Opinion
Index No. 062195-2014
10-06-2023
BANK OF AMERICA, N.A., Plaintiff, v. Lawrence GLENN, et al., Defendants.
Ronald D. Weiss, P.C., Melville, New York, for Defendant.
Ronald D. Weiss, P.C., Melville, New York, for Defendant.
The question squarely before this Court is: When a party's lawyer who has filed a notice of appearance in pending litigation and the party both execute a consent to change attorney purporting to change the party's status from represented to self-represented, is the consent to change form effective to cause such change to occur immediately? The answer is no.
The context in which this Court faces the question is that it received a telephone call on Friday, September 29, 2023 from Lawrence Glenn, a defendant in this mortgage foreclosure action who sought an adjournment of plaintiff's pending motion, now returnable on October 6, 2023. This Court's chamber's staff added such defendant's counsel to that telephone call. Counsel and client agreed to meet on Monday, October 2, 2023, so this Court awaited further action from counsel. On Monday, October 2, 2023, defendant again called chambers seeking an adjournment. Defendant advised this Court's chamber's staff that a filing had been made to authorize defendant to make this request.
Both these calls addressed only the scheduling of the motion, so they are permitted contacts. Obviously, this Court would not have granted an adjournment without outreach to plaintiff.
Today, October 6, 2023, plaintiff's motion is scheduled to be submitted. No opposition to the motion was filed. All this Court finds in NYSCEF is a document captioned "Consent to Change Attorneys" (Dkt. 91). That document sets forth
IT IS HEREBY CONSENTED THAT, Ronald D. Weiss, P.C., having an office at 774 Walt Whitman Road, Suite 203, Melville, New York 11747, be withdrawn as attorneys of record for the undersigned party, Lawrence Glenn in the above-entitled action. In place and stead of Ronald D. Weiss, P.C., Defendant Lawrence Glenn will be proceeding pro se.
The document purports to have the signature of attorney Ronald D. Weiss on behalf of Ronald D. Weiss, P.C. and of the client, Lawrence Glenn. "If a party appears by attorney[,] such party may not act in person except by consent of the court" ( CPLR 321 [a] ). Thus, if the defendant/client is, in fact, now self-represented, then defendant/client had the right to seek the adjournment without counsel. However, if the defendant/client is not now self-represented, the defendant/client did not have such right, and counsel's failure to oppose plaintiff's motion becomes acutely problematic. This Court is not consenting to the switch from represented to self-represented by a consent form ( CPLR 321 [b] [1] ) when the litigation puts such individual party's housing at risk.
The purported consent to change attorneys sets forth defendant/client's address as the address of the realty against which foreclosure is sought.
I
The law of a change of counsel, including to self-represented, combines statutory law, judicial discretion, and ethical rules. Three pathways for the change or withdrawal of an attorney are set forth in CPLR 321 (b) and (c) ( Matter of Cassini , 182 A.D.3d 13, 120 N.Y.S.3d 103 [2d Dept. 2020] ). We begin any statutory interpretation question with the statute's plain language ( Matter of Avella v. City of New York , 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017] ). "[W]e approach the statute's provisions sequentially and give the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions. It is axiomatic that such an approach is preferred, especially when an opposite interpretation would lead to an absurd result that would frustrate the statutory purpose" ( Long v. Adirondack Park Agency , 76 N.Y.2d 416, 420, 559 N.Y.S.2d 941, 559 N.E.2d 635 [1990] [internal quotation marks and citations omitted] quoted and cited by Bank of Am. v. Kessler , 39 N.Y.3d 317, 186 N.Y.S.3d 85, 206 N.E.3d 1228 [2023] )
The first of the three pathways that Cassini identifies is CPLR 321 (b) (1), which sets forth:
Unless the party is a person specified in section 1201, an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party. Notice of such change of attorney
shall be given to the attorneys for all parties in the action or, if a party appears without an attorney, to the party.
