Opinion
14/3545
02-24-2021
STEPHANIE D., Plaintiff, v. RICK D., Defendant.
Debra Crowder, Esq., Attorney for Plaintiff, Rochester, New York Brian Oathout, Esq., Attorney for Defendant and Moving Party, Rochester, New York Charles Steinman, Esq., Attorney for Children, Rochester, New York Rick D., Pro Se
Debra Crowder, Esq., Attorney for Plaintiff, Rochester, New York
Brian Oathout, Esq., Attorney for Defendant and Moving Party, Rochester, New York
Charles Steinman, Esq., Attorney for Children, Rochester, New York
Rick D., Pro Se
Richard A. Dollinger, J.
While access to counsel in custodial matters is a right for every New Yorker, a parent's abuse of that right when faced with enforcement of a contempt order or challenges to their custodial rights cannot become a tool to forestall justice. When a litigant has had more than six appointed attorneys, most of whom withdraw citing a breakdown in the attorney-client relationship and the litigant has filed grievances against many of them, the Court can conclude that the litigant is abusing the appointment of counsel in an attempt to delay a final reckoning. Under those circumstances, well-document in this instance, the right to the assistance of counsel is forfeited because justice must proceed.
In this matter, the Court returns to a case on which it has already written previously. The history of this matter will not be repeated here. It is documented elsewhere. S.D. v R.D. , 2019 NY Misc. LEXIS 2804 (Sup. Ct. Monroe Cty 2019); Dalton v Dalton , 2019 NY Misc. LEXIS 2096 (Sup. Ct. Monroe Cty 2019). The latest iteration involves this Court's effort to secure an attorney for the father, who is facing an application to reduce his custodial and visitation rights and to enforce a prior order which found him in contempt for failing to pay court-ordered financial obligations to his wife. Because the custody application is pending and the threat of incarceration looms, this Court has repeatedly assigned counsel to represent the husband father.
In Dalton v. Dalton , this Court resolved that the father was entitled to poor person's status, despite a court finding in the context of his divorce proceeding that he was capable of earning significant income. In this instance, this Court, bound by that holding and the Fourth Department holding in Carney v. Carney , 160 AD3d 218 (4th Dept 2018), concludes that the father is economically eligible for appointed counsel, as it has previously — and repeatedly — appointed counsel for him.
This matter reached a crucial point in October, 2020. In an order issued by the Court on that date, the father was adjudged to be in contempt for the failure to comply with a series of prior court orders. The Court, having repeatedly ordered the father to pay child support and numerous other obligations, sentenced the father to incarceration and imposed a series of other sanctions. The Court determination was the culmination of a series of proceedings in which the mother of the children sought to have the father comply with a series of court orders. The Court assigned a new attorney for the father in the Fall of 2020. The assignment was made through the publicly funded assigned counsel's office in Monroe County. The matter proceeded but the newest appointed attorney recently applied by order to show to cause to withdraw as counsel. In the application, the attorney evidenced a breakdown in the attorney-client relationship, concluding that the client no longer had confidence in his representation and continuing to represent the litigant would run afoul of the attorneys' ethical responsibilities.
Sadly, the attorneys' application told the Court nothing new. The Court had heard the same story before.
In order to obtain a clearer picture of the extent to which the father has been assisted by assigned counsel, this Court, on its own initiative, secured an affirmation from the attorney who is the Assigned Counsel Administrator for the County of Monroe and a report from the Monroe County Public Defender's Office. The affirmation details that the father was first assigned counsel in 2015, when an attorney with more than 20 years experience represented him. According to the Assigned Counsel Administrator, the lawyer withdraw, claiming that the father made "unreasonable requests" and "every discussion was an argument." The Monroe County Public Defender than assisted the father in family court proceedings but that representation ended when the father filed a grievance against the assigned attorney, who had more than 20 years experience and was the supervisor of the Public Defender's Family Court section. The Monroe County Public Defender has advised this Court that the office has a "permanent conflict" regarding the father as a result of the grievance filing. Next, another 20-year veteran attorney was assigned and that assignment ended six months later with a motion to withdraw, followed by filing of a grievance against the attorney. Thereafter, another veteran attorney was assigned for seven months and granted withdrawal and a complaint was filed with the Grievance Committee. Then, the next assigned counsel was a veteran attorney, who is a past chair of the Monroe County Bar Association's Family Law Section. He lasted 11 months and was granted withdrawal because of a breakdown in the attorney client relationship and thereafter, a grievance complaint was filed against that attorney. In another instance, an assigned attorney lasted only a short time because the attorney insisted on communicating by phone and the father would only communicate by email. His assignment ended. Another attorney represented the father for less than two months and the father repeatedly complained to the assigned counsel's office about that attorney.
