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The New York Court of Appeals held Wednesday that a divorce lawyer discharged without cause by one spouse can recover accrued fees from the more affluent spouse. Its holding in Frankel v. Frankel, was anxiously anticipated by the matrimonial bar and resolves a question of law that had divided lower courts. At issue was Domestic Relations Law � 237(a) and whether it permits a fired attorney to collect from the non-client, wealthier spouse. The answer is yes. The state Supreme Court held that the Garden City, N.Y., firm of Schlissel, Ostrow, Karabatos, Poepplein & Taub had standing to request fees. A 3-2 panel of the Appellate Division, 2nd Department, said it did not. Wednesday, the Court of Appeals put the matter to rest with a unanimous ruling for the law firm. Judge Albert M. Rosenblatt, writing for the court, said a decision to the contrary would undermine public policy and legislative intent by giving the more affluent spouse an upper hand. “If lawyers terminated without cause lose their right to petition the court for a fee award from an adversary spouse, the less affluent spouse would suffer the consequences,” he wrote. “The spouse with ready and ample funds would have a wide choice of counsel, and the financial wherewithal to maintain the litigation, while the non-monied spouse would struggle to find a lawyer who might have to go unpaid.” Frankel v. Frankel is rooted in a marital dispute between Long Island cardiologist Perry Frankel and his wife, Karyn. Karyn Frankel had retained Schlissel Ostrow and the firm represented her for more than three years. Schlissel Ostrow appeared for Mrs. Frankel during the child-custody phase of the trial, which took more than 30 days, and obtained an order compelling Dr. Frankel to cover his wife’s pendente lite legal fees. But then Mrs. Frankel fired her attorneys and hired different counsel, who negotiated a settlement with Dr. Frankel. The settlement stipulated that each side would be responsible for its own legal fees. Schlissel Ostrow, owed some $94,000, petitioned under � 237(a) to collect its fee from Dr. Frankel. The 2nd Department held in a closely divided opinion that Domestic Relations Law was drafted to protect the non-monied client, not the non-monied client’s former lawyer. It said the statute applies only to the current attorney of record. Wednesday, the Court of Appeals reversed. “[T]he Legislature designed Domestic Relations Law � 237(a) to eliminate the disparity between the monied and the non-monied spouse,” Judge Rosenblatt wrote. “The husband’s interpretation would thwart the statutory intent.” Stephen W. Schlissel of Garden City, who represented the law firm, said Wednesday the ruling is important for the matrimonial bar, but far more important for matrimonial litigants. “The greatest significance is for the monied spouse in matrimonial matters,” he said. “This helps ensure they will be able to obtain quality legal representation, and our firm is thrilled that we were able to assist in ensuring the rights of the non-monied spouse.” But Alexander Potruch of Mineola, who argued for Dr. Frankel, said the “unprecedented” ruling introduces a host of new questions and issues in matrimonial litigation. He said the ruling confuses the issue of which party is responsible for fees to a discharged law firm since the standard for evaluating what either party owes is different. Mr. Potruch also argued — contrary to the decision — that the rule will impede settlements. “According to my experience, the ruling will frustrate rather than promote global settlements,” he said. “We must now invite prior counsel to settlement conferences and no agreement can be made until prior counsel fees are resolved.” The American Academy of Matrimonial Lawyers and the Family Law Section of the New York State Bar Association both urged the Court of Appeals to reverse the 2nd Department and hold for the law firm.

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