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Failure to Investigate Constituted Ineffective Assistance of Counsel

In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel.  The People’s case rested on the defendant’s statement.  The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement.  Yet the defense attorney did not investigate critical documents relevant to the defendant’s mental condition. The Court of Appeals wrote:

The record reveals that trial counsel sought to build a defense based on defendant’s mental weakness undermining the voluntariness of his admissions of guilt. Despite the focus on defendant’s mental abilities, trial counsel chose to forgo any investigation of the critical documents concerning defendant’s mental condition, and instead, sought to present this defense through the testimony of defendant’s mother, an obviously biased witness. Regardless of whether the decision to present defendant’s condition through his mother’s testimony was a valid strategy, it was, as trial counsel admitted at the post-conviction hearing, a “strategy” “born in the blind.” One he admittedly pursued without benefit of the contents of defendant’s records.

This is not simply a case of a failed trial strategy …. Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits. People v Oliveras, No 105, CtApp, 6-6-13

 

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“Crime-Fraud” Exception to Attorney-Client Privilege Re: Studies Funded by Defendant Casting Doubt on Relationship Between Asbestos and Cancer

In a full-fledged opinion by Justice Andrias, the First Department determined plaintiffs, as part of discovery in this asbestos litigation, were entitled to an in camera review of defendant’s internal communications and to the data underlying published research studies funded by the defendant. The studies purported to cast doubt on whether chrysotile asbestos caused cancer.  In the course of the opinion, the First Department explained the “crime-fraud” exception to the attorney-client privilege (the basis of the request for in camera review of defendant’s internal communications):

The motion court providently exercised its broad discretion …when it  …granted in camera review of the documents to determine whether the crime-fraud exception to the attorney-client privilege applied … .

The crime-fraud exception encompasses ” a fraudulent scheme, an alleged breach of fiduciary duty or an accusation of some other wrongful conduct'”…. “[A]dvice in furtherance of a fraudulent or unlawful goal cannot be considered sound.’ Rather advice in furtherance of such goals is socially perverse, and the client’s communications seeking such advice are not worthy of protection”….

A party seeking “to invoke the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime” … .However, “[a] lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege”… .

To permit in camera review of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be “a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies” …. “Once that showing is made, the decision whether to engage in in camera review of the evidence rests in the sound discretion of the [] court” …. Matter of New York City Asbestos Litig, 2013 NY Slip Op 04127, 1st Dept, 6-6-13

 

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Potential Versus Actual Conflict of Interest

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest.  The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential conflict of interest (at issue in this case):

The defendant bears the burden of establishing a denial of meaningful representation …. When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts …. An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed …and, in such situations, reversal is required if the defendant does not waive the actual conflict ….

In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense … — i.e., the nature of the attorney-client relationship or underlying circumstances bear a “‘substantial relation to the conduct of the defense'” …. The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense — three formulations of the same principle — is not a requirement that [the] defendant show specific prejudice” …. Nevertheless, it is the defendant’s “heavy burden” … to show that a potential conflict actually operated on the defense ….  People v Sanchez, No 107, CtApp, 6-4-13

 

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Defense Counsel’s Assessment of the Merits of Defendant’s Pro Se Motion Rendered Her Position Adverse to Defendant’s

The defendant made a pro se motion to withdraw his plea of guilty.  In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should not have questioned defense counsel about the merits of the motion and should have assigned new counsel to the defendant once it was clear counsel’s position was adverse to defendant’s:

Under  established principles, defense counsel has no  duty to support a pro se motion that he or she has determined to be without merit, and failing to support such a motion “does not constitute a position adverse to the client” ….   Here, after properly informing County Court that she would not be making the motion on behalf of defendant, defense counsel responded to the court’s substantive inquiry that she found no  “legal basis” for his motion. Indeed, in denying defendant’s request for new counsel or for more time to make the motion, the court reiterated that defense counsel “in her knowledge and  understanding of this case [stated] that there’s no legal basis to withdraw your plea of guilty.”  “[O]nce counsel took a position adverse to . . . defendant, the court should not have proceeded  to determine the motion  without first assigning. . . defendant new counsel” … . People v McCray, 104161, 3rd Dept, 5-30-13

