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Trial Court Abused Its Discretion When It Disqualified Defense Counsel Over Defendant’s Objection on Conflict of Interest Grounds—The Fact that a Co-Defendant Had Been Represented by Another Attorney from the New York County Defender Services (NYCDS) Did Not Create a Conflict for Defendant’s NYCDS Attorney—Defendant’s Attorney Did Not Have Access to Any Information Provided by the Co-Defendant (Who Had Already Pled Out)—Client Confidences Are Not Generally Shared by Attorneys Within a Large Institution Like the NYCDS, As They Might Be Within a Private Law Firm

The First Department, in a full-fledged opinion by Justice Kapnick, over a dissent, determined that the fact that a co-defendant (Stephens) had been represented by a New York County Defender Services (NYCDS) attorney did not create a conflict requiring the disqualification of defendant's trial attorney (Fisher), who also worked for the NYCDS.  The court noted that Fisher was not privy to any confidences of Stephens (who had pled out shortly after arraignment) and there was little danger attorneys within a large institution like the NYCDS would share their clients' confidential information.  Therefore Fisher could effectively cross-examine Stephens should he be called to testify (the People did not intend to call Stephens). The defendant did not want Fisher disqualified and was willing to waive any conflict:

As both the United States Supreme Court and the Court of Appeals have explained, the Sixth Amendment encompasses a right to select and be represented by one's preferred counsel. However, that right is not absolute …, and it must be balanced with the right to effective assistance of counsel … . Thus, trial courts are given “substantial latitude in refusing waivers of conflicts of interests not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses” … . …

Here … defendant not only challenges the trial court's refusal to accept his waiver of the potential conflict of interest, but also questions whether there was even a potential conflict of interest, in the first instance, where Fisher, who is a staff attorney at an institutional defense organization, never personally represented Stephens. It is crucial to recognize that here, unlike in other right to counsel cases, the proper initial inquiry is not whether defendant's waiver should have been accepted, but whether there was even a conflict or potential conflict of interest to waive in the first place. The court need only reach the issue of whether the waiver was properly accepted or denied after it has been established that there was a conflict or potential conflict of interest to waive. I find that on this record, no conflict or potential conflict of interest existed. * * *

Here, defendant and Stephens were arrested in connection with the same incident, but Stephens's case was already concluded by the time of Fisher's disqualification and, again, there was no evidence or suggestion that information concerning Stephens was ever shared with Fisher. Indeed, Fisher acknowledged that he would be barred from viewing his office's file on Stephens or using the address on file to try to locate Stephens; similarly no other attorney would have had access to NYCDS's file either. Thus … it cannot be said that the prior representation of Stephens by the same public defense organization created a potential conflict of interest. Although this Court is aware that the trial court's “discretion is especially broad” when balancing the right to counsel of a criminal defendant's choosing and the right to effective assistance of counsel free of conflicts … , under the specific circumstances here, we find that the trial court abused its discretion in disqualifying defendant's counsel. People v Watson, 2014 NY Slip Op 08383, 1st Dept 12-2-14


 

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Fact that Prosecutor Had Represented the Defendant in the Past Did Not Require Disqualification—No Substantial Risk of an Abuse of Confidence

The Third Department determined that the fact that the District Attorney had represented the defendant 16 years before did not require disqualification:

Ordinarily, “[a] public prosecutor should be removed only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” … . Here, the fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification … . Further, although the District Attorney sought to impeach defendant using prior contempt convictions arising from marital problems that defendant alleges he had discussed with the District Attorney, County Court’s refusal to allow any inquiry into the underlying facts of these convictions eliminated any possible avenue by which the District Attorney might have utilized any confidential information that he may have acquired … . As 16 years had passed since any such alleged confidences had been shared, the passage of time had also diminished the risk of prejudice … . As defendant did not demonstrate a substantial risk of an abuse of confidence or any actual prejudice, we find no error in County Court’s determination … . People v Giroux, 2014 NY Slip Op 08060, 3rd Dept 11-20-14

 

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County Court Failed to Warn the Defendant that His Lack of Knowledge, When Compared with that of a Lawyer, Would Be Detrimental—Defendant Did Not Validly Waive His Right to Counsel

The Third Department reversed defendant’s conviction and ordered a new trial because County Court failed to ensure that defendant validly waived his constitutional right to counsel.  County Court did not adequately explain that defendant’s lack of knowledge, as compared to the knowledge of a lawyer, would be detrimental:

A defendant seeking permission to proceed pro se must “effectuate[] a knowing, voluntary and intelligent waiver of the right to counsel” …. To this end, the trial court is required to “conduct a ‘searching inquiry’ to clarify that [the] defendant understands the ramifications of such a decision” … . The court’s inquiry “‘must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication'” … . As the reviewing court, we may “look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel” (People v Providence, 2 NY3d at 583).