The Court received an affidavit from the County's Assigned Counsel administrator and an email from the Public Defender confirming the details of attorneys assigned to represent the father. The court forwarded these documents to the father by regular mail and email and requested comments but the father did not respond.
After all these assignments ended in withdrawal, the assigned counsel's office had great difficulty finding an attorney to represent the father. Finally, the attorney now before this Court accepted the assignment. At least five other attorneys had been assigned to the father and had submitted similar applications, alleging that the attorney-client relationship was fractured and communication between attorney and client had reached an undesirable and unsustainable state. In each case, the complaints from the attorneys were virtually the same: the litigant declined to listen to the attorney's advice and recommendations and made other unreasonable demands on the attorney.
In a prior proceeding, this Court discussed appointment of counsel with the father, expressed the frustration of repeatedly appointing counsel and the complications of proceeding without counsel. The Court told him that because the stable of attorneys willing to assist was dwindling, the father should find an attorney to represent him and the Court would make arrangements to have that attorney assigned through the Assigned Counsel's Office. The father never responded to that invitation, as best the Court can recall. Instead, the assigned counsel administrator took responsibility for securing the current attorney to represent the father.
In the instant application, in the face of his attorney's statements about an inability to communicate, the father, for the first time, responded to the attorney's application. The father's affidavit claims that he had no arguments with his appointed counsel. He disputes the scope of services that the attorney was required to provide through the Assigned Counsel's Office. He accuses his attorney of making "dishonest statements," but adds that he had "effective communication with his attorney." This communication from the father does little to assure this Court that an effective and sustainable attorney-client relationship exists. In addition, the father's predilection to file grievances against his prior counsel also leads this Court to conclude that the current counsel should not be exposed to the potential for a future grievance against him. Sadly, this Court notes that during the oral argument on this motion, the attorney recently assigned at public expense as the attorney for the father's four children, an attorney with 30 years experience in litigation and a former longstanding assistant attorney general for the State of New York, acknowledged that the father had already filed a grievance against him.
Before dealing with the merits of this matter, the Court notes that the father, in his brief few minutes of oral advocacy before the Court on a Teams conference call, argued that the current attorney's submission was not a proper affirmation pursuant to CPLR 2106. The father did not raise this objection in his affidavit before the Court. The attorney's written statement, signed by him, did not include the usual phrase that the affirmation was submitted under penalty of perjury, as CPLR 2106 requires. The Court, in an oral determination overruled that objection during the Teams conference. The father shortly thereafter absented himself from the remainder of the oral argument.
While this Court acknowledges that the attorney's statement did not contain that language, nonetheless, this Court declines to dismiss the application as a result. The omission of that language constitutes an "irregularity or omission" under CPLR 2001 that can be disregarded. Fuisz v 6 E. 72nd St. Corp. , 2020 NY Misc. LEXIS 4197 (Sup. Ct. New York Cty 2020); In re Will of Sharp , 6 Misc 3d 1041(A)(Surr. Ct. Broome Cty 2005) (an irregularity that may be disregarded); HSBC Bank USA, N.A. v Ahmad , 2019 NY Misc. LEXIS 879 (Sup. Ct. Suffolk Cty 2019)(failure to file an RPAPL § 1306 certificate as to defendant is an error, omission or irregularity which should be disregarded by the court pursuant to CPLR 2001 as a substantial right of defendant has not been prejudiced and to do otherwise would exalt form over substance); Williams v State , 77 Misc 2d 396 (NY Ct. Cl. 1974) (court can disregard a mistake such as defective verification, providing a substantial right of a party is not prejudiced).
In this instance, the attorney appeared as an officer of the Court. The attorney was well-known to the Court and has represented parents and children many times. The attorney had been assigned as a counsel through the Assigned Counsel's Office. There was no question that the statement was filed as an officer of the Court. There was no substantial right of the father prejudiced by disregarding this verification requirement. The Court, in permitting withdrawal of the father's latest appointed counsel, was simply seeking to avoid the complications of an attorney representing a client who, in his own affidavit, accused his attorney of dishonest statements.
On the broader question, this Court must resolve whether to appoint new counsel for this father. When tested under New York's precedents, the conduct of the father in this instance justifies this Court declining to reappoint counsel for him. It is well established that a defendant may not manipulate the right to counsel for purposes of delaying and disrupting a trial. People v Rosenberg, 58 Misc 3d 1203(A) (Crim Ct 2017), quoting People v Howell , 207 AD2d 412 (2d Dept. 1994) :
When it becomes apparent that a defendant is merely seeking to manipulate the court by toying with the right to counsel as a means of delaying the case, the Court is permitted to take appropriate action, even if it means forcing a defendant to proceed pro se. This can sometimes be the only means of advancing a case where the defendant is particularly recalcitrant.
