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MINEOLA � A controversial 3-2 decision from the Appellate Division, Second Department, last fall that restricts matrimonial attorneys from collecting fees has many lawyers rallying around an appeal to the ruling, which they argue not only affects their bottom line but also creates a public policy predicament. Other attorneys, however, assert that the Second Department simply followed the law, even if the result means that some lawyers � and their clients � have to take a hit. The September 2003 decision in Frankel v. Frankel, 309 AD2d 64, held that matrimonial attorneys discharged without cause by one spouse could not seek payment for accrued fees from the wealthier spouse under a provision of Domestic Relations Law. The ruling has caused a stir among matrimonial lawyers who claim that their ability to get paid has been sharply limited. They say not only is the decision unfair to lawyers who represent the less-monied spouse in divorce actions, but � more importantly, they assert � it creates a hardship on women trying to obtain effective counsel. The American Academy of Matrimonial Lawyers plans to file an already-drafted amicus brief, and the Family Law Section of the New York State Bar Association has vowed to do the same. The appeal is an as-of-right action not requiring the high court’s leave because of the 3-2 decision. Both lawyer groups hope that the Court of Appeals will reverse the Frankel decision. But other attorneys say that even though discharged counsel and their clients are disadvantaged by the ruling, it is nevertheless the letter of the law. Difference of Opinion The appeal, expected to be addressed by the Court of Appeals next fall, stems from a divorce action between plaintiff Perry Frankel, a cardiologist, and his wife, Karyn Frankel. The Garden City law firm of Schlissel, Ostrow, Karabatos, Poepplein, Cender & Fisher represented Ms. Frankel. Alexander Potruch, in Mineola, represented Dr. Frankel. Following a 32-day trial more than three years ago in Nassau County Supreme Court, Ms. Frankel dismissed, without cause, attorney Michael J. Ostrow, now with the Schlissel firm. She then settled with Dr. Frankel for an amount, which the trial judge, Justice Anthony Marano, later described as a “poor financial settlement.” After the case was settled, Schlissel Ostrow sought attorney’s fees equaling more than $94,000 from Dr. Frankel under Domestic Relations Law 237. The statute generally allows counsel for the less monied or non-titled spouse to seek fees from the other spouse in a divorce action. In response, Mr. Potruch argued that the Schlissel firm lacked standing to pursue fees from his client because it had been discharged and therefore was not in privity with Dr. Frankel. Justice Marano held that since the settlement stated that each party would pay their own fees, “unless otherwise ordered by the Court,” the couple had contemplated that Ms. Frankel’s lawyers would seek payment from Dr. Frankel. He therefore determined that the Schlissel firm could use DRL �237 to go after the fees. But last fall, the Appellate Division reversed. Writing the majority opinion in Frankel v. Frankel, 309 AD2d 65, Justice Howard Miller determined that neither DRL 237 nor case law granted discharged attorneys the right to apply in their own names for retrospective fees against an adversary spouse. Specifically, Justice Miller wrote that the language and intent of the statute made no mention of the words “discharged” or “former” counsel. He also wrote that to allow such actions would “open the floodgates to countless applications by discharged attorneys.” Justices Anita R. Florio and Sandra J. Feuerstein concurred with Justice Miller’s holding. Dissenting was Justice Myriam Altman, who was joined by Justice A. Gail Prudenti. Justice Altman wrote that the settlement “appears to contemplate” the Schlissel firm’s application for fees,” despite Mr. Potruch’s arguments. The dissent further noted that Mr. Frankel throughout the case did not object to a reservation by the Schlissel firm to seek fees at the case’s conclusion. Public Policy Issue Stephen W. Schlissel, who filed his Court of Appeals brief last month asking it to reverse the Second Department’s decision, asserts, among other points, that instead of focusing on Justice Miller’s “floodgates” observation, which he writes “does not correctly address the critical issues,” the high court should instead consider the “real public policy issue.” That issue, he maintains, is the disadvantage to women the decision will create if allowed to stand. He contends that matrimonial attorneys will avoid representing non-monied spouses � usually the wife � for fear they will not be paid. His brief also argues that Court of Appeals case law supports allowing attorneys for the non-monied spouse to seek fees from the more affluent spouse � usually the husband � in order to put divorcing spouses on equal financial footing when obtaining counsel. “I think the majority opinion overlooked the trend in the state with regard to leveling the playing field,” Mr. Schlissel said. But Mr. Potruch, whose brief on behalf of Mr. Frankel is due later this month, said last week that the rights of attorneys pursuing compensation from the monied spouse are governed by DRL 237, which makes no mention of former or discharged attorneys. “I understand why lawyers are on their side,” said Mr. Potruch, referring to the amicus support, “but the answer is that before you take a case, you should use discretion before you accept a retainer.” He also said that there is nothing new about the inability of lawyers discharged by the wife to obtain fees under DRL 237. “Women have never complained about it,” Mr. Potruch said. He added that the Schlissel firm took a risk, as many matrimonial practices do, when it accepted the Frankel case which, he said, had very few “unliquid” assets. But the American Academy of Matrimonial Lawyers, of which both Mr. Schlissel and Mr. Potruch are members, has voiced its concern about the women’s public policy issue in its amicus brief. It will ask the court to accept its brief March 22. In it, the national organization comprised of about 1,500 matrimonial lawyers argues that affirming the Appellate Division’s decision will “regressively roll back” DRL �237 “to an era when wives were required to scavenge for fees or be relegated to capitulation in their divorce actions.” It also states that affirming Frankel will create a double injustice: “one on counsel who is discharged without cause and the other on future dependent spouses who will be unable to secure experienced counsel to stay the course in complex matrimonial actions.” Stephen Gassman, a matrimonial lawyer not affiliated with the Frankel case, calls the argument regarding women’s representation “overblown.” Even so, he agrees with the Frankel dissent. He said that the majority was “exalting form over substance” in excluding discharged attorneys from DRL �237. The ramifications of the Appellate Division decision, if upheld, will be particularly acute in the metro area, said Brian Barney, chair of the New York State Bar Association Family Law Section. Mr. Barney, who has a family law practice in Rochester, said that lawyers in the metropolitan area are much more willing to wait until the end of a case to receive fees. But if they delay compensation, they lose their chance under Frankel. In addition, he said if the Court of Appeals affirms the decision, it will result in “colossal” hearings over fees prior to a lawyer’s discharge. On the other hand, Garden City matrimonial lawyer Robert Brodrick, with Moran Brodrick & Eliot, said the Appellate Division majority made the right call. He said the language of the statute, which allows an attorney to seek fees from the other spouse in order to “carry on or defend the action” clearly excludes discharged attorneys from its purview. He explained that it is “very common” for clients in matrimonial actions to hire and fire counsel, but a discharged attorney’s course of action is with the client, not the adversary. Mr. Brodrick also said that he understood why many attorneys want to see the Frankel decision reversed. “It’s certainly not in their best interest, that’s very clear,” he remarked.

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