartix from MasterCard's efforts to secure [*19] use of the software outside the contract."), 101 ("The MasterCard Agreement was vague enough so that MasterCard felt that they would roll the dice and try to do these businesses without us, which they subsequently did . . . ."); Huber Dep. at 72 ("It sounds as if MasterCard can do pretty much anything they want with this in one part of the contract . . . . There's also penalty clauses in here that would cause Smartix enormous damages if they wanted to market this outside of MasterCard . . . .").)
"

Many times in legal malpractice cases, courts find causes of action to be duplicitive.  Some of this arises from over-pleading.  As an example, plaintiff may plead legal malpractice, negligence, breach of contact, breach of fiduciary duty, unjust enrichment, fraud, and so on  Courts will trim these causes of action, all the while assuring plaintiff that any damages will still be permitted before the jury.

In our continued examination of SMARTIX INTERNATIONAL CORPORATION, a.k.a. SMARTIX INTERNATIONAL, LLC, - against - GARRUBBO, ROMANKOW & CAPESE, P.C. AND ANTHONY RINALDO, ; 06 Civ. 1501 (JGK); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2009 U.S. Dist. LEXIS 29114; 
March 30, 2009,  we look at the non-duplicitive cause of action for inflated billing and unjust enrichment.

"The plaintiff brings a claim for unjust enrichment against the defendants on the basis of alleged over-billing. The elements for a claim of unjust enrichment under New York law are: (1) that the defendant was enriched; (2) the enrichment was at the plaintiff's expense; and (3) the circumstances were such that equity and good conscience require the defendants to make restitution. See, e.g., Golden Pac. Bancorp v. Fed. Deposit Ins. Corp., 273 F.3d 509, 519 (2d Cir. 2001).
 

"In connection with its unjust enrichment claim, the plaintiff asserts, among other things, that the defendants inflated their bills without justification. The plaintiff produces evidence raising issues of fact with respect to whether bills were inflated without justification. (See, e.g., Dus Decl. Ex. 42 at 10/3/2000 and 10/11/2000 entries.) The defendants do not respond substantively to the plaintiff's unjust enrichment claim, arguing only that the unjust enrichment claim should be dismissed [*28] as duplicative of the plaintiff's legal malpractice claims. See, e.g., Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 837 N.Y.S.2d 212, 215 (App. Div. 2007) (holding that claims for unjust enrichment and breach of fiduciary duty, among other claims, should be dismissed because "[t]hey were merely duplicative of the legal malpractice cause of action, as they arose from the same facts and did not allege distinct and different damages").

This argument is without merit, because the unjust enrichment claim is not duplicative of any of the legal malpractice claims. The unjust enrichment claim alleges that the defendants inflated their legal bills. The legal malpractice claims allege errors in judgment and performance by the defendants with respect to the legal services they provided to the plaintiff. Plainly these are different claims relying on different facts.

Legal Malpractice is unique, in that lawyers write the rules for suing lawyers, and those cases are heard by lawyers.  This situation does not obtain in any other field of jurisprudence.  Here is an interesting case from Small Claims Court and a report from the NYLJ by Mark Fass.  Read the case for its wide-ranging discussion of Citibank's practices, and its findings on Claimant's attorney, who was not present nor a party.

"A Staten Island judge has thrown out a small claims action over a broken furnace filed by the buyer of a house against the seller's attorney."""This is another case of what appears to be a disturbing trend of litigation being brought by persons suing attorneys who did not represent them for that attorney's proper representation of his or her client," Judge Straniere wrote in DeFelice v. Costagliola, 81/09. "The theory behind bringing these baseless legal actions being that owing to the small amount of money involved, the lawyer would pay the claim rather than engage in the cost of litigation."

"Claimant testified that when he moved into the premises on December 12, 2008 the furnace was not operating properly. Claimant had temporary repairs done on December 13, 2008 at a cost of $425.00 and then on December 18, 2008 paid $1,800.00 for the installation of a new furnace. Claimant spoke to his attorney whom, the claimant credibly testified, advised him to sue the seller's lawyer because the seller allegedly had moved from New York. There is no evidence as to the new address of the seller and if she is beyond the jurisdiction of the court. "

"Claimant's cause of action is dismissed on the merits. Defendant has no personal liability for the actions or inactions of his client. Defendant is not a stakeholder pursuant to an escrow agreement nor did he personally promise to perform any obligations for his client. This suit is completely baseless. The court commends the claimant for being honest and forthright admitting that his attorney suggested that he bring this suit, however, there are consequences of his actions. Defendant was required to incur the expense of hiring an attorney to represent him in this matter and was subjected to public ridicule as a defendant in a crowded small claims courtroom in regard to an alleged breach of contract arising from his work as an attorney.

