NY NEW RULES - ARTIFICIAL INTELLIGENCE AND THE LAW

Effective June 1, 2026, the New York State Unified Court System implemented a new statewide rule (Part 161) governing attorneys' use of artificial intelligence (AI) in court filings. The rule permits attorneys to use AI tools when preparing submissions to the court and does not require disclosure of AI use. However, attorneys remain fully responsible for the accuracy of any AI-assisted work and must independently verify that filings do not contain fabricated cases, statutes, citations, or other false information.

Appendix A of the rule provides:

"Appendix A Model Rule Regarding Use of Artificial Intelligence Technology in Preparing Court Papers

Every attorney or party who uses an artificial intelligence (AI) tool in preparing any paper submitted to this court is expected to understand that tool's capabilities and limitations. Attorneys and parties need to be aware that AI tools, among other risks and limitations, can generate fabricated information or fictitious citations to authority (commonly known as hallucinations). Under existing authority, by signing a paper and submitting it to this court, an attorney or party certifies that the paper does not contain any false material factual statement or any frivolous legal argument Cree, e.g, 22 NYCRR 130-1.1, 130-1.1a), and an attorney who submits any paper to this court is additionally bound by the Rules of Professional Conduct. Accordingly, any attorney or party who uses an artificial intelligence tool, as defined in 22 NYCRR 161.2(a), in preparing any paper, as defined in 22 NYCRR 161.2(b), filed in or submitted to this court or served on another party in a case before this court is required to carefully review the paper and independently ensure that it contains no fabricated or fictitious cases, statutes, or other material. By signing such paper, an attorney or party certifies that such a review has been conducted and that the paper contains no such fabricated or fictitious content. If this court determines that this requirement has not been satisfied, such attorney or party may be subject to sanction or other remedial action."

NY - ASSIGNED CHILD WELFARE LAWYER MUST BE EFFECTIVE COUNSEL

And of course, the rule is the same in Massachusetts. See Commonwealth v. Badgett, Mass: Appeals Court 2025an appointed attorney's racist beliefs, as evidenced by his social media posts, presented an actual conflict of interest in his representation of Mr. Badgett (who is Black) in the absence of any outward manifestation of bias in his treatment of Mr. Badgett. 

MATTER OF PARKER J., 2025 NY Slip Op 6533 - NY: Court of Appeals 2025:

"TROUTMAN, J.

This case presents the issue of whether assigned counsel was ineffective when counsel did not speak with a parent before a Family Court hearing to terminate the parent's parental rights. Counsel advised the court that he had not spoken with his client before the hearing began and that he would therefore remain silent. The court informed him that he would have to proceed regardless; counsel did not seek an adjournment in which to speak with the parent until the fact-finding hearing had already begun. We conclude that the parent was deprived of the right to the effective assistance of counsel to which she was entitled.

I.

In 2022, the Onondaga County Department of Child and Family Services (DCFS) commenced this proceeding to terminate the parental rights of respondent, the mother of twins born in 2020. DCFS also named the children's father as a respondent^[1]. The children were removed from the mother's care when they were approximately six months old.

At the first appearance on December 1, 2022, counsel for DCFS reported that it had been unable to serve the mother with the petition, and substitute service was ordered. The next day, Family Court assigned counsel to the mother. At the next court appearance, the mother's counsel was unable to be present, and the mother did not appear. However, the mother's DCFS caseworker had spoken to the mother and relayed that the mother was amenable to surrendering her parental rights. Because substitute service was accomplished, and the mother did not appear, the court then initially found the mother in default. A hearing was thereafter scheduled for February 15, 2023.

On that date, the mother appeared remotely from the alcohol treatment facility in which she was enrolled, and her counsel appeared in person. At the beginning of the hearing, the court asked the parties, "what are we doing today?" because "there was talk that [the mother] was willing to surrender." Counsel for DCFS described the surrender agreement offer to the mother, and the mother's counsel stated that he had not discussed surrender with the mother. After the court asked the mother directly, the mother stated that she would not surrender her parental rights. The court then took a brief recess for the father's counsel to contact the father, who was absent, during which the court told the mother's counsel that he could call her to discuss "the possibility of a surrender." It is unclear whether the mother spoke with counsel during this recess.

