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A well-known Nassau County, N.Y., matrimonial lawyer has lost a motion to withdraw from a case because his client ran out of money. Instead of winning the relief he sought, Dominic A. Barbara of Garden City, N.Y., received a lecture from Justice Anthony J. Falanga of Nassau Supreme Court on the importance of assessing a client’s ability to pay before taking a case. “It was incumbent upon moving counsel in this case and … is the obligation of all matrimonial attorneys, prior to entering into a retainer agreement with a client, to make an assessment of the fees that will likely be incurred and the income and assets of the parties that will be available to satisfy said fees,” Falanga said. If a client cannot pay the anticipated freight, the lawyer should either decline the case outright, or take the case with an acknowledgement that he or she may not be paid in full, the judge said. Barbara, who is owed $19,000, could not be reached for comment. But his adversary in the case and the matrimonial committee chair of the Nassau County Bar Association both said they agreed with the ruling’s sentiment. “Both litigants and the matrimonial bar have an obligation to make these cases more cost effective where the parties have limited means,” said attorney Richard Keidel, who is a partner in the Garden City firm of Gassman & Keidel, and chairs the bar association’s matrimonial committee. Barbara represents Stephanie Klein, the defendant in Klein v. Klein, No. 200558-2003. The plaintiff, Lawrence Klein, is represented by Manhattan solo practitioner Jody N. Gerber. “I agree with it wholeheartedly, especially in a case like this where the parties don’t have a lot of assets,” Gerber said. Mr. Klein, a plumbing supply salesman, earns about $53,000 a year. Ms. Klein, who has only a high school equivalency diploma, is unemployed. The couple has two teenage daughters and a home purchased in 1990 for $200,000. The motion to withdraw, ironically, was set up by Barbara’s own successful prior motion to dismiss an amended complaint filed by Gerber on behalf of the husband. According to the judge’s ruling, Mr. Klein initially sought a divorce on the grounds of constructive abandonment. Ms. Klein filed her original answer through attorney Eugene W. Bechtle of Garden City. It denied the constructive abandonment charge. Later, for reasons not disclosed in Falanga’s opinion, she switched lawyers, hiring Barbara. Barbara filed an amended answer containing counterclaims for custody of the couple’s children, spousal and child support, necessaries and legal fees. Ms. Klein did not countersue for divorce. Mr. Klein then filed an amended complaint, adding a cause of action for cruel and inhuman treatment, based on incidents that happened after he first filed for divorce. After another amended answer, Barbara moved to dismiss the new complaint. He succeeded. But in doing so, he also eliminated the only mechanism before the court for securing his right to payment. Under the law, Falanga noted, he could not consider what he called “post-commencement conduct” in deciding that Mr. Klein had grounds for divorce. Absent a counterclaim by Ms. Klein seeking a divorce, the judge said, he no longer had a cause of action before him under which he could order equitable distribution of the couple’s assets or issue an order giving Barbara a security interest in the marital property. About the only thing he could offer was leave for Mr. Klein to replead his divorce claim, based on those events alleged in the last amended complaint. RETAINER AGREEMENT In denying Barbara’s motion to withdraw, Falanga acknowledged that the retainer agreement with Ms. Klein said that her counsel could withdraw in the event that a bill went unpaid for more than 60 days. Falanga said, however, that even if the retainer provided for such an eventuality, permission to withdraw still resided with the court. Noting that Barbara had already collected $17,500 from his client and that discovery on her case was nearly complete, he denied the attorney’s motion to pull out. Gerber said that the judge’s advisory forces lawyers to tread a “fine line between how to best represent a client and how to stay on budget. Keidel agreed. “It’s a balancing,” he said. “You can’t make lawyers engage in involuntary servitude” by keeping them in cases when its clear that they won’t be paid. “If you’re fighting about money and equitable distribution, you have to be reasonable about the means of the parties. You come to a point in a case like this where you say, ‘listen, this case doesn’t deserve litigation, it deserves to be settled.’” The Klein matter is not over. Gerber said that he has served Ms. Klein with a new complaint and will move to consolidate a new divorce action with her already pending counter-suit.

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