In a short, one line reversal, the Court of Appeals put to rest a very old legal malpractice case, Gotay v. Breitbart..  The Court of Appeals simply wrote: "Plaintiff's legal malpractice claim was not brought within the applicable statute of limitations period, and defendants-appellants established as a matter of law that the continuous representation doctrine does not apply."

This is a case that arose in the 1990's at a time when it was not necessary to purchase an index number, and cases were commenced by service of a summons and complaint.  In this Erbs palsy case against the NYCHHC, we see several traps that personal injury attorneys feared at the time.  Service of the complaint on NYCHHC rather than the hospital, loss of the files in a long intervening period, and failure to purchase an index number when the rules changed.

For a longer discussion of judicial activism and "fanciful" theories see Justice Friedman's dissent in the Appellate Division.  This dissent, although not credited in the Court of Appeals decision, is the reason for reversal.  It is interesting to note that Justice Lippman wrote the majority opinion in the Appellate Division, which his new court reversed.

From the Dissent:

"This legal malpractice action is the culmination of a long and convoluted chain of events that began three decades ago. Ultimately, however, the lawsuit's timeliness turns on an attorney's sworn—and entirely uncontradicted—account of what occurred at his meeting with plaintiff and her father on January 28, 1999, more than three years before the commencement of the action. The attorney (Mark Hankin) avers in his affidavit that, at the January 1999 meeting, he advised plaintiff and her father that his firm would not undertake plaintiff's representation in a medical malpractice matter arising from her birth in 1977.[FN1] Hankin further states that, in response to his rejection of plaintiff's case, "plaintiff's father requested the immediate return of the file."

In opposing defendants' summary judgment motion, plaintiff submitted no evidence of any kind—not in deposition testimony, not in an affidavit, not in a letter, not in a jotted piece of notepaper—controverting Hankin's account of the January 28, 1999 meeting. Indeed, Hankin's account of the meeting is not even challenged in plaintiff's appellate briefs. The majority nonetheless denies summary judgment to the appealing defendants, based on two theories never suggested by plaintiff. The majority's first theory is that plaintiff and her father (although neither [*6]makes this claim) were unaware that Michael Handwerker, the attorney who had accepted plaintiff's matter several years before, had joined Hankin's firm. The other theory the majority has devised is that Hankin's claim that plaintiff's father requested the return of the file at the January 1999 meeting is somehow placed in doubt by boilerplate language in Hankin's follow-up letter, dated February 22, 1999, offering to return the file "[i]n the event you require the whole or any portion thereof."

Defendant attorneys in legal malpractice cases often have valid, technical, factual and compelling defenses.  Sometimes they claim that the alleged malpractice is a question of judgment; sometimes the law suit is too late.  In other examples, there is a less than clear relationship between the attorney and plaintiff, perhaps beneficiary to an estate or plaintiff sues an opponent's attorney.

Here, in Zautner v. Arcodia, 2009 Slip Op 31362(u), Justice  Joseph C. Terasi cuts to the chase, and denies summary judgment.  Plaintiff is the seller of a house, and defendant is his attorney.  The contract called for defendant to hold the down payment, which in this case was sizeable.  Down payments are, in one instance, the remedy for buyer wrongfully cancelling the contract.

Defendant failed to collect the down payment, and of course, the buyer wrongfully cancelled.  What was defendants excuse?  He said that in his area of the state, brokers usually held onto the deposits, so he allowed the broker to hold onto it.  What of the fact that seller had no broker, and the house was for sale "by owner ?"

Defendant apparently had no answer.  Summary judgment granted against the attorney.

New York State Court of Appeals: People v. Buchanan

It was Mr. Bumble in Charles Dickens? Oliver Twist who first said ?the law is an ass? after he was told ?the law supposes that your wife acts under your direction.? His point was plain: reality and the law frequently don?t see eye to eye.

There are times when courts make rulings based on constitutional law, state law or even some ethereal philosophy that causes us to raise an eyebrow rather than see the point. Perhaps this is such a case.

As the dissent describes him, defendant Ingvue Buchanan was ?a man in his thirties who apparently stands more than 6 feet tall and weighs over 300 pounds.? Defendant was accused of murdering a 14-year-old girl by strangling her. He was tried before a jury and convicted of second degree murder (the highest count chargeable in New York State).

Buchanan appealed and the case made its way to New York?s highest court. The basis for the appeal: the trial judge made Mr. Buchanan wear a stun belt during trial. It is a form of electrical restraint that ?can deliver a shock should there be a problem.? The stun belt was worn beneath defendant?s clothes, and unlike shackles, could not be seen by the jury.

