Attorneys – Page 70 – New York Appellate Digest

DELIBERATE ACTS BY DEFENDANT’S ATTORNEY RESULTED IN THE DEFAULT, DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s attorney’s deliberate acts required denial of defendant’s motion to vacate the default:

The affirmations of the defendant’s attorney reveal that he made a conscious decision not to submit any papers in opposition to the plaintiff’s motion even though the Supreme Court gave him ample opportunity to do so. In addition, defense counsel waited until the plaintiff served a proposed default order, more than four months after the court declared the defendant to be in default, before serving the defendant’s motion to vacate. Under these circumstances, the defendant’s failure to oppose the plaintiff’s motion was willful … .

The defendant claims that her default was caused by law office failure based on defense counsel’s statement in his affirmation that his “office will take full responsibility.” At most, defense counsel’s advice, and the defendant’s decision to follow it, constituted a misguided strategy, not law office failure … . Thus, the defendant failed to establish a reasonable excuse for her default … . Bove v Bove, 2019 NY Slip Op 01555, Second Dept 3-6-19

March 6, 2019

Agency, Attorneys, Contract Law

ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT WHICH THEREFORE BOUND THE PLAINTIFF TO ITS TERMS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s attorney had apparent authority to sign a stipulation of settlement which was therefore binding on plaintiff:

“A stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation” … . Here, the plaintiff is bound by the settlement agreement signed by her former attorney. Even if the attorney lacked actual authority to enter into the settlement agreement on the plaintiff’s behalf, a finding that he had the apparent authority to do so is warranted by the facts … . The plaintiff’s former attorney participated in the mediation with the plaintiff’s knowledge and consent, and represented to the mediator and to defense counsel that a representative from his office had spoken with the plaintiff and obtained authority to settle the action for the sum of $150,000. Additionally, the law firm that employed the attorney who participated in the mediation was the plaintiff’s attorney of record in the action, and attorneys from that law firm signed and verified the summons and complaint and signed and certified a note of issue filed in the action … . Amerally v Liberty King Produce, Inc., 2019 NY Slip Op 01550, Second Dept 3-5-19

March 6, 2019

Appeals, Attorneys, Criminal Law

WAIVER OF APPEAL DID NOT PRECLUDE CONSIDERATION OF AN ISSUE WHICH AROSE AFTER THE WAIVER, AT SENTENCING ALL WERE UNDER THE MISCONCEPTION DEFENDANT WAS A SECOND FELONY OFFENDER, SENTENCING JUDGE HAD SINCE BECOME THE PUBLIC DEFENDER, THE PUBLIC DEFENDER’S OFFICE COULD NOT, THEREFORE, REPRESENT DEFENDANT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant’s waiver of appeal did not preclude consideration of an issue that came up after the waiver and the public defender’s office could not represent defendant because the sentencing judge had since become the public defender. At sentencing and at the time of the waiver of appeal, all were under the misconception defendant was a second felony offender:

… [D]efendant’s waiver of the right to appeal regarding his plea to the probation violation was entered under the misconception by all parties that defendant was a second felony drug offender. Accordingly, the waiver does not preclude our review of defendant’s appeal on resentencing because “the plea was entered pursuant to conditions that changed after defendant’s waiver” … . We agree with defendant’s argument on appeal that the Albany County Public Defender’s office was precluded, as a matter of law, from representing him at the resentencing hearing because the Public Defender, prior to being appointed to that position, was the County Judge who presided over and initially sentenced him in this matter (see Judiciary Law § 17 … ). Accordingly, the judgment resentencing defendant must be reversed and the matter remitted for resentencing, with different representation assigned to defendant. People v Sumter, 2019 NY Slip Op 01460, Third Dept 2-28-19

February 28, 2019

Attorneys, Trusts and Estates

$1 MILLION ATTORNEY’S FEE REQUEST CUT IN HALF BY SURROGATE’S COURT AND REDUCED A FURTHER $100,000 BY THE FIRST DEPT CITING EXCESSIVE CHARGES FOR IN-FIRM DISCUSSIONS AND UNNECESSARY WORK (FIRST DEPT).

The First Department determined Surrogate’s Court properly reduced by half the $1 million attorney’s-fees request, which represented 1/3 of the estate and trust assets. First Department further reduced the fees by another $100,000:

Respondent’s counsel sought approval for legal fees in the amount of $1,037,183 for their representation of respondent. The amount requested represented 33.7% of the estate and trust assets. The Surrogate noted that the fees were far in excess of a typical fee for the services performed by respondent’s counsel, concluded that the fees were excessive, and fixed the fees in the total amount of $520,000.

