A.S., Plaintiff, v. K.S., Defendant. (2023)

The Court must determine whether plaintiff's counsel, in this post-judgment matrimonial proceeding, should be relieved at his request pursuant to CPLR 321 or whether he must be required to remain as counsel of record based upon his flat fee retainer.

Procedural History

Plaintiff first retained his current counsel in April 2016 when plaintiff commenced the underlying divorce action through his current counsel. Thereafter, during that litigation, plaintiff signed a consent to change attorney relieving his current counsel and in open Court plaintiff complained about his prior counsel. Since that time, plaintiff has an extensive history of retaining and then discharging counsel. On July 14, 2019, plaintiff's current counsel attempted to file a notice of limited scope appearance which the Court noted was not appropriate at that time.² On June 26, 2019, plaintiff filed a substitution of counsel substituting Ms. Karolina Krasnyanskaya, Esq. who is affiliated with the law office of plaintiff's counsel.

A judgment of divorce was signed December 6, 2019 [NYSCEF #4], which was predicated upon the Court's extensive trial decision on custody dated August 7, 2019 [NYSCEF #5] and an oral stipulation on the record resolving all ancillary issues dated August 19, 2019.

Defendant commenced post-judgment litigation in February 2021 seeking to transfer plaintiff's pending Family Court Petition for Contempt, Enforcement and Modification of Existing Custody Orders from Family Court to this Court [NYSCEF #3]. Based on the retainer agreement presented by plaintiff's current counsel, he has represented plaintiff since December 4, 2020 [NYSCEF #207]. There has been extensive post-judgment litigation since that time with numerous applications filed including seeking contempt.

On May 17, 2023, plaintiff's current counsel filed an order to show cause seeking to be relieved as plaintiff's attorney of record [NYSCEF #204]. In his affirmation in support, plaintiff's counsel represents that:

[c]ommunications between the Plaintiff and I have broken down irreparably, and the Plaintiff and I cannot agree on strategy, nor will Plaintiff accept my advice. The Plaintiff is simply not interested in my counsel. It is impossible to provide advocacy for a client who refuses to accept legal advice and the Plaintiff's conduct renders it unreasonably difficult to represent his interest” [NYSCEF #205, p. 2].

During oral argument on plaintiff's counsel application, the plaintiff opposed his attorney's application to be relieved. It is noted that during a prior appearance on the record the plaintiff, through counsel, asserted numerous and inconsistent representations as to what relief he sought from the Court including that he wanted only supervised parenting time and that he also wanted a change of custody to be the legal custodial parent of the parties’ two (2) children.

Plaintiff did not file any formal opposition to his attorney's application to be relieved but he asserted during oral argument that he did not wish to relieve his attorney and that he believed that at a conference between the Court and counsel the Court stated that counsel would be able to seek additional counsel fees. Based upon plaintiff's comment and the fact that his attorney of record did not appear that day the Court permitted his attorney to file a supplemental attorney affirmation in response to plaintiff's comment about additional fees.

The Court notes that during the conference referenced by plaintiff the Court stated that the attorneys for the children, who have not been paid timely, can make application related thereto and that any trial would have to include testimony of the forensic evaluator who would require a fee to testify. Defendant's counsel and the attorneys for the children did not take a position on the application.

Flat Fee Retainer

The Court notes that plaintiff previously retained and discharged his current attorney in the underlying divorce action only to re-retain his current counsel at the conclusion of the divorce action now post-judgment. This is the third time that current counsel, or counsel he is associated with, has been retained by plaintiff. Despite the procedural history of this litigation, which speaks for itself and of which plaintiff's counsel had full knowledge of when he accepted this repeat representation of plaintiff — plaintiff's counsel elected to again accept a flat fee in his post-judgment retainer dated December 4, 2020 [NYSCEF #207] in the amount of $15,000.

Since that time, there have been a plethora of post-judgment applications filed. According to billing records filed by plaintiff's current counsel, the counsel fees dedicated to this litigation now exceed $93,000 [NYSCEF #209].

The Court notes that he seeks to be relieved as plaintiff's counsel due to a breakdown in the attorney-client relationship, plaintiff's counsel states in his supplemental affirmation in support of his application [NYSCEF #213] and in his response to plaintiff's comment on the record related to additional fees that “I cannot say with certainty over the course of my representation, that I have not discussed with the Plaintiff that he is taking advantage of me”

Here, based on the extraordinary level of complex post-judgment litigation that the parties have engaged in since plaintiff entered into the $15,000 flat fee retainer with his current attorney it is clear that plaintiff's counsel's typical hourly rate would have been long since exhausted.

The Court recognizes that, at times, flat fee retainers provide individuals with the ability to retain counsel and its benefits from an access to justice perspective in some circumstances and cases. Here, the Court is concerned about the role the flat fee retainer agreement may be playing in this litigation and whether it is being used as a sword and a shield where the party can engage in what appears to be a constantly expanding litigation posture knowing he is not incurring any additional counsel fees regardless of how many motions he files or what positions he takes or how many attorney hours it takes to pursue those positions. This concern is particularly raised here where plaintiff is asserting vastly inconsistent positions including that he only wants supervised parenting time with the children based on the allegations raised against him while also, at times, contending that he seeks a change of custody and is willing to proceed to trial on the issue despite the fact that one of the parties’ children will turn 18 years old in less than a year and the fact that the younger child reported allegations raised by her older sibling that she was sexually abused by the plaintiff in the past and that this report has resulted in an “indicated” A.C.S. report against him.³ The Court notes that plaintiff appeared self-represented in the custody trial after discharging his attorney and also discharged his then court assigned counsel.

Plaintiff's insistence to pursue the drastic relief he seeks — including purportedly a change of custody where the attorneys for the children have represented that neither of their clients even want to see him — is puzzling particularly where plaintiff continues to steadfastly refuse to see or speak to the oldest child and leads to greater concern that he is using the financial “incentive” of his flat rate retainer as a tool of retribution against the defendant. The defendant may not be without blame either. The allegations regarding influence and alienating conduct is of concern and while she is now willing to withdraw most of her application the plaintiff still seeks to hold her in contempt for her actions. The Court notes that to prove civil contempt a party must prove that that disobedience of a court's order “defeats, impairs, impedes, or prejudices the rights or remedies of a party” (El-Dehdan v El-Dehdan, 26 NY3d 19 [2015].

Plaintiff is re-married, lives in New Jersey and has two children with his present wife who purportedly is concerned about the intrusion into her life and the allegations made.

Given these facts, plaintiff's inconsistent positions and his willingness to proceed to trial on the issue of parenting time together with his claim that he may alternatively seek a change of custody must be carefully scrutinized. Certainly, the effect of plaintiff's litigation positions and strategies has forced the defendant and each of the attorneys who respectively represent each of the children separately to incur higher counsel fees. Whether or not plaintiff's refusal to heed his attorney's legal counsel is a result of the financial “advantage” of the flat fee retainer or not is not dispositive here.

While the Court has concerns about the role of the flat fee and whether or not it has contributed to the litigation posture in this post-judgment litigation, the Court need not reach that ultimate issue because here it is clear from the record that there has been a complete breakdown in the relationship between the plaintiff and his attorney.

It is well-established that “[i]f an attorney deems it necessary to end the attorney-client relationship without the consent of the client, the attorney may move on such notice as may be directed by the court, to be relieved as counsel by court order” (Farage v Ehrenberg, 124 AD3d 159 [2 Dept.,2014]). Furthermore, it is well-established that “[t]he 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” (Applebaum v Einstein, 163 AD3d 905, 907 [2 Dept.,2018]). Plaintiff's counsel's representation that plaintiff will not heed his legal counsel places plaintiff's counsel in an impossible situation and, under the unique facts and circumstances presented herein, where the Court first hand has seen the position taken by the plaintiff, this Court finds that the plaintiff's unwillingness to heed legal counsel and his insistence on asserting wholly inconsistent litigation positions “renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Otis Elevator Co., 22 AD3d 1 [1 Dept.,2005][client's conduct in frustrating a counsel's ability to defend it effectively constituted good cause for granting the counsel's motion to withdraw]; see also Aragona v. Shaibani, 138 AD3d 649 [2 Dept.,2016]; Sarlo-Pinzur v Pinzur, 59 AD3d 607 [2 Dept.,2009][client's failure to cooperate with his counsel was sufficient cause to grant application to be relieved]).

In reaching this decision the Court also notes that there is sufficient time for plaintiff to obtain counsel prior to the commencement of the evidentiary hearing if he so chooses inasmuch as the application to be relieved is not made on the eve of the hearing (see generally Khan v Dolly, 39 AD3d 649 [2 Dept.,2007]).

Inasmuch as plaintiff's counsel's application to be relieved is granted over plaintiff's objection the matter is stayed for thirty (30) days — to Monday, September 4, 2023 -- pursuant to CPLR 321(c) (see also Matter of Cassini, 182 AD3d 13 [2 Dept.,2020]).

The Court has gone through great efforts here at the request of the attorneys and arties and allowed them to chart their own course in this post-judgment litigation. In an effort to resolve the matter they entered mediation and on the eve of a resolution the parties resumed to a litigation strategy.

The evidentiary hearing on parenting access will be rescheduled shortly: plaintiff is cautioned not to wait to retain counsel if he plans to do so. The evidentiary hearing dates scheduled for October were vacated on defendant's application, without objection from the plaintiff or the attorneys for the children, due to those trial dates would coincide with the younger child's bat mitzvah.

Conclusion

Motion sequence #27 is granted to the extent.

This shall constitute the decision and order of the Court.

FOOTNOTES

2.   In December 2022, the legislature enacted CPLR 321(d) which provides: “(d) Limited scope appearance. 1. An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes. Whenever an attorney appears for limited purposes, a notice of limited scope appearance shall be filed in addition to any self-represented appearance that the party may have already filed with the court. The notice of limited scope appearance shall be signed by the attorney entering the limited scope appearance and shall define the purposes for which the attorney is appearing. Upon such filing, and unless otherwise directed by the court, the attorney shall be entitled to appear for the defined purposes.”

3.   Plaintiff is challenging that report.

Jeffrey S. Sunshine, J.