People v. Rosenberg, 58 Misc 3d 1203(A) at 15. A party does not have the right to multiple court appointed attorneys, as the Second Department in People v Howell held that the defendant was not entitled to have a fourth court-appointed attorney replace the third. In People v Enriquez , 3 NY3d 210, 211 (2004), the Court of Appeals held "[in cases where defendants have refused self-representation and restricted the participation of counsel ... defendants hav[e] voluntarily waived the right to the effective assistance of counsel." Id. at 216.
In addition to waiver, New York courts have held that the related doctrine of forfeiture can apply to strip parties of their right to counsel. Indeed, the Court of Appeals has indicated that there may be situations where "egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel." People v Smith , 92 NY2d 516, 521 (1998). As an example, in People v Best , 19 Misc 3d 561, 569 (Crim Ct 2008) the court held that the defendant had forfeited his right to counsel where he had "engaged in repeated manipulation and dilatory tactics and ha[d] ... purposely sought out to sabotage his relationship.... [n]ot only with this attorney but [with] all of the attorneys who ha[d] represented him." In People v. Best , the defendant had already gone through four attorneys when his fifth attorney asked to be relieved because defendant had threatened to file baseless grievances against him, and would not communicate with him. Finding this to be a pattern of behavior akin to a "modus operandi" designed to impede the proceedings, the Court granted counsel's motion and forced the defendant to proceed pro se. See People v. Lineberger , 282 AD2d 369 (1st Dept 2001) (defendant forfeited counsel when he unjustifiably refused the services of, refused to cooperate with, and engaged in abusive conduct toward his competent appointed counsel, the third one appointed by the court). In Matter of Rodney W. v Josephine F. , 126 AD3d 605 (1st Dept 2015), the Court in a custody matter concluded that a litigant's own misconduct toward her attorneys resulted in their being relieved as counsel, and she effectively exhausted her right to assigned counsel. See also Matter of Montrell A.D. (Miguel D.—Cinnamon Nyree P.) , 161 AD3d 411 (1st Dept 2018) (due process arguments are unavailing in view of the fact that his court-appointed attorneys in a family court proceeding were relieved due to his own misconduct adding "[he] effectively exhausted [his] right to assigned counsel"). In Matter of Baby Boy B. (Eddie M.) , 138 AD3d 578 (1st Dept 2016), the court noted that the father's own misconduct toward his multiple assigned attorneys resulted in their being relieved as counsel and the court properly determined that he effectively exhausted his right to assigned counsel. See also Matter of Micah T. (Josette D.) , 171 AD3d 546 (1st Dept 2019) (six different attorneys had been appointed to represent the mother in a termination proceeding in family court, all of whom were relieved because she refused to work with them, such that she effectively exhausted her right to assigned counsel). Finally, in People v. Rosenberg 2017 NY LEXIS 5041 (Crim. Ct. City of New York 2017), the court held that a litigant's repeated efforts to sabotage his relationships with each of the five attorneys who represented him, a threat to file a complaint with the Grievance Committee against his fifth assigned attorney, repeated manipulation and use of his right of self-representation and his right to assigned counsel was a dilatory tactic designed to delay the prosecution of these matters and to disrupt the orderly administration of justice. The First Department also applied the forfeiture doctrine in People v Wilkerson , 294 AD2d 298, 298 (1st Dept 2002), holding that the defendant's conduct, with the apparent motive of manipulating the court into providing him with yet a sixth attorney on the eve of the suppression hearing, resulted in a forfeiture of his right to counsel."
The federal courts take the same approach. United States v. Pollani , 146 F.3d 269 (5th Cir. 1998) (a pro se litigant may not abuse his right by strategically requesting special appearances by counsel or by repeatedly altering his position on counsel to achieve delay or obstruct the orderly administration of justice) citing United States v. Taylor , 933 F.2d 307, 311 (5th Cir.)
In this Court's view, the father here has forfeited his right to counsel by repeatedly challenging assigned attorneys, refusing to communicate and cooperate with them, filing grievances against them, forcing them to seek withdrawals from the Court and, as the repeated motions all indicate, engaging in a pattern of hostile conduct toward assigned counsel that unhinges the attorney-client relationship and puts counsel into the untenable position of either withdrawing or representing a litigant who accuses them of unethical conduct. No Court should have to assign counsel at public expense to a litigant who has repeated filed grievances against not only his own attorneys but the attorney for his children and the County's public defender's office, all in an attempt to delay the Court's decision on an order to uphold the contempt finding and impose penalties, including fines, other restrictions and potentially incarceration.
Some of this community's best family law lawyers have worked on assignment for the father here. The evidence before this Court supports the conclusion that this father has forfeited any further appointment on his behalf. The current counsel's motion to withdraw is granted. The request for an appointment of new counsel is denied.
This Court will schedule an immediate order to show cause to consider the mother's application to enforce the order of contempt.