Parties in a divorce case can challenge a claim for fees by a court-appointed attorney representing their children on grounds of malpractice, a unanimous state appeals panel ruled on Tuesday, though it rejected the particular challenge before it.
Appellate Division, First Department Justice David Saxe (See Profile), writing for a five-judge panel, held in Venecia V. v. August V., 305594/04, that the possibility that parties in divorces could assert frivolous malpractice claims to avoid paying fees does not warrant making court-appointed attorneys for children completely immune from such claims. Saxe was joined by Justices Luis Gonzalez (See Profile), Peter Tom (See Profile), Sallie Manzanet-Daniels (See Profile) and Judith Gische (See Profile).
The parents, identified as Venecia V. and August V., have three children, aged 11, 14 and 17, according to the decision. Venecia commenced the divorce action in 2004. The couple stipulated to joint custody, but the trial court awarded primary residential custody to Venecia, who lives in Manhattan.
In 2009, Venecia sought to move to Demarest, N.J., and August responded by seeking to have custody transferred to him. The trial court appointed an attorney, Jo Ann Douglas, to represent the children for purposes of the new custody proceeding.
Manhattan Supreme Court Justice Matthew Cooper (See Profile) ultimately ruled that Venecia could keep custody.
In November 2011, Douglas applied for an order compelling August to pay $2,034.60 in outstanding fees, plus $1,500 in costs associated with the application. August was responsible for 30 percent of Douglas’s fees, and had paid them without objection up to that point.
August argued that he should not have to pay the fees because Douglas had committed malpractice. He claimed that Douglas had ignored her professional duty by arguing for Venecia to keep custody on the basis that two of the three children wanted to stay with her, when the children lacked the capacity to make that judgment.
August also maintained Douglas ignored “abundant evidence” that the children were being manipulated by their mother.
Cooper rejected that argument, finding that August had no right to bring the malpractice claim, and that in any case the claim lacked merit. He ruled that August must pay the fees.
August appealed that ruling, along with others related to custody and visitation.
In support of his argument, August pointed to the First Department’s decision in Mars v. Mars, 19 AD3d at 196.
When that case was decided, court-appointed attorneys for children were known as law guardians, and were seen to take on the duties of a guardian ad litem. The First Department held that a party in a divorce can challenge a law guardian’s fee request “to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship.”
In 2007, however, then-Chief Judge Judith Kaye promulgated a new rule, Rule 7.2, renaming the position of law guardian “attorney for the child,” and requiring the attorney to “zealously advocate the child’s position” and “consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.”
Saxe wrote in Thursday’s opinion that Rule 7.2 had made the distinction in Mars moot, since all the child’s attorney’s duties are now effectively advocacy.
“Rule 7.2 does not in any way vitiate the Mars ruling; on the contrary, it renders it more generally applicable,” Saxe wrote.
“We reaffirm the essence of the Mars v. Mars ruling, namely that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child,” Saxe continued. “The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards.”
Douglas had argued that allowing parents to assert malpractice claims against fees would open the door to a slew of frivolous malpractice claims, and would compromise children’s attorneys’ ability to do their work. Saxe rejected that argument.
“The possibility that a parent who feels aggrieved over the developments in a custody or visitation dispute may claim malpractice as a means of avoiding payment of the attorney’s fee does not warrant granting these attorneys complete immunity against the defense of legal malpractice,” he wrote.
However, like Cooper, the First Department found there was no merit to August’s claim, and ordered him to pay the fees. It also affirmed the lower court’s orders on custody and visitation that August had appealed.
The parents appeared pro se and could not be reached for comment.
Douglas also could not be reached.
@|Brendan Pierson can be reached at email@example.com.