At trial, the judge told defendant Buchanan he was requiring him to wear the device as a matter of policy because of the seriousness of the charges against him. Defendant personally objected, telling the court ?I have done nothing to warrant this." While the trial judge did not disagree with defendant, he still required him to wear the belt ?in the interest of being overly cautious for security.? Seemingly not unreasonable given defendant?s size and the charges against him.

After a day of trial, Buchanan complained that the device was ?uncomfortable.? So the court had it examined. Then the next day, out of an abundance of caution and judicial sensitivity, the judge obtained a report confirming that there was no medical reason that would prevent Buchanan from wearing the belt. And so he wore it through the duration of the trial and the guilty verdict rendered, with no shock ever having been administered, except, perhaps, to the parents of the murdered 14 year old.

Anyway, defendant argued that the stun belt ?deprived him of due process of law? under both the US Constitution and state law because the US Supreme Court has held that ?the Due Process Clause prohibits a state from confining a defendant in ?visible shackles? during a criminal trial, unless a ?special need,? based on facts specific to the case is shown.? The prosecutors argued that unlike shackles which can be seen, no one saw the stun belt and no jurors knew about it, so there could be no violation of defendant?s rights.

In its infinite wisdom, New York?s highest court concluded that it need not reach the constitutional issue since ?as a matter of New York law...it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.? Since the stun belt was a matter of the trial judge?s ?policy,? and not a stated finding with respect to this defendant?s need for potential restraints, a new trial was ordered.

Simply put, a 6 foot 300 pound man accused of strangling a 14-year-old girl had his conviction overturned because he had to wear a hidden restraining device that was never activated and never administered a shock.

It?s hard to know how to process this decision, but some perspective is warranted: Is wearing the device so offensive?like making a man wear women?s underwear?that it?s even more offensive than a 300 pound man strangling a 14-year-old child, as the jury concluded? Does such an insult to Mr. Buchanan?s sensitivities warrant having his conviction reversed? Does due process under state law guarantee a defendant the right to be free from any inconvenience or precaution beyond confinement? Or are our sensibilities so exaggerated in these politically correct times that defendant?s offendedness from being made to wear the device actually outweighs the offense of murder?

As the lone dissent put it: ?Defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction.?

So would most people. But the law is what the law is.

In SASH v.  ROSAHN, ESQ., as the Supervising Attorney for the Parole Revocation Unit of Defendant The Legal Aid Society, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK  2009 U.S. Dist. LEXIS 52480   June 16, 2009, Decided  we see a three-pronged attack on plaintiff's criminal defense attorney, each of which fails.
 

Legal malpractice against one's criminal defense attorney is difficult to impossible. "[t]o state a cause of action for legal malpractice arising from negligent misrepresentation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense." Sash v. Dudley, No. 05-cv-7498, 2006 U.S. Dist. LEXIS 20146, 2006 WL 997256, at **2 -3 (S.D.N.Y. April 17, 2006); Carmel v. Lunney, 70 N.Y.2d 169, 511 N.E.2d 1126, 518 N.Y.S.2d 605, 607 (1987). It is well established under New York law that "so long as the determination of [a plaintiffs] guilt for that offense remains undisturbed, no cause of action will lie." Id. A guilty plea will therefore generally preclude a defendant from lodging a malpractice claim against his defense lawyer. See Scanio v. Palmiere & Pellegrino, 251 A.D.2d 1018, 674 N.Y.S.2d 527, 528 (4th Dep't 1998); see also Estes v. Doe, No. 97 Civ. 8133, 1999 U.S. Dist. LEXIS 16768, 1999 WL 983886, at *4 (S.D.N.Y. Oct. 29, 1999). "Thus, a criminal defendant cannot even state a claim for legal malpractice until his conviction is overturned or vacated." Smith v. Morgenthau, No. 95 Civ. 4159, 2001 U.S. Dist. LEXIS 15690, at *8 (S.D.N.Y. June 8, 2001). Public policy prevents maintenance of a malpractice action against a defense attorney if a criminal defendant cannot assert his innocence. "This is so because criminal [*11] prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules." Carmel, 518 N.Y.S.2d at 607."

Suing one's criminal defense attorney in defamation for words spoken at the trial or hearing is similarly difficult.  "Under New York law, the elements of a defamation claim are a false statement, published without privilege or authorization to a third party, constituting fault and it must either cause special harm or constitute defamation per se." Peters v. Baldwin Union Free School Dist., 320 F.3d 164, 169 (2d Cir.2003) [*14] (citation omitted); see also Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir.2001) (spoken defamation is slander and "[t]he elements of a cause of action for slander under New York law are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege" (citation omitted)).

