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New York State Can Issue a License to Practice Law to an Undocumented Immigrant Authorized to Be In the United States by the Deferred Action for Childhood Arrivals Policy of the Federal Government

The Second Department, in an extensive, full-fledged opinion (per curiam), dealing with a question of first impression, determined the State of New York could issue a license to practice law to an undocumented immigrant who was qualified for admission to the bar.  The court explained the issues before it as follows:

We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative. Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York., 2015 NY Slip Op 04657, 2nd Dept 6-3-15

 

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To Succeed In a Legal Malpractice Action Stemming from Representation in a Criminal Matter, the Plaintiff Must Have a Colorable Claim of Actual Innocence—Elements of Legal Malpractice in this Context Explained

The Second Department determined defendant-attorney’s motion for summary judgment dismissing the legal malpractice complaint should have been granted.  Plaintiff, when represented by defendant-attorney, was convicted of sex offenses. The conviction was overturned on “ineffective assistance of counsel” grounds.  Plaintiff was acquitted upon retrial. In the legal malpractice action, the plaintiff was unable to prove the element of causation.  Defendant-attorney demonstrated plaintiff’s conviction was not due solely to defendant-attorney’s conduct, but was based in part on plaintiff’s “guilt,” in that her children provided graphic testimony alleging sexual abuse. To succeed in a legal malpractice action stemming from a criminal matter, the plaintiff must at least have a colorable claim of actual innocence.  In addition, the nonpecuniary damages sought by the plaintiff (psychological injury due to her incarceration) are not recoverable in a legal malpractice action.  The Second Department explained the elements of legal malpractice in this context (stemming from representation in a criminal case):

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation … . “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” … . In the civil context, this Court has held that a plaintiff in a legal malpractice action “need prove only that the defendant-attorney’s negligence was a proximate cause of damages” … . However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” …, and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” … . ” To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements'” … . Dawson v Schoenberg, 2015 NY Slip Op 04603, 2nd Dept 6-3-15

 

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Contract Attorney Was an Employee Despite “Independent Contractor” Designation in a Written Employment Agreement

The Third Department determined a “contract attorney” hired by an attorney (Brody) for document-review in a class-action case was an employee entitled to unemployment insurance benefits, despite claimant’s designation as an independent contractor in a written agreement:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . As here, “in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means” … .

Here, claimant was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50. He was also given specified hours each day to report to his assigned work station, he was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends. He was allowed to take unpaid days off, provided that he requested the time off in advance. He received daily assignments from an associate attorney of Brody, who supervised his work. In addition to document review, claimant also assisted in the litigation by providing Brody with written memoranda summarizing deposition testimony, work that included claimant’s attendance at meetings with attorneys from other firms involved in the litigation. In our view, substantial evidence supports the Board’s decision that Brody retained sufficient overall control of claimant’s services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion … . The fact that claimant signed a written agreement designating him as an independent contractor does not compel a different result … . Matter of Singhal (Commissioner of Labor), 2015 NY Slip Op 04550, 3rd Dept 5-28-15

 

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The Insurer Properly Reserved Its Rights to Disclaim Coverage When It Agreed to Defend a Legal Malpractice Action

The insurer agreed to defend an attorney in a legal malpractice action, but reserved its rights to disclaim coverage based upon the exclusion in the policy for actions arising from the conduct of a business owned by the attorney (as opposed to the law practice). The First Department rejected the argument that the insurer’s reservation of rights violated the policy:

The issuance of a reservation of rights allows the insurer the flexibility of fulfilling its obligation to provide its insured with a defense, while continuing to investigate the claim further. In fact, an insurance company’s failure to reserve the right to disclaim coverage may later result in the insurer being equitably estopped from doing so … . Thus, although plaintiffs are correct that the counterclaims, broadly construed, triggered defendants’ duty to provide them with a defense, defendants did not breach that duty by agreeing to do so, but with a reservation of rights to, among other things, later recoup their defense costs upon a determination of non-coverage … . Law Offs. of Zachary R. Greenhill P.C. v Liberty Ins. Underwriters, Inc., 2015 NY Slip Op 04382, 1st Dept 5-21-15

 

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Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained

In finding the legal malpractice complaint properly survived motions to dismiss, the Second Department explained the criteria for a motion to dismiss for failure to state a cause of action where documentary evidence is submitted (question is whether plaintiff has a cause of action, not whether one has been stated, affidavits considered to remedy defects in complaint), the criteria for a motion to dismiss founded on documentary evidence (documents must utterly refute allegations in complaint), the elements of legal malpractice, and the adequacy of damages allegations in a legal malpractice complaint (cannot be conclusory or speculative but plaintiff not obligated to show it actually sustained damages) :

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026…). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” … . ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” … .

