After 2 Centuries, Divorce Still Evolving Here
 

By Heidi J. Shrager
Staten Island Advance
September 26, 2004

Ever since New York's first legal divorce was granted in 1787 to a prominent man desperate to flee his wife's adulterous ways, the state judiciary has tried to keep up with the fluid notion of marriage and the reasons four out of every 10 meet their untimely ends.

After 217 years, divorce is still very much a work in progress. While rule-makers search for solutions to an array of acknowledged flaws in the system, a small but disturbing number of Staten Island ex-couples tumble down a black hole of never-ending court dates, ballooning legal fees and settled divorces held hostage by lawyers who fail to file the necessary paperwork.

Lynn Brennan had to declare bankruptcy when her divorce was finalized in 2001 - nine years after she filed for it - when her lawyer sued her for more than $100,000 in legal fees. She had offered him the $65,000 she got in the settlement, but he refused.

Susan Zazulka watched the court hold her husband in contempt at least five times in one year for his refusal to pay court-ordered support money for her and their four children. While she continues to wait for her money, her credit card debt has soared to almost $50,000, services in her home are being shut off one by one, and her legal fees have mounted to nearly $70,000.

Steven Itkin and Jeanette Begin-Itkin were told by the judge last August that they were divorced, but Mrs. Begin-Itkin has yet to collect on the terms of the settlement - a garnishment from her husband's pay check for child support, and her name on the deed of her house. Since her lawyer stopped talking to her and refused to file the paperwork until he was paid in full, the settlement was technically not enforceable.

Dirty Divorces

Fortunately, these stories are atypical of divorce on Staten Island. About 1,000 Staten Island couples untie the knot each year in the borough's state Supreme Court matrimonial part on the Stapleton waterfront. Most of them - 572 out of 987 in 2003 - are uncontested, which means spouses agree on how they will divide money, assets and children. As for the cases that are contested, most eventually get settled without undue torment. But a few cases - one lawyer estimated between 20 and 50 per year - drag out, either at trial or during
pre-trial discovery.

At the root of most agonizing divorces lie unreasonable or vindictive spouses.

"Most attorneys who practice in this field would like to settle things peacefully," said veteran Island divorce lawyer Robert Minogue. "They're not interested in causing controversy and generating fees and so on." A few hours spent at the courthouse makes plain this fact. On a recent morning in the hallway outside a courtroom, one lawyer scolded a feuding ex-couple like a teacher stopping a fight on the school playground. She repeatedly reminded them of their shared ultimate goal - their daughter's happiness. She warned them that if they kept battling as if they had unlimited money to litigate, they would slowly sap their daughter's entire financial future.

Lawyers say another major source of needless pain is an adversarial or incompetent legal opponent. Assuming both sides' attorneys share the goal
of efficiency, lawyers say that nearly all divorce issues can be handled
outside of court, some with just a simple phone call.

"There are certain people who, when I find out they're on the other side of the case, I'll charge more up front, because I know it's going to be a nightmare," one veteran Island attorney told the Advance, adding the practice is standard among attorneys.

'Wolves In Sheep's Den'
 
But even an amicable split doesn't guarantee an easy one. Plenty of other perils threaten to turn a bad situation worse. In 1992, the city Department of Consumer Affairs published the first critique of New York's divorce system undertaken by a public agency.

Although severely criticized by the legal community for relying too heavily on anecdotes and for targeting lawyers and ignoring the system itself, it drove the chief administrative judge to enact about a dozen new rules governing attorney and judicial conduct in matrimonial cases. In January, a report called "The Matrimonial Rules - Ten Years Later" was issued by the state's administrative matrimonial judge to assess their impact.

As a testament to the court's ongoing quest for self-improvement, a task force called the Matrimonial Commission was formed in June to address some
of the old, unaddressed problems as well as any unintended consequences
of the rules.

The original DCA report was scalding. Littered with horrifying stories, it focused on fee abuses and the harsh collection schemes some lawyers use, such as placing liens against clients' homes. It also highlighted the huge disadvantage clients face by not having enough legal know-how to monitor their lawyers' performance and billing.

"Women, in particular, are often denied a fighting chance for their rightful share of marital assets," read the report, blaming a legal system that "encourages both enormous legal fees and the financial exploitation of vulnerable clients."

To a much lesser extent, the report also took aim at the system itself. It singled out the equitable distribution law, enacted in 1980, for being a boon to lawyers and a bust for wives. Lawyers could suddenly start to bill for hours of litigation and time spent figuring out how marital assets should be distributed.

A court referee was quoted as saying that before 1980, a contested divorce would "maybe add up to $6,000 in total fees for both sides." The exact same
case the year he was quoted, in 1992, "would run $50,000 - easily." Some
Islanders said that having all of their assets exposed to their lawyers made them feel extra vulnerable, since legal fees are often paid with the proceeds from the sale of assets.

Steven Itkin and Jeanette Begin-Itkin were court-ordered to sell their second residence, which they had been renting out, in order to pay their legal fees. Itkin said he would have moved there to stay close to his children. Instead, he had to move in with his parents in  Brooklyn. "You get pulled into the system and right away it's about what you have and what you can sell," he said.