* * * [The court] did not sufficiently advise [defendant] of “the ‘dangers and disadvantages’ of proceeding pro se and the value of trained trial counsel knowledgeable about criminal law and procedure” … . In fact, with respect to the dangers of self-representation, the court merely noted that defendant risked “losing objectivity” by representing himself. Absent from County Court’s inquiry was any warning that defendant’s “lack of knowledge, relative to that of a lawyer, [would] be detrimental if [he] cho[se] to waive the right to counsel” … . People v Guarnieri, 2014 NY Slip Op 08067, 3rd Dept 11-20-14

 

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The Toll of the Statute of Limitations Under the Continuing Representation Doctrine Ceased When the Attorney Was Discharged, Not When the Consent to Change Attorney Was Subsequently Filed—Various Ways In Which the Attorney-Client Relationship Can Be Terminated In this Context Explained In Some Depth

The Second Department, in a full-fledged opinion by Justice Dillon, held that the continuing representation toll of the statute of limitations ceases when the attorney is actually discharged and not when the consent to change attorney is subsequently filed:

An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim (see CPLR 214[6]…). Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court … , regardless of when the operative facts are discovered by the plaintiff … . However, “causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” … . The three-year statute of limitations is tolled for the period following the alleged malpractice until the attorney’s continuing representation of the client on a particular matter is completed … . For the doctrine to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . * * *

There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause … . A second way is for the attorney and client to execute a Consent to Change Attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b) (see Vincent Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C321:2). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order (see e.g. CPLR 321[2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]…).

An affirmative discharge of an attorney by the client is immediate. By contrast, from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321 … . This rule protects adverse parties from the uncertainty of when or whether the authority of an opposing attorney has been terminated …, even when the adverse party is informally aware that a discharge or substitution of an opposing counsel is pending or imminent … . * * *

The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered … . “One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties”‘ … . What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions. Farage v Ehrenberg, 2014 NY Slip OP 07977, 2nd Dept 11-19-14

 

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Defendant Who Pled Guilty Without Counsel and Who Was Not Advised of His Right to Appeal May Raise a “Deprivation of the Right to Counsel” Claim In a Motion to Vacate the Judgment of Conviction, Even Though the Issue Could Have Been Raised on Direct Appeal (No Appeal Was Perfected)

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the defendant should be allowed to raise the argument that he was deprived of his right to counsel in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law (CPL) 440.10, even though the issue could have been raised on direct appeal.  The defendant had appeared pro se, had pled guilty and did not appeal.  The judge did not advise the defendant of his right to appeal:

It is correct as a general matter that, when the record is sufficient to permit review of an issue on direct appeal, a defendant who either has not appealed his conviction or, having appealed, has failed to raise that issue is barred from later asserting it as a basis for post-conviction relief … .  * * *

But there is an obvious risk of unfairness in applying this procedural bar where the ground that the defendant seeks to raise is that he was deprived of his right to counsel. If he was indeed deprived of that right, that very deprivation may well have led him either not to appeal or not to have presented the issue to an appellate court. A defendant who has wrongly been deprived of a lawyer can hardly be blamed for failing to follow customary legal procedures. * * *

We conclude, in short, that defendant was not barred from raising his right to counsel claim in a CPL 440 motion. We express no opinion on the merits of the claim.  People v Grubstein, 2014 NY Slip Op 07924, CtApp 11-18-14

 

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Procedure for Handling a Motion to Dismiss for Failure to State a Cause of Action When Documentary Evidence Is Submitted in Support of the Motion Explained—Attorney Discharged For Cause Is Not Entitled to “Quantum Meruit” Attorney’s Fees

In affirming the dismissal of plaintiff’s complaint, the Second Department explained the relevant analysis when documentary proof is submitted by a defendant in connection with a motion to dismiss for failure to state a cause of action pursunt to CPLR 3211(a)(7).  The action was brought by an attorney who had been discharged for cause by his clients prior to the settlement of a personal injury action:

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … . Where, however, a defendant has submitted evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, “unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, . . . dismissal should not eventuate” … . Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action … . * * *

A client has the right to discharge his or her attorney at any time … . While an attorney who is discharged without cause before the completion of services may recover the reasonable value of his or her services in quantum meruit, an attorney who is discharged for cause is not entitled to any compensation or lien … . Here, the court held a hearing pursuant to 22 NYCRR 603.13(b) with respect to the plaintiff’s cross motion for attorney’s fees. The court determined that the plaintiff was properly discharged for cause, and, therefore, was not entitled to recover in quantum meruit. Siskin v Cassar, 2014 NY Slip Op 07646, 2nd Dept 11-12-14

 

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Conviction Overturned for the Second Time Because of Misconduct by the Same Prosecutor

In reversing defendant’s conviction for the second time (after the retrial) because of the same prosecutor’s misconduct, the Fourth Department also concluded there was insufficient evidence of the value of stolen items (cost of items when purchased not enough)) and there was insufficient evidence of possession of a controlled substance (statement that cocaine was smoked by the defendant on a particular day not enough). With respect to the prosecutorial misconduct, the court wrote:

Despite our prior admonition on defendant’s first appeal, the prosecutor on retrial repeated some of the improper comments from the first summation and made additional comments that we conclude are improper.  The prosecutor improperly denigrated the defense and defense counsel, repeatedly characterizing the defense as “noise,” “nonsense” and a “distraction[],” and arguing that defense counsel was fabricating facts and attempting to mislead the jury .. .  In one of the more troubling passages in her summation, the prosecutor stated, “You are here for the People of the State of New York versus [defendant] . . . It is not about who isn’t sitting at the defense table, it is about who is.  Are you buying it? Because that’s what they’re selling.  Theories disguised as arguments and posturing as evidence.  And I’m not suggesting the defendant has the burden of proving anything because the burden rests with the People, but by the same token, it doesn’t give counsel license to make stuff up and pretend that it’s evidence.  They all have something in common.  These theories, they’re noise, they’re nonsense.  They want you to be distracted.  Do not be distracted.”

