New York Family Law Blog
This was a case before the Supreme Court of the State of New York in Kings County.
It involved a Notice of Motion, Order to Show Cause, Petition and Cross Motion where the court was 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 were properly before the court; (3) whether or not the defendant was entitled to a 30 day stay of all proceedings in the event counsel was relieved pursuant to CPLR 321(c); (4) whether or not the defendant was entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have had 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 counsels of defendant’s application to be relieved:
Defendant sought to relieve counsel, Mr. G, as the attorney of record based upon an irretrievable breakdown in their attorney client relationship and submitted in her most recent application disparaging statements about counsel and his representation of her.
On 5 November 2010, defendant’s counsel, Mr. G, moved by order to show cause to be relieved.
On 17 November 2010, in open court, defendant stated that she wished to discharge Mr. G and asked for the appointment of a new counsel pursuant to Judiciary Law section 35(8)(b).
Mr. G is defendant’s third attorney of record.
Defendant was represented by a pro bono counsel, a New York City law firm. On 10 March 2010, a consent to change attorney was filed. This was granted and the defendant was substituted as attorney pro se. On 5 May 2010, an attorney was appointed by the court as the attorney for the defendant pursuant to the Judiciary Law on the issues of custody, visitation and an order of protection. This attorney simultaneously represented defendant in a Family Court, although it was not initially disclosed by defendant. On 10 August 2010, defendant was again substituted pro se for this attorney on consent. On 13 August 2010, the attorney moved by order to show cause to be relieved. That application was rendered moot based upon the pro se substitution and the fact that defendant already retained private counsel, Mr. G, unbeknownst to the court assigned attorney. After having discharged the court appointed counsel and hired private counsel, defendant again sought to have the court appoint her another attorney.
On 7 October 2010, Mr. G represented the defendant in an all-day temporary custody hearing. The court awarded temporary custody of the infant issue to the father since he is the more stable parent at the time. At that time, the court found that plaintiff was a victim of domestic violence. It was found that 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. It was indicated in that petition that there were “no prior applications” for an order of protection notwithstanding the application in the instant 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 of the defendant’s application in Queens County, the court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. The court informed counsel and the parties of this on the record in open Court. Upon written application, the court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on 17 November 2010. That hearing was adjourned so Mr. G could make the instant 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 did not inform Mr. G of her intent to do so. On 22 November 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.
Consequently, Mr. G requested a 30-day stay of all proceedings pursuant to CPLR 321 (c). The court then scheduled the hearing on defendant’s request for an order of protection first scheduled for 10 November 2010, and adjourned to 17 November 2010 at counsel’s request. However, this instant application prevented that hearing from going forward and that that hearing was rescheduled on 10 December 2010.
The defendant’s pro se applications:
On 9 November 2010, defendant filed her first for pro se order to show cause and sought temporary custody of the parties’ child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court.
On 17 November 2010, defendant filed her second another order to show cause. Defendant sought temporary custody, an expanded visitation schedule, new counsel, forensic evaluation, and for the court to change the attorney for the child. Defendant annexed to this application photographs of their child’s genitalia and the matter removed from their child’s nose by insertion of a cotton swab. These photographs were later removed from the application, placed in a sealed envelope, and maintained by the part clerk.
The third order to show cause, like the two preceding, sought, inter alia, similar requests for relief.
The plaintiff’s application:
On 17 November 2010, plaintiff moved by order to show cause and sought the suspension of visitation and supervised visitation – returnable on 10 December 2010.
The appeal:
At the Appellate Division, Second Department, defendant filed an appeal pro se. She sought leave to appeal two orders of the court dated 6 October 2010 and 7 October 2010 and prayed 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.
On 18 November 2010, the Appellate Division, Second Department rendered a decision and order on motion denying the application. The court denied that branch of the motion which was for leave to appeal; denied as academic the branches of the motion concerning the awarding of custody of the subject child pending hearing and determination of the appeals, the reinstatement of a certain order of protection, the poor person relief, the relieving of the attorney for the child and the appointment of a new one, and the changing of venue of the matter to the Family Court, Queens County.
The interpreter:
Initially or on defendant’s first appearance, she requested for a Mandarin interpreter. This was provided for by the court despite the fact that defendant often lapsed into using the English language or answered questions in English before the translation was even completed.
At the temporary custody hearing, defendant did not request for an interpreter and testified in rapid and competent English. In fact, the court even had to reprimand defendant to slow down because of her rapid speech pattern.
Moreover, plaintiff’s counsel also represented to the court that defendant appeared at the Appellate Division, Second Department and spoke in English. All counsels also indicated that defendant conversed with them in English. The court had also observed that defendant speaks in English, answers in English, responds to her attorney while the court and others were speaking in English, and all of defendant’s submission were in English.
Thereafter, defendant requested for an Indonesian interpreter for the first time. On 17 November 2010, the Indonesian interpreter was present in court. However, defendant did not use the interpreter at all times. Defendant readily understood and spoke English in response to the court’s questions to Mr. G, and responded to Mr. G in English.
Defendant’s counsel also noted that defendant recently became a United States citizen and all her written submissions were hand written in English.