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law… .

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained … . A plaintiff must plead “actual[,] ascertainable damages” resulting from the attorney’s negligence … . Conclusory or speculative allegations of damages are insufficient… . However, “[a] plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred” … . Randazzo v Nelson, 2015 NY Slip Op 04299, 2nd Dept 5-20-15

 

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Disagreement About the Meaning of a Term in the Shared-Fee-Agreement Did Not Render the Contract Ambiguous—No Need for Interpretation of the Term by the Court

The First Department, in an extensive decision, over a two-justice partial dissent, determined the shared-fee arrangements among attorneys were unambiguous and must be enforced as written, without reference to extrinsic evidence. The underlying personal injury case eventually settled for $8 million.  Along the way, plaintiff’s attorney, Menkes, entered into agreements with two attorneys for assistance with the case. Most of the decision addresses the agreement with an attorney, Golomb, concerning mediation and settlement negotiations. If the mediation resulted in a settlement, Golomb was entitled to 12% of the attorney’s fees.  If further work, beyond the mediation, were required, Golomb was entitled to 40% of the attorney’s fees. Menkes argued that, although the mediation session did not result in a settlement, the mediation was a “process” which continued beyond the initial session culminating in a settlement. The majority held that the term “mediation,” pursuant to the language of the contract, encompassed only the one session.  Once that session ended without a settlement, the 40% shared-fee-arrangement kicked in:

The issue before us is one of simple contract interpretation. Under well established precedent, agreements are to be generally construed in accord with the parties’ intent … . The best evidence of the parties’ intent is “what they say in their writing” … . “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” … . This rule is particularly applicable where the parties are sophisticated and are negotiating at arm’s length … . Language in a written agreement is deemed to be clear and unambiguous where it is reasonably susceptible of only one meaning or interpretation … . Finally, “[e]xtrinsic evidence may not be introduced to create an ambiguity in an otherwise clear document” … .

Here, as the dissent agrees, the language of the contract is unambiguous. Menkes argues that she interpreted the term “mediation” to constitute an ongoing process that would not be limited to a single session but rather would continue until an impasse or other termination had occurred. However, the assertion by a party to a contract that its terms mean something to him or her “where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract” is not sufficient to make a contract ambiguous so as to require a court to divine its meaning … . The specific fee language that Menkes now claims supports her position was added to the agreement at her request. She takes the untenable position that she was never advised that the mediation reached an impasse or had been terminated. Yet despite the fact that the agreement went through several revisions, neither party saw fit to add any language to that effect. Both parties to the agreement are attorneys and thus know the importance of precision in the words used … . These clear terms, under these circumstances, need no interpretation by the court. Marin v Constitution Realty, LLC, 2015 NY Slip Op 04225, 1st Dept 5-19-15

 

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Counts Rendered Duplicitous by Trial Testimony/Prosecution Held to Erroneous Jury Charge to Which No Objection Was Made/Prosecutorial Misconduct Mandated a New Trial

The Second Department determined: (1) many counts of the indictment were rendered duplicitous because the complainant in this sex-offense case testified to more than one offense within the time-periods encompassed by indictment counts; (2) the prosecution must be held to the erroneous jury charge to which no objection was made (stating proof complainant was less than 14 was required when the statute says less than 15); (3) the prosecution did not prove complainant was less than 14—relevant counts dismissed; and (4) prosecutorial misconduct during summation (prosecutor acted as an unsworn witness, invited the jury to speculate, shifted the burden of proof, and made inflammatory remarks) mandated a new trial on the remaining counts:

Each count of an indictment may charge one offense only” (CPL 200.30[1]). A count in an indictment is void as duplicitous when that “single count charges more than one offense” … . Where, as here, the crime charged ” is completed by a discrete act, and where a count in the indictment is based on the repeated occurrence of that act over a course of time, the count includes more than a single offense and is duplicitous'” … . ” Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented . . . at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict'” … . * * *

… [S]ince the People did not object to the erroneous jury charge, they were “bound to satisfy the heavier burden” … of proving, for counts 1 through 40, that the defendant engaged in sexual intercourse with a person less than 14 years old. Since the evidence demonstrated that the complainant was 14 years old during the time periods encompassed by counts 17 through 40 of the indictment, the People failed to satisfy this burden as to those counts. * * *

“[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command” … . Rather, “[t]here are certain well-defined limits” (id. at 109). Among other things, “[the prosecutor] must stay within the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . A prosecutor would be well-advised not to test these limits, both so as to stay within his or her proper truth-seeking role … and so as to avoid the waste of time and expense that occurs when a new trial must be conducted solely on the basis of summation misconduct. Here, the prosecutor surpassed the “well-defined limits” … .