At the parole revocation hearing, Sash pled guilty with an explanation to the charge of violating the conditions of his release, at which time Rosahn provided mitigating factors to the court on Sash's behalf. Following the hearing, Rosahn made the above-described statements to various court officers (stating that she had to "bite her tongue" in representing Sash). (Comp. para. 35; Def. Motion Ex. D.)

To the extent that Sash seeks to base a claim of defamation on words spoken by Rosahn during the hearing, those words are privileged and cannot give rise to an actionable claim here. Shernoff v. Soden, 266 Fed.Appx., 12, 12 (2d Cir. 2008); Park Knoll Assocs. v. Schmidt, 59 N.Y.2d 205, 464 N.Y.S.2d 424, 451 N.E.2d 182, 184 (1983) [*15] ("[A] lawyer has immunity for defamatory words spoken in a judicial proceeding[.]").

To the extent that Sash seeks to base a claim of defamation on Rosahn's statements to the administrative law judge and the parole specialist, those statements are protected expressions of opinion, not defamatory assertions of fact of or concerning Sash, and cannot give rise to a claim of defamation. See Shernoff v. Soden, 266 Fed.Appx., 12, 12 (2d Cir. 2008); Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 177-79 (2d Cir.2000)."

Privity of contract is an important element of legal malpractice.  For policy reasons [and to avoid infinite and endless litigation] courts enforce a rather strict requirement that one may sue their own attorney, but not the opponent's in legal malpractice. There are exceptions.

In LYDIAN PRIVATE BANK d/b/a VIRTUALBANK, -v- RICHARD A. LEFF, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 48756
June 8, 2009, we see a well enunciated set of rules for the combination of breach of fiduciary duty and legal malpractice by Judge Laura Taylor Swain.

" "An action for legal malpractice requires proof of three essential elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages." Mendoza v. Schlossman, 87 A.D.2d 606, 606-7, 448 N.Y.S.2d 45 (2d Dep't 1982). In some cases, a lawyer may owe duties to a nonclient that are actionable in a legal malpractice claim if his client has a fiduciary relationship with the nonclient, to the extent that action necessary to prevent or rectify the [*9] breach of a fiduciary duty owed by the client to the nonclient falls within the scope of his representation. 4 In order to state a claim for negligence, a plaintiff must demonstrate "(1) a duty owed by the defendant to Plaintiff, (2) a breach thereof, and (3) injury proximately resulting there from." Solomon by Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 489 N.E.2d 1294, 499 N.Y.S.2d 392 (N.Y. 1985).

FOOTNOTES

4 As one court noted in In re Food Mgmt. Group, LLC, 380 B.R. 677, 708-10 (Bankr. S.D.N.Y. 2008) (citing Law Governing Lawyers § 51(4)), a lawyer owes a duty to a nonclient when and to the extent that:
(a) the lawyer's client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar functions for the nonclient;

(b) the lawyer knows that appropriate action by the lawyer is necessary with respect to a matter within the scope of the representation to prevent or rectify the breach of a fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud . . . ;

(c) the nonclient is not reasonably able to protect its rights; and

(d) such a duty would not significantly impair the performance of the lawyer's obligations to the client.

The duty imposed by [this] rule . . . arises [*10] when the lawyer knows that appropriate action by the lawyer is necessary to prevent or mitigate a breach of the client's fiduciary duty. . . . [A]ctual knowledge by the . . . Defendants is not required to impose liability predicated on this theory. The . . . Defendants cannot escape liability if they closed their eyes to what someone with their 'superior intelligence' would find obvious. [However, the plaintiff] cannot predicate liability . . . on the . . . Defendants' failure to investigate facts beyond those of which they were otherwise aware."
 

Criminal law and legal malpractice law seldom intersect.  One reason is an almost complete ban on criminal defendants suing their defense attorneys.  In order to sue, one must show "actual innocence" which is customarily demonstrated by reversal upon appeal or exoneration.  Since that is a rare occurrence, there is little vitality to criminal defense legal malpractice.

Here, the view is obverse, and a real estate broker [perhaps an investor ?] sues an attorney involved in the real estate transaction for legal malpractice.  The kicker is that the attorney has been arrested upon a felony complaint, and now awaits the action of the Grand Jury.

In  THE CORCORAN LAW GROUP, L.L.C. et ano., -against- JANE Y. POSNER, ESQ. ;09 Civ. 1861 (WHP)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 we see that the Court grants a stay of legal malpractice proceedings to see what happens to the felony complaint.  In criminal prosecutions, the DA files a complaint, in this case for a felony,  which may not serve as an accusatory instrument for trial upon a felony.  The Constitution and the Bill of Rights requires the action of the Grand Jury which must issue a true bill, otherwise known as an indictment.
 