The plain language of this paragraph permits, without judicial intervention, "an attorney of record [to] be changed." The plain meaning of change is "to make different in some particular" or "to replace with another" (Merriam-Webster.com/dictionary/change [last accessed October 3, 2023]). The attorney of record is what is being changed, and defendant/client and the lawyers appear to believe that a self-represented litigant is an "attorney of record" capable of becoming an attorney of record by filing a consent form.
Several provisions of law defeat this belief. Continuing sequentially, the second pathway that Cassini identifies is CPLR 321 (b) (2), which sets forth:
An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct
This paragraph has two operative verbs, unlike paragraph one. Here, the two verbs are "withdraw" and "changed." To withdraw means "to remove oneself from participation" (Merriam-Webster.com/dictionary/withdraw [last accessed October 3, 2023]) or in specific reference to a lawyer "to terminate one's representation of a client before a matter is complete" (Black's Law Dictionary, [11th Ed., 2019]). Thus, CPLR 321 (b) (2) provides the process for either changing the attorney of record or having the attorney of record withdraw, in either case, by motion practice. In CPLR 321 (b) (1), only the verb "changed" appears. "The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240, cited by, inter alia , Patrolmen's Benev. Ass'n of City of New York v. City of New York , 41 N.Y.2d 205, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). Thus, the omission of withdrawal from paragraph one contrasted with its inclusion in paragraph two creates an irrefutable inference that withdrawal cannot be accomplished by a consent form ( CPLR 321 [b] [1] ’s method), and may, instead, be accomplished only by motion practice ( CPLR 321 [b] [2] ’s method).
CPLR 321 (a) allows a party, with certain exceptions not relevant here, to appear by attorney or in person. Thus, reading all of CPLR 321 as an integrated whole, a change in the attorney of record is when a party who is appearing by an attorney changes (switches) to a different attorney of record, but not to an in person appearance. When the change is from represented to self-represented, the attorney of record is not "changed," but, more precisely, the attorney of record has withdrawn. The office of attorney of record is vacant because the attorney withdrew, leaving the party as a litigant appearing in person ( CPLR 321 [a] ). Appearing by attorney and appearing in person as used in CPLR 321 (a) are different concepts expressed in different words. So too, change and withdrawal are different concepts expressed in different words. Thus, they must be treated differently, so each word has independent meaning ( Scott v. Massachusetts Mut. Life Ins. Co. , 86 N.Y.2d 429, 633 N.Y.S.2d 754, 657 N.E.2d 769 [1995] ).
Allowing an attorney to withdraw via a consent to change attorney form in civil cases where the client has a constitutional or statutory right to counsel utterly defeats that right. While one answer might be that such withdrawal by consent form is impermissible in cases where a court must conduct a "searching inquiry" (e.g., Matter of Mercado v. Arzola , 212 A.D.3d 815, 181 N.Y.S.3d 656 [2d Dept. 2023] ; see, Laura K. Abel, Toward a Right to Counsel in Civil Cases in New York State: A Report of the New York State Bar Association , 25 Touro L Rev issue 1, art 11 [2013])) but is permissible in all other cases, including mortgage foreclosure actions, grafts tentacles onto the statute's plain language. Easy to predict is that those judicially-grafted tentacles will take hold of courts, litigants, and lawyers as the argument shifts to whether a case should, perhaps as a matter of the common law, qualify for the no withdrawal by consent form rule. This sort of two-tiered statutory interpretation fails to "produce equal results and avoid unjust discrimination" (McKinney's Cons Laws of NY, Book 1, Statutes § 147 ). Equal treatment of all cases answers arguments, as applied to mortgage foreclosure cases, about the hybrid nature of the right to counsel in mortgage foreclosure actions. "At the initial conference pursuant to this section, any defendant currently appearing pro se, shall be deemed to have made a motion to proceed as a poor person under section eleven hundred one of" the CPLR" ( CPLR 3408 [b] ; see generally , Carrington Mtge. Servs., LLC v. Fiore , 198 A.D.3d 1106, 156 N.Y.S.3d 453 [3d Dept. 2021] ). In conjunction with that determination under CPLR 1101, CPLR 3408 (b) also authorizes the supreme court to appoint counsel. CPLR 3408 (b) sets forth, "If the court appoints defendant counsel pursuant to subdivision (a) of section eleven hundred two ... it shall adjourn the conference" ( CPLR 3408 [b] ). Therefore, Fiore indicates that leave under CPLR 1101 either a fortiori requires or discretionarily permits the appointment of counsel under CPLR 1102. To this Court, these provisions stand remarkably different from county law article 18-B and family court act section 262, seemingly creating a unique feature of foreclosure jurisprudence that either favors treating mortgage foreclosure cases like the searching inquiry required cases where a court cannot permit a represented party to become unrepresented by consent form unless the searching inquiry has been conducted and the court makes certain required findings.
