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MEMORANDUM PREPARED BY PLAINTIFF’S GENERAL COUNSEL PROTECTED FROM DISCLOSURE BY COMMON INTEREST PRIVILEGE (FIRST DEPT).

The First Department determined the common interest privilege applied to a memorandum by plaintiff’s general counsel:

The motion court properly held that a legal memorandum prepared by plaintiff’s General Counsel, and addressed to its Chief Executive Officer, which provided a summary and analysis of its pending litigation matters, including the litigation at issue, and subsequently shared with potential merger partners during the due diligence period pursuant to a common interest agreement, was privileged and protected from disclosure.

The common interest privilege is an exception to the traditional rule that the presence of a third-party at a communication between counsel and client is sufficient to deprive the communication of confidentiality. The common interest doctrine is a limited exception to waiver of the attorney-client privilege, and requires that: (1) the underlying material qualify for protection under the attorney-client privilege, (2) the parties to the disclosure have a common legal interest, and (3) the material must pertain to pending or reasonably anticipated litigation for it to be protected. The record, here, demonstrates that the common interest agreement was entered into in reasonable anticipation of litigation … .  Kindred Healthcare, Inc. v SAI Global Compliance, Inc., 2019 NY Slip Op 01164, First Dept 2-14-19

 

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DEFENDANT SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO PAY ATTORNEY’S FEES AS ORDERED BY THE COURT, THE CONTEMPT PROCEEDINGS WERE NOT FRIVOLOUS AND SANCTIONS SHOULD NOT HAVE BEEN IMPOSED FOR BRINGING THE CONTEMPT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s law firm (Villar firm) was entitled to attorney’s fees for work done before the firm was discharged without cause, the contempt action brought by the firm against defendant for failure to pay the fees as ordered by the court was valid and defendant should have been held in contempt, and the contempt proceedings were not frivolous or designed to harass. Therefore sanctions for bringing the contempt proceedings should not have been imposed:

To prevail on a motion to hold another party in civil contempt, the movant is “required to prove by clear and convincing evidence (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 in a civil contempt proceeding need not establish “that the disobedience [was] deliberate or willful” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . …

“In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a] …). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c] …). Contrary to the Supreme Court’s determination, there is no evidence in the record to support a finding that the Villar firm pursued the contempt motion to harass the parties for settling their case … . Rhodes v Rhodes, 2019 NY Slip Op 01113, Second Dept 2-13-19

 

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FAILURE TO IDENTIFY AN APPEALABLE ISSUE IN AN ANDERS BRIEF ARGUING THAT THERE ARE NO NONFRIVOLOUS ISSUES WARRANTING APPEAL DOES NOT NECESSARILY REQUIRE THE ASSIGNMENT OF NEW APPELLATE COUNSEL, HERE THE MISSING ISSUE WAS DEEMED INCONSEQUENTIAL AND THEREFORE THERE WAS NO NEED FOR ANOTHER ASSESSMENT BY ANOTHER ATTORNEY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, announced a new rule concerning when new counsel should be assigned because an Anders brief did not demonstrate the absence of any issues which could be raised on appeal. The defendant had pled guilty and received the agreed upon sentence, which was the minimum sentence allowed. The defendant had also waived his right to appeal. The Anders brief addressed the plea and sentence (finding no appealable issues) but did not address the waiver of appeal. The Second Department determined there was no need to assign new counsel to the appeal because whether the waiver of appeal was valid or not, the result would not be affected:

… [A]n Anders brief will not be deemed deficient under Step 1 of the Matter of Giovanni S. [89 AD3d at 252] analysis when assigned counsel fails to identify an issue, if it is demonstrable from the face of the brief that the missing issue would be inconsequential. We do not suggest that this new “Matter of Giovanni S.-Murray rule” be applied where any missing issue would not be inconsequential. Since the brief would be sufficient under these circumstances, the court would then proceed to Step 2 of the Matter of Giovanni S. analysis, which requires an independent review of the record to determine whether counsel’s assessment that there are no nonfrivolous issues for appeal is correct. This refinement safeguards the indelible right of a criminal defendant to a conscientious, effective, and zealous advocate that lies at the heart of Anders protection … . At the same time, it recognizes a measure of practicality, that congested courts operating under tight budgets, with limited personnel, and finite taxpayer money, not be required to engage in Sisyphean efforts that cannot, as a matter of law, lead anywhere. People v Murray, 2019 NY Slip Op 01101, Second Dept 2-13-19

 

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PLAINTIFF’S ACTION WAS NOT FRIVOLOUS WITHIN THE MEANING OF 42 USC 1988, PREVAILING PARTY SHOULD NOT HAVE BEEN AWARDED ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the award of attorney’s fees to the prevailing party pursuant to 42 USC 1988 based upon the finding that plaintiff’s action was frivolous should not have been granted. Plaintiff sued the county claiming that her employment was terminated in retaliation for her complaints about the special education provided to her son:

The court granted the motion on the basis of 42 USC § 1988, which authorizes the award of attorneys’ fees to a prevailing defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation” … . Nonetheless, it remains ” very rare [for] victorious defendants in civil rights cases [to] recover attorneys’ fees’ “… .

