The Appellate Division, First Department, at 27 Madison Ave. NYLJ/Rick Kopstein

In the roughly 18 months that attorney Daniel Arshack has represented a Bronx woman charged with murdering her husband, he has been adamant that one piece of evidence would prove crucial to her defense: notes taken by caseworkers who interviewed her children in the days after the 2015 knifing.

Arshack said those notes would “completely support” the defense claim of his client, known as Yanny M. in court papers. But he was not allowed to see the notes until last week, when the Appellate Division, First Department, recognized his client’s First and Sixth Amendment rights to share them within the confines of her attorney-client relationship. He received the notes on Thursday.

And still today, if Arshack and his client were located in the Second Department, rather than in the First Department, he would not be allowed to view the “progress notes” from the city’s Administration for Children’s Services (ACS).

Since 2014, a series of rulings and orders by Family Court judges in the Bronx and Brooklyn have set off a firestorm of criticism from public defenders, private defense lawyers, civil rights groups and defense bar associations.

They have also sparked two vociferous appeals: The one decided last week by a unanimous First Department panel and one that is pending in the Appellate Division, Second Department.

The Family Court rulings, which have come in the form of decisions and nondisclosure-type orders, have required that reports, photographs and other documents not be disclosed to lawyers other than a person’s Family Court counsel.

The rub has come when parents, often accused simultaneously of wrongdoing in both Family and Criminal Courts based on a single set of events, have seen their Family Court records and asked to share that information with their separate criminal defense counsel.

The Bronx Defenders, for example—a nonprofit legal aid organization that handles some 35,000 representations a year—said it has encountered hundreds of requests in recent years and generally has had to give parents a one-word answer: No.

To critics throughout the city’s defense bar, the issue sparked by the orders goes to the heart, and sanctity, of the attorney-client relationship itself. The Family Court rulings, they say, stop a client from being able to communicate openly with counsel and build a zealous defense.

“Full and open communication between a criminal defendant and her criminal defense attorney is absolutely vital to the fair administration of justice, and a targeted speech restriction like the nondisclosure order seems designed to do the greatest amount of harm to that relationship without providing any benefit to the mission of the family court,” argued the New York Civil Liberties Union, for instance, in an amicus curiae brief it filed during Yanny M.’s First Department appeal.

Moreover, some defense bar members contend that the situation as it existed in the Bronx, and still does in Brooklyn, creates a severe inequity for indigent or less wealthy parents.

If a person has the financial means to retain one do-it-all lawyer for both their family and criminal cases, that lawyer has the advantage of viewing materials such as ACS progress notes, defense lawyers said. But an indigent parent’s two public lawyers don’t get to share the same information.

Still, the advocates for the children are clear. They say the presumption of confidentiality in Family Court cases is paramount and the children’s interests always need to be protected.

“We’re coming at it from the point of view of wanting to protect the confidentiality of information, which may contain statements from clients of ours, the children,” said John Newbery, a staff appellate attorney for the Juvenile Rights Practice of the Legal Aid Society of New York, which opposed the Bronx Defenders and its pro bono co-counsel, Simpson Thacher & Bartlett, in the First Department appeal.

The Yanny M. Case

In the First Department appeal, two separate cases were at issue, both involving Family Court rulings that stopped materials from being shared with a parent’s criminal defense lawyer.

In case of Yanny M., the wife and mother had just welcomed home her husband from a Dominican Republic trip on Dec. 5, 2015, when, shortly after midnight, they got into an argument, according to Arshack.

As the couple’s children, ages 11 and 16, slept in a separate part of the apartment, the husband and father, Nelson M., fell to the floor bleeding from a stab wound.

What remains unclear today, said Arshack, is whether Nelson M.’s wound was self-inflicted or whether Yanny M., who is being held at Rikers Island charged with murder, plunged the knife into him.

It is Arshack’s contention that the children did not witness the stabbing, and therefore their statements to ACS in interviews would bolster Yanny M.’s central defense: That her husband, who later died at Bronx-Lebanon Hospital, had stabbed himself.

“Those witnesses were the only people with any direct evidence of what happened in the apartment that evening,” Arshack said of the children, adding that even as a 30-year defense lawyer, he was surprised when the Bronx Defenders, Yanny M.’s counsel in Family Court neglect proceedings, told him that he could not see the ACS notes.

“The reality is that if Yanny had had one lawyer representing her in all of her cases, that lawyer would then have access to the ACS notes,” Arshack said.

The Bronx District Attorney’s Office declined to comment on Yanny M.’s criminal case.

A Strict Interpretation

In decisions issued in recent years by Bronx judges, such as by former Family Court Judge Carol Sherman, there has been a clear reading and interpretation of state Social Services Law §422(4)(A), one of the key laws governing family court materials.

In a July 21, 2014, decision in Matter of W. (E.S.), Sherman cited the law, which lists specifically who can access family court records, a list that includes grand juries and prosecutors but not defense attorneys. She then wrote in part:

“Respondent’s defense counsel … is not included among the persons enumerated in statute. … Moreover, the statute sets forth no exception that would permit Respondent S. to re-disclose information he has received as a subject of the report … to any other person, including his criminal defense attorney.”

In addition, Sherman wrote, while quoting Lamot v City of New York, 297 AD2d 527, “The Legislature has specifically directed, however, that records of child-abuse investigations are to be kept strictly confidential except as expressly permitted by statute. … Though we regret the application of this rule in the case before us, we may not rewrite the statute to suit our own policy preferences.”

But in a terse June 27 decision entitled Matter of Sean M. (Yanny M.), 2017 NY Slip Op. 05184, First Department Justices David Friedman, Troy Webber, Ellen Gesmer and Cynthia Kern made quick work of Sherman and other Bronx justices’ strict interpretation of §422.

“The restrictions noted in Social Services Law §422(4)(A) did not bar them from providing to their criminal defense counsel ACS records lawfully obtained in their neglect proceedings. Any other result would violate their First and Sixth Amendment rights,” the panel wrote, citing People v. Knowles, 88 NY2d 763.

‘Such a Contentious Issue’

For the Bronx Defenders, the First Department decision was welcomed, and will set off a series of significant changes inside the organization, according to Emma Ketteringham, the managing director of the group’s Family Defense Practice.

In recent years, she said, her organization had set up a committee of managing directors to deal with the flood of requests from parents who wanted to share Family Court materials with their defense lawyers. Each request was analyzed by the committee separately, she said, to figure out how best to lobby for the rights of the accused.

Often, a decision was made to seek clarification from a Family Court judge about the requested sharing of documents, which sometimes could mean simply one Bronx Defenders family court lawyer giving information to a Bronx Defenders criminal defense colleague.

Sometimes those clarification motions led to some helpful result, Ketteringham said, and sometimes not. “There didn’t seem to be a recognition of the unique relationship between a client and their counsel,” she said.

“This has been such a contentious issue, since these [Bronx Family Court] decisions were issued,” she added, her voice rising. “It’s been really, really tough.”

But for Newbery and Legal Aid’s Juvenile Rights Practice, the issue of how to handle requests by parents who want to share ACS documents with their defense counsel has been more nuanced and complicated, he said.

“We just wanted a Criminal Court application to be made by the parent, so that that court can weigh the confidentiality interest of the child against the parent’s rights,” he said. “We did not mean to be saying that this would provide a child with the absolute veto power,” he added. “All we were saying in the appeal was that at least there should be another court making the call on whether the requested disclosure was proper.”

Newbery said his team is considering the First Department’s decision and has not decided what its next steps may be. They are also awaiting the Second Department’s decision. His group also filed a brief in that appeal.