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Client’s Claim His Attorney Pressured Him Into Changing the Retainer Agreement, Thereby Costing the Client More, Did Not Sound In Malpractice and Was Not an Arbitrable Fee Dispute

The First Department noted that an action by a client alleging he was pressured by his attorney into changing the retainer agreement from an hourly retainer to a contingency retainer (thereby costing the client more) did not sound in malpractice and was not arbitrable under part 137 of the Rules of the Chief Administrator of the Courts:

Plaintiff does not assert that defendants’ conduct caused the result of his dispute with his disability insurer to be worse than it would have been. Rather, he argues that defendants, in bad faith and without full disclosure, pressured him into changing from an hourly retainer to a contingency retainer. The only loss he alleges is the additional fees owed to counsel as a result of changing the retainer. This is fatal to his claim for malpractice … . …

The retainer agreement provided for arbitration under part 137 of the Rules of the Chief Administrator of the Courts. However, the gravamen of the contract claim is that it is invalid because of defendants’ misconduct in inducing plaintiff to sign it, or because it created a windfall for defendants. By the express terms of the rules the parties chose to govern their arbitration, claims such as this are not arbitrable since 22 NYCRR 137.1(b)(3) provides that part 137 does not apply to “claims involving substantial legal questions, including professional malpractice or misconduct” … . Cohen v Hack, 2014 NY Slip Op 04068, 1st Dept 6-5-14

 

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Court Did Not Conduct an Adequate “Searching Inquiry” Before Allowed Defendant to Represent Himself—New Trial Ordered

The First Department, in a full-fledged opinion by Justice Acosta, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself.  The opinion includes all of the relevant exchanges between the judge and the defendant and compared those exchanges to the inquiry made in People v Wingate, 17 NY3d 469, where the Court of Appeals determined the inquiry by the trial court to be adequate:

Here, we find that the trial court’s inquiry failed to satisfy [the] “searching inquiry” standard. The court gave nothing more than generalized warnings, and completely failed to advise defendant of the benefits of being represented by counsel. The court’s statements to defendant that it was in his “interest” to continue with counsel; that “[g];enerally, [self-representation]; is a very bad idea”; and that there were “all kinds of dangers in doing this,” its sole example being that defendant would have to give the opening statement himself, failed to insure that the dangers and disadvantages of giving up the fundamental right to counsel [had]; been impressed on . . . defendant” … . The court also failed to advise defendant about the “importance of the lawyer in the adversarial system of adjudication” … . Because we find that the court did not make the requisite searching inquiry, we reverse the judgment convicting defendant and remand for a new trial.  People v Cole, 2014 NY Slip Op 04076, 1st Dept 6-5-14

 

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Court Is Not Required to Notify Defendant of His Right to Contest the Constitutionality of His Prior Conviction Before Sentencing Defendant as a Second Felony Offender

The Third Department noted that the sentencing court was not required to notify defendant of his right to contest the constitutionality of his prior conviction before sentencing defendant as a second felony offender:

” ‘County Court was not obligated to expressly advise defendant of his right to contest the constitutionality of the prior conviction'” … . Here, the record reveals that defendant was provided with the prior felony information before sentencing and, while represented by counsel during sentencing, declined to deny or controvert any of the allegations in the information. Accordingly, County Court substantially complied with the requirements of CPL 400.21 (3), and defendant was properly sentenced as a second felony offender … . People v Wilkins, 2014 NY Slip Op 04083, 3rd Dept 6-5-14

 

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Taking a Position Adverse to Client’s Pro Se Motion to Withdraw a Guilty Plea Constitutes Ineffective Assistance of Counsel

The Third Department noted that counsel may not take a position adverse to the client’s pro se motion to withdraw a guilty plea.  To do so constitutes ineffective assistance of counsel:

