Bar Group Calls for Repeal of Restrictions


By Leigh Jones
New York Law Journal
June 17, 2003

A group of Nassau County attorneys Tuesday called on the Office of Court Administration to rescind the recent restrictions on court-appointed law guardians, saying the new rules unfairly limit their practices and ultimately hurt children.

During a press conference at Nassau County Supreme Court, about 25 members of the Nassau County Bar Association announced a resolution passed by the organization asking for Chief Judge Judith S. Kaye and the OCA to change the new revisions to Part 36 of the Rules of the Chief Judge. Part 36 governs the appointment of fiduciaries and of law guardians who serve as counsel for children and incapacitated people.

"We want to restore the emphasis to quality representation," said William Savino, president of the Nassau Bar.

The group, comprised of bar leaders and local practitioners, objects to the $15,000 fee cap for law guardians. They also oppose the restriction prohibiting law guardians from receiving appointments for a full calendar year following any year in which a court awards more than $50,000 from court appointments.

Although the OCA has created exceptions to restrictions on law guardians if reappointment is necessary to ensure the continuity of representation or to complete the course of representation, those exceptions are "grossly insufficient," said Stephen Gassman, a Garden City matrimonial lawyer.

OCA spokesman David Bookstaver said Tuesday that the changes to Part 36 had been "properly vetted," and that it was "really too late to broach the issue of changing" the rules. He added, however, that the OCA will continually monitor the changes to rules.

The revisions to Part 36, fully implemented June 1, relate to court-appointed fiduciaries, such as trustees, referees and guardians ad litem, and impose the $15,000 fee cap and the $50,000 annual cap. In addition, the revisions prohibit political leaders, their close family members and members of their law firms from accepting appointments for two years after the leaders leave their political posts.

Also under the new system, the OCA maintains separate lists for different types of fiduciaries, which generally require different continuing legal education.

The OCA's changes to Part 36 followed the release of the so-called Birnbaum Report, a study in which a special inspector general appointed by Chief Judge Kaye identified serious flaws in the fiduciary appointment process statewide, including nepotism, favoritism and billing irregularities. The report was conducted after the public release in 1999 of a letter written by two Democratic Party officials in Brooklyn complaining they were not receiving court appointments.

But the Nassau County lawyers contend that the rules, as they relate to guardians appointed to represent children in divorce proceedings and those appointed to represent incapacitated people, do a disservice to vulnerable individuals who need protection.

"There's nothing wrong with the best [attorneys] getting the most cases," said Mr. Gassman, a past president of the Nassau County Bar Association. He added that the group's opposition has "nothing to do with lawyers' interests."

The bar group's resolution, passed June 10, states that the OCA has "abdicated its responsibility" to children and incapacitated individuals by adopting "overbroad and unreasonable rules." Furthermore, the resolution states that the $50,000 cap discourages the existence of practices that exclusively focus on law guardian work. It also calls for the OCA to distinguish between fees awarded and compensation actually received.

Susan Levering, whose Hicksville practice centers on law guardian work, said the OCA adopted the revisions without input from law guardians.

But Mr. Bookstaver said the OCA received a "great deal" of input from attorneys before the changes were implemented.

"This is an issue that was the No. 1 topic of discussion at administration board meetings for months," he said. "There was plenty of opportunity for people to express their concerns prior to the rules going into effect."

The Nassau lawyers adopted the resolution after the bar association's Part 36 task force concluded in a 17-page report that the rule changes are "punitive in nature" to the attorneys and those they serve. The task force solicited input from other committees within the organization, including the family court law and procedure committee, the elder law committee, the matrimonial committee and others.