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A Staten Island, N.Y., judge has ordered an attorney to return the passport of her Sri Lankan client, comparing the lawyer’s refusal to give back the passport until she is paid her fees to holding the client hostage. “[T]here are numerous enforcement mechanisms present in the CPLR, available to the claimant, which do not make the defendant a ‘prisoner’ in the United States unable to return to her native country,” Civil Court Judge Philip S. Straniere wrote in Bonner v. Goonewardene, an unreported Small Claims decision. “Claimant is in effect making the defendant an ‘indentured servant.’” In Bonner, the attorney initiated an action against her client, claiming the client had failed to pay $4,500 in outstanding fees for services rendered in a custody proceeding. The client, Chandrani Goonewardene, contended among other things that the attorney wrongfully withheld her and her son’s passports pending payment of the disputed fees. The attorney had taken possession of the passports during the custody proceeding, when Judge Ralph J. Porzio instructed her to hold them to ensure her client’s attendance. Judge Straniere declined to release the name of the attorney, instead referring to her by the pseudonym “Amanda Bonner.” (Amanda Bonner is also the name of the attorney played by Katharine Hepburn in the film “Adam’s Rib.”) The attorney claimed that the passports comprised a lien against the client’s debt, citing as precedent the unreported Southern District of New York case, United States v. Bakhtiar, 1997 WL 573408. In Bakhtiar, the court held that it saw “nothing unethical or shocking” about an attorney retaining a passport as security for payment of a fee. That court, however, declined such a lien, holding that the “passport was neither expressly nor impliedly pledged as security for payment.” Straniere disagreed with Bakhtiar‘s reasoning and enumerated several reasons to disallow attorneys from ever withholding a client’s passport to secure fees. “Allowing an attorney to retain a passport in order to enforce a claim for legal fees is patently unfair and allows an individual to act as the equivalent of a government and restrict the movements of the foreign citizen,” he wrote. In disputes between individuals, he added, a person cannot hold a passport “hostage” without court authorization or a written agreement, neither of which applied here. Straniere therefore ordered the attorney to return the passports. He also dismissed the attorney’s claim, vacating a prior default judgment in her favor of $4,500. Straniere held that the attorney had failed to establish that she had complied with 22 NYCRR 1400′s requirement that attorneys provide written retainer agreements in custody disputes.

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