We agree with defendant’s contention that he received ineffective assistance of counsel inasmuch as his new counsel took a position adverse to his with regard to the motion to withdraw his plea. “While defense counsel is not required to support a pro se motion to withdraw a guilty plea, counsel ‘may not take a position . . . that is adverse to the defendant'” … . Although defendant was properly permitted to obtain a new attorney, he was denied the effective assistance of counsel when such counsel “affirmatively undermined arguments [that defendant]; wished the court to review” … . Accordingly, the matter must be remitted for reconsideration of defendant’s motion, for which he must be represented by new counsel. People v Russ, 2014 NY Slip Op 04084, 3rd Dept 6-5-14

 

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In the Absence of a Colloquy Conducted by the Court, the Circumstances Indicated that Mother Knowingly, Intelligently and Voluntarily Waiver Her Right to Counsel In a Custody Proceeding

In the course of a decision affirming Family Court’s finding that a change of circumstances warranted modification of the custody arrangement, the Third Department determined the mother had knowingly, intelligently and voluntarily waived her right to counsel.  In the absence of a colloquy conducted by the court, the Third Department found that the relevant circumstances indicated the waiver was valid:

“[A]; party is entitled to self-representation once the court determines that the decision to do so is knowingly, intelligently and voluntarily made. Although it is preferable that the court’s determination be made following an appropriate colloquy with the party on the record, it may also be made upon an examination of all the potential relevant circumstances” .. . Here, at the initial court appearance on April 8, 2011, the mother was represented by an attorney, whom she states was assigned. By the next court date, July 15, 2011, she had terminated the services of the assigned attorney and appeared with a substituted retained attorney. At the next appearance, the father told the court that he was switching attorneys and, at the ensuing appearance on August 10, 2011, the mother informed the court that she wanted to terminate the services of her retained attorney. Her attorney was present and, after confirming that the mother had discussed such action with the attorney, the court permitted the attorney to withdraw.

Noting the multiple adjournments and delays that had occurred by such time, many caused by the switching of attorneys by both parties, the mother was admonished to obtain substitute counsel before the next court date. Over a month later, on September 14, 2011, the mother appeared and stated that she had not been able to retain a new attorney and was involved in a dispute with her former retained attorney about fees. The court stated that it would grant yet another adjournment, but that a trial date would be set with no more adjournments permitted, and the court also reminded the mother that she could apply for assigned counsel. The mother next appeared on November 30, 2011, stating that she was representing herself and that she was ready to proceed with the hearing. The mother had already appeared and prepared documents in many of the proceedings pertaining to the child without an attorney and, among other things, she had obtained subpoenas for several witnesses prior to the hearing. Under all the circumstances, we are satisfied that the record sufficiently reflects that the mother waived her statutory right to counsel knowingly, intelligently and voluntarily… . Matter of Joshua UU v Martha VV, 2014 NY Slip Op 04089, 3rd Dept 6-5-14

 

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Party Who Was Both a Plaintiff and a Defendant in a Joint Trial of Two Actions Was Properly Allowed to Have Two Attorneys

The First Department determined a party who was a plaintiff in one case and a defendant in another was properly allowed to have two attorneys in the joint trial.  Pimentel was involved in an automobile accident with Wong.  Wong’s car jumped the curb and crashed into a store, injuring plaintiff Newark. Newark sued Wong and Pimentel and Pimentel sued Wong.  Pimentel was represented in each action by separate attorneys:

The trial court did not abuse its discretion in allowing Pimentel’s interests as a plaintiff in his own action and as a defendant in this action to be represented by separate attorneys (see CPLR 4011…). The court promised to and did exert control over the nature of the dual representation, as necessary, and Pimentel’s defense counsel, whose opening statement, summation, and questioning of witnesses were brief, played a limited role. In any event, in the absence of any evidence of an unfair advantage or prejudice, any error would be harmless. Newark v Hector R. Pimentel, 2014 NY Slip Op 03636, 1st Dept 5-20-14

 

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Civil Contempt Finding Appropriate—Defendant Failed to Comply With Order to Pay Attorney’s Fees

The Second Department explained the criteria for civil contempt.  The order which was not complied with here required defendant to pay attorney’s fees in a divorce proceeding:

To prevail on a motion to punish for civil contempt, the movant must establish (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The movant has the burden of proving contempt by clear and convincing evidence … . Here, where it is undisputed that the defendant did not comply with the clear mandate of the court’s order …, the plaintiff met his burden on the motion … . Moreover, under the circumstances of this case, less drastic enforcement measures than seeking to hold the defendant in contempt would have been ineffectual … . Hayes v Barroga-Hayes, 2014 NY Slip Op 03488, 2nd Dept 5-14-14

 

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Violation of Right to Counsel Deemed Harmless Error

The Second Department noted that a violation of a defendant’s right to counsel is subject to a harmless error analysis.  Here the police were contacted by an attorney who told the police he was representing the defendant and not to question him if and when he is apprehended.  The court determined defendant’s right to counsel was violated when the police questioned him, but found the error harmless:

The right to counsel attaches, inter alia, when an attorney who is retained to represent a suspect enters the matter under investigation … . When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody … . “An attorney enters’ a case by actually appearing or directly communicating with the police by telephone” … . The issue of whether an [*2]attorney has entered a case is not dependent upon whether that attorney has been personally retained by the defendant, or has instead been retained by a member of the defendant’s family … . * * *

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead it is reviewed under the harmless error doctrine for constitutional violations … . Constitutional errors are “considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” … . If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt … . People v Ellis, 2014 NY Slip Op 03530, 2nd Dept 5-14-14

 

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Defense Counsel’s Denial of Defendant’s Assertion He Was Forced to Plead Guilty Required Assignment of New Counsel

The Second Department determined defense counsel’s denial of defendant’s claim he was forced to plead quilty by defense counsel’s telling him a rejection of the plea offer would result in a much greater sentence effectively made defense counsel a witness against her client.  A new attorney should have been assigned at that point to protect defendant’s right to counsel.  People v Barr, 2014 NY Slip Op 02949, 2nd Dept 4-30-14

 

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Defendant Entitled to Hearing Re: Whether His Counsel Was Ineffective For Failing to Communicate an Earlier, More Lenient Plea Offer

The Second Department determined defendant had presented enough evidence to justify a hearing on whether his counsel was ineffective for failure to inform him of an earlier, more lenient, plea offer.  The court explained the legal principles involved:

…[T]he United States Supreme Court held in Missouri v Frye ( _____ US _____, _____, 132 S Ct 1399, 1410) that counsel’s failure to advise a criminal defendant of a beneficial plea agreement constitutes ineffective assistance of counsel under the Sixth Amendment … where the defendant establishes that there was a reasonable probability that he or she would have accepted the earlier plea offer had it been communicated to him or her, that the election to go to trial or accept a different plea agreement resulted in a harsher penalty, and that, if the prosecution had the discretion to cancel the earlier proposed plea agreement or the trial court had the discretion to refuse to accept it, there was a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. In Lafler v Cooper ( _____ US _____, _____, 132 S Ct 1376, 1391), which was decided on the same day as Missouri v Frye, the United States Supreme Court concluded that the remedy for a claim of ineffective assistance of counsel that results in a harsher sentence than that initially proposed to the defendant pursuant to a plea agreement is to direct the People to reoffer the plea agreement.

Given the defendant’s detailed allegations on the record, which had first been brought to the Supreme Court’s attention more than one month before the defendant pleaded guilty, the court should have addressed the contention. Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing and a report on the defendant’s contention that the People had previously made a more lenient plea offer than the one which he ultimately accepted. The defendant has the burden of establishing that the People made that plea offer, including a determinate term of imprisonment of three years in connection with a plea of guilty to a lesser count …, that his first assigned counsel did not adequately inform him of that offer …, that there is a sufficient likelihood that he would have accepted the offer had counsel adequately communicated it to him …, and that there is a reasonable likelihood that neither the People nor the court would have blocked the alleged agreement…  .  People v Maldonado, 2014 NY Slip Op 02800, 2nd Dept 4-23-14

 

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