ASSIGNED COUNSEL NOT TO BE ABUSED

In the Matter of J.L. v. K.B. Date filed: 2022-08-26, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Mendelson-Toscano, Case Number: F-04320-12/22F:

"Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 14 as well as the New York State Constitution as part of Article I, Section 6.5 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. New York’s Legislature found that due process requires assignment of counsel in certain Family Court actions. See N.Y. Fam. Ct. Act §261 (McKinney’s 2022) (assignment of counsel legislative findings and purposes). To that end, an indigent respondent in an enforcement action, in which a willful contempt finding is sought, has a statutory right to a court appointed attorney. See also N.Y. Fam. Ct. Act §262 (McKinney’s 2022) (family court assignment of counsel parameters). Notwithstanding, the right to assigned counsel is not an entitlement to counsel of one’s own choosing. See People v. Zomora, 191 A.D.3d 899, 900 (2d Dep’t 2021); see also Matter of J., 176 A.D.3d 938, 940 (2d Dep’t 2019); People v. Fulgencio, 168 A.D.3d 1094, 1094 (2d Dep’t 2019); Matter of Daniel K.L., 138 A.D.3d 743, 745 (2d Dep’t 2016); Tarnai v. Buchbinder, 132 A.D.3d 884, 886 (2d Dep’t 2015).

In this willfulness action, K.B. has a right to assigned counsel. He does not, however, have a right to be disrespectful, rude, or brutish towards his attorney, or to make his attorney feel unsafe or uneasy. In light of S.B.’s forthright credible testimony, the Court finds that K.B.’s unjustified aggression towards S.B. caused a breakdown in communication between them, impacting their ability to maintain a meaningful attorney/client relationship. Accordingly, it is necessary and appropriate to relieve The Legal Aid Society in this action and any future child support proceedings in the Nassau County Family Court.

The Court’s granting of S.B.’s motion does not extinguish K.B.’s right to counsel, see Rosado v. Badillo, 151 A.D.3d 978, 978 (2d Dep’t 2017); see also Rovira v. Roth, 140 A.D.3d 1173, 1174 (2d Dep’t 2016), and a new attorney shall be assigned to represent him. See N.Y. COUNTY LAW §722-b (McKinney’s 2022). Should K.B. act belligerently towards such substituted counsel, he will likely be unable to show good cause for assignment of another attorney were his substituted counsel to make a motion to be relieved. See Matter of J., 176 A.D.3d 938, 940 (“An indigent party is entitled to new assigned counsel only upon a showing of good cause for substitution.”); People v. Fulgencio, 168 A.D.3d at 1095 (whether to assign substituted counsel lies within sound discretion of judge); Matter of Daniel K.L., 138 A.D.3d at 745."