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THE LEGAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THERE WAS NO WRITTEN RETAINER AGREEMENT AND THEREFORE NO ATTORNEY-CLIENT RELATIONSHIP; THE COMPLAINT ALLEGED WORDS AND ACTIONS SUFFICIENT TO ASSERT THE EXISTENCE OF AN ATTORNEY-CLIENT RELATIONSHIP (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the legal malpractice action should not have been dismissed on the ground there was no retainer agreement and therefore no attorney-client relationship:

As to the legal malpractice cause of action, the … defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists … . Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship … . Edelman v Berman, 2021 NY Slip Op 04120, Second Dept 6-30-21

 

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THE BREACH OF CONTRACT CAUSE OF ACTION ALLEGING DEFENDANT ATTORNEY OVERBILLED SHOULD HAVE SURVIVED THE MOTION TO DISMISS DESPITE THE DISMISSAL OF THE LEGAL MALPRACTICE CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for breach of contract alleging overbilling by defendant attorney (Drexel) should have survived the motion to dismiss, even though the legal malpractice cause of action was properly dismissed:

… [T]he Supreme Court should have denied that branch of [defendant-attorney] Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services … . In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work … . Dubon v Drexel, 2021 NY Slip Op 04119, Second Dept 6-30-21

 

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THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed. Plaintiff alleged he would have won his Workers’ Compensation hearing had his attorney presented the testimony of alleged eyewitnesses to his alleged fall from a ladder. The claim that, “but for” the attorney’s negligence, the plaintiff would have won the hearing was deemed too speculative:

“To establish causation in a legal malpractice action, ‘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'” … . “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” … .

… The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory … . Denisco v Uysal, 2021 NY Slip Op 04118, Second Dept 6-30-21

 

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THE PROSECUTION’S REASONS FOR EXCLUDING AN AFRICAN-AMERICAN PROSPECTIVE JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, in a full-fledged opinion by Justice Renwick, determined the two explanations offered by the prosecution for excluding an African-American prospective juror were pretextual and should not have been accepted by the court:

On its face, the subject explanation, that an older gentleman with no children living with roommates would not able to appreciate a domestic violence situation, was not a valid trial-related concern at all. “To recognize the proffered explanation as valid and legitimate would, in our view, emasculate the constitutional protection recognized in Batson . . . and we refuse to do so” … . In fact, the prosecutor does not cite to a single case where this Court or any other court has found such a dubious explanation as a valid-race neutral reason. * * *

… [T]he second explanation was equally pretextual. In essence, the prosecution explained that it “selected people who had higher level jobs with all other things being equal,” as well as “[p]eople who indicated that they read.” According to the prosecutor, those types of jurors had more capacity to follow the instructions and understand the law. The prosecutor’s explanation is essentially an attempt to convince this Court with the preposterous proposition that only jurors with “higher level jobs” can effectively consider all the evidence in this case. While a juror’s employment status might be an appropriate race-neutral reason for exclusion, it should be related to the facts of the case … . However, if the employment of the potential juror has no connection with the specific facts of the case then an exclusion of such a juror could constitute discrimination … .

… [T]he prosecutor did not relate his concerns about the prospective juror’s employment to the factual circumstances of the case. People v Murray, 2021 NY Slip Op 04108, First Dept 6-29-21

 

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COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a two-justice dissent, determined County Court should have conducted a minimal inquiry to address defendant’s complaints about defense counsel. The dissenters argued County Court had, in fact, conducted an adequate inquiry:

… [W]e conclude that defendant’s complaints were sufficiently serious to trigger the court’s duty to inquire … . Indeed, the complaints suggested on their face the possibility of a complete breakdown of communication with defense counsel, either owing to or exacerbated by defense counsel’s alleged unwillingness to respond to any of defendant’s repeated inquiries over nearly 12 months of representation; were evidenced by defendant’s apparent confusion over the status of the separate indictments; and were never refuted by defense counsel, who remained silent in response to defendant’s repeated in-court complaints … . Further, the court itself appeared to acknowledge that defendant’s complaints, if true, established that there was “a problem” with the representation.

Thus, the court had a duty to conduct a minimal inquiry, which the court failed to do … .

From the dissent:

… [T]his is not a case where the court “erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution” … . Instead, because the court “repeatedly allowed defendant to air his concerns about defense counsel” and reasonably concluded after listening to those concerns that they “were insufficient to demonstrate good cause for substitution of counsel” … , we would affirm. People v Robinson, 2021 NY Slip Op 03939, Fourth Dept 6-17-21

 

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IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the court should have conducted in inquiry to evaluate defendant’s complaints about his attorney and his request for new counsel:

… [T]he court committed reversible error by failing to conduct an inquiry following defense counsel’s submission of a letter seeking to be relieved from the case and in light of defendant’s responses to that letter. In particular, the record establishes that defense counsel—prompted by defendant’s prior specific complaints about her failure to file motions, seek relevant evidence through discovery such as surveillance video of the incident, investigate specified witnesses, and engage in meaningful consultation and preparation—expressed a breakdown in trust and communication based on her interactions and appearances with defendant and sought to be relieved from representing defendant on the ground that she was unable to handle his case … . … “[D]efendant’s request on its face suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the [acknowledgment] of counsel that a complete breakdown of communication and lack of trust had developed in their relationship” … . “[W]here[, as here,] potential conflict is acknowledged by counsel’s admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” … . People v Darwish, 2021 NY Slip Op 03936, Fourth Dept 6-17-21