Donald Pagano, another Islander who recently settled his divorce, told of a similar experience. "You're so emotional that you give them all this information. They're sitting like a wolf in a sheep's den, licking their chops. Then they start back and forth with the paperwork on how to divest your assets."

Pagano said that in order to pay his legal fees, as well as $20,000 to have his contracting business appraised and another $15,000 for a psychiatrist's
evaluation that was never used, he had to cash in his profit-sharing plan and retirement account.

Stall Tactics 

Based on the January "10 Years Later" report, as well as discussions with numerous lawyers, the most significant new matrimonial rule is by and large
considered a huge success.

It requires judges and lawyers to adhere to strict deadlines for pre-trial conferences and hearings. It was meant primarily to deter lawyers from using
delay tactics in order to run up bills, and to start a dialogue between lawyers, judges and clients about key points in the case early on. Cases now move through the system more efficiently; there are fewer pending contested cases, and most are settled within a year, as opposed to two or three years.

Other rules include lawyers' new obligation to give clients a list of "clients' rights." This met with vehement opposition by many lawyers who argued that it set a bad tone, making clients suspicious of lawyers before they even step foot in their office. But many of the criticisms outlined in the DCA report still apply.

The New York Minefield

"New York is considered the most complicated state to process a divorce, "said attorney Harold Mayerson, chair of the matrimonial law committee at the
Association of the Bar of the City of New York. At a cost of as much as
$50,000, contested divorces are largely unaffordable for the middle-class
families that dominate Staten Island.

Court orders go unenforced for months if not years. In cases where an ex-husband violates an order of child support, his ex-wife sometimes can't afford a lawyer to help her collect.

No single court exists for family matters in New York, leading to confusion and a lack of uniformity in the rules. Divorces happen in Supreme Court, while post-divorce matters are usually handled in Family Court. Paid for their time rather than their achieved results, lawyers who find cases more complex and time-consuming than what their clients can afford routinely ask the court to be relieved from the case. But only after they've collected thousands of dollars in fees.

In a state notorious for a gridlocked legislature, domestic-relations law seems to be many steps behind reality, making it unlikely that these problems will be fixed anytime soon.

"New York is in many ways frozen in time in about 1980," said Andrew I.
Schepard, director of the Center for Children, Families and the Law at Hofstra University.

It wasn't until 1967, for example, that New Yorkers could sue for divorce on grounds other than adultery. Only since the 1993 rules do lawyers have to provide written retainer agreements and monthly itemized bills to clients, and refund unused portions of retainers.

The stagnation has been blamed on many factors, including powerful bar associations with an interest in keeping divorce litigious.

"There is a direct relationship between the amount of money in a case and the amount of litigation in a case," said Schepard. WHY FIND FAULT?  New York is notorious for lagging behind more progressive states in divorce reform.

It is one of the few remaining "fault states" in the country, which means that most divorces - even amicable ones - are put in an adversarial context in the courts, requiring one spouse to find fault with the other. Faults include "cruel and inhuman treatment," abandonment or adultery, and proving such grounds often leads to soaring legal bills and searing accusations.  "It's a hard enough change without having to assign blame," said Peter Salem, executive director of the Association of Family and Conciliation Courts, based in Madison, Wis.

What's more, couples routinely lie in court, claiming "constructive abandonment," or no sex for at least a year. Tough to disprove, the grounds are considered to be the closest to no-fault a New York couple can get. Most states have made the conversion from fault to no-fault since the first no-fault law was enacted in 1970, in California. Meanwhile New York's rules adhere to the philosophy that if the state eases the divorce process, it will send the wrong message that divorce is acceptable, and lead to a rise in the divorce rate.

For the first time, the New York State Bar Association drafted proposed
legislation this summer that would convert New York to a no-fault state, and is now gearing up for a lobbying campaign to get the bill passed.

"We are overly litigious in New York State. It's not healthy for anybody, "said attorney Harold Mayerson, chair of the matrimonial law committee at the Association of the Bar of the City of New York who helped draft the proposed legislation.

Observers say New York also trails behind dozens of states in embracing
Supreme Court custody-battle reforms as well. A national trend toward divorce mediation, particularly in custody dispute cases, started to gain momentum more than 20 years ago. The process, which involves a neutral third party who helps spouses understand each other's points of view and think creatively to reach compromises, has proven to lower the costs of divorce and increase parties' satisfaction with the ultimate agreement.

So far, 13 states, as well as jurisdictions within 40 states, have mandated that people try mediation when children are involved.

"Often people don't really know what the process of mediation is like until they begin to experience it," said Ramona Buck, public policy director at the Maryland Mediation and Conflict Resolution Office. "Mandating it brings them to the table to see whether this process can be helpful to them. And so often it is." All of Maryland's 24 jurisdictions mandate mediation in cases of custody and visitation, except in cases of domestic violence. In 1999, New York launched its first custody mediation program. It now has four, all voluntary. A fifth, a pilot program, is on the way in Manhattan. If successful it will likely launch on Staten
Island, said Daniel Weitz, who coordinates the state's alternative dispute resolution programs.  Children's rights advocates say New York has largely opted out of a nationwide movement toward joint custody as well.