A judicially created source of law also supports this order's interpretation of CPLR 321 (b) (1) as not permitting counsel to withdraw by consent form. "If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal without its permission" (Rules of Professional Conduct [ 22 NYCRR § 1200.0 ] rule 1.16 [d] Declining or Terminating Representation). Although the rules of professional conduct "cannot be applied as if they were controlling statutory or decisional law," ( S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp. , 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ) a statutory interpretation that flies in the face of the rules imputes a legislative intent to undermine the rules of professional conduct. "[A]n absurd or frivolous purpose is not to be attributed to the Legislature," and "it will be presumed that the Legislature did not intend an absurd result to ensue from the legislation enacted" (McKinney's Cons Laws of NY, Book 1, Statutes, § 145 comment; Zappone v. Home Ins. Co. , 55 N.Y.2d 131, 447 N.Y.S.2d 911, 432 N.E.2d 783 [1982] ). Allowing a consent form to achieve withdrawal creates the peculiarity of a lawyer complying with the statute while simultaneously violating the plain language of the rules of professional conduct. That is textbook absurdity. The rules of professional conduct require a lawyer seeking to withdraw to remain engaged upon a court order (Rules of Professional Conduct [ 22 NYCRR § 1200.0 ] rule 1.16 [d]). Interpreting CPLR 321 (b) (1) to allow withdrawal by a consent form and without a motion deprives the court of the very power that, through the rules, the Appellate Division has determined that the courts have. The rules are not statutory or decisional law, but they are, in effect, directives of the Appellate Division and, to the extent that they create authority for a court to do certain things, this Court and all others in the state, save, perhaps, the Court of Appeals, are bound to abide by such directives. This is another example of the absurd result that ensues when CPLR 321 (b) (1) is read as defendant/client and counsel appear to read it.
Each court has the inherent discretionary authority to determine whether to permit a lawyer to withdraw (e.g. , Bank of Am., N.A. v. Chadha , 214 A.D.3d 695, 185 N.Y.S.3d 241 [2d Dept. 2023] ). A general rule to allows a client switching from represented to self-represented robs the relevant judge of this authority, and the duties that accompany such authority. Allowing the form to bypass judicial review creates too unseemly a risk of the apparent client consent not truly being knowing, voluntary, and intelligently made. Consider a simple hypothetical case where a lawyer seeks to withdraw because of unpaid fees and lack of cooperation from the client. The lawyer's superior knowledge and business interests conflict with the client's possible desire to continue the representation. That conflict makes any consent form inherently suspect. Moreover, the lawyer's premise for the consent—that unpaid fees and lack of cooperation exist—could be wrong as it was in Chadha . CPLR 321 (b) ’s distinction between change and withdrawal addresses this risk. The sudden withdrawal could be on the eve of trial or a motion return date in a nine year old action, which can be good cause not to permit a lawyer to withdraw ( McDonald v. Shore , 100 A.D.3d 602, 953 N.Y.S.2d 650 [2d Dept. 2012] ; see, Citimortgage, Inc. v. Nimkoff , 189 A.D.3d 763, 138 N.Y.S.3d 190 [2d Dept. 2020] ). Judicial review should not be avoided by counsel filing a form even with the client's signature on it. CPLR 321 (b) treating change and withdrawal differently preserves the authority of the courts.