The following paragraphs were the Court’s ruling:
Relieved as Counsel:
According to Mr. G, in his affidavit, defendant had become increasingly uncooperative. Despite Mr. G’s repeated attempts to go over the substantive issues of the case and his advices, defendant still refused to listen – to adhere and /or blatantly ignore. Furthermore, defendant filed an Appeal and Family Offense Petition in this matter without consulting him. In fact, the filing of the Family Offense petition, which was filed in Queens County Family Court, was not known to Mr. G and he found out about it only after the Attorney for the plaintiff notified him.
Here, it is clear that there was a breakdown in the attorney client relationship between defendant and Mr. G. Defendant’s conduct rendered it unreasonably difficult for Mr. G to carry on his employment. Thus, Mr. G can no longer serve as the attorney of record.
Generally, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice. The defendant has the right to discharge her privately retained attorney of record. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court. The court’s decision should not be overturned absent a showing of an improvident exercise of discretion.
The pro se motion by litigant represented by counsel:
A defendant’s filing of motions and orders to show cause and the seeking of relief in different courts without notifying his lawyer is a per se basis to be relieved as counsel of record.
The rule that a client has an absolute right to dictate the course of the litigation is only true so long as the acts are not frivolous. A client must inform his or her lawyer of their actions at all times and should not be filing pro se applications on their own while still being represented by counsel, as a regular course of conduct, unless extreme special circumstances exist. Courts do 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 effects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis.
There is a plethora of case law on the issue of a litigant’s right to file a pro se motion while represented by counsel. However, the case law emanates from the criminal field. It was held in these criminal cases that “a criminal defendant has no Federal or State constitutional right to hybrid representation. While the Sixth Amendment and the State Constitution afford a defendant the right to counsel or to self-representation, it does not guarantee a right to both. These are separate rights. To choose one is to forego the other. A litigant should proceed in a civil proceeding by way of a pro se application only under rare and special circumstances and must always inform their attorneys of their intentions.
The appointment of counsel:
Defendant again requested for the nth time that the court appoint her a new counsel to be paid with government funds. According to her, she needed a counsel who truly understood domestic violence and was ready for her case.
According to plaintiff in its opposition, defendant admitted 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; that she attempted at the last oral argument to submit written documentation.
Apparently, defendant admitted to sending 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. The court finds this problematic. To provide a court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons poses a problem.
Regardless, the court recognizes that the right of parties to counsel in a custody or visitation dispute is fundamental. This is also true in requests for a temporary order of protection. Thus, a counsel was ordered to be appointed for defendant by separate order subject to another 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. Consequently, defendant was advised to 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. However, defendant was 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.
CPLR 321 (c) stay:
While a litigant is usually entitled to a 30-day stay pursuant to CPLR 321 (c) to obtain new counsel, there must still be 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.
Here, it is the opinion of the court that, with the appointment of counsel, the need for a 30-day stay must be obviated. However, defendant was 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. The court took into consideration the fact that the issuing of a stay would affect the parties’ rights to seek judicial relief during the 30-day period. Defendant was thus advised that in the event she wanted to seek further relief from the Family Court, she must inform the Family Court of the existence of the case.
Moreover, the court has on the record removed all of the photographs of the child’s genitalia and were kept sealed by the clerk of the part together with any copies.
Plaintiff was awarded temporary custody of the parties’ child after a full evidentiary hearing and plaintiff was the only individual authorized to obtain medical services or treatment for the child absent an emergency. While defendant agreed to stop undressing the child at the police precinct during exchanges of the child, she was also ordered to stop bringing the child to emergency rooms and doctors absent a true medical emergency. While defendant claimed ACS did not return her phone calls, if she truly believed that the child was neglected, she should have contacted the ACS hotline.
The court also directed the defendant not take photographs of the child’s genitalia or stick cotton swabs in the child’s nose to remove matter and then photograph the same and attach it to papers alleging to show the court that the child has an illness.
Interpreter:
In certain types of proceedings, there is an absolute right to an interpreter. However, here, it is clear that the defendant was able to speak and rapidly respond in cohesive and intelligent English. Thus, the Court did not, at this juncture, order an interpreter for her. According to the evidence presented, defendant has prepared extensive documents in English, readily conversed in English, and checked “English” as her language on Hospital forms. What is more, the Court has observed her speak and understand English.
In the Matter of Ejole M, the Appellate Division, Second Department, held that “as a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense. Where a court is put on notice that a defendant has severe difficulty in understanding the English language, it must inform him or her that he or she has a right to a competent translator to assist him or her, at State expense, if he or she cannot afford one. The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive the defendant of his or her constitutional rights.”
On 7 October 2010, defendant participated in a temporary custody hearing. Although a Mandarin interpreter had been provided for prior appearances, defendant chose to proceed with the temporary custody hearing without the services of an interpreter. at the hearing, the defendant’s testimony was coherent and comprehensible. There was no manifestation of a need for an interpreter. All of her testimony was understood by the court and it was clear that she understood the court.
Obviously, defendant understands the English language and successfully communicates in the English language. Thus, defendant’s application, under these circumstances, was denied.
The court’s order:
The issue of defendant’s request for an order of protection and plaintiff’s request for suspension of visitation would still be the subject of an evidentiary hearing. If properly served, the court would 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 10 December 2010. Thereafter, an attorney for defendant and a forensic shall be appointed by separate orders, and the cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimburse the State of New York for her share.