"New York is one of the weakest states in the country for assuring a child's rights to two parents in the event of divorce," said David L. Levy, president of the Children's Rights Council, a Washington, D.C.-based advocacy group. While all states allow joint custody, 27 have passed laws requiring judges to consider it as a first option, said Levy.

Lawyers and judges here say that New York is making subtle moves toward a
custody model that appreciates the role of both parents in the child's life. Instead of granting exclusive custody to the mother with father's visitation, judges more often grant joint legal custody - in which parents make joint decisions pertaining to their child - with physical custody going to the mother, said Paul Scano.

But enacting a statewide statute makes all the difference, said Levy. "If  New York was 90 miles behind the curve, now it's maybe 85," he said. Adding a statute that requires judges to place a priority on joint custody -whether just legal or a combination of legal and physical - would send a message that children need both parents in their lives and bring joint custody much closer to the norm, he said.

The Matrimonial Commission announced by New York's chief judge in June is
the latest committee formed to take a small bite out of a litany of  criticisms. It will search for solutions to problems associated with custody fights, unenforced orders, and court-awarded counsel fees.

Heidi J. Shrager is a news reporter at the Advance. She can be reached at
shrager@siadvance.com.
 

                 Court Orders Ignored on Regular Basis
 

By Heidi J. Shrager
Staten Island Advance
September 27, 2004
 

The Great Divide:

Second in a four-part series examining the problems encountered when dissolving a marriage on Staten Island, When it comes to forcing people to obey rulings, New York's Supreme Court comes up short  It was a usual day in Staten Island's matrimonial courthouse on the Stapleton waterfront.

Divorce lawyers volleyed decorum-soaked accusations and demands before a
judge, their clients seated obediently beside them. In the halls, warring spouses avoided eye contact and frantically mapped out the chess game of their future with concerned relatives.

Then something unusual happened.

A judge incarcerated a man named Carlo Giglio, who was ruled in contempt
of court for shunning a five-month-old court order to pay child and spousal support to his soon-to-be ex-wife.

Within minutes the news spread to the upstairs courtroom, where a few lively divorce attorneys, their shell-shocked clients in tow, were passing the time until their cases were called.

"That's got to be a first!" howled one gray-haired lawyer to another. Bantering about how far it veered from the status quo, another gibed, "That's why you don't file contempt motions - it's a waste of time!"

When it comes to forcing people to obey orders, New York's Supreme Court
is known for being somewhat toothless. While Family Court enforces orders
in a final divorce judgment, only Supreme Court can enforce temporary orders made while the divorce is still in progress.

"Courts issue orders and then nobody listens to them," said Harold A. Mayerson, chair of the matrimonial law committee at the Association of the Bar of the City of New York. "Then people have to go back to court and it's
almost like a second proceeding."

Without contempt, judges lose much of their potency. A contempt ruling is the necessary step before a judge can send a person to jail - the ultimate trump card in getting a father to pay his daughter's car insurance, a husband to pay his wife's mortgage, a client to pay the money a lawyer is awarded in legal fees.

Contempt is especially crucial in divorce court, where orders made in the spirit of compromise that require people to wholly negate their deepest raw emotions are ignored almost as a matter of course.

"We're not magicians," said Jacqueline W. Silbermann, the statewide administrative judge for matrimonial matters. "I can make orders. I can't necessarily get the money from your husband's pocket into yours."  But so
reluctantly do judges hold someone in contempt that lawyers ask for it only in extreme circumstances, if at all.

Court Orders

Unfulfilled court orders have been a target of criticism within the profession for years. In 1993, a panel charged with examining the flaws in the state's divorce process listed the courts' failure to enforce orders as one of the major problems.

While about a dozen new matrimonial rules were enacted to address some of
the findings of that panel, including the length and cost of divorces and attorneys' treatment of clients, the issue of enforcing court orders was one of several left open.

Until now

On June 1, the state's chief judge, Judith S. Kaye, announced the creation of a matrimonial commission "charged with examining every facet of the divorce process in New York and recommending reforms to correct existing problems."

Three topics were singled out in the announcement: Custody fights, court-awarded counsel fees and unenforced orders. This might come as good news to Islanders like Celine, who sued her husband for divorce in February 2003.

"There are all these papers, orders are written and signed, and nothing is enforced," said the 44-year-old woman from Annadale, whose divorce is in pre-trial negotiation and did not want her last name used. "It's a joke!" Her husband started to shun court orders more than a year ago, withholding support and bill payments, she said. Early this year her telephone and cable were shut off, she said, speaking in her home through a cell phone's weak signal.

"You get this piece of paper, it's supposed to just pacify you, I think,"  she said, referring to the ignored orders. "If it was just adults, we could deal with it. But you get to the point where it destroys the family union - it's unbelievable the damage that is done."