The judiciary has a duty to safeguard the right to counsel ( Matter of Jung , 11 N.Y.3d 365, 870 N.Y.S.2d 819, 899 N.E.2d 925 [2008] ), without forcing a litigant to choose a particular attorney or to hire any attorney. Although Jung involved a persistent pattern of a judge violating or not protecting a litigant's right to counsel where an explicit statutory right to counsel existed ( Family Court Act § 262 ). The principle is that a court has the duty to protect the right to counsel, particularly given that the relationship between attorney and client is often unbalanced ( Seth Rubenstein, P.C. v. Ganea , 41 A.D.3d 54, 833 N.Y.S.2d 566 [2d Dept. 2007] ). "Public policy dictates that courts pay particular attention to fee arrangements between attorneys and their clients, as it is important that a fee contract be fair, reasonable, and fully known and understood by the client" ( id. at 60, 833 N.Y.S.2d 566 ). The decision to withdraw, even on consent, is part of the overall fee arrangement. If an attorney of record is changed, the need for judicial intervention to "pay particular attention" to the outgoing lawyer's conduct is much less dramatic because the client has incoming counsel as a resource and advocate to address any perceived improprieties. This shows yet another reason why change and withdrawal are different concepts calling for different treatment.
Finally, in a "searching inquiry" case, the Second Department held, "[a]n attorney of record may withdraw as counsel only upon sufficient cause and upon notice to the client" ( Matter of Menghi v. Trotta-Menghi , 162 A.D.3d 771, 772, 79 N.Y.S.3d 238 [2d Dept. 2018] citing CPLR 321 [b] [2] ). In Menghi , counsel orally moved to withdraw when the client did not appear for the scheduled trial. Thus, the purported withdrawal failed the notice prong of the Menghi rule. Here, the client's signature on the consent form establishes notice. Therefore, this Court acknowledges that Menghi is distinguishable because notice exists here but did not in Menghi . Thus, this Court could cite Menghi as the controlling authority to decide what to do here and would find that the record is silent as to sufficient cause, so the consent form fails the Menghi two prong rule. That would leave just the searching inquiry distinction which this Court has addressed above. This Court relies on Menghi , but does not rely exclusively on it because a paper showing filed in NYSCEF too greatly subjects client confidences to exposure. Menghi overwhelmingly supports the result here.
On this reading and interpretation of CPLR 321 (b) (1) and (2), an attorney of record may be changed by consent or motion, but withdrawal may occur only by motion. This interpretation affords a reasonable and practical construction, applies straightforward statutory intent and language analysis, harmonizes all parts of the statute, and aligns the statute with precedent and other law. This Court sticks with the statute's plain language and the equal treatment outcome that legislature enacted and the governor approved to create, seemingly for the first time, clear guidance for all relevant stakeholders.
II
No question can exist that counsel is withdrawing. The plain language of the operative document, as opposed to its caption, is that defendant/client consented that counsel "be withdrawn."
This Court interprets "be withdrawn" as used in the consent form to mean "be hereby withdrawn," not "be later withdrawn." Any other interpretation is contrary to defendant/client's understanding of the document.
In the typical case where a change in attorneys of record occurs by consent form, no supporting papers are filed. Nevertheless, upon reviewing other cases, quite apparent is that defendant/client and the lawyers may think that obiter dictum from Cassini supports what they have done. That dictum is why what counsel and defendant/client did is not at all frivolous ( 22 NYCRR § 130-1.1 [c]). Cassini quotes practice commentaries and sets forth that the incoming attorney may be the client pro se. Although this Court stands bound by Appellate Division precedents from any department ( Mountain View Coach Lines, Inc. v. Storms , 102 A.D.2d 663, 476 N.Y.S.2d 918 [2d Dept. 1984] ) unless the Court of Appeals or Second Department has a contrary holding, obiter dicta are never binding ( Matter of Alvarez v. Annucci , 38 N.Y.3d 974, 167 N.Y.S.3d 421, 187 N.E.3d 1032 [2022] ). "Indeed, the harmful results of dicta disguised as or argued to be holding can only be ‘neutralized’ by the next court's recognition of ‘the prior dictum as nonbinding and go[ing] on to grapple with and decide the issue" ( id. , 38 N.Y.3d at 989, 167 N.Y.S.3d 421, 187 N.E.3d 1032 [Wilson, J., dissenting] quoting Matter of Lewis , 25 N.Y.3d 456, 464-465, 13 N.Y.S.3d 323, 34 N.E.3d 833 [2015] [Pigott, J., concurring] [emphasis omitted], quoting Pierre N. Laval, Madison Lecture, Judging Under the Constitution: Dicta About Dicta , 81 NYU L Rev 1249, 1268-1269 [2006]. Frequent repetition of dicta leaves unchanged that they are "not binding as a matter of law" especially when they are "unpersuasive as a matter of logic" ( Mayorga v. Tate , 302 A.D.2d 11, 12, 752 N.Y.S.2d 353 [2d Dept. 2002] ). For the same reason, that something is often done without objection or comment, such as transitioning from represented to self-represented via a consent to change attorneys, does not make the practice proper or binding.