Here, in determining that plaintiff’s claim against Whittemore [the county personnel director] was frivolous, the court relied on plaintiff’s testimony during her deposition. During her deposition, however, plaintiff specifically stated that the factual basis for her claim against Whittemore was that he was the personnel director and his conduct caused injury to her because he allowed someone else to be placed in the position to which she sought to be reinstated. Contrary to the court’s determination, any inability of plaintiff to provide further elaboration during her deposition, which was taken early in the litigation shortly after commencement of the action, did not establish that her claim against Whittemore was frivolous. Moreover, a claim may not “be deemed groundless where [, as here,] the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him [or her] as a matter of law” … . Although the civil rights allegations against Whittemore may have been weak, we cannot deem plaintiff’s claim “frivolous, unreasonable, or without foundation” … . Calhoun v County of Herkimer, 2019 NY Slip Op 01025, Fourth Dept 2-8-19

 

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WHETHER TO MOVE FOR A MISTRIAL IS A DECISION FOR DEFENSE COUNSEL, NOT DEFENDANT, THE JUDGE’S ALLOWING DEFENDANT TO DECIDE VIOLATED THE SIXTH AMENDMENT RIGHT TO COUNSEL (FOURTH DEPT).

The Fourth Department, although finding the error harmless, determined that the trial judge should not have left the decision whether or not to move for a mistrial up to the defendant, as opposed to defense counsel. The basis for a potential mistrial was the medical examiner’s testimony that the drowning death of the victim was a “homicide:”

Defendant … contends in his pro se supplemental brief that he was denied his Sixth Amendment right to counsel when the court allowed him to decide, against the professional judgment of his counsel, not to request a mistrial as the remedy for the Medical Examiner’s improper testimony. We agree. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . Defense counsel has ultimate decision-making authority over matters of trial strategy, including the decision whether to request a mistrial … . Here, defense counsel explained to the court that he recommended that defendant move for a mistrial, but that defendant instructed him not to do so. The court then addressed defendant directly and confirmed that defendant wished to proceed with trial. Thus, the court ” denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him’ ” … . People v Szatanek, 2019 NY Slip Op 00794, Fourth Dept 2-1-19

 

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DEFENSE COUNSEL’S TAKING A POSITION ADVERSE TO DEFENDANT’S PRO SE MOTION TO WITHDRAW HIS GUILTY PLEA VIOLATED DEFENDANT’S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined defense counsel violated defendant’s right to effective assistance of counsel by taking a position adverse to defendant’s pro se motion to vacate his guilty plea:

Defense counsel’s repeated assertions that there was no basis for defendant’s motion and that his plea had been entered knowingly and voluntarily created a conflict of interest between him and defendant, thereby giving rise to County Court’s obligation to assign new counsel before deciding the motion … . Accordingly, we vacate the sentence and remit the matter for assignment of new counsel and reconsideration of defendant’s motion. People v Faulkner, 2019 NY Slip Op 00645, Third Dept 1-31-19

 

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REGULATIONS PROMULGATED BY THE OFFICE OF VICTIM SERVICES WHICH LIMITED THE AVAILABILITY OF ATTORNEY’S FEES IN THE EARLY STAGES OF A CLAIM CONFLICT WITH THE CONTROLLING STATUTE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined that certain changes made by the Office of Victim Services (OVS) to regulations affecting the availability of attorney’s fees in early stages of a claim conflicted with the controlling statute:

Executive Law § 626 (1) requires OVS to reimburse crime victims for out-of-pocket loss, which “shall . . . include . . . the cost of reasonable attorneys’ fees for representation before [OVS] and/or before the [A]ppellate [D]ivision upon judicial review” … . Our primary purpose in interpreting this provision “is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” … . Applying these principles, we find no authorization in the statute’s plain language for OVS to conclude that counsel fees are never”reasonable” during the early stages of a claim and, thus, to categorically exclude awards of counsel fees for such representation in every instance. Neither this statutory language nor the similar language of Executive Law § 623 (3) — that authorizes OVS to promulgate regulations for the approval of counsel fees “for representation before [OVS] and/or before the [A]ppellate [D]ivision” — distinguishes among the stages of a victim’s representation before OVS, nor does the statutory text suggest that OVS may do so. Matter of Juarez v New York State Off. of Victim Servs., 2019 NY Slip Op 00653, Third Dept 1-31-19

 