 

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WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s motion to vacate his conviction, determined County Court should not have restricted the hearing to only the allegations of ineffective assistance that could not have been raised on direct appeal. Where a motion to vacate a conviction is based on evidence outside the record, as well as evidence on the record, all the evidence is admissible:

A “claim of ineffective assistance of counsel constitutes a single ground or issue upon which relief is requested . . . [Such] a claim . . . ‘is ultimately concerned with the fairness of the process as a whole’ ” … and must be ” ‘viewed in totality’ ” … . Although “[a] single error may qualify as ineffective assistance . . . when the error is sufficiently egregious and prejudicial as to compromise a defendant’s right to a fair trial” … , a defendant may also establish that he or she received ineffective assistance of counsel by arguing that the cumulative effect of multiple errors rendered defense counsel’s performance ineffective, even if those errors, “considered separately, may not have constituted ineffective assistance”… . Where, as here, a defendant alleges errors of defense counsel based on both matters appearing in the record and matters dehors the record, i.e., a ” ‘mixed claim,’ ” a “CPL 440.10 proceeding is the appropriate forum for reviewing the claim of ineffectiveness in its entirety” … . People v Mack, 2021 NY Slip Op 03982, Fourth Dept 6-17-21

 

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ALTHOUGH THE CHILD-SUPPORT CONTEMPT PROCEEDING WAS IN SUPREME COURT, NOT FAMILY COURT, PLAINTIFF HAD A RIGHT TO COUNSEL UNDER THE JUDICIARY LAW; PLAINTIFF’S COUNSEL WAS INEFFECTIVE BECAUSE NO MEDICAL EVIDENCE WAS PRESENTED TO SUPPORT PLAINTIFF’S TESTIMONY HE WAS UNABLE TO WORK (SECOND DEPT).

The Second Department, after noting plaintiff was entitled to counsel under Judiciary Law 35 (8) in this child-support contempt proceeding in Supreme Court, determined plaintiff’s counsel was ineffective. Plaintiff testified he could not meet his child-support obligations because of medical problems, but counsel did not present any medical evidence:

The plaintiff was denied effective assistance of counsel in connection with that branch of the defendant’s cross motion which was to hold him in contempt for wilful violation of the 2013 order. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if such proceeding was pending in the Family Court, such court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 [child-support] order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation … . Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. Winter v Winter, 2021 NY Slip Op 03865, Second Dept 6-16-21

 

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GRANDMOTHER SHOULD HAVE BEEN NOTIFIED OF HER RIGHT TO COUNSEL IN THIS CUSTODY CASE; MATTER SENT BACK TO FAMILY COURT TO DETERMINE WHETHER GRANDMOTHER WAS ELIGIBLE FOR ASSIGNED COUNSEL (THIRD DEPT).

The Third Department determined grandmother should have been notified of her right to counsel in this custody case. But the question remains whether grandmother would have qualified (financially) for assigned counsel. The matter was sent back to Family Court to rule on grandmother’s eligibility for assigned counsel:

We find merit to the grandmother’s argument that she was potentially eligible for the assignment of counsel at the March 2017 appearance and that Family Court erred in failing to advise her of that right. The purpose of providing counsel to certain persons [*3]involved in Family Court proceedings is to provide protection against “infringements of fundamental interests and rights” (Family Ct Act § 261). The grandmother was listed as a respondent in the mother’s modification petition brought under Family Ct Act article 6, part 3 … , which sought sole legal and primary physical custody of the child. As of the initial appearance on that petition in March 2017, the grandmother jointly shared “secondary legal custody” with the mother. Accordingly, the mother’s request for sole legal custody of the child, if granted, had the potential to alter the grandmother’s custodial rights. We are mindful that the mother subsequently withdrew her request for custody and instead advocated for the child’s placement with the grandmother. However, she did not do so until the fact-finding hearing, nearly four months after the March 2017 appearance. Family Ct Act § 262 (a) requires the court to advise an eligible person of the right to counsel “[w]hen such person first appears in court” … . As the grandmother was potentially eligible for assigned counsel under Family Ct Act § 262 (a), upon a showing of the required financial circumstances, the court was obligated to advise her of that right at the March 2017 appearance … . Matter of Renee S. v Heather U., 2021 NY Slip Op 03635, Third Dept 6-10-21

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea:

… [I]n the context of a plea of guilty, an attorney’s failure to advise a criminal defendant, or affirmative misadvice to the defendant, regarding the clear removal consequences of the plea constitutes deficient performance” … . In such cases, relief will depend upon whether the defendant can demonstrate prejudice as a result thereof … . …

… [T]he defendant avers that he was not advised of the immigration consequences of his pleas of guilty, and there is no evidence in the transcript of the extremely brief plea proceeding that defense counsel advised the defendant of such consequences. Moreover, the defendant’s averments, including that he has been in a long-term relationship with a United States citizen, with whom he has four children, sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational … . People v Bernard, 2021 NY Slip Op 03601, Second Dept 6-9-21

 

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