Attorneys – Page 91 – New York Appellate Digest

Attorneys, Criminal Law, Immigration Law

FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT).

The First Department, over a dissent, determined defendant should be given the opportunity to move to vacate his guilty plea because defense counsel did not make it clear that pleading guilty to an aggravated felony triggered deportation. Informing defendant of a risk of deportation was not sufficient and constituted ineffective assistance of counsel:

Since an aggravated felony results in mandatory deportation … , counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he “could be deported” … . People v Doumbia, 2017 NY Slip Op 06402, First Dept 9-5-17

CRIMINAL LAW (ATTORNEYS, FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, FAILURE TO CLEARLY INFORM DEFENDANT THAT PLEADING GUILTY TO AN AGGRAVATED FELONY TRIGGERS DEPORTATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, MERELY TELLING DEFENDANT THERE WAS A RISK OF DEPORTATION WAS NOT ENOUGH (FIRST DEPT))

September 5, 2017

Attorneys, Civil Procedure

WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT).

The Second Department determined the successful motion to dismiss a civil suit did not mandate the award of attorney’s fees under the CPLR:

… “[U]nder the American Rule as applied to statutory entitlement to attorneys’ fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority”… . * * *

The relevant phrase of CPLR 3220 stating that the claimant “shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer” demonstrates the Legislature’s intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party’s expenses. This phrase also defines the recoverable expenses as those “necessarily” expended “for trying the issue of damages.” CPLR 3220 further provides that those expenses should be determined by the judge “before whom the case is tried.” Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney’s fees and costs to a party … who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney’s fees and costs … , the public policy of the American Rule militates against adoption of that interpretation … . Saul v Cahan, 2017 NY Slip Op 06391, Second Dept 8-30-17

CIVIL PROCEDURE (WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))/ATTORNEYS (FEES, CIVIL PROCEDURE, WINNING A MOTION TO DISMISS DOES NOT TRIGGER THE AWARD OF ATTORNEY’S FEES UNDER CPLR 3220 (SECOND DEPT))

August 30, 2017

Attorneys, Criminal Law

FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined that defendant’s for cause challenge to a sworn juror should have been granted. Defendant was accused of killing his ex-wife, Powell. The juror was a partner in a law firm which represented Powell’s parents in their action to gain custody of Powell’s (and defendant’s) child.

… [W]here the challenging party acquires new information that had not been previously available after a juror has already been sworn, the trial court may entertain a challenge made for cause made before the first trial witness is sworn … . …

The governing law dictates that a juror should be discharged for cause where the juror is shown to have an implied bias; that is, if the juror shares a relationship with any person involved in the trial the nature of which is likely to preclude him or her from rendering an impartial verdict … .

… It bears noting that the juror did not personally represent Powell’s parents, and that the relationship shared by her firm and Powell’s family was purely of a professional nature. Nonetheless, the law firm owed Powell’s family a clear and paramount duty to represent their interests. As the juror recognized and stated in response to the court’s inquiry, the conflicts that arise therefrom — under the particular circumstances presented here — are imputed to her by law … . Further, the effect of the juror’s involvement cannot be said to be remote, as the verdict reached by this jury would inevitably affect the custody proceedings; indeed, by direct application of statutory law, a guilty verdict in this criminal action necessarily precluded an award of custody or visitation to defendant in that matter … .

As a matter of well-established law, a juror’s assurances of impartiality are inadequate to cure an implied bias … . People v Powell, 2017 NY Slip Op 06104, Third Dept 8-10-17

CRIMINAL LAW (JURORS, IMPLIED BIAS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AND ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO A SWORN JUROR , AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/ATTORNEYS (IMPLIED BIAS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/IMPLIED BIAS (ATTORNEYS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))

August 10, 2017

Attorneys

MASSACHUSETTS ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT).

The Third Department denied the applications of two Massachusetts attorneys (Fee and Lawless) for a waiver of the Judiciary Law requirement that they maintain a physical office in New York in order to practice in New York. The Third Department, following the 2nd Department and disagreeing with the 1st Department, determined the legal work performed by the attorneys to date was not null and void:

Upon our review of Judiciary Law § 470, we find that it unambiguously provides, without exception, that a prerequisite for a nonresident attorney to practice law in this state is that he or she maintain a physical law office here. In our view, Fee’s and Lawless’ requests for a waiver of the clear mandate of Judiciary Law § 470 “finds no support in the wording of the provision and would require us to take the impermissible step of rewriting the statute” … . In addition to holding that no statutory authority exists for granting the waivers, we also find that creating an avenue for nonresident attorneys to obtain a waiver of the law office requirement would amount to the type of rulemaking reserved for the Ct. of Appeals (see generally Judiciary Law § 53). Accordingly, Fee’s and Lawless’ applications are denied.