Last Resort
 
Court administrators fault a Supreme Court rule that requires judges to reserve contempt as a last resort to be used only after they've exhausted all other possible "remedies." Remedies that must first be tried include securing a lien or getting payment to come directly from a debtor's paycheck.

But such efforts, which are complex and time-consuming, can often be  useless.

"There are a lot of futile steps in Supreme Court," said Justice Silbermann. "People can be very good at hiding money."

Justice Silbermann, who oversees the matrimonial process statewide, said she has been trying to change the law to match contempt law in Family Court, which allows judges to directly hold someone in contempt after they disobey a court order. 

"That makes a huge difference," she said. "So you don't have to go through these shenanigans in exhausting your remedies.... People begin to think that you can't get contempt." 

She has made requests over the last several years with the Office of Court Administration, which runs New York's court system, to add the issue of contempt onto its legislative agenda.

"But it's not that simple," she said. "Legislation is hard to come by." Lawyers say the orders that tend to go unenforced involve money, because the corresponding "remedies" are more complex, as compared to orders for child visitation, for example.

In addition to support payments, another order that lawyers complain often goes unenforced is counsel fees, when the spouse with money is ordered to pay the legal fees of the spouse without money, to guarantee a level playing field.

But there is little logic to the notion that a spouse who eschews an order to pay his wife will obey an order to pay her lawyer. Court administrators recognize the problem; it is one of the issues to be studied by Chief Judge Kaye's matrimonial commission.

"They are not enforced," said divorce attorney William J. Frew, who has been practicing here since 1976 and is co-chair of the Richmond County Bar's matrimonial committee. "We're basically asked to work for nothing." The result is a paralyzing legal juggernaut. When lawyers realize they will probably not get paid from a client who is being denied badly needed financial support, they are reluctant to risk hours of their time, at an average of $250 an hour, to prove they've exhausted their options. The spouse being denied support - usually the wife - is then left without both child support and a lawyer.

Legal Fees
 
In June, Celine's lawyer asked the judge to relieve him from the case. Celine could not pay his law firm beyond the initial $10,000 retainer she paid in early 2003, and the judge at the time did not award her lawyer counsel fees from Celine's husband.

After repeatedly asking her lawyer to explain why he never filed a motion for contempt, Celine still does not know the reason.  "He just wouldn't do it," she said, the exasperation in her voice no different than when she talks about her husband. Deadlines given to her husband to comply with court-ordered support came and went, she said.

In May, Judge Barbara I. Panepinto told her lawyer, who works with Brooklyn-based Caruso, Caruso & Branda, P.C., to file a motion for contempt.

Instead, when they reappeared in court a month later, her lawyer asked the judge to dismiss him from the case because the client-attorney relationship had broken down. Judge Panepinto reluctantly granted that request. In nearly the same breath he asked her for a lien against Celine's home, to collect outstanding fees of $13,000. That request was denied.

"They found time to file a motion for recusal, but not for contempt," said Celine. "I had been asking for the contempt charge to be addressed at least since December."

Her lawyer denied comment when asked if he quit because of non-payment, and would not explain why he did not file for contempt. He did say that Celine's "remedy" to collect her support would have been to wait until the end of the case when the couple's assets, presumably the marital home, would have been sold. But Celine, who lives there with her children, does not want to sell the house, and the judge has not ordered her to do so.

Celine borrowed $1,000 to retain a new lawyer, Shoshana Myerson. "She is
wonderful," said Celine of Ms. Myerson. While the judge and lawyers were
pressuring Celine to sell her house, Ms. Myerson was the first to suggest she refinance, assuring her that as a mother of three, she is entitled to keep her house, said Celine. Ms. Myerson has still not received the $5,000 legal fees the judge ordered Celine's husband to pay. Still, Celine said with relief, "she's actually willing to fight for me."

       State's Law Guardian System in Need of Overhaul

By Heidi J. Shrager
Staten Island Advance
September 28, 2004

The Great Divide

Third in a four-part series examining the problems encountered when dissolving a marriage on Staten Island Critics are concerned about legal subspecialty's unchecked power over judges' rulings and the fate of families Steven Itkin was in the throes of a caustic divorce. His wife no longer trusted him to spend nights with their three children, and he was desperate for the court to intervene.

The court appointed a law guardian, a lawyer responsible for determining the children's best interests and making them known to the judge. The guardian
would bill the Itkins the standard matrimonial rate on Staten Island of $250 an hour.

But that solution quickly mutated into its own problem when the law guardian, James Lambert, realized the Itkins were deep in credit-card debt and had no money to pay his fees.

According to Itkin, within two months after Lambert was appointed, the law guardian's vigorous pursuit for fee payments began to overshadow Itkin's quest for visitation rights.

"I was dying because I was trying to get overnight visitation," said the 44-year-old father of three, who now lives in Brooklyn. "You're really counting on the right decisions for your children. We went to court eight times, six to discuss how they're getting paid. The kids were barely brought up."

