NY Slip Op 00643
Decision and Order
The mother in this case appeals an order from December 15, 2016 Family Court. The father’s motion for attorney’s fees was awarded, due to the mother’s failure to appear.
This court reverses that order and the motion is denied.
This hearing related to the custody and visitation of a child. While the mother had legal counsel, she sought to obtain new counsel.
The mother contacted a particular attorney who stated that she would not be able to make an appearance on a particular date. Nonetheless, the attorney contacted opposing counsel and asked if they would agree to an adjournment. Opposing counsel declined. The attorney then advised the mother to obtain other counsel to ensure that her rights were protected. On Veteran’s Day (11-10-15), the attorney agreed to represent the mother. The attorney faxed the court stating that she represented the mother, but would be unable to attend an upcoming hearing. She filed a Notice of Appearance and also notified opposing counsel.
On the hearing date, opposing counsel and an assigned attorney appeared. The court adjourned on the hearing date, and excused the assigned counsel. The father tried to impose sanctions against the mother. The court granted the motion and ordered her to pay attorney fees.
This court reverses.
When the other had counsel at the 11/12 hearing, the opposing counsel knew that the mother’s attorney would seek an adjournment. There was no inference that the mother was seeking to delay the proceeding in any way. It was incorrect of the prior court to order the mother to pay attorney fees of the father (22 NYCRR 130-21 [b]; Wilson v Wilson 86 AD3d 824, 825-826).
The right to counsel originally was afforded by the 6th Amendment of the U.S. Constitution. This right to counsel is triggered when: a person is criminally prosecuted, a person retains counsel for a case, or a request for counsel is made when a person is held in custody.
New York stated that the right to counsel also falls under the New York State Constitution Article 1, Section 6 and is broader than the rights afforded under the Constitution.
There are differences between the two however. Under the Constitution, the defendant has the power to waive his or her right to counsel without first speaking to a lawyer. In New York, you can only waive the right to counsel after first consulting with counsel.
One other difference occurs under New York law, if counsel has already interceded for a defendant, that defendant can’t waive counsel without that counsel being present. Under federal law, if the defendant doesn’t know that counsel has interceded, they may waive their right to counsel whether the lawyer is present or not.
Interestingly, the New York Court of Appeals has recently ruled that where a defendant has a criminal charge, and has counsel because of a prior Family Court case, the right to counsel doesn’t attach to the criminal matter by virtue of the attorney-client privilege People v. Lewie 2011 NY Slip Op 04766.
In the State of New York, the defendant’s right to counsel was set out in the case People v Arthur 22 NY2d 325 (1968). This case states that once an attorney enters a proceeding, the police may not question the defendant without counsel present. That is, provided the defendant does not waive their right. If they do, it must be done in the presence of a lawyer.
For practical purposes, this seems ineffective in its application. Realistically, most lawyers would advise their client to not waive the right to counsel if they were asked. Nonetheless, in the cases People v. Donovan (13 NY2d 148), People v. Arthur (22 NY2d 325), and People v. Hobson (39 NY2d 479), the court has held that once it is clear to police hat an attorney is involved in the case, they aren’t allowed to question the defendant in the absence of a lawyer, or seek a waiver without a lawyer present.
If you have a legal issue, it is important to protect your rights. Speak with an experienced lawyer from Stephen Bilkis and Associates as soon as possible. They have offices throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Staten Island, Long Island, Queens, Suffolk County, Nassau County and Westchester County. Call them today for guidance and a free consultation at 1-800-NYNYLAW.