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The participation in a custody case of lawyers and mental health experts who also contributed to an informational Web site does not provide grounds for scuttling a lower court custody ruling, New York’s Appellate Division, 1st Department, has ruled. The claim raised in the case before the appeals panel had captured tabloid headlines and became a lightning rod for protests by matrimonial litigants that relationships between lawyers and experts in divorce cases have become too cozy. At issue in Kaye v. Kaye, 4431, was whether the undisclosed involvement in a single case of a lawyer, a law guardian and three mental health experts — all of whom had participated on a Web site called Softsplit, created an appearance of impropriety. The appellate court’s unsigned opinion Tuesday concluded that there was no conflict and upheld the custody ruling of Acting Justice Judith J. Gische. The panel concluded that “there was no indication that [the five professionals involved in the case] put up any capital or that they would profit financially or personally by other professionals’ involvement in the entity such as might create the inference that they were in business together.” The panel consisted of Justices Peter Tom, Joseph P. Sullivan, Alfred D. Lerner, Luis Gonzalez and James M. Catterson. Softsplit, now defunct, made available on the Internet information about matrimonial litigation from 37 of the best-known lawyers, health professionals and financial experts in the field. Among those participating were Jo Ann Douglas, who has served as law guardian in many high-profile cases, including the divorce of former Mayor Rudolph W. Giuliani; April Kuchkuk, a psychologist hired by filmmaker Woody Allen; and Alex Weintraub, a psychiatrist retained as an independent expert in the divorce of former tennis champ John McEnroe and actress Tatum O’Neal. Robert Z. Dobrish, who represented Malcome Kaye, the husband in the First Department case, and who was involved with Softsplit, said that 30 to 40 other hotly contested matrimonials could have been imperiled if the court had found that participation in Softsplit created a conflict of interest. Dobrish, of Dobrish & Wrubel, has handled the divorces of a number of celebrities, including the actor John Leguizamo and singer Mark Anthony. In the Kaye case, Justice Gische had given the couple equal time with their two children, ages 6 and 9, but awarded Mr. Kaye more decision-making authority over the children’s lives than she did to their mother, Ilsa Kaye. Ms. Kaye’s lawyer, Scott T. Horn, issued a statement expressing his client’s “disappointment in the Court’s failure to address the ‘appearance of impropriety’ issue, as viewed through the eyes of a layperson such as herself.” Remaining appellate options are being reviewed, the statement added. According to the opinion, Dobrish suggested another lawyer involved with Softsplit, Pamela Sloan, for appointment as law guardian. Sloan hired a mental health expert involved in Softsplit who in turn hired a Softsplit participant. Sloan also supported the retention of a third Softsplit expert who was retained by Mr. Kaye. APPEARANCE OF CONFLICT In rejecting the conflict claim, Dobrish said, both the Appellate Division and Justice Gische correctly recognized that Softsplit participants were not in a business venture but instead were involved in an endeavor that is more akin to lecturing for the Public Law Institute. The participants might have gotten some “exposure” out of their participation, he said, but they were never paid for it, and, besides, the venture never got off the ground. Even if the venture failed, it still should have been disclosed, said Howard Benjamin, a former deputy chief counsel of the 1st Department Disciplinary Committee, who submitted a brief for Ms. Kaye at the trial level. Benjamin, of Benjamin, Brotman & Associates, said an appearance of impropriety had been created by Softsplit’s use of the term “our team” to describe participants. He also said there was evidence in the record that the Web site contributors intended to have a business relationship should the venture thrive.

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