Itkin's dismay at the court's distractions from his children's future during his divorce is not unique. In a small yet disturbing number of cases, parents say a system meant to protect their children ended up hurting them more.

Several Islanders who spoke to the Advance said they worried their children's best interests got lost in a maelstrom of competing motives, such as a guardian's preoccupation with unpaid legal bills, a bias toward one side, or personal values in possible conflict with the child's well-being.

Law Guardians

Supreme Court judges were given the power to appoint privately paid law
guardians in 1990. Guardians are now appointed in nearly all custody cases involving children old enough to talk. Supporters say they are necessary to separate the parents' battle tactics from children's true needs and wishes, and bring crucial damage control to inherently destructive custody battles. But ever since a Brooklyn Supreme Court judge was indicted in 2003 for accepting money and gifts from a law guardian in exchange for lucrative appointments and favorable rulings, the legal subspecialty has come under increased scrutiny.

Chief among critics' concerns is the unchecked power law guardians sometimes have over judges' rulings and the fate of families. "Too many judges rely too strongly on what that law guardian tells them, "said one Island-based matrimonial lawyer, who requested anonymity so as not to jeopardize his relationship with judges here. Acknowledging the need for a thorough overhaul of the system, the state judiciary  has taken action.

"A closer look at how these professionals are currently trained, selected and used in New York state is needed," wrote Justice Jacqueline W. Silbermann, chief administrative judge for state matrimonial courts, in a January report.

Guardianships are now one of the key issues being tackled by a matrimonial commission created in June by the state's chief judge, Judith S. Kaye. Specifically, the commission will ask under what circumstances guardians are actually necessary, how they are chosen and what their qualifications must be, said Wendy Deer, associate counsel to Judge Kaye. It will also clarify the role that guardians should play once appointed, said Mrs. Deer. At the center of this complex question is whether guardians should make recommendations to the judge, or be restricted to reporting the facts as reported to them, by the child or a court appointed mental health expert, for example.

Costly Supervision

For now, the Itkin case highlights the wide buffer that insulates law guardians from the parents who must pay for their services. To ensure that children can express their feelings freely, parents are forbidden from talking to guardians about the case. If a parent objects to their fees, their main recourse is to ask the judge to review the bills and make a determination. They cannot request binding fee arbitration - an informal court proceeding administered by an arbitrator unrelated to the divorce litigation, which has proven successful in solving client-attorney fee disputes. Critics say the autonomy that comes with having children as clients creates the need for closer supervision.

Law guardians "are supposed to be held to a high standard, given that a child is not in a position to bargain at arm's length and police the relationship," said Walter Olson, a senior fellow with the Manhattan Institute who started a Web site called Overlawyered.com. "In places like New York, you have what has widely been condemned as a poor standard of policing."  Itkin's former wife, Jeanette Begin-Itkin, said she objected to Lambert's fees soon after she got his first bill for $5,500. But she said her lawyer advised her not to "ruffle the law guardian's feathers," implying she'd pay the consequences when it came time for
Lambert to present his findings to the judge.

She quickly became intimidated, and didn't get the courage to object directly to the judge until at least a year later. By that time Lambert's bill had ballooned to $18,000.  "We're on pins and needles," said Steven Itkin. "We're in no position to be fighting with this guy, who has the power to take our kids away from us. We have to kiss up to this guy." The Itkins argued that Lambert spent no more than an hour with each child. Lambert disputes that. "They don't want to pay for the number of times I met with them, but then they're implying I should have met with them more," he said. "You're damned if you do, damned if you don't."

Judge Rachel A. Adams convinced Lambert to accept $15,000, an amount that
Ms. Begin-Itkin still objected to. Lambert is now litigating against her to get his money. He said his fees reflect the hard work he put into his case, and that meeting with children is just a small part of the job. The Itkins "couldn't agree on the day of the week," he said, adding that he had to spend just as much time assessing the merits of their poisonous accusations against each other as he did talking to the children.

Candidate Pool
 
Closer scrutiny of law guardians seems especially crucial in Staten Island's divorce court, a place one veteran divorce lawyer described as a "small-town
community."  Relationships between the fewer than two dozen attorneys who
call the matrimonial court on the Stapleton waterfront their second home are
inevitable. In addition, judges regularly troll for law guardians from the same small pool of eligible lawyers. Three of the 25 lawyers eligible to be law guardians here got 17 of the 38 appointments made in the past year.  One Islander who was trying to win custody of his children during his divorce said he asked the judge to dismiss the law guardian appointed to his case because the guardian admitted on the court record to a prior relationship with his wife's lawyer. The judge refused, later ordering the father to cash in his profit-sharing pension to pay the guardian's $18,000 in fees.

Criticism of the lucrative promise of law guardianships have led Judge Kaye to instate fee caps that went into effect in January. Lawyers cannot bill for more than $50,000 per year in cumulative law guardian fees, and can not get more than one appointment worth more than $15,000 in a year Many lawyers say the fee caps will hurt children by discouraging qualified, experienced lawyers from representing them. "With a $50,000 cap on fees, you're bumping the law guardians who are very well-seasoned in representing children in all the pit falls and hurdles, "said Susan Bender, a partner in a Manhattan matrimonial law firm and co-chair of the matrimonial committee of the Women's Bar Association of
New York. "The people who will be representing them are the ones who are
cutting their teeth on how to be a lawyer."