"In determining whether a stay is appropriate, courts balance the following factors: (1) the extent to which the issues in the criminal case overlap with those presented in the civil case; (2) the status of the case, including whether the defendant has been indicted; (3) the interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused [*3] by a delay; (4) the private interests of and burden on the defendant; (5) the public interest; and (6) the interest of the Court in the efficient management of cases. See, e.g., Transworld Mechanical, 886 F. Supp. at 1139.
"[D]istrict courts in this Circuit generally grant the extraordinary remedy of a stay only after the defendant seeking a stay has been indicted." Sterling Nat'l Bank, 175 F. Supp. 2d at 576 (citation and internal quotation marks omitted). However, at least one district court in this Circuit has noted that the filing of a felony complaint should be treated as the substantial equivalent of an indictment. See Parker v. Dawson, No. 06-CV-6191 (JFB), 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4 (E.D.N.Y. Aug. 27, 2007). The [*4] question is "whether the criminal proceedings have substantially progressed beyond the investigatory stage to the filing of formal charges against a particular defendant, so that there is an imminent likelihood that the defendant will be subject to a criminal proceeding, including a trial, in the very near future." Parker, 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4 (collecting cases).

Corcoran submitted its supporting deposition to the Putnam County DA on October 30, 2008, and a felony complaint was filed four months later. Therefore, it is evident that the "criminal proceedings have substantially progressed beyond the investigatory stage." Parker, 2007 U.S. Dist. LEXIS 63068, 2007 WL 2462677, at *4. Accordingly, this factor weighs in favor of a stay."

One of the beautiful things about the US is that every state has its own law.  It was shocking to learn in Law School that events a few miles away, across a state border could be handled differently.  Sure, other countries, but Connecticut?

Here is a story  from Law.Com about how Texas handles executor-estate attorney legal malpractice cases.

"In a 5-2 decision, the Texas Supreme Court held on June 26 that the executor of an estate may sue a decedent's attorneys for alleged malpractice committed outside the realm of estate planning.

"We hold that the executor should not be prevented from bringing the decedent's survivable claims on behalf of the estate," Justice Harriet O'Neill wrote for the majority in Smith, et al. v. O'Donnell.

According to the majority opinion, Corwin Denney retained the San Antonio firm Cox & Smith to advise Denney in the independent administration of the estate of his wife following her death in 1968. The firm's legal name is Cox Smith Matthews.

As noted in Cox & Smith's petition for review to the state Supreme Court, the defendants in Smith also include attorneys Paul H. Smith and Jack Guenther and the former partnerships of Cox, Smith & Smith; Cox, Smith, Smith, Hale & Guenther; and Cox, Smith, Smith, Hale & Guenther Inc., all predecessors to Cox & Smith Inc.

The Supreme Court's majority opinion in Smith provides the following background: Denney contended that he and his wife had agreed orally that stock in Automation Industries Inc. would be his separate property, and property in Gilcrease Oil Co. would be hers. Cox & Smith advised Denney in a memorandum that additional information was necessary before classifying the assets. According to Cox & Smith, the firm advised Denney that he probably should seek a declaratory judgment to properly classify the stock, but Denney declined to do so. Without seeking a declaratory judgment and relying on an analysis by Denney's California accountant, Cox & Smith prepared an estate tax return that omitted Automation stock from a list of the deceased wife's assets. After Denney died 29 years later, leaving the bulk of his estate to charity, the Denney children sued Denney's estate, alleging that he underfunded their mother's trust. Thomas O'Donnell, the executor of Denney's estate, settled the children's claims for $12.9 million and then sued Cox & Smith, alleging that the firm failed to properly advise Denney about the serious consequences of mischaracterizing assets and that their negligence caused damage to Denney's estate. Asserting a claim of malice, O'Donnell alleged that Cox & Smith's conduct constituted gross negligence."
 

Legal malpractice in the estate and probate areas is limited by the concept of privity.  Errors in the preparation or wills, and mistakes in the handling of probate proceedings are often precluded on one of two bases.  The first is that a beneficiary may not sue for malpractice to the decedent, and the second is lack of privity...a contractual or near-contractual relationship with the attorney.

In Leff v. Fullbright & Jaworsky, LLP. we see a well reasoned and explained decision which covers all the areas of estate and probate legal malpractice.  Beyond the shocking size of the estate [90 Million] and the cavalier attitude decedent had to his wife [the anniversary present, and the language of his letters to her] we see the bedrock principals of legal malpractice, and the eternal question of whether this attorney is susceptible to suit by this plaintiff.  Here, Leff may not successfully sue her attorneys, as they provided legal advice and work to her husband, and not to her.  By her reasoning, she is out $9 million. 