 

 

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Absent Defendant Did Not Receive Effective Assistance of Counsel​

The Court of Appeals held that a defendant who was absent from his trial received ineffective assistance of counsel:

It is well established that a defendant may not, by his absence alone, “waive his right to effective assistance of counsel” …. Although a defendant’s willful absence from trial surely hampers an attorney’s ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant’s cooperation with his attorney in formulating a defense before absconding, there was a “reasonable basis for an active defense” ….  People v Diggins, No 96, CtApp, 5-30-13

 

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Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

The First Department determined that a retainer agreement for work “up to” a trial in a divorce action precluded the law firm from recovering any fees for the trial.  To cover those fees a second retainer agreement was required:

The plain language of the retainer states that the law office’s representation of Blisko includes work leading “up to” a trial, “but not including an actual trial.” Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer …. Law Off of Sheldon Eisenberger v Blisko, 2013 NY Slip Op 03802, 1st Dept,. 5-28-13

 

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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Doctrine of Continuous Representation/Retainer Agreement in Estate Proceeding “Unconscionable”​

In a case involving “gifts” and a 40% contingency fee for three defendant attorneys’ work on an estate worth several tens of millions, the First Department applied the “doctrine of continuous representation” to toll the statute of limitations and found the fee arrangement(s) “unconscionable:”

The claims relating to the gifts the widow made to the three individual defendants are not time-barred. Rather, they were tolled under the doctrine of continuous representation …. Contrary to the individual defendants’ contention, the doctrine applies where, as here, the claims involve self-dealing at the expense of a client in connection with a particular subject matter….  * * *

The revised retainer agreement is both procedurally and substantively unconscionable…. The evidence shows that the widow believed that under the contingency arrangement, she would receive the “lion’s share” of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow’s share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement–an agreement she entered into in an effort to reduce her legal fees … .

In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered… , and the risks and rewards to the attorney upon entering into the contingency agreement … .

The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) … .Matter of Lawrence, 2013 NY Slip Op 03759, 1st Dept, 5-22-13

 

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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see the bags which were in defendant’s possession, defense counsel was forced to acknowledge that they matched those purchased by the undercover officer:

In focusing on the Ziploc bags, counsel eviscerated his entire strategy. No longer could the jury believe that no physical evidence tied defendant to the charges; to the contrary, counsel pointed them in the direction of strong physical evidence. Further, the jury could not be expected to acquit defendant on the theory that the People’s case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial. In addition, defendant’s own credibility was directly undermined by counsel’s failure to conduct due diligence, since he testified about a discrepancy between the drugs purchased by the undercover and those recovered from him by the police. There was no sound strategy underlying counsel’s decision to focus the jury on the evidence bags. By his own admission, it was a mistake, and he would not have highlighted the Ziploc bags had he known their actual contents. This self-sabotage of counsel’s defense strategy, albeit inadvertent, was inherently unreasonable and prejudiced defendant’s right to a fair trial under New York law… .  People v Barnes, 2013 NY Slip Op 03757, 1st Dept, 5-23-13

 

Action for Contingency Fee; No Demonstration Law Firm Had Been Discharged

The plaintiff law firm brought breach of contract cause of action to recover contingency fees under a written retainer agreement.  The motion court granted defendant’s motion to dismiss on the ground the law firm had been discharged.  In reversing the motion court, the First Department wrote:

Although no particular formality is required, the discharge of an attorney is effected by “[a]ny act of the client indicating an unmistakable purpose to sever relations . . .”…. The motion should not have been granted because the amended complaint and the documents attached to it set forth no facts from which an unmistakable purpose to sever the attorney-client relationship can be discerned. … A motion to dismiss for failure to state a cause of action “must be denied if from the pleadings’ four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'” … .  Anderson & Anderson, LLP … v North American Foreign Trade Corp, 2-13 NY Slip Op 03430, 1st Dept, 5-14-13

 

 

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