But Charles Devlan, head of Guardian & Fiduciary Services of the Office of Court Administration, which administers the rules, said the change was needed "to address the potential for undue influence and insider connections in the selection process and fee approval." He said that, while some lawyers will no longer want to serve as guardians, "it's equally possible that people who have, to date, been standing in the hallway and not appointed because only certain people got appointed, may well become available and fill the gap."


                        Breakdowns in Client-lawyer
                   Relationship a Common Occurrence

By Heidi J. Shrager
Staten Island Advance
September 29, 2004

The Great Divide

Last in a four-part series examining the problems encountered when dissolving a marriage on Staten Island  According to legal experts, matrimonial law garners the most complaints from clients  Five years ago, Gilberto Medina-Ayala was stuck in a bad marriage. Now, he feels hopelessly trapped in a new relationship that decayed after years of frustration and confusion. No, it's not another woman. Medina-Ayala wants a divorce from his divorce lawyer.

The 59-year-old retired Port Authority cop from Egbertville says that, after about $15,000 in legal fees, his lawyer won't rectify a calculation error made by his former wife's attorney in a settlement two years ago - which awards her more than three times what she is entitled to from his pension plan.  "He always says he'll take care of it, he'll make it go away," said Medina-Ayala, who filed for divorce in July 1999. "Five years later he still hasn't made it go away ... Enough is enough. I have to move on."  Many Islanders like Medina-Ayala who are struggling through divorces end up feeling about as vulnerable with their lawyers as they do with their spouses. Unschooled in the commanding language of law, several people told the Advance they trusted their lawyers to protect them, but
then found themselves hopelessly at their mercy.  New York's system for attorney regulation and discipline seems of little help. Although rules governing attorney conduct abound - an inch-thick document of state court rules dictates how attorneys must manage cases and a "Code of Professional Responsibility" is meant to hang over the industry's collective conscience - in practice, enforcement of lawyer conduct is scarce. No proactive body exists to examine misconduct.
Instead, regulation is left up to savvy or overly frustrated clients who take action. Even then, the results are modest.

The Supreme Court Appellate Division Attorney Grievance Committee over-seeing Staten Island also manages Brooklyn and Queens, giving it jurisdiction over more than 12,000 lawyers. A large portion of complaints - those deemed
"minor" - get forwarded to the local bar association, whose lawyers are asked to investigate, and if necessary, discipline their colleagues. Discipline rarely rises above a warning letter. Clients who object to outstanding fees can avail themselves of fee arbitration, but their chance at recouping any money they already paid is nonexistent (unless they win an arduous malpractice suit).

And a diligent consumer hoping to check a lawyer's record before paying a
retainer fee hits a wall of silence. In New York state, formal complaints - even those found to have merit - are kept confidential, as are formal warning letters.  "How do you regulate the industry? I've been in this industry for 23 years. I don't know," said Susan L. Bender, a partner in a Manhattan matrimonial law firm and co-chair of the matrimonial law committee of the Women's Bar Association of the State of New York.

Client Woes
 
Lawyers say only a minority of complaints are warranted. Most stem from
miscommunication problems, while some are from overly suspicious clients quick to complain. Through paranoid eyes, an innocent lunch between opposing lawyers can become a heartless conspiracy. "Most people in this field have been accused at one point or another of being in cahoots with the other side," said George Sieghardt, co-chair of the matrimonial committee of the Richmond County Bar Association and former chair of the Appellate Division grievance committee.

Sieghardt recalled reading dozens of complaints from people against their ex-spouses' lawyers during his tenure on the committee. "Just because you don't like your spouse's attorney doesn't give you a right to file a  complaint against him," he said. Experts say that of all the legal fields, matrimonial law garners the most
complaints. That comes as no surprise to most lawyers. "Emotions are running very high," said Barry Kamins, another former chair of the grievance committee and former chair of the New York State Bar Association Committee on Professional Discipline. "Frequently they're not happy with results of their cases, and frequently they'll blame their attorneys."

But to unhappy clients like Medina-Ayala, problems considered minor by disciplinarians can take their toll in subtle ways. Although some fire their lawyers after parting with thousands of dollars in fees, others, like Medina-Ayala, have enough trouble producing the cash they owe their current lawyer to even consider paying a new lawyer a retainer fee. For the past year, Medina-Ayala's heart would beat a little faster on the 15th of every month. That's the day he would open the check from his wife, relieved to find that she took only what she was owed and sent him the balance.  "I should be in control of my pension, not my former wife," said Medina-Ayala, who hits a wall each time he tries to understand why, seven months after a judge ordered the lawyers to rectify the problem, nothing has changed.