Finally, we reject plaintiff’s contention that all of the work performed by Fee and Lawless in this action should be declared void from the beginning. In reaching this conclusion, we adopt the 2nd Department’s reasoning in Elm Mgt. Corp. v Sprung (33 AD3d 753 [2006]) that “the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law . . . does not create a ‘nullity’ or render all prior proceedings void per se” … , and we note our disagreement with the 1st Department’s cases holding to the contrary … . Stegemann v Rensselaer County Sheriff’s Off., 2017 NY Slip Op 06114, Third Dept 8-10-17

ATTORNEYS (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))/JUDICIARY LAW (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))

August 10, 2017

Attorneys

JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the suit against plaintiff’s divorce attorneys alleging a violation of Judiciary Law 487 was properly dismissed, both because of the failure to prove an intent to deceive the court, and the failure to prove pecuniary damage:

Judiciary Law § 487(1) provides that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he [or she] forfeits to the party injured treble damages, to be recovered in a civil action.” “A violation of Judiciary Law § 487 requires an intent to deceive” … Here, the evidence adduced at trial, including the testimony of [plaintiff’s attorney], supports the trial court’s determination that [the attorney] did not act with the requisite “intent to deceive the court or any party” in applying for the receivership … .

In any event, to succeed on a cause of action to recover damages under Judiciary Law § 487, the plaintiff must demonstrate that he or she “suffered . . . damages which were proximately caused by the deceit allegedly perpetrated on him [or her] or on the court” … . The evidence adduced at trial also supports the trial court’s conclusion that the plaintiff failed to establish that she suffered pecuniary damages as a result of the alleged deceit. Dupree v Voorhees, 2017 NY Slip Op 06062, Second Dept 8-9-17

ATTORNEYS (JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT))/JUDICIARY LAW 487 (ATTORNEYS, JUDICIARY LAW 487 ACTION AGAINST ATTORNEYS, ALLEGING AN INTENTION TO DECEIVE THE COURT IN A DIVORCE PROCEEDING, PROPERLY DISMISSED (SECOND DEPT))

August 9, 2017

Attorneys, Civil Procedure, Insurance Law

PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT).

The Second Department determined the file for a pre-litigation investigation of a fire insurance claim done by a law firm hired by the insurer was discoverable. The court further found the attorney who conducted the investigation was properly disqualified because she may be a fact witness in the underlying litigation, but her law firm should not have been disqualified because her testimony would not be prejudicial to the client’s case:

CPLR 3101(a) entitles parties to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Discovery determinations should be evaluated on a case-by-case basis “with due regard for the strong policy supporting open disclosure” … .

“[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding [whether to pay or reject a claim] are made in the regular course of its business” … . Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured … .

Here, the Supreme Court properly compelled disclosure, as the material … was prepared by [the law firm] as part of [the insurer’s] investigation into the claim, and was not primarily and predominantly of a legal character … . …

The Supreme Court providently exercised its discretion in disqualifying … the attorney who conducted the investigation … since she was likely to be a witness on a significant issue of fact … . However, it improvidently exercised its discretion in disqualifying [the law firm] itself …. Pursuant to Rule 3.7(b)(1) of the Rules of Professional Conduct, “[a] lawyer may not act as [an] advocate before a tribunal in a matter if . . . another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client”… . Here, there was no showing that [the attorney’s] testimony may be prejudicial to [the client’s] case … . Advanced Chimney, Inc. v Graziano, 2017 NY Slip Op 05927, Second Dept 8-2-17

INSURANCE LAW (DISCOVERY, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/CIVIL PROCEDURE (INSURANCE LAW, ATTORNEYS, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))/ATTORNEYS (INSURANCE LAW, PRE-LITIGATION INVESTIGATION BY THE INSURER’S LAW FIRM INTO WHETHER TO REJECT OR PAY AN INSURANCE CLAIM IS NOT PRIVILEGED AND IS DISCOVERABLE, THE ATTORNEY WHO CONDUCTED THE INVESTIGATION WAS PROPERLY DISQUALIFIED FROM THE UNDERLYING LITIGATION, BUT HER LAW FIRM SHOULD NOT HAVE BEEN DISQUALIFIED (SECOND DEPT))

August 2, 2017

Attorneys, Fiduciary Duty

DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT).