There are two traps for the unwary legal malpractice litigant in Bankruptcy Court.  One is the failure to list a potential or actual legal malpractice claim in the schedules, depriving the emergent litigant from bringing a legal malpractice case later.  A second trap is the attorney fee hearing, which if it allows fees to the attorney may insulate that attorney from a later legal malpractice case.

Here is an example where there is no res judicata. In PENTHOUSE MEDIA GROUP, INC.,  - against - PACHULSKI STANG ZIEHL & JONES LLP, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 46617; June 2, 2009, Decided  we see:
 

"Even when all of the elements of res judicata are satisfied, a malpractice claim remains viable unless a party "could and should have brought [it] in the former proceeding." 40 "In this context, important factors in this analysis include whether the fee hearing [*12] was an adversary proceeding or contested matter, the nexus between the order awarding [] fees and the claims now being asserted, and 'the amount of time that has elapsed since the case commenced.'" 41 Such a determination depends on "whether and to what extent [the party] had actual or imputed awareness prior to the fee hearing of a real potential for claims . . . and whether the bankruptcy court possesse[s] the procedural mechanisms that . . . allow [the party] to assert such claims." 42

40 In re Intelogic Trace, Inc., 200 F.3d 382, 388 (5th Cir. 2000). Accord EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621 (2d Cir. 2007) HN8("Under the doctrine of res judicata, or claim preclusion, '[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'") (quoting St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (emphasis added)); Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 875 (2d Cir. 1991) (finding that a claim for tortious infliction of emotional distress against creditors should have been brought as part of a prior bankruptcy proceeding and was therefore [*13] barred by res judicata).

41 In re Intelogic, 200 F.3d at 388 (quoting Matter of Howe, 913 F.2d 1138, 1147 n.28 (5th Cir. 1990)).

42 Id.

For the reasons discussed above, the bankruptcy court's Order granting Pachulski's motion for summary judgment is reversed. This case shall be remanded to the United States Bankruptcy Court for the Southern [*25] District of New York for actions consistent with this opinion. The Clerk of the Court is directed to close this case."
 

In Boglia v Greenberg ; 2009 NY Slip Op 05278 ; Decided on June 23, 2009 ; Appellate Division, Second Department  wee see a successful opposition to summary judgment based upon a claim of failure to report a settlement  offer to plaintiff.
 

"To sustain a cause of action alleging legal malpractice, a plaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Bauza v Livington, 40 AD3d 791, 792-793; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of its legal malpractice cause of action (see Kotzian v McCarthy, 36 AD3d 863, 863; Fasanella v Levy, 27 AD3d 616, 616).

However, the Supreme Court should have denied that branch of the defendants' cross motion which was for summary judgment dismissing the second cause of action, alleging legal malpractice based upon their alleged failure to convey her former husband's $250,000 settlement offer to her, as triable issues of fact exist regarding whether the defendants failed to convey the settlement offer to the plaintiff and whether the plaintiff would have accepted that offer (cf. Bauza v Livington, 40 AD3d at 793). "

Here, in GURVEY,, v. COWAN, LIEBOWITZ & LATMAN, PC., CLEAR CHANNEL COMMUNICATIONS, INC., INSTANTLIVE CONCERTS, LLC, LIVE NATION, INC., NEXTICKETING, INC. DALE HEAD, STEVE SIMON, and DOES I-VIII, INCLUSIVE, ; 06 Civ. 1202  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 34839; 2009-1 Trade Cas. (CCH) P76,623; we see a unique combination of legal malpractice claims, cliams of "passing off", Lahham Act claims and general conversion causes of action.  Plaintiff, who was of counsel to Cowan, brought a new ticketing/management/sales "invention" to the law firm, and it was eventually filed with the Patent office.  Beyond that,Phish is a part of it all.

"At that time, CLL agreed to represent the Plaintiff before the US Patent and Trademark office ("USPTO") to file Provisional Patent Applications ("PPA"s) for inventions developed by Plaintiff prior to joining CLL. (TAC PP28, 33).

Plaintiff's inventions included business plans to edit, package and distribute live recordings of live music events, as well as electronic ticketing methods related to these recordings. (TAC PP 28, 33.)

Shortly after beginning at CLL, Plaintiff presented her projects, business plans, and inventions at the firm's monthly partners' conference. (TAC P34).

After the meeting a CLL [*3] Partner told Plaintiff that the her business plans would be of significant interest to the firm's client CCC. (TAC P36). This same CLL Partner also told Plaintiff that he preferred to have her as a client of CLL rather than as Of Counsel. (TAC P37.)