Although the Surrogate reduced the fees from the exorbitant amount originally requested, we conclude that the fees as reduced are still excessive given the size of the estate … . While there is no set formula for fee awards, upon our review of counsel’s time records and in the exercise of discretion, we conclude that a further reduction in the amount of $100,000 is warranted. This additional reduction is necessary to properly account for excessive charges for inter-office communications and discussions amongst members of the firm, and unnecessary work performed … . Matter of SR, 2019 NY Slip Op 01343, First Dept 2-26-19

February 26, 2019

Attorneys, Battery, Civil Procedure, Privilege

PLAINTIFF’S DEPLORABLE MISCONDUCT, INCLUDING ACCESSING DEFENDANT’S ATTORNEY-CLIENT COMMUNICATIONS, DELETING RELEVANT DOCUMENTS AND LYING UNDER OATH, IN DELAWARE COURT PROCEEDINGS REQUIRED DISMISSAL OF PLAINTIFF’S PERSONAL INJURY ACTION AGAINST THE SAME DEFENDANT IN NEW YORK (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the plaintiff’s personal injury action should have been dismissed because of plaintiff’s misconduct in a Delaware court proceeding. The New York personal injury action alleged plaintiff was injured in an physical fight with the defendant which stemmed from the Delaware litigation. The Delaware court found that plaintiff had engaged in deplorable misconduct by accessing defendant’s privileged attorney-client communications, deleting relevant documents and lying under oath:

Plaintiff’s improper and willful access of defendant’s privileged communications and spoliation of evidence supports dismissal of his claims in this action (CPLR 3103[c]; CPLR 3126[3]; Lipin v Bender , 84 NY2d 562 [1994] [dismissing the plaintiff’s complaint because her improper taking of the defendant’s attorney/client documents and work product caused prejudice to the defendant and irreparably tainted the litigation process]). Among the materials improperly accessed here was a privileged memorandum from defendant’s counsel about his strategy concerning the incident underlying this action. Further, plaintiff’s counsel referred to the contents of some of the privileged communications during motion practice in this litigation. Since “[p]laintiff’s knowledge . . . can never be purged,” and he would “carry [that knowledge] into any new attorney-client relationship,” we find that dismissal of the complaint is “the only practicable remedy here” … . Shawe v Elting, 2019 NY Slip Op 01374, First Dept 2-26-19

February 26, 2019

Attorneys, Criminal Law, Evidence

DEFENSE COUNSEL’S INTRODUCING INTO EVIDENCE A SEARCH WARRANT APPLICATION WHICH IMPLICATED THE DEFENDANT IN CRIMES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defense counsel’s placing in evidence a search warrant application which included prejudicial information about crimes involving the defendant amounted to ineffective assistance of counsel:

… [R]ather than a single error, we are confronted with a set of three closely-related errors at two stages of the trial: the failure to redact the irrelevant and prejudicial hearsay from the search warrant application before introducing it for the limited purpose of revealing [the applicant’s] errors; the failure to request a limiting instruction that would have advised the jury of that purpose; and the subsequent failure to object to the prosecutor’s repeated exhortations to the jury to rely on the application’s hearsay information as proof of defendant’s guilt. These errors, as well as the prejudicial testimony elicited from the detective, gain particular significance in the light of the close nature of the other evidence. The admissible proof that defendant constructively possessed the contraband and had the requisite intent to sell, although adequate to support the verdict, was not overwhelming. Further, the information in the application directly contradicted counsel’s theory of defense, which was that the girlfriend, and not defendant, possessed and sold the drugs found in the apartment. Thus, although counsel’s challenged conduct took place in the context of an otherwise effective performance, we find that the cumulative effect of his errors deprived defendant of a fair trial and requires reversal of the judgment … . People v Newman, 2019 NY Slip Op 01263, Third Dept 2-20-19

February 21, 2019

Attorneys

ACTIONS TAKEN BY A NEW YORK ATTORNEY WHO IS NOT IN COMPLIANCE JUDICIARY LAW 470, WHICH REQUIRES AN OFFICE IN NEW YORK, ARE NOT A NULLITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined that actions taken by an attorney who is admitted to practice in New York but is not in compliance with New York office requirement are not a nullity:

We … hold that a violation of Judiciary Law § 470 [requiring a New York office] does not render the actions taken by the attorney involved a nullity. Instead, the party may cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel … . Where further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy and the individual attorney may face disciplinary action for failure to comply with the statute … . This approach ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470. Arrowhead Capital Fin., Ltd. v Cheyne Specialty Fin. Fund L.P., 2019 NY Slip Op 01124, CtApp 2-14-19

February 14, 2019

Attorneys, Mental Hygiene Law

OFFICE OF MENTAL HEALTH IS NOT REQUIRED TO ALLOW COUNSEL FROM MENTAL HEALTH LEGAL SERVICES TO PARTICIPATE IN TREATMENT PLANNING FOR A SEX OFFENDER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissenting opinion, determined that a Mental Hygiene Legal Services (MHLS) attorney need not be granted permission to attend a treatment planning session for a client in the Sex Offender Treatment Program:

We hold that MHLS counsel is not entitled to be given an interview and an opportunity to participate in treatment planning simply by virtue of an attorney-client relationship with an article 10 respondent. * * *

… [T]he statutory language of Mental Hygiene Law §§ 10.10 (b) and 29.13 (b), as well as the relevant legislative history, support the conclusion that MHLS counsel was not intended to be included, as a matter of law, within the terms “authorized representative” or “significant individual.” Thus, OMH [Office of Mental Health] is not required, upon the respondent’s request, to provide an interview and an opportunity to participate in treatment planning to MHLS counsel who has only a professional, attorney-client relationship with an article 10 respondent. However, as OMH concedes, a facility has the discretion to permit MHLS counsel to participate in treatment planning and, in a particular case, it is possible that counsel could develop and demonstrate a sufficient personal relationship with a patient such that counsel would qualify as a “significant individual . . . otherwise concerned with the welfare of the patient,” entitled to participate therein. Matter of Mental Hygiene Legal Serv. v Sullivan, 2019 NY Slip Op 01122, CtApp 2-14-19

February 14, 2019

Appeals, Attorneys, Criminal Law, Evidence

FAILURE TO GRANT AN ADJOURNMENT TO ALLOW DEFENSE COUNSEL, WHO HAD BEEN ACTING IN A LIMITED ADVISORY CAPACITY, TO ADEQUATELY PREPARE FOR A SUPPRESSION HEARING DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL, NEW SUPPRESSION HEARING ORDERED, APPEAL HELD IN ABEYANCE (SECOND DEPT).

The Second Department held the appeal in abeyance to allow a new suppression hearing. defense counsel. Defense counsel was acting in a limited advisory capacity when he was asked by the judge to conduct the suppression hearing. Defendant asked for an adjournment to allow counsel to review the voluminous discovery materials, but the request was denied. The Second Department held that the denial of the adjournment deprived defendant of his right to counsel:

“[T]he right of a defendant to be represented by an attorney means more than just having a person with a law degree nominally represent him [or her] upon a trial and ask questions” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense and who is familiar with, and able to employ . . . basic principles of criminal law and procedure” … .

Here, the Supreme Court improvidently exercised its discretion in denying the defendant’s request for an adjournment to give his attorney more time to prepare for the suppression hearing. Prior to the hearing, counsel acted in the limited capacity of advisor since the defendant wished to proceed pro se. However, at the court’s urging, counsel agreed to represent the defendant at the suppression hearing but expressed his concern that he had not had an adequate opportunity to review voluminous discovery materials … . People v Costan, 2019 NY Slip Op 01089, Second Dept 2-13-19

February 13, 2019

Attorneys

PLAINTIFF’S PRO SE MOTION TO DISQUALIFY DEFENDANT’S LAW FIRM PROPERLY GRANTED, AN ATTORNEY FROM THE FIRM RETAINED BY PLAINTIFF WORKED ON PLAINTIFF’S CASE AND SUBSEQUENTLY JOINED THE LAW FIRM REPRESENTING DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff’s pro se motion to disqualify the law firm representing defendant (Ray, Mitiv) was properly granted. An attorney who worked for a law firm retained by plaintiff and who worked almost exclusively on plaintiff’s case left the firm retained by plaintiff and joined Ray, Mitev:

“A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” … . “A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion”… . However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety … .

Here, the plaintiff’s showing satisfied all three of the relevant factors, giving rise to an irrebuttable presumption of disqualification … . Accordingly, based on the appearance of impropriety, disqualification was warranted … . Janczewski v Janczewski, 2019 NY Slip Op 01062, Second Dept 2-13-19