The Second Department determined Supreme Court properly found the defendant attorney’s retainer agreement unenforceable and properly ordered the attorney to disgorge the $65,000 fee which had been paid. The attorney had agreed to acted as both a broker and attorney in the sale of a business. The sale was not completed:

… [T]he plaintiffs established, prima facie, that the defendants acted as both attorney and broker in connection with the possible sale of the plaintiff company … , and that the retainer agreement provided for a contingency fee to compensate them in the event a sale of the company was completed. In opposition, the defendants failed to raise a triable issue of fact … . Accordingly, the Supreme Court properly determined that the retainer agreement is unenforceable because it created a nonconsentable conflict of interest under the Rules of Professional Conduct (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][2]; NY St Bar Assn Comm on Prof Ethics Op 1015 [2014] … ). The fact that the defendants are seeking to recover under the hourly fee provision of the retainer agreement, instead of the contingency fee provision, does not alter this result. The conflict created by the contingent fee existed during the representation, regardless of whether a sale of the business was ultimately completed. Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ first counterclaim to recover fees under the retainer agreement.

An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered … .Here, the plaintiffs discharged the defendants for cause based on their nonconsentable conflict of interest in violation of Rules of Professional Conduct (22 NYCRR 1200.0) 1.7 … ). Thus, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment dismissing the defendants’ second counterclaim to recover in quantum meruit. Further, although the first cause of action is styled as one to recover damages for breach of fiduciary duty, it does not seek damages allegedly caused by such a breach, but merely for disgorgement of fees already paid … . Accordingly, upon renewal, the Supreme Court properly awarded the plaintiffs summary judgment on the first cause of action, in effect, to disgorge fees which had already been paid … . Jay Deitz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 2017 NY Slip Op 05940, Second Dept 8-2-17

ATTORNEYS (DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/BROKERS (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, DEFENDANT ATTORNEY COULD NOT ACT AS BOTH BROKER AND ATTORNEY IN THE SALE OF A BUSINESS, RETAINER AGREEMENT UNENFORCEABLE, FEES ALREADY PAID MUST BE RETURNED (SECOND DEPT))

August 2, 2017

Attorneys, Privilege

SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT.

The Third Department determined a law firm was properly disqualified from representing mother because an associate at the firm had previously represented father in a case involving the same child:

We … address whether, due to the associate’s former attorney-client relationship with the father and current employment with the law firm, the principal is also precluded from representing the mother. While the principal has apparently never represented the father, “where an attorney working in a law firm is disqualified from undertaking a subsequent representation opposing a former client, all the attorneys in that firm are likewise precluded from such representation” … . Application of this rule creates a rebuttable presumption that the law firm should be disqualified … . To that end, “[a] court must examine the circumstances of the particular case and, if it is not clear as a matter of law that disqualification of the entire firm is required, the firm should be given an opportunity to rebut the presumption” … . The presumption may be rebutted by proof that “any information acquired by the disqualified lawyer [i.e., the associate] is unlikely to be significant or material in the [subject] litigation” and by evidence that the law firm screened the associate from receipt and dissemination of information subject to the attorney-client privilege … . * * *

We are mindful here that “[d]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification”… , and that “disqualification avoids any suggestion of impropriety and preserves [the client’s] expectation of loyalty” … . Under these facts, we are unpersuaded by the principal’s assertion that a sufficient firewall exists to separate his work on behalf of the mother from the associate so as to screen her from the receipt of information that is protected by the attorney-client privilege in this small, informal law office environment. As the principal has not rebutted the presumption that all attorneys in his law firm are disqualified from representing the mother, the father’s motion was properly granted, and Family Court’s order will not be disturbed. Matter of Yeomans v Gaska, 2017 NY Slip Op 05786, 3rd Dept 7-20-17

ATTORNEYS (CONFLICT OF INTEREST, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)/CONFLICT OF INTEREST (ATTORNEYS, SMALL INFORMAL LAW FIRM PROPERLY DISQUALIFIED BECAUSE AN ASSOCIATE PREVIOUSLY REPRESENTED THE OPPOSING PARTY 3RD DEPT)

July 20, 2017

Attorneys, Civil Procedure

PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE WITHDRAWAL OF ADMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT.

