Free: Failure to Supervise Pro Bono Attorney Dooms Divorce Pact

In granting a woman's bid to void a settlement stipulation because her pro bono divorce attorney made serious errors and was inadequately supervised, a state judge has cautioned law firms and volunteer groups that in taking on pro bono cases, they should ensure that counsel "receive appropriate support and supervision, so that they can provide pro bono clients with the same careful legal representation that they provide to paying clients."

The ruling comes at a time when law firms facing a decline in legal business and a surplus of attorneys are working with pro bono organizations to increase the number of cases they already handle on a volunteer basis.

The case before Acting Supreme Court Justice Ellen Gesmer, MC v. GC, 76148/07, involved a former Skadden, Arps, Slate, Meagher & Flom staff attorney, Lisa M. Poursine, referred to in the ruling as "Ms. Smith," who provided free legal representation to Michele A. Crespo for inMotion, a non-profit legal group that assists low-income women in matrimonial, family and immigration law cases.

The Bronx Supreme Court decision appears on page 32 of the print edition of today's Law Journal.

The matter was the first divorce handled by Ms. Poursine, who made several "careless and inaccurate" statements to Ms. Crespo, including informing her that Skadden could withdraw from the case if Ms. Crespo raised the issue of her relocation or pursued an equitable distribution claim, the judge said.

While Justice Gesmer (See Profile), who was sitting in Bronx Supreme Court when she heard the case, praised inMotion, Ms. Poursine and Skadden for their efforts, she concluded that "legal representation should not be provided in a way which does not give individuals a full understanding of their rights and deprives them of their opportunity to be heard on the issues most important to them."

Robert C. Sheehan, Skadden's designated pro bono partner, said, "InMotion has had a long and strong record of working with our attorneys to provide excellent mentoring and, where appropriate, assistance in handling those cases referred to our attorneys."

He called the case an "extremely rare instance" of someone questioning the quality of a Skadden attorney's pro bono representation of a client and maintained the firm makes no distinction between pro bono and "regular" clients.

Ms. Poursine, who worked as a staff attorney at Skadden for about four years and did not leave the firm for performance-related reasons, Mr. Sheehan said, took on an uncontested divorce case, but failed to seek assistance when Ms. Crespo's husband contested the action.

"One has to consult and ask," Mr. Sheehan said in an interview. However, he said the firm was instituting a review of mechanisms already in place to supervise attorneys handling pro bono cases.

In 2007, Ms. Crespo, a woman with "limited education" and "no familiarity with the legal system," retained inMotion to represent her in a divorce from her husband, Gilberto Colon Jr. Ms. Poursine agreed to advise Ms. Crespo on behalf of inMotion.

During a 15-minute meeting at Ms. Poursine's office, Ms. Crespo expressed her desire to move to Florida with the couple's then 3-year-old son "BC." When Ms. Crespo said she thought her husband would "fight the whole divorce case," Ms. Poursine said the divorce could go smoothly if Mr. Colon signed a settlement agreement.

Less than three months later, the attorney met with Mr. Crespo for 10 to 15 minutes, and handed her an "InMotion Contested Divorce Program Equitable Distribution Waiver" to sign, which stated that if Ms. Crespo sought a "share of the marital assets or a division for the marital debt…inMotion and the Law Firm" would drop the case.

During a third meeting in July, Ms. Crespo repeated her desire to relocate to Florida. Ms. Poursine said she could not "touch the relocation matter," would only represent her in an uncontested divorce, and would withdraw if settlement negotiations broke down over visitation, at which point Ms. Crespo burst into tears.

At the end of July, Ms. Poursine sent a letter informing Ms. Crespo that Mr. Colon was contesting the divorce. The letter said that while Ms. Poursine was "well aware" of her client's desire to move to Florida, "I do not have the experience or the time to handle a lengthy relocation trial." The lawyer said after obtaining a divorce, Ms. Crespo was "free to hire whomever you wish…to litigate the relocation issue."

In October, Ms. Crespo signed a settlement stipulation giving her sole custody and providing that "neither party may relocate without notice and consent of the other party or court order." Ms. Crespo also waived future claims to equitable distribution.

In moving to vacate the stipulation, Ms. Crespo testified that she did not understand what equitable distribution meant when she signed the waiver, and skimmed the stipulation because Ms. Poursine told her it included terms they had previously discussed. She did not realize signing the stipulation would make it harder to relocate and believed her attorney "should be doing right for me."

In a hearing before Justice Gesmer, Ms. Poursine gave conflicting testimony about whether she thought she could "drop" Ms. Crespo's case. She admitted that no financial disclosure had occurred. And while Ms. Poursine claimed the wife had signed a retainer letter limiting inMotion's representation to an uncontested divorce, she failed to produce the document..After finding Ms. Poursine's testimony "confused" and unreliable, Justice Gesmer concluded that Ms. Crespo signed the stipulation under duress, based on the statements that Skadden could "withdraw" if Ms. Crespo pursued her relocation claim, that she could seek relocation after signing the stipulation, and that Mr. Colon would seek custody if she did not execute the document.

Ms. Poursine did not have the "appropriate training and supervision" to know whether her "inaccurate and confusing" statements were false, the judge said.

Justice Gesmer, who served as Bedford-Stuyvesant Community Legal Services' litigation director in the early 1980s and is now an acting Supreme Court justice in Manhattan, found "particularly disturbing" Ms. Poursine's "failure to find out whether she could have represented the Wife in a contested divorce, with support from inMotion or her firm, or whether the Wife had other alternatives for representation in a contested divorce."

Jason Wolf, who represented Mr. Colon, said he believes Ms. Poursine gave "proper advice" to Ms. Crespo, but would not appeal the ruling.

Valerie Gray, who represented Ms. Crespo, said she hopes the ruling protects the rights of indigent women by making lawyers who take on their cases represent them "zealously and vigorously as if they were paid a huge retainer."

Ms. Gray said Ms. Poursine did her best under the circumstances, and was not properly supervised.

In an e-mail Catherine J. Douglass, inMotion's executive director, said it was not appropriate to comment "while litigation between the two principals is ongoing." However, she said, "We take seriously the importance of ensuring that all women who seek legal referrals through inMotion are well-informed of their options, and that legal volunteers and their supervising law firms have a clear understanding of roles, responsibilities and process. We are committed to continually reviewing the measures we have developed in this regard, and to supporting our corporate partners."

Ms. Poursine could not be reached for comment.

Ms. Crespo's divorce action is pending in the Bronx before Acting Supreme Court Justice Julia I. Rodriguez (See Profile).