In addition, the prosecutor misstated the evidence and the law…, made an inappropriate “guilt by association” argument …, and improperly characterized the case as “about finding the truth and it is as simple as that” … .  Perhaps the prosecutor’s most egregious misconduct occurred when she made herself an unsworn witness and injected the integrity of the District Attorney’s office into the case … .  With respect to a chief prosecution witness, who did not testify at the first trial and who turned herself in on a warrant the day prior to her testimony, the prosecutor stated:  “When she arrived at our offices, she was escorted over to Buffalo City Court because she had a warrant, because that’s what you have to do, and she was released on her own recognizance by the judge.  And let me be very clear here when we talk about promises to witnesses or benefits that they received.  Let me be very clear. Neither myself, nor [the other prosecuting attorney], nor anyone from our office, ever promised her anything in exchange for her testimony” … .  The Court of Appeals condemned similar comments by the prosecutor… . People v Morgan, 942, 4th Dept 11-8-13

 

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Non-Party Attorneys Properly Held in Civil Contempt for Starting a Class Action Suit In Violation of Anti-Suit Injunctive Order

In a proceeding to liquidate the Executive Life Insurance Company of New York, non-party attorneys for objectors to the liquidation filed a class action lawsuit in federal court in violation of anti-suit injunctive orders issued by Supreme Court.  In affirming Supreme Court’s finding the non-party attorneys in contempt, the Second Department explained the criteria:

To prevail on a motion to punish for civil contempt, the movant must demonstrate that the alleged contemnor violated a clear and unequivocal court order, of which the alleged contemnor had knowledge, thereby prejudicing a right of a party to the litigation (see Judiciary Law § 753[A][3]…). “To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … .

* * * The commencement of the class action violated the anti-suit injunctive provisions set forth in three court orders entered in this rehabilitation proceeding commenced pursuant to Insurance Law article 74, that was later converted into a liquidation proceeding … . An order of the court must be obeyed until that order is set aside, either by appeal or otherwise, where, as here, the court that issued the order had jurisdiction to issue it … . The petitioner also demonstrated that the commencement of the class action prejudiced its rights … . Matter of Executive Life Ins Co of NY, 2014 NY Slip Op 07506, 2nd Dept 11-5-14

 

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Damages in Medical Malpractice Case Paid by Insurer and Hospital—Therefore Doctor, a Defendant in the Medical Malpractice Case, Could Show No Pecuniary Loss—Legal Malpractice Suit by Doctor Must Therefore Be Dismissed

The Third Department determined that because the damages assessed against a doctor in a medical malpractice action were paid entirely by the insurer and the hospital, she suffered no pecuniary loss.  In the absence of pecuniary loss, she could not maintain a legal malpractice action against her attorneys:

Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits “but for” her attorney’s negligence and she sustained actual and ascertainable damages … . * * *

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the … verdict, is unavailing since “the established rule limit[s] recovery in legal malpractice actions to pecuniary damages” … . Plaintiff continued working at the hospital after the … verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. … Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the … verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the … verdict are speculative and unsupported in this record … . Kaufman v Medical Liab Mut Ins Co, 2014 NY Slip Op 07398, 3rd Dept 10-30-14

 

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Criteria for Dismissal of a Complaint Pursuant to CPLR 3211(a)(1) [Defense Based Upon Irrefutable Documentary Evidence] and CPLR 3211(a)(7) [Failure to State a Cause of Action] Explained

In the context of a legal  malpractice action, in affirming the denial of motions to dismiss, the Second Department explained the criteria for motions to dismiss pursuant to CPLR 3211(a)(1) [defense founded on documentary evidence] and CPLR 3211(a)(7) [failure to state a claim]:

A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that his or her defense is founded upon documentary evidence ” has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim'” … . In the instant matter, the documentary evidence submitted by the defendants, consisting of the orders issued by the Supreme Court in the underlying action, failed to utterly refute the plaintiff’s allegations of malpractice or conclusively establish a defense as a matter of law in the instant action … . * * *

On a motion to dismiss pursuant to CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Here, the plaintiff alleged that, but for the defendants’ negligence, including their failure to assert “appropriate claims against the proper parties, . . . the Plaintiff’s medical malpractice claim would have succeeded and resulted in a different, better and/or more positive outcome.” Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as required, the plaintiff stated a cause of action to recover damages for legal malpractice … . Tooma v Grossbarth, 2014 NY Slip Op 07347, 2nd Dept 10-29-14

 

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