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THE LETTER OF ENGAGEMENT SPELLED OUT WHAT THE ATTORNEYS AGREED TO DO, DEFENDANT-ATTORNEYS’ MOTION TO DISMISS THE LEGAL MALPRACTICE COMPLAINT ON THE BASIS OF DOCUMENTARY EVIDENCE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department found that the retainer agreement determined the scope of what the attorneys agreed to do and the motion to dismiss the legal malpractice complaint was properly granted. The plaintiff had retained the defendants after he was expelled form the New York College of Osteopathic Medicine:

The letter of engagement provided, in relevant part, that: “Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.” * * *

An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211(a)(1), on documentary evidence grounds. Attallah v Milbank, Tweed, Hadley & McCloy, LLP,  2019 NY Slip Op 00583, Second Dept 1-30-19

 

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DEFENSE COUNSEL GAVE DEFENDANT THE WRONG INFORMATION ABOUT THE MAXIMUM SENTENCE SHOULD HE GO TO TRIAL, DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY, EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined: (1) the plea was not voluntary because defendant was given the wrong information about the possible maximum sentence if he went to trial; and (2) the error is an exception to the preservation requirement for appeal because defendant could not have known of the error at the time of the plea:

The Court of Appeals … has carved out an exception to the preservation doctrine “because of the actual or practical unavailability of either a motion to withdraw the plea’ or a motion to vacate the judgment of conviction,'” in certain instances, reasoning that ” a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge'” … . Moreover, the defendant’s contention that his plea of guilty was not knowing, voluntary, and intelligent survives his valid appeal waiver … . …

Here, the defendant’s plea was not made knowingly, voluntarily, and intelligently. The record demonstrates that the defendant was not presented with legitimate alternatives about the maximum sentence he faced in the event he chose to reject the People’s plea offer and was convicted after trial. … On this record, given the difference between the incorrect maximum aggregate sentence of 3 to 5 years that defense counsel communicated to the defendant, the actual maximum aggregate sentence of 2 to 4 years, and the bargained-for sentence of 1½ to 3 years, the threat of a higher sentence rendered the defendant’s plea involuntary … . People v Keller, 2019 NY Slip Op 00620, Second Dept 1-30-19

 

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NEW YORK CITY HOUSING AUTHORITY COULD NOT AVOID DISCLOSURE OF RELEVANT DOCUMENTS BY RELYING ON ATTORNEY-CLIENT PRIVILEGE BECAUSE IT HAD PLACED THE KNOWLEDGE OF ITS LAW DEPARTMENT AT ISSUE, MOTION TO COMPEL WAS PROPERLY GRANTED, MONETARY SANCTIONS WERE PROPERLY ORDERED, WILLFUL AND CONTUMACIOUS BEHAVIOR NEED NOT BE SHOWN UNLESS A DRASTIC REMEDY LIKE STRIKING THE PLEADINGS IS IMPOSED (FIRST DEPT).

The First Department, over a dissent, determined Supreme Court properly sanctioned the defendant, the New York City Housing Authority (NYCHA), for failure to turn over documents in the discovery phase of a contract action. NYCHA alleged that third party defendants “engaged in [a]conspiracy to defraud NYCHA by submitting fraudulent certifications attesting that plaintiff’s former owners had not been charged or convicted of a crime. … Third-party defendants maintain that they informed NYCHA that the charges … had been terminated with a conditional discharge based upon the payment of less than $200 in court costs. They assert that NYCHA extended all three of the contracts … while having full knowledge of these facts.” NYCHA alleged the contested documents were protected by attorney-client privilege:

[Supreme Court] granted plaintiff and third-party defendants’ motion to compel [NYCHA] to comply with discovery orders to the extent of ordering NYCHA to produce discovery material previously redacted on the ground of attorney-client privilege … and … to pay $3,000 as a sanction for its behavior during discovery and for violation of prior court orders, and to certify that it did not possess additional documents responsive to the discovery demands or court orders … . * * *

The court correctly found that having placed the knowledge of its law department at issue, NYCHA waived attorney-client privilege with respect to the subject documents. NYCHA cannot seek to prevent the disclosure of evidence showing that its attorneys — the very individuals who performed the bid review function for NYCHA — recommended that NYCHA award the contracts to plaintiff despite knowledge of the operative facts … .

Further, NYCHA may not rely on attorney-client privilege while selectively disclosing other self-serving privileged communications … .

The motion court providently exercised its discretion in finding that NYCHA’s conduct during discovery warranted sanctions. …

… [I]t is unnecessary to demonstrate willful and contumacious behavior in order to impose a sanction like a monetary sanction or preclusion, as opposed to a more drastic sanction such as the striking of a pleading … . Metropolitan Bridge & Scaffolds Corp. v New York City Hous. Auth., 2019 NY Slip Op 00526, First Dept 1-24-19

 

 

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