When the hearing reconvened, the mother's counsel informed the court that "this is the first time I've actually even had a chance to speak to my client, so I'm going to remain mute during this hearing." The court informed counsel that he could not remain silent because the mother was present, and therefore counsel had to participate. Once counsel had been told he must participate, counsel asked if anyone "ha[d] those records that were subpoenaed." Counsel did not request an adjournment to speak with the mother or review the subpoenaed records on which DCFS would rely during the hearing. Additionally, the father's counsel asked for an adjournment because the father was not present at the proceeding, and the mother's counsel did not join in that request, which was denied.

The mother's DCFS caseworker then began her direct testimony. After the caseworker had been testifying for some time, the mother's counsel objected that he was unable to speak with the mother during the caseworker's testimony because she was appearing virtually, unlike the father's counsel, who could discuss the case with the father while he was present in court. The court granted counsel a five-minute recess for counsel to speak with the mother on the phone. When the proceeding recommenced, the mother asked to represent herself. After a waiver colloquy, the court granted that request, but instructed the mother's counsel to remain as standby counsel and advised the mother to "let [the court] know" if she changed her mind.

Family Court determined that the mother had permanently neglected the children and proceeded to a dispositional hearing on the same date^[2] . After the agency's direct examination of the DCFS caseworker, the court informed the mother that they were "at the dispositional phase of this trial, so you can ask [the caseworker] any questions in that regard." The mother responded that she was "not sure what dispositional means" and declined to cross-examine the caseworker. Later in the dispositional hearing, the court informed the mother that she had the opportunity to testify. The mother responded that she did not "understand any of this, so I don't know what I'm supposed to say and not supposed to say." During the following exchange, the mother asked if she could be represented. The court stated: "You may not at this point," and then proceeded to allow the mother's counsel, who was present in the courtroom, to elicit her testimony with direct questions. When mother's standby counsel asked for "a minute" with the mother "without the presence of the other parties," the court denied the request. Counsel made the request again to speak with the mother, raising his concern that the mother stated she did not understand what a dispositional hearing is. The court then granted counsel five minutes to speak with the mother on the phone. After the dispositional hearing, the court determined that it would be in the best interest of the children for the mother's parental rights to be terminated so that the children could be adopted by their foster family, with whom they had been living for some time.

On appeal, the Appellate Division affirmed (232 AD3d 1244 [4th Dept 2024]). The Appellate Division rejected the mother's contentions that she received ineffective assistance of counsel and that she did not knowingly, voluntarily, and intelligently waive her right to counsel (see id. at 1244). This Court thereafter granted the mother leave to appeal (43 NY3d 984 [2025]). We now reverse because the mother was not afforded the effective assistance of counsel.

II.

A.

"A parent's right to the custody and care of their child is `perhaps the oldest of the fundamental liberty interests' protected by the Constitution" (Matter of K.Y.Z., ___ NY3d ___, 2025 NY Slip Op 05781, *1 [Oct. 21, 2025], quoting Troxel v. Granville, 530 US 57, 65 [2000]). "Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity" (Matter of Marie B., 62 NY2d 352, 358 [1984]). It is therefore "well-settled that parents have a fundamental right to custody of their children" (S.L. v. J.R., 27 NY3d 558, 562 [2016]).

This Court has long recognized that the fundamental nature of this right requires an indigent parent to be assigned counsel if the state seeks to terminate that right. "A parent's concern for the liberty of the child, as well as for [the child's] care and control, involves too fundamental an interest and right . . . to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer" (Matter of Ella B., 30 NY2d 352, 356 [1972]). "To deny legal assistance under such circumstances would . . . constitute a violation of [the parent's] due process rights" (id. at 356-357). This constitutional right to assigned counsel in proceedings to terminate parental rights was codified 50 years ago (see Family Court Act §§ 261, 262).