Here, as set forth above, CPLR 321 ’s three pathways address comprehensively the end of an attorney's representation of a litigation client before the litigation ends. That analysis constitutes this Court's reasoning about why the non-binding practice commentaries that the Cassini dictum repeated is unpersuasive as a matter of logic, statutory interpretation, and law.
This Court acknowledges that U.S. Bank Trust, N.A. v. Carter , 204 A.D.3d 727, 727-728, 166 N.Y.S.3d 650 (2d Dept. 2022) noted the use of a "document whereby [lawyer and client] agreed to substitute the defendant pro se in place of [the lawyer]." Carter is not persuasive at all. There, a consent to change attorney from withdrawing counsel to incoming counsel had been filed two months before the document purporting to change defendant's status from represented by withdrawing counsel (who had seemingly been substituted out by the consent to substitute counsel) to pro se (see, U.S. Bank Trust, N.A. v. Carter , 58033/2013 [Westchester County Supreme Ct.] Dkt. 75, reproduced at U.S. Bank Trust, N.A. v. Carter record on appeal [Dkt. 39] page 333). The Second Department did not untangle or address how a lawyer who was "outgoing" in a consent to change attorneys form could have effectively been party to a later document purporting to change the client's status to self-represented. Thus, Carter provides no appellate guidance on the issue before this Court. Because the other issue in Carter was whether discovery demands were proper—and they were not—the Second Department had no need to address the confusing sequence of consent to change forms.
Therefore, without the statutory process having been adhered to, this Court gives no weight to the consent to change attorney form (Dkt. 91). Giving it no weight does not preclude an attorney of record from seeking an order as contemplated and required by CPLR 321 (b) (2).
III
Left before this Court is what to do given that defendant/client obviously believes that the consent form leaves defendant/client self-represented as of four days before the motion for a judgment of foreclosure and sale's return date. Here, Menghi provides a clear answer. When the client's significant rights are prejudiced by the client's good faith unawareness of the status of the client's representation, a court should exercise its discretion to fashion a remedy in the interest of justice. Here, the remedy is simple. This Court administratively adjourns the motion for two weeks, long enough under the CPLR for Ronald D. Weiss, P.C., the attorneys of record for defendant/client, to determine what, if any, opposition to file and serve.
Although this Court has not read the substance of plaintiff's motion and, therefore, cannot have any preliminary or other assessment of whether defendant/client has a potentially meritorious defense to plaintiff's motion, the analysis set forth in this order demonstrates beyond all question and doubt that defendant/client would establish reasonable cause for the default were a CPLR 5015 (a) motion to be filed. The adjournment this Court administratively grants avoids a 5015 motion and serves the efficient and inexpensive determination of this action which is approaching its tenth birthday ( CPLR 104 ).
IV
Therefore, it is hereby ORDERED that
1. Plaintiff's motion for a judgment of foreclosure and sale (motion sequence 002) be, and it hereby is, adjourned to October 20, 2023; and
2. Ronald D. Weiss, P.C. be, and hereby is, confirmed to be and has been since it filed a notice of appearance in this action on May 19, 2014 (Dkt. 20) the attorney of record for Lawrence Glenn; and
3. Nothing herein precludes a motion by order to show cause from being brought under the authority of CPLR 321.