In early May 2002, Plaintiff was notified that she would no longer be employed Of Counsel, but that CLL continued to have interest in the subject matter of her patents and would file the Plaintiff's PPA's before the USPTO. (TAC P43). On May 22, 2002 and May 24, 2002, CLL filed two patents with the USPTO naming the plaintiff as sole inventor and CLL as attorneys of record. (TAC P44).

In August 2002, Plaintiff returned from a business trip to find that she had been locked out of her office. (TAC P47)

On or about February 16, 2003, the Plaintiff received notification from the USPTO that CLL had withdrawn as the attorney on one of her patents because of a conflict of interest. (TAC P50).

In March 2003, the CCC affiliated entity InstantLive posted ads/statements on their website announcing a new program that would allow concert-goers to purchase its recordings. (TAC P55). On May 5, 2003, The New York Times published an article describing InstantLive. [*4] Plaintiff alleges that this description mirrored her business models for the onsite distribution of live recordings at concerts. (Band members of Phish were also interviewed for the article and identified their interest in this new product. (TAC P52). A member of Phish is married to a CLL attorney.)
 

"Here, Plaintiff offers only vague and non-actionable challenges to CLL's legal representation. Plaintiff first pleads that CLL "failed to protect and safeguard her trade secrets." TAC P120(1). This allegation appears to refer either to the presence of non-attorney CLL employees at the initial presentation of Plaintiff's inventions or to the misappropriation at the heart of Plaintiff's TAC. However, neither instance is premised on anything more than speculation, and neither presents a challenge to the actual quality of CLL's legal representation Plaintiff also alleges that CLL "fail[ed] to properly advise [her] with respect to the opportunities for commercial exploitation of [her] [*20] inventions and trade secrets" (TAC P120(2)). This allegation again does not address CLL's legal representation and merely challenges the "selection of one among several reasonable courses." Finally, Plaintiff alleges that CLL failed to eliminate a conflict of interest to its representation of Plaintiff TAC PP120(3) and (4). Because this allegation includes no detail, even in speculation, as to the supposed conflict, the allegation does not provide a basis for a malpractice claim."
 

I have been following the continuing saga of who will get custody of Michael Jackson’s children. I even had the privilege of appearing on ABC World News to add my thoughts to the other talking heads theorizing about what may occur in this real life custody drama.

The more I hear and read, the more disturbing the case becomes. As in all custody cases, the custody award will be based upon the best interests of the children.

In most cases between a parent and a third person, it is presumed that it would be in the best interests of the children to be with the parent. In this case, the three children have two biological mothers, the identity of only one is known. Regardless, I believe no court would ever consider splitting the children up.

I would have serious concerns about Debbie Rowe, the biological mother of Prince Michael and Paris, having custody of the children. She voluntarily relinquished (for a large payment) custody of the children. Moreover, following the death of the father, she sat on the “sideline” considering whether she even wants to pursue seeking custody of the children. Seems to me a mother truly concerned about the welfare of her children would not take over two weeks to consider her options.

Even more disturbing are the reports that she does not consider herself the parent of the children. . The New York Post quotes Rowe as saying:

Do I want the kids? Hell no. . .

"I'm not going after custody. These kids are not mine. They never were mine. They were always Michael's.

The alternative choice, Michael’s mother Katherine Jackson, is equally disturbing. Michael accused his father of abusing him when he was a child. Hence, the question - where was Katherine while Michael was being abused? If she idly sat by and permitted the abuse to occur, is she not as complicit as the actual abuser? Should Michael’s children potentially be exposed to the same abuse?

In any event, all we can do is sit back and watch what happens. Stay tuned.
 

In Supreme Court, New York County, Justice Emily Jane Goodman issued not one but two legal malpractice decisions this week.  We'll cover Koch tomorrow.  Today, Esterman v. Schwartz, New York Slip Op. 2009-31523.

Plaintiffs are a subset of a group of owners of a waterfront Staten island development which suffered retaining wall damage in a storm.  The group was divided into waterfront owners and inland owners, and they did not agree on who had to pay for the retaining wall to be fixed.  Plaintiff's group retained defendant attorneys, and in the end, they were the only group that did not sue the City and other defendants who constructed the wall which failed.

This case is interesting for three reasons.  The first is a question of how parol evidence may affect a limited retainer agreement between attorney and client.  The retainer agreement was only for investigation, not litigation.  The claim was that the attorneys did not file a notice of claim and did not move for permission to file a late notice of claim, although the unaffected waterfront owners who hired other counsel were successful in bringing suit.

