Reason To Discharge

In an appeal of a decision in litigation between a matrimonial client and her former counsel, the New York Appellate Division for the Second Judicial Department held that the Supreme Court had committed error in several respects. One aspect of the case involves claims that much of the work had been performed by a disbarred lawyer:

…the plaintiff alleged that the disbarred attorney was closelyinvolved in her case, and reassured her that he was working on herappeal from the matrimonial order.The plaintiff alleged that the disbarred attorney not only had contactwith her, but also dealt with the husband’s attorney and with theattorney for the children who had been appointed by the court. Sheclaimed that the defendant seemed unfamiliar with her case, consultedwith the disbarred attorney, and sought advice from the disbarredattorney when it was necessary to appear in court. The time recordswhich the plaintiff submitted on her cross motion indicated that thedefendant intended to bill her for conferring or meeting with thedisbarred attorney on several occasions, that the disbarred attorneydrafted memos and notes and that, on one occasion, the disbarredattorney accompanied the defendant to court. The plaintiff alleged inher affidavit that, while in court, the disbarred attorney consultedwith her and the defendant “on how to handle whatever was in front ofthe court at that time.”

Based upon the plaintiff’s allegations, it appears that the disbarred attorney was engaged in the practice of law. A disbarred attorney maynot engage in the practice of law, andan attorney may be guilty of professional misconduct where heintentionally aids a disbarred attorney to continue to practice law. Further, the plaintiff alleged that the defendant knew thatthis individual was disbarred, yet intentionally failed to reveal thisinformation. Moreover, the orders related to this individual’ssuspension and disbarment involve sustained charges of lying to clientsand neglecting their cases. By entrusting the plaintiff’s case to thisindividual to the extent alleged by the plaintiff, the defendant faileddiligently to handle her case. Thus, the plaintiff met her burden ofestablishing, as a matter of law, that she would have been justified indischarging the defendant for cause.

In response to these allegations, the defendant merely assertedthat the disbarred attorney’s involvement in the plaintiff’s case hadno bearing on the issue of counsel fees since the plaintiff received a”phenomenal result,” and that the Grievance Committee for the TenthJudicial District “took no action with respect to [these allegations].”The defendant, however, never attempted to raise a triable issue offact as to the level of this individual’s involvement in theplaintiff’s case, and never claimed that he was unaware of thisperson’s status as a disbarred attorney. Although, on this appeal, thedefendant raises a number of allegations in this regard, including thatthe disbarred attorney was only minimally involved in the plaintiff’scase, these allegations are dehors the record. Accordingly, in responseto the plaintiff’s prima facie showing with respect to the defendant’slack of entitlement to retain counsel fees that she already paid, thedefendant failed to raise a triable issue of fact.(citations omitted)

The court dismissed the appeal of the defendant attorney but declined to award sanctions to the plaintiff. The underlying matrimonial case had resulted in a settlement. (Mike Frisch)