The Second Department determined petitioner, an inmate who sought admission to the prison nursery program for her and her child, was not entitled to attorney’s fees under the Equal Access to Justice Act (EAJA). Petitioner’s admission to the program had been withdrawn by the prison superintendent (Kaplan) so petitioner brought an Article 78 proceeding with an order to show cause. The judge signed the order to show cause and allowed petitioner’s admission to the program pending a hearing. Before the hearing, the superintendent reversed her prior ruling and allowed petitioner to stay in the program. The Second Department held that petitioner was not a “prevailing party” within the meaning of the EAJA, and, even if she had been a prevailing party, the superintendent’s actions were justified:

We conclude that the Supreme Court properly determined that the petitioner was not a “prevailing party” under CPLR 8601(a) and 8602(f), albeit for a different reason. Contrary to the petitioner’s contention, the stipulation entered into between the parties …, which was so-ordered by the court, did not reflect a material change in the legal relationship between the parties because the petitioner’s claims had already been rendered moot by Kaplan’s voluntary decision on December 30, 2014, to vacate her earlier decision removing the petitioner from the Nursery Program … . Furthermore, the petitioner did not achieve prevailing party status by obtaining a temporary restraining order and a preliminary injunction from the court directing the respondents to admit the [*2]petitioner to the Nursery Program pending the outcome of the proceeding … . Matter of Gonzalez v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 05724, 2nd Dept 7-19-17

CIVIL PROCEDURE (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/EQUAL ACCESS TO JUSTICE ACT (ATTORNEY’S FEES, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/INMATES (EQUAL ACCESS TO JUSTICE ACT, ATTORNEY’S FEES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)

July 19, 2017

Attorneys, Mental Hygiene Law

COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Devine, over a two-justice dissent, determined that counsel for a civilly committed sex offender (D.J.) was not entitled to attend meetings about the appropriate treatment of the sex offender:

Having been adjudicated “a dangerous sex offender requiring confinement” (Mental Hygiene Law § 10.10 [a]), petitioner D.J. was committed to the St. Lawrence Psychiatric Center and enrolled in the Sex Offender Treatment Program. Respondent Commissioner of Mental Health is required to “develop and implement a treatment plan” for D.J. and others in his position (Mental Hygiene Law § 10.10 [b]; see Mental Hygiene Law § 29.13 [a]) and, “[i]n causing such a plan to be prepared or . . . revised,” the patient and specified individuals must be “interviewed and provided an opportunity to actively participate” (Mental Hygiene Law § 29.13 [b]).

In 2016, D.J. asked that his counsel in the Mental Hygiene Law article 10 proceeding, assigned through petitioner Mental Hygiene Legal Service (hereinafter MHLS), accompany him to treatment planning meetings. The requests of D.J. and, later, his counsel were denied, with the chief of service for the Sex Offender Treatment Program, Bryan Shea, explaining that counsel was not entitled to attend treatment planning meetings as a matter of law and that counsel’s presence would be therapeutically counterproductive. Shea left open the possibility that a MHLS attorney could participate in a patient’s treatment planning, but explained that such would be contingent upon the attorney having a “genuine[] interest[] in the care of the patient” and guaranteeing “that [he or she was] no longer acting in the role of legal representative” and would keep “any information [received] during treatment planning . . . confidential” from MHLS. * * *

Counsel from MHLS … comes from an agency whose “statutory mission is to provide legal assistance to the residents of certain facilities” such as D.J., and legal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client’s legal goals … . Matter of Mental Hygiene Legal Serv. v Sullivan, 2017 NY Slip Op 05656, 3rd Dept 7-13-17

MENTAL HYGIENE LAW (COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/ATTORNEYS (MENTAL HYGIENE LAW, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)/SEX OFFENDERS (MENTAL HYGIENE LAW, ATTORNEYS, COUNSEL FOR A CIVILLY COMMITTED SEX OFFENDER WAS NOT ENTITLED TO ATTEND MEETINGS ABOUT APPROPRIATE TREATMENT FOR THE SEX OFFENDER 3RD DEPT)

July 13, 2017