Justice Goodman held that in the absence of a merger clause in the retainer agreement [ e.g.,"this is the complete agreement and may not be changed or altered without express written agreement"] parol evidence that the attorneys orally agreed to bring suit was permissible.

The second area of interest is the "but for" aspect of the case.  As do all defendants, here they argued that there is no evidence that plaintiffs would be successful against the city.  Justice Goodman made an interesting observation.  If there is no possible merit to such a claim against the City, why did the attorneys send a contingent retainer agreement which called for them to bring such an action.  That the retainer remained unsigned is of no moment.

Lastly, the court gruffly laid aside questions of sanctions. 

Today we look at a second legal malpractice motion decided this week by Justice Emily Jane Goodman in Supreme Court, New York County.  This case involves a divorce action between a US husband and a Czech wife, with immigration and fraud elements mixed in.  On top of the international aspects of the case, Justice Goodman upheld [in a motion to dismiss] the viability of a Judicary Law 487 claim.

 IN Koch v. Sheresky, Aronson & Mayersky,  2009 NYSlip Op 31520 (u), the claim is that husband left the Czech Republic and his marriage to her, after adopting her son, and commenced a marital action in NY.  In that marital action he claimed that there were no children of the marriage, and that significant commercial assets were marital property, rather than being subject to partnership agreements.In the case plaintiff-wife alleges that her attorneys failed to challenge subject matter as well as personal jurisdiction issues, and withdrew without resolving partnership/business interests. More interesting is the Judiciary Law 487 claim against the Husband's attorneys [with whom she had no privity] over alleged immigrration advice which led to her not being able to come to the US to contest the divorce proceedings.

An inquest followed, and not until much later was the default judgment vacated. By then all the business assets had vaporized. Husband is now himself absent and in default, and the legal malpractice action, after mixed results in the motions to dismss, continues.
 

Legal representation in even simple matters can lead to unintended consequences.  As an Example  H & J Restaurant v, A & J Grand Enterprises and Leigh, 2009 Slip OP 21544, authored by Justice Edmead, demonstrates how a simple ministerial mistake can end up with a potential $ 400,000 loss, with later judgment against the attorney. 

It's a simple transaction, A buys a restaurant from B.  As might be expected, Seller exaggerates the sales, or hides underpayment of taxes.  Since these commercial transactions have taken place since time immemorial, there are safeguards and protections.  Buyer can take the business free of personal liability if it notifies the tax authorities 10 days prior to the sale, in which case the tax authorities have 5 days to assert tax liability.  Should it happen, buyer can then back out.

Here, the notification was not made within 10 days, and several months later the tax authorities asserted personal liability to buyer in the neighborhood of $ 400,000.  Seller is in default, and no where to be found.

What is the lesson here?  Lesson 1:  Legal malpractice is everywhere lawyers represent clients.  Lesson 2:  Know the subject matter of your area of law and don't make simple transactions difficult.  Lesson 3:  Review lesson 2.

Attorney takes on case for client, and the job is to check whether client can erect a Walgreens in Brooklyn.  Attorney does research, and determines that the building and parking lot will be legal in that zoning.  Attorney, however, fails to check if any new laws have been passed by the NYC Council on zoning recently. Two weeks prior to the report, the Council had passed a law which made the parking lot illegal, and those changes were certified. 

$5 million in loans and construction pre-costs later, plaintiff cannot build the Walgreens,  Legal Malpractice law suit follows.  Will a restrictive retainer agreement be applicable ?  Is the attorney responsible for checking the up-to-date law?

In Santo Nostrand LLC v. Cozen O'Connor  602415/08 we see the answer, at least at the pleading stage.  Plaintiff states a cause of action.  The importance of a parking lot to plaintiff in attempting to contract with Walgreens was known to defendants, and it was their obligation to be up to date on the law.  The case continues.

Plaintiff loses a commercial law case, and sues his attorneys for legal malpractice.  During discovery, while preparing responses to interrogatories, he discovers, and then sues over what he claims is a forged affidavit said to be prepared by the attorneys and unsuccessfully used in his case.  Worse he says, the affidavit contained inaccurate information which was the cause of the loss, and hence a sort of double malpractice.  Defendants say, its too late, and what kind of a cause of action is this, anyway?

In Shelly v. Mintz Levin Cohn Ferris Glovsky & Popeo PC we see Justice Emily Jane Goodman's answer to these two questions.  Forgery is a civil cause of action, akin to fraud, but without some of the more onerous elements.  No "reliance" is necessary in a forgery case; it is "counterintuitive."

Forgery is "the fraudulent making of a writing to the prejudice of another's rights, or the making malo animo of any written instrument for the purpose of fraud and deceit...."  It is subject to a 6 year from the making or two year from the reasonable discovery statute of limitations.