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Absolute Privilege Attaches to Statement Made by a Nonparticipant in the Litigation Which Is Republished by an Attorney In the Course of the Litigation

The Third Department determined an action based upon the republication of an allegedly defamatory statement (made by a nonparticipant in the litigation) by an assistant attorney general in the course of a medical malpractice case was precluded by the absolute privilege afforded attorneys in matters related to litigation:

Statements made by parties and their counsel in the context of a legal action or proceeding are protected by an absolute privilege so long as, “by any view or under any circumstances, they are pertinent to the litigation” … . Allowing such statements or writings to form the basis of an action for defamation “would be an impediment to justice, because it would hamper the search for truth and prevent making inquiries with that freedom and boldness which the welfare of society requires” … . A liberal standard guides the inquiry of what is pertinent … , and encompasses “any statement that may possibly or plausibly be relevant or pertinent, with the barest rationality” … . Moreover, the burden rests with claimant “to conclusively, and as a matter of law, establish the impertinency and the irrelevance of the statement” … .

Here, claimant asserts that the memorandum was prepared by a nonparticipant to the litigation which removes it from the protection of the absolute privilege; however, this contention ignores that claimant’s action is grounded in the republication of the alleged defamatory statement by the AAG, whose statements are afforded the protection … . It is evident that the AAG turned over the memorandum after the malpractice litigation had been commenced in federal court … and, further, the statements in the memorandum were clearly pertinent to the malpractice litigation, as they concerned allegations that were relevant to the treatment of the inmate … . McPhillips v State of New York, 2015 NY Slip Op 05242, 3rd Dept 6-18-15

 

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Lien for Attorney’s Fees (Re: Workers’ Compensation Award) Can Be Satisfied Before Reimbursing Municipality for Benefits Paid by the Municipality to the Injured Corrections Officer Pursuant the General Municipal Law

The Third Department determined that a lien for attorney’s fees could be attached to Workers’ Compensation benefits prior to reimbursing a municipality for benefits paid to the municipal employee pursuant to the General Municipal Law. Claimant corrections officer was injured on the job. Under General Municipal Law 207-c municipal employers are required to pay full wages to corrections officers injured in the performance of their duties.  Workers’ Compensation Law 30 (3) provides that the amount of the payments made under the General Municipal Law shall be credited against any award of compensation pursuant to the Workers Compensation Law. The municipality argued it was entitled to the entire amount paid to the employee and the amount should not be reduced by the attorney’s fees (a lien on the Workers’ Compensation award).  The Third Department disagreed:

General Municipal Law § 207-c requires municipal employers to pay full wages to correction officers who are injured in the performance of their duties. Workers’ Compensation Law § 30 (3) provides that the amount of such payments “shall be credited against any award of compensation” that may also be made to such an officer. The employer contends that the mandatory language of the Workers’ Compensation Law provision entitles employers to full credit for such payments and, thus, precludes the attachment of a lien for counsel fees. However, Workers’ Compensation Law § 24 likewise uses mandatory language in providing that, when approved by the Board, counsel fees “shall become a lien upon the compensation awarded . . . [and] shall be paid therefrom only in the manner fixed by the [B]oard” (emphasis added). The lien attaches when the compensation is awarded “and takes precedence over the employer’s right to reimbursement of funds previously paid to the claimant-employee” … . The purpose of enacting Workers’ Compensation Law § 30 (3) was not to preclude counsel fees, but “to avoid duplicate benefits to an injured [officer], the combined total of which might exceed the salary [the officer] would have received for the period” if the injury had not occurred … . Workers’ Compensation Law § 30 (3) must be harmoniously interpreted with the Workers’ Compensation Law as a whole and with General Municipal Law § 207-c … . We find nothing in the statutory language indicating a legislative intent to treat employees who receive benefits under General Municipal Law § 207-c differently from other injured employees by departing from the statutory scheme for payment of counsel fees set forth in Workers’ Compensation Law § 24. Matter of McCabe v Albany County Sheriff’s Dept., 2015 NY Slip Op 05236, 3rd Dept 6-18-15

 

Supreme Court Should Have Held a Hearing to Determine Whether Attorneys Were Entitled to the Fees Sought by Them—Plaintiff Had Already Paid the Attorneys Nearly the Amount the Case Ultimately Settled For—the Attorneys, Who Had Been Discharged Without Cause, Sought 40% of the Settlement Pursuant to a Contingency Agreement Which Was Entered In Anticipation of Trial