Despite the longstanding nature of the right to assigned counsel in such proceedings, we have never considered whether the right to assigned counsel in family court proceedings necessarily encompasses the right to effective assistance of counsel. The Appellate Division, however, has determined that "because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings" (Matter of Brown v. Gandy, 125 AD3d 1389, 1390 [4th Dept 2015] [internal quotation marks omitted]; see e.g. Matter of Adam M.M., 179 AD3d 801, 802 [2d Dept 2020]; Matter of Matthew C., 227 AD2d 679, 682 [3d Dept 1996]; see also Matter of Bryant Angel Malik J., 76 AD3d 936, 937 [1st Dept 2010]).

We agree with the Appellate Division—as do all parties to this appeal—that the right to assigned counsel in proceedings to terminate parental rights necessarily encompasses the right to effective assistance of counsel. The fundamental right of parents to the companionship, care, and custody of their children is too precious a right to sever without the meaningful assistance of counsel (cf. Santosky v. Kramer, 455 US 745, 758-759 [1982]). "[W]hether the proceeding be labelled civil or criminal, it is fundamentally unfair, and a denial of due process of law for the state to seek removal of the child from an indigent parent without according that parent the right to the assistance of court-appointed and compensated counsel" (Ella B., 30 NY2d at 357 [internal quotation marks omitted]).

B.

Although an attorney's representation of a parent in Family Court differs in many ways from an attorney's representation of a criminal defendant, we have previously relied upon analogous criminal cases when discussing right-to-counsel issues in the Family Court context (see Matter of Kathleen K., 17 NY3d 380, 384-387 [2011]). In the criminal context, "[t]o prevail on an ineffective assistance claim, [the party bringing the claim] must demonstrate the absence of strategic or other legitimate explanations—i.e., those that would be consistent with the decisions of a reasonably competent attorney—for the alleged deficiencies of counsel" (People v. Maffei, 35 NY3d 264, 269 [2020] [internal quotation marks omitted]; see also People v. Benevento, 91 NY2d 708, 712 [1998]). Additionally, "a court must examine whether counsel's acts or omissions prejudice[d] the defense or defendant's right to a fair trial" (Benevento, 91 NY2d at 713-714 [internal quotation marks omitted]). "While the inquiry focuses on the quality of the representation provided to the accused, the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (id. at 714). Under our state standard, a litigant need not satisfy the prejudice test of the federal standard, because "[o]ur focus is on the fairness of the proceeding as a whole" (People v. Stultz, 2 NY3d 277, 284 [2004]).^[3]

"Essential to any representation, and to the attorney's consideration of the best course of action on behalf of the client, is the attorney's investigation of the law, the facts, and the issues that are relevant to the case" (People v. Oliveras, 21 NY3d 339, 346 [2013]; see People v. Droz, 39 NY2d 457, 462 [1976]). In Droz, for example, we held that counsel was ineffective when he "made little or no effort to prepare the case for trial" and "did not consult with his client until two months after his appointment, and then only on the first day of the initial trial" (Droz, 39 NY2d at 462). The Appellate Division has similarly found counsel to be ineffective in Family Court cases where counsel failed to communicate with their client (see Matter of Mitchell v. Childs, 26 AD3d 685, 687 [3d Dept 2006]). And, in a case involving a determination of filiation and child support, we did not decide an issue regarding effective assistance of counsel but observed that, under the circumstances present in that case, counsel's failure to speak to his client before a hearing began was "troubling" and "should not have occurred" (Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 6 [2010]).