The prosecutor acted as an unsworn witness when, in response to defense counsel’s summation comments regarding the lack of corroborative medical evidence and the failure to call certain witnesses, the prosecutor told the jury that the uncalled witnesses had “nothing to offer” and that the medical records the prosecution failed to offer into evidence were “either irrelevant or cumulative” … . The prosecutor also improperly invited the jury to speculate as to certain matters, despite advance warning by the trial court not to engage in that line of comment … . Further, the prosecutor shifted the burden of proof by telling the jury, and repeatedly returning to this theme, that it had not “heard” any “compelling reason” for the complainant to lie, and by suggesting that the jury would have to convict the defendant if it did not “buy” the defendant’s explanation of certain evidence … . The prosecutor further improperly suggested that the jury would have to conclude that the complainant was “evil” in order to acquit the defendant … . The prosecutor repeatedly vouched for the complainant, while denigrating the defense and expressing his personal opinion as to the defendant’s lack of credibility … . Finally, the prosecutor made a number of inflammatory references to the defendant using the complainant as his “personal sex toy” … . People v Singh, 2015 NY Slip Op 04157, 2nd Dept 5-13-15

 

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Court Should Not Have Deferred, Over Defense Counsel’s Objection, to Defendant’s Request that the Jury Not Be Charged on a Lesser Included Offense—To Do So Denies Defendant His Right to the Expert Judgment of Counsel

The Fourth Department determined the court erred in deferring to the defendant’s request that the jury not be charged to consider a lesser included offense.  Defense counsel strongly objected to the defendant’s request and so informed the court.  The decision concerning whether to request a “lesser included” jury instruction is solely the province of defense counsel:

In Colville (20 NY3d at 23), the Court of Appeals held that “the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel.” In that case, the trial court agreed with defense counsel that a reasonable view of the evidence supported his request to submit two lesser included offenses to the jury (id.). Nevertheless, “contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected” (id.). The jury convicted the defendant of murder, and the Court of Appeals reversed and ordered a new trial, concluding that, “[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him” (id. at 32). People v Brown, 2014 NY Slip Op 03374, 4th Dept 5-9-14

 

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Insurance Company’s Documents Protected by Attorney-Client Privilege/Where there is a Discrepancy Between an Order and the Related Decision, the Decision Controls

The Fourth Department determined Supreme Court should not have ordered disclosure of documents generated by an insurance company in relation to plaintiff’s claim because they were protected by attorney-client privilege.  (The court noted, with respect to the lower court’s decision and order in this case,  that where there is a discrepancy between and order and a decision, the decision controls:)

A party seeking to invoke the attorney-client privilege must show that “the information sought to be protected from disclosure was a confidential communication’ made to the attorney for the purpose of obtaining legal advice or services . . . [, and] the burden of proving each element of the privilege rests upon the party asserting it” … . “For the privilege to apply when communications are made from client to attorney, they must be made for the purpose of obtaining legal advice and directed to an attorney who has been consulted for that purpose.’ . . . [F]or the privilege to apply when communications are made from attorney to client—whether or not in response to a particular request—they must be made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship” … .

It is well settled that “[t]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business” … . Notably, “while information received from third persons may not itself be privileged . . . , a lawyer’s communication to a client that includes such information in its legal analysis and advice may stand on different footing. The critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client”… . Nicastro v New York Cent Mut Fire Ins Co, 2014 NY Slip Op 03381, 4th Dept 5-9-14

 

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Attorney Discharged without Cause Entitled to Fee as an Account Stated

The Third Department determined an attorney had been discharged without cause and was entitled to a charging lien and a retaining lien.  The client had signed a retainer agreement and had not expressed any objection to the detailed itemized bill submitted by the attorney.  The amount of the bill was therefore deemed an account stated.  In explaining the options available to an attorney who has been discharged without cause, the court wrote:

…[A]n attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien, (2) a retaining lien, and/or (3) a plenary action in quantum meruit … . A charging lien is a statutory remedy — codified in Judiciary Law § 475 — that grants the attorney “a security interest in the favorable result of [the] litigation” … . A retaining lien, on the other hand, permits the discharged attorney to retain the contents of the client’s file until such time as the attorney has been paid or “the client has otherwise posted adequate security ensuring [the] payment [there]of” … . With respect to either lien, a hearing may be required to determine the amount of compensation due and owing to the discharged attorney. Here, however, we have no quarrel with Supreme Court’s finding that the firm was entitled to an award of $10,884.14 based upon an account stated. Roe v Roe, 2014 NY Slip 03317, 3rd Dept 5-8-14

 

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