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Court Decides if Attorney Should be Removed from Case


A notice of Motion/Order to Show Cause/ Petition/Cross Motion and This court is called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel are properly before the court; (3) whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c); (4) whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of child custody, visitation and an order of protection; (5) whether or not the defendant should have the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

The defendant is presently represented by an attorney of her own choosing. Defendant’s counsel moved by order to show caused dated November 5, 2010, to be relieved. The counsel seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about him and his representation of her. In open court, on November 17, 2010, defendant stated she wished to discharge his attorney and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

The said counsel is defendant’s third attorney of record. Previously, defendant was represented by pro bono counsel, a New York City law firm. On March 10, 2010, a consent to change attorney was filed and the defendant was substituted as attorney pro se. On May 5, 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of child custody, visitation and an order of protection. Although not initially disclosed to the court by defendant, this attorney simultaneously represented defendant in Family Court. On August 10, 2010, defendant was again substituted pro se for this attorney on consent. The attorney had moved by order to show cause, dated August 13, 2010, to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel to wit: the counsel unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant seeks to now have the court appoint her another attorney. The counsel represented the defendant in an all-day temporary custody hearing on October 7, 2010, before this court. The court after the hearing awarded temporary custody of the infant issue to the father. He is the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence; on one occasion he sought medical assistance at an emergency room. Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were “no prior applications” for an order of protection notwithstanding the present application in this matrimonial action or the two (2) prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent. Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on November 17, 2010. That hearing was adjourned so the counsel could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two (2) orders to show cause pro se while still being represented by counsel and not informing him of her intent to do so. On November 22, 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

The counsel requests a 30 day stay of all proceedings pursuant to CPLR 321 (c). The court scheduled the hearing on the wife’s request for an order of protection first scheduled for November 10, 2010, and adjourned to November 17, 2010 at defendant’s counsels request. However, this instant application prevented that hearing from going forward. That hearing is now scheduled for December 10, 2010.

Defendant’s first pro se order to show cause is dated November 9, 2010, and seeks temporary custody of the parties’ child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court. Shortly thereafter, defendant presented another order to show cause on November 17, 2010. This order to show cause was redated on November 17, 2010, due to defendant’s failure to serve same and is returnable on December 10, 2010. Defendant annexed to this application photographs of the parties’ child’s genitalia and matter removed from the child’s nose by insertion of a cotton swab. The photographs of the naked child were removed from the application and placed in a sealed envelope which is maintained by the part clerk. The third order to show cause, like the two preceding it seek, inter alia, similar requests for relief.

Defendant’s second pro se order to show cause is dated November 17, 2010. Defendant seeks temporary custody; an expanded visitation schedule; new counsel; forensic evaluation; and for the court to change the attorney for the child. Plaintiff moved by order to show cause dated November 17, 2010 wherein he seeks the suspension of visitation and supervised visitation. This application is returnable on December 10, 2010.

Defendant filed an appeal, pro se at the Appellate Division, Second Department. She sought leave to appeal two orders of this court “dated October 6, 2010, and October 7, 2010, respectively, to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County”.

At the initial appearance, defendant requested a Mandarin interpreter which was provided, although defendant often lapsed into using the English language or answered questions in English before the translation was completed. At the temporary custody hearing defendant did not request an interpreter and testified in rapid and competent English. In fact, it was necessary for this court to admonish defendant to slow down based upon her rapid speech pattern. Plaintiff’s counsel also represented to the court that defendant appeared at the Appellate Division, Second Department and spoke in English. All counsel indicated that defendant converses with them in English and the court has observed defendant speak in English, answer in English and respond to her attorney while the court and others are speaking in English. All of defendant’s submission are in English.

“As a general rule, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice. “The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court’s decision should not be overturned absent a showing of an improvident exercise of discretion.

It is also clear that defendant has the right to discharge her privately retained attorney of record herein.

Defendant’s filing of motions and orders to show cause and the seeking of relief in different courts without ever notifying one’s lawyer is, in this court’s opinion, a per se basis to be relieved as counsel of record. A client has an absolute right to dictate the course of the litigation so long as the acts are not frivolous, but a client must inform his or her lawyer of their actions and should not be filing pro se applications while represented by counsel, as a regular course of conduct, on their own unless extreme special circumstances exist. This court would not want to prevent a litigant who sought an order of protection or custody order from proceeding pro se, if for example they could not reach their attorney or a serious fundamental disagreement existed between counsel and client. The failure to notify counsel of the acts of the client and the affects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis.

Defendant again requests that this court appoint counsel to be paid with government funds. She states the she needs counsel who truly understands domestic violence and whom is ready for her case.

In response to defendant’s request for the appointment of counsel to be paid with public funds, plaintiff states that defendant admits that after being served with the summons and complaint she transferred $146,000.00 which had been in her possession for a number of years to Jakarta, Indonesia. She attempted at the last oral argument to submit written documentation. It should be noted that this action was commenced on November 25, 2009, and the affidavit of service indicates that defendant was served on December 4, 2009. Defendant, who was previously employed admitted she sent a large sum of money out of the country shortly after she was served with divorce papers and now claims indigence as a basis for court appointed counsel.

This court finds it problematic to provide court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons. The court is mindful though of the precedent established by the Appellate Division decisions which make it clear that the right to counsel in a custody or visitation dispute is fundamental. Similarly, in a request for a temporary order of protection, defendant has the right to seek counsel. Accordingly, counsel shall be appointed for defendant by separate order subject to an order that if it is found at trial that defendant secreted or transferred separate or marital assets then the costs of the court appointed attorney to the government may be ordered reimbursed to the State of New York at a future date. Defendant must fully cooperate with her lawyer. Inasmuch as the first assigned attorney sought to be relieved and defendant thereafter hired private counsel the court need not reach the question of whether or not defendant had the right to discharge assigned counsel. Defendant is cautioned that the discharge or failure to cooperate with the newly appointed counsel may result in necessitating that defendant proceed self-represented in the future.

Thus, the court having determined that the said counsel is entitled to be relieved the remaining issue is, should there be a stay of the proceedings pursuant to CPLR 321 (c). While a litigant is usually entitled to a 30 day stay pursuant to CPLR 321 (c) to obtain new counsel, here there is a request for a stay by outgoing counsel and a request by the defendant herself that counsel be assigned by the court and paid for by public funds. This court is of the opinion that with the appointment of counsel the need for a thirty day stay is obviated.

Defendant is enjoined from proceeding pro se in Supreme Court without notifying her attorney and may only proceed pro se if she is unable to contact that attorney. This court notes that the issuing of a stay would affect the parties’ rights to seek judicial relief during the thirty day period. In the event defendant seeks further relief from the Family Court, defendant must inform the Family Court of the existence of the case.

The issue of the defendant’s request for an order of protection and plaintiff’s request for suspension of visitation will be the subject of an evidentiary hearing. If properly served, the court will hear oral argument of defendant’s other orders to show cause which appear in part to be best delineated as motions to renew or reargue on December 10, 2010. An attorney for defendant and a forensic shall be appointed by separate orders. The cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimbursing the State of New York for her share.

If you are involved in a similar situation, seek the help of Stephen Bilkis and Associates, we can provide a more competent counsel to handle your case.

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