Here, despite being assigned more than two months earlier, counsel had not spoken to the mother before the hearing to terminate her parental rights had already begun. We cannot determine based on this record why counsel and the mother did not speak prior to the fact-finding hearing, and the court did not inquire, so the reasons for that lack of communication are pure speculation. Even assuming, however, as DCFS urges us to do, that counsel attempted to contact the mother but was unsuccessful, there is no strategic or other reasonable explanation for counsel's failure to request an adjournment of the proceeding so that he could speak to his client before the fact-finding hearing began, especially when the mother indicated that she would not be surrendering her parental rights. Before the mother indicated that she would not, in fact, surrender her parental rights, counsel could have legitimately thought that the fact-finding hearing would not go forward. However, once it was clear that the hearing was about to commence, counsel should have requested an adjournment to speak to his client about the proceeding and its implications. Counsel's failure to do so lacks a strategic or legitimate explanation.

Counsel also appeared unprepared, questioning whether the records that were subpoenaed were available to be reviewed and announcing that he would remain silent during the hearing, only to be admonished by the court that he was required to participate. In addition, the court, faced with a record that showed counsel's unpreparedness to proceed due to lack of communication, continued forward with the fact-finding hearing and the dispositional hearing even after it was clear that the mother did not understand the proceedings, denied the mother's subsequent request to be represented by counsel even though the court told the mother she could change her mind about self-representation, and gave the mother's standby counsel only five minutes in which to explain the proceedings to her.

We respectfully disagree with the dissent's conclusion that counsel's request for an adjournment would have been "futile" because the court directed counsel to participate and had denied the request of the father's counsel for an adjournment (see dissenting op at 7-8). The fact that the court insisted on counsel's participation in no way relieves him of the obligation to ensure that his client understood the proceedings and to seek an adjournment, if necessary, in which to explain them to her, or to ascertain her objectives before the fact-finding hearing began. Moreover, counsel cannot be relieved of his obligation to protect his client's rights for the record simply because the court insisted on proceeding expeditiously.

In the absence of a statutory mechanism in Family Court proceedings "for determining what may have happened off the record," akin to a CPL article 440 proceeding in the criminal context, the dissent opines that parents who do not have record-based claims of ineffective assistance of counsel are left "in a sort of due process purgatory" (dissenting op at 9-10). Whether the legislature chooses to create such a mechanism in Family Court proceedings (which, as the dissent notes, would impact permanency for the children) is beyond our purview. We simply conclude that parents, like the mother here, who can establish ineffective assistance of counsel on the face of the record are entitled to a remedy.

We are conscious that our determination is based on a cold transcript, and thus we do not have the benefit of context that could bear upon our analysis, and that the mother never complained about the adequacy of her counsel on the record. Nevertheless, counsel's failure to communicate with the mother before the hearing to terminate her parental rights means that counsel necessarily failed to explain the proceedings to the mother, prepare her for testimony, and ascertain her objectives, which undoubtedly impaired her right to a fair proceeding. With so much at stake, counsel could not allow the fact-finding hearing to begin without at least requesting a brief adjournment to discuss the proceeding and its implications with his client. Under the unique circumstances of this case, we conclude that the mother was not afforded the effective assistance of counsel to which she was entitled.

III.

Attorneys who represent family members in Family Court have long been overburdened and under-resourced (see Jeh Johnson, Report from the Special Adviser on Equal Justice in the New York State Courts, 54 [2020] [available at https://www.nycourts.gov/whatsnew/pdf/SpecialAdviserEqualJusticeReport.pdf [last accessed Nov. 19, 2025]; Franklin H. Williams Judicial Commission of the New York State Courts, Report on New York City Family Courts, 3-6 [2022] [available at https://www.nycourts.gov/LegacyPDFS/IP/ethnic-fairness/pdfs/FHW%20-%20Report%20on%20the%20NYC%20Family%20Courts%20-%20Final%20Report.pdf [last accessed Nov. 19, 2025]). Intractable as these structural difficulties may seem, Family Court is not a "second-class court" (Franklin H. Williams Judicial Commission, Report on New York City Family Courts, at 4).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for a new hearing.

CANNATARO, J. (dissenting):

I agree with the majority that individuals who are facing termination of their parental rights are entitled to the effective assistance of counsel. However, any attempt to engraft the criminal standard for reviewing ineffective assistance of counsel claims onto Family Court cases