The Second Department reversed Supreme Court and ordered a hearing to determine whether respondents-attorneys had received all the fees they were entitled to.  The attorneys had been paid nearly $54,000 by the plaintiff.  Then plaintiff then entered a 40% contingency arrangement prior to trial. The case ultimately settled for $57,500 and plaintiff discharged the attorneys:

An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action an attaches to any recovery … . Additionally, “[i]f a client discharges an attorney without cause, the attorney possesses a common-law retaining lien on the client’s file in his or her possession and is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered, regardless of whether that amount is more or less than the amount provided in the contract or retainer agreement” … . The retaining lien “is extinguished only when the court, which controls the functioning of the lien, orders turnover of the file in exchange for payment of the lawyer’s fee or the posting of an adequate security therefor following a hearing” … . “Absent exigent circumstances, the attorney may generally not be compelled to surrender the papers and files until an expedited hearing has been held to ascertain the amount of the fees or reimbursement to which he or she may be entitled” … . A court may summarily determine that an attorney is charging excessive fees, limit those fees, and discharge the attorney’s liens … .

Here, the Supreme Court erred in denying the plaintiff’s cross motion without holding a hearing to ascertain the amount of fees or reimbursement to which the respondents may be entitled … . The gravamen of the plaintiff’s cross motion was that the charging lien and retaining lien should be vacated because he had already paid the respondents a total of $53,763.99 in legal fees and he did not owe the respondents any additional legal fees. In contrast, the respondents sought to collect a contingency fee of $23,000, which was the full 40% of the $57,500 recovery, without crediting the plaintiff with the $5,000 which should have been credited against the contingency fee pursuant to their agreement. Thus, it appears that the respondents were seeking excessive fees.

Under these circumstances, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a hearing on the issue of whether the respondents have received all of the fees owed to them for the reasonable value of their services … . D’Ambrosio v Racanelli, 2015 NY Slip Op 05149, 2nd Dept 6-17-15

 

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Attorney’s Telling the Court There Was No Reason Sentencing Should Not Go Forward in the Face of Defendant’s Pro Se Motion to Withdraw His Guilty Plea Adversely Affected Defendant’s Right to Counsel

The Second Department ordered that a hearing be held on defendant’s motion to withdraw his guilty plea and that another lawyer be assigned. When defendant made his pro se motion to withdraw his plea, his attorney told the court there was no reason sentencing should not go forward. The attorney’s taking a position adverse to the defendant’s adversely affected the defendant’s right to counsel:

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The County Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion to withdraw his plea of guilty … . Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearing on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. People v King, 2015 NY Slip Op 05209, 2nd Dept 6-17-15

 

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Defense Counsel’s Failure to Pursue a Minimal Investigation (i.e., Failure to Access Defendant’s Psychiatric Records and Failure to Have the Defendant Examined by an Independent Psychiatrist) Constituted Ineffective Assistance of Counsel—Conviction Reversed

The Second Department determined defendant’s motion to vacate his conviction should have been granted.  Defendant suffered from mental illness and had been hospitalized for psychiatric disorders.  The trial court had granted defense counsel permission to access to defendant’s psychiatric records and had granted authorization for the appointment of an independent psychiatrist to evaluate defendant.  Defense counsel did not seek the psychiatric records, nor the evaluation by the independent psychiatrist.  The Second Department, after an in-depth explanation of the criteria, held that defendant was deprived of effective assistance of counsel.  The court noted that the ground at issue here, defense counsel’s failure to pursue minimal investigation, required reversal without a showing that the result of the trial would have been different had the investigation been conducted:

A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions (see US Const Amend VI; NY Const, art I, § 6). Generally, to prevail on a claim of ineffective assistance of counsel under the United States Constitution, a defendant must show, first, “that counsel’s representation fell below an objective standard of reasonableness” …, and, second, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” … .

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” … , which also entails a two-pronged test, “with the first prong identical to its federal counterpart” …, and the second being a “prejudice component [which] focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case'” … and, thus, is “somewhat more favorable to defendants” … . A reviewing court must examine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … .

Under both state and federal law, a defendant’s right to the effective assistance of counsel includes assistance by an attorney who has conducted a reasonable investigation into the relevant facts and law to determine whether matters of defense can be developed … .

Generally, in order to make out a claim of ineffective assistance under the New York Constitution, a defendant is required to make some showing of prejudice, albeit not necessarily the “but for” prejudice required under federal law … . However, prejudice is not an “indispensable element in assessing meaningful representation” … . The Court of Appeals has indicated that counsel’s failure to pursue the minimal investigation appropriate with respect to an issue central to the defense itself “seriously compromises [the] defendant’s right to a fair trial,” regardless of whether the information would have altered the uninformed strategy counsel employed, or otherwise helped the defense … .

Here, the People’s case hinged almost entirely on their ability to prove the defendant’s state of mind, and trial counsel undisputedly failed to take the minimal steps of obtaining the defendant’s psychiatric records and having him evaluated by an expert, which were necessary to make an informed decision as to whether or not to present a psychiatric defense. Under the circumstances of this case, the People’s argument that, even with the benefit of the evidence trial counsel should have obtained, there is no reasonable chance that a mental disease or defect or EED defense would have been successful, or that the outcome of the trial would otherwise have been different, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pretrial investigation phase of a criminal case, constitutes meaningful representation as a matter of law … . Trial counsel’s “total failure” in this regard deprived the defendant of meaningful representation … . People v Graham,2015 NY Slip Op 04862, 2nd Dept 6-10-15

 

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Conflicting Interests Prevented Attorney from Representing Both the Driver and Passenger in a Stopped Car Which Was Rear-Ended

The Second Department determined, once a counterclaim was made against the driver of the car which was stopped and rear-ended, a conflict of interest arose prohibiting an attorney from representing both the driver and the passenger (Earl):

The general rule is that an attorney is not entitled to a fee in a personal injury action if the attorney violated the Rules of Professional Conduct (12 NYCRR 1200.0) by representing both the driver of an automobile involved in a collision and a passenger in that vehicle … provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that “the representation will involve the lawyer in representing differing interests” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1]) . Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing. In the instant case, there was no written confirmation of informed consent to the potential conflict.

[The attorney] contends that since Earl was a passenger in a stopped vehicle which was struck in the rear, the driver of the stopped vehicle was clearly not at fault, and there was no conflict of interest … . However, once the defendant asserted a counterclaim, the pecuniary interests of the driver conflicted with those of the passenger… . Shelby v Blakes, 2015 NY Slip Op 04839, 2nd Dept 6-10-15

 

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Potential Conflict of Interest Arising from Representation of Co-Guardians Required that the Co-Guardians Each Have Their Own Counsel

The First Department, over a dissent, determined a single attorney representing co-guardians of an incapacitated person created the appearance of representing conflicting interests. The court held there was a potential conflict of interest because the co-guardians were dependent upon the incapacitated person and had competing financial interests in the terms of a trust and as beneficiaries of the incapacitated person’s will:

It is well settled that an attorney “must avoid not only the fact, but even the appearance, of representing conflicting interests” … . “[W]ith rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” … . Moreover, “doubts as to the existence of a conflict of interest must be resolved in favor of disqualification” … . Full disclosure and prior consent by the parties may, on occasion, obviate the objection to conflicting representation … .

Applying these principles to the facts of this case, we find that the motion court properly determined that joint representation of the co-guardians by a single counsel would be improper. While an actual conflict may not have arisen “at this time” and in this proceeding as the dissent posits, there is clearly a potential conflict of interest … . Matter of Strasser v Asher, 2015 NY Slip Op 04763, 1st Dept 6-9-15

 

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District Attorney’s Former Status as a Judge Hearing Cases Involving the Department of Social Services Did Not Preclude the District Attorney from Issuing Subpoenas for Department Records

The Third Department determined the district attorney’s former status as a judge in matters involving the county social services department did not require the quashing of subpoenas issued by the district attorney seeking records kept by the social services department, either under the Judiciary Law or on appearance-of-impropriety grounds:

The subpoena seeks records pertaining to business relationships between the Columbia County Department of Social Services (hereinafter DSS) and two contractors. The Commissioner first contends that, as the subpoena identifies the documents sought in part by reference to services provided to certain named children, Judiciary Law § 17 precludes the DA — who was formerly a Columbia County Judge — from issuing it. This statute prohibits a former judge from “act[ing]; as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her]; in his [or her]; official character” (Judiciary Law § 17). The Commissioner asserts that, because the named children were allegedly the subjects of Family Court proceedings pending before the DA in his former role as a judge, the subpoena violates this provision. In this context, however, there is a relevant distinction between the object of the underlying court proceedings and the individuals involved in such proceedings. Notably, although the subpoena does reference named children, it does not appear to directly relate to any court proceedings involving those children; it appears instead, although little detail is provided, to relate to social services provided to the named children by the contractors. Similarly, although DSS was a party to many court proceedings over which the DA presided during his judicial tenure, disqualification is not mandated in the absence of an evidentiary showing that the subpoena addresses any action or court proceeding that was previously before him in his judicial capacity… . Matter of Columbia County Subpoena Duces Tecum…, 2014 NY Slip Op 04104, 3rd Dept 6-5-14

 

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Before a Sex Offender Can Be Allowed to Represent Himself in a Mental Hygiene Law Section 10 Proceeding (to Determine Whether the Offender Should Be Civilly Confined), the Court Must Conduct the Same “Searching Inquiry” Required in Criminal and Certain Family Court Proceedings to Determine Whether the Offender Understands the Risks of Going Forward Without Counsel

In a full-fledged opinion by Justice Leventhal the Second Department determined that the state had proven the offender was a dangerous sex offender requiring civil confinement.  In so finding, the Second Department went through in detail the proof required to justify civil commitment of a sex offender.  That aspect of the opinion is not addressed here.  The offender represented himself in the civil commitment proceeding.  The Second Department determined that, just as in a criminal trial, before allowing an offender to proceed pro se, the court is required to engage in a “searching inquiry” to make sure the offender understands the consequences of representing himself.  Because no searching inquiry was done here, the Second Department determined the offender’s waiver of his right to counsel was ineffective:

…[A] respondent in a SOMTA (Sex Offender Management and Training Act [Mental Hygiene Law Section 10]) proceeding arguably faces an even more severe threat to his or her liberty than that faced by a criminal defendant. When successfully litigated by the State, such a proceeding can result in civil confinement, after a respondent is released from prison, which is involuntary and indefinite (see Mental Hygiene Law § 10.09), and can last the remainder of a respondent’s life. Therefore, we hold that a respondent in a SOMTA proceeding can effectively waive his or her statutory right to counsel only after the court conducts a searching inquiry to ensure that the waiver is unequivocal, voluntary, and intelligent. Applying these principles here, we find that the Supreme Court failed to secure an effective waiver of the appellant’s right to counsel.* * *

…[T]he appellant could not make an intelligent and voluntary choice to waive the assistance of counsel without being apprised, in any manner, of the dangers and disadvantages of self-representation … . Indeed, the fact that the appellant was alleged to be suffering from a mental abnormality requiring confinement to a mental institution made it all the more imperative that the Supreme Court adequately warn him of the risks inherent in proceeding pro se, and impress upon him the disadvantages of going to trial without the assistance of counsel. Notwithstanding the concerns voiced by the Assistant Attorney General, the Supreme Court erroneously insisted that it had fulfilled its obligations by merely placing on the record that the appellant did not want an attorney, that he understood he would represent himself, and that he could read and write.  Matter of State of New York v Raul L, 2014 NY Slip Op 04019, 2nd Dept 6-4-14

 

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Absence of Privity Between Beneficiary of an Estate and the Attorneys Who Represented the Estate in Medical Malpractice and Wrongful Death Actions Precluded Legal Malpractice Action by Beneficiary

The Third Department determined the plaintiff-beneficiary of an estate represented by defendants-attorneys in medical malpractice and wrongful death actions could not bring a legal malpractice action against the attorneys (based upon the medical malpractice and wrongful death actions) because no attorney-client relationship existed. Absent fraud or collusion, the absence of privity between the beneficiary and the attorneys precluded the legal malpractice action:

There is no question that a legal malpractice claim requires — in the first instance — “the existence of an attorney-client relationship” … . Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented [plaintiff’s mother] in her capacity as the administrator of decedent’s estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent’s estate, it necessarily follows that defendants were duty bound to represent plaintiff’s best interests in the context of those two actions. The flaw in plaintiff’s argument on this point is that “[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances” … . Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances” … . Sutch v Sutch-Lenz, 2015 NY Slip Op 04692, 3rd Dept 6-4-15

 

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