What's more, since December 2002 - when his divorce was finalized and he
owed his lawyer just $485 - his lawyer's bill has swelled to more than $8,000 - "a letter here, a fax there," he said, all communication about the pension mistake. "As long as this thing is still in litigation, he sends me a bill," said Medina-Ayala. "I want to stop that!" He has reason to hope. As of this month, the order was corrected and needs only to be signed by the judge. His lawyer, Jay Baum, said the error went uncorrected for more than a year because the lawyers were simultaneously trying to figure out another issue concerning pension arrears of $26,000 that Medina-Ayala's wife was owed. But those arrears accrued in the
nearly two years it took for his divorce to be finalized, said Medina-Ayala, perplexed as to why it took so long.

The judge declared the couple divorced in March 2001. But it wasn't until December of the next year that the judge signed the papers, and June  until his wife started to get pension money. During a telephone interview from his New Dorp office, Baum said, "We weren't able to correct the error until we figured out how arrears were going to be paid."  As for why almost two years passed before the divorce was finalized, Baum said, "There was a backlog." When asked if he filed the papers by the deadline, 60 days after the judge deemed the couple divorced in court, he said yes.

Rules of Conduct
 
To help stem client-attorney relationship breakdowns like these, rules  governing attorney conduct were introduced in 1993. For example, a list of 23 "Clients Rights and Responsibilities" must now accompany retainer agreements; paperwork must be filed within a certain amount of time; attorneys are prohibited from foreclosing on the marital home to collect fees, and lawyers must refund unused portions of retainers to clients. Hon. Jacqueline W. Silbermann, the statewide administrative judge for matrimonial matters, issued a report in January hailing the 11-year-old matrimonial rules for having "succeeded in changing the attorney-client relationship for the better." Some judges now routinely hand out the little blue book of rules to frustrated clients in court, as if sending them a coded message that they are subject to being mistreated by their lawyers and may take action. Many lawyers stress that clients have a responsibility to understand their rights.

"As a consumer, you must pay attention to what you're doing," said Staten  Island family law attorney William J. Frew, co-chair of the matrimonial committee of the Richmond County Bar Association. But in the midst of a
wrenching divorce, it can be hard for clients to assert their rights with a lawyer whose priorities or opinions contradict their own.  Some observers say more proactive measures could be taken to minimize the potential for such strife. The city Department of Consumer Affairs, which   regulates licensed professionals from dry cleaners to restaurants and  posts complaint histories and prior sanctions on its Web site, recommended in a 1992 report that the Appellate Division refer cases of alleged lawyer abuse to them.

But lawyers' records remain a mystery to the average consumer.  "It is a
puzzling situation," said Ms. Bender. "There is no way for a litigant to  know, when they walk into an attorney's office, whether that attorney is going to represent them in a way that is best for the litigant. You can bring a checklist, but none will answer the ultimate question, which  is, is that attorney going to responsibly handle cases?"

Secret Discipline
 
Critics blame this lack of information on a secretive discipline system in New York secured by a judiciary law that mandates confidentiality of complaints and formal warnings against lawyers. Various organizations and judicial committees have called for such secrecy to be lifted.  The American Bar Association has called it "the greatest single source of  public distrust of lawyer disciplinary systems," and rejects lawyers' claims that their "reputations are so fragile that they must be shielded from false complaints."

"The irony that lawyers are protected by secret proceedings while earning their livelihoods in an open system of justice is not lost on the public,  "reads a report posted on the group's Web site. "On the contrary, it is a source of great antipathy toward the profession." The judicial "Committee to Examine Lawyer Conduct," whose findings formed the basis of the new matrimonial rules enacted in 1993, also recommended an end to such an "extraordinary degree of secrecy."  And Consumer Affairs has observed that a client would have no way of knowing if they're paying a retainer to a lawyer about to be disbarred for stealing escrow money. Although 35 states now open the disciplinary process to the public from the time a formal charge is made, a bill to do so in New York has been rejected by the state legislature.

Warning Others
 
Islanders who want to warn other potential clients of their lawyers  'irresponsible conduct by putting it on public record face yet another obstacle.  The Appellate Division's grievance committee in downtown Brooklyn is staffed with 10 full-time, court-appointed prosecutorial lawyers with authority to publicly sanction lawyers through censure, suspension or disbarment. Such action is considered extreme, most commonly taken to punish lawyers for outright theft, fraud or neglect.  A large portion of complaints get forwarded to local bar associations. "We get so many (complaints), we can't look into everything," said chief counsel of the court's grievance committee, Diana Maxfield Kearse, adding that local bar associations are a tremendous help with complaints of a more "minor nature."

Although it shares the same name, the Richmond County Bar Association's
grievance committee functions quite differently. Run by a volunteer staff of two - Richard Corash, who runs a real-estate law practice in Bloomfield, and his assistant - its main role is to determine the merit of complaints while simultaneously facilitating communication by requiring both sides to respond to each other's accusations by mail. Corash said most complaints stem from "communication problems," and are easily solved. "A huge number of the cases are wrong perceptions," he said. "At that point you try to educate people."

For lawyers who are found guilty of misconduct after a confidential investigation and closed hearings, the most serious sanction Corash's committee can impose is to send him a confidential "letter of education" that cautions him to brush up on the procedures required of him. The bar association grievance committee does not have authority to publicly sanction lawyers; all investigations, hearings and sanctions are kept secret. It can, however, refer the case back to the Appellate Division for further action, but Corash would not reveal how often this happens.

Conflicts of Interest
 
Whether regulation comes from lawyers of the bar association or those appointed by the court, many people say they would no sooner trust a fox to guard a henhouse than trust a lawyer to discipline another lawyer.  Quoting an array of legal experts, the 1992 Consumer Affairs report stated, "Critics say the disciplinary system cannot serve the public well because potential conflicts of interest arise when fraternalism gets in the way of executing justice."

Consumer Affairs also criticized the Appellate Division grievance committee for its reluctance to issue sanctions to colleagues. It wrote that of the 2,550 complaints filed in the Brooklyn office in 1990, only 26 resulted in public sanctions. Since then, the numbers have barely changed. Ms. Kearse said her committee received 2,735 complaints in 2003. Of those, only 29 were sent to the court for a formal disciplinary proceeding.

Corash, of the local bar's grievance committee, insisted that when a committee member's impartiality is in question, either for or against the lawyer being investigated, that member is asked to recuse himself. "We're very careful to make sure there's no conflict of interest," he said. But Islanders have no way of verifying this. So confidential is the process that Corash would not divulge even the number of Island attorneys who received sanctions or the number of cases referred back to the Appellate Division. He argued that revealing such numbers would not be appropriate since his committee, though independent from the court system, must defer to it on matters of attorney discipline.


     Fighting for One's Rights - Against One's Own Lawyer

By Heidi J. Shrager
Staten Island Advance
September 29, 2004

One recent morning in an Arden Heights diner, Laura Assael, 43, flipped open the little blue book of rules and slid it across the table. She pointed to the one stating a lawyer must make the client aware of their right to fee arbitration, something her divorce lawyer never did, she said. On the contrary, she said he threatened that he would garnish her paycheck from CVS Pharmacy in order to collect his fees.  "I think this was her way of telling me that I was on the right track," she said of Judge Rachel A. Adams, who passed her the book after Ms. Assael told her about the threat.

Ms. Assael accuses her lawyer of neglecting her case and her wishes. She blames him for failing to get the child support she has been owed since
September 2002. Instead of seeking a court order to have the money taken
directly from her former husband's paycheck - a remedy often used to collect unpaid child support - her lawyer insisted on seeking contempt of court charges against him, which could lead to jail time and prevent him from working, she said.

"He was gung-ho from day one for contempt," she said at the diner. "I'm still very confused as to why, when I hand-fed him everything," including her ex-husband's work address and one of his blank checks. Ms. Assael  cried as she recounted the way her lawyer treated her when she told him she didn't want her husband to go to jail. "He tried to make it seem like it was my fault. He said I wouldn't let him d his job," she said. "My best interests were my son's welfare - not what some lawyer was telling me to do."

In March, Ms. Assael fired her lawyer in court before Judge Adams, and withdrew the contempt motion her lawyer filed. At that time her bill, for fees that accrued after her divorce was finalized in March 2003, had ballooned to $6,400 - nearly the cost of the divorce itself. "As soon as the money was coming in, he would return my phone calls and act like he was interested in my case," she said. "When it stopped, he got very nasty and demeaning." Ms. Assael sent her complaint to the Appellate Division's grievance committee in downtown Brooklyn, which has jurisdiction over Staten Island, Queens and Brooklyn. This office is staffed with 10 full-time, court-appointed prosecutorial lawyers with authority to publicly sanction lawyers through censure, suspension or disbarment. Such action is considered extreme, and is most commonly taken to punish
lawyers for outright theft, neglect or fraud.

Her complaint apparently did not warrant this level of probing. Like many others sent to the Appellate Division's grievance committee, it was forwarded to the grievance committee of the Richmond County Bar Association, where 100 percent of the investigations, hearings and sanctions are kept secret. The main role of the bar association's grievance committee is to determine the merit of complaints, while simultaneously facilitating communication by requiring both sides to respond to each other's accusations by mail.

When the bar committee received her handwritten complaint, it threatened to sanction her lawyer if he didn't respond by mail within 10 days.  In his five-page typed response, he denied that he threatened to garnish her wages if she didn't pay him his past-due balance. He argued that contempt charges were the only alternative because Ms. Assael's husband changed jobs too often. He said that Ms. Assael sabotaged her own case by rejecting his advice and withdrawing the contempt motion. He also said that her ex-husband dominated her, influencing her decision to keep him out of jail.  It remains to be seen whether Ms. Assael's complaint is deemed one of miscommunication, or the more weighty charge that her attorney neglected her best interests by failing to have the child support garnished from her ex-husband's paycheck.  Her ex-husband has been employed since April, Ms. Assael said. She continues to support her family with help from her parents and the money she earns at CVS.

Heidi J. Shrager is a news reporter for the Advance. She may be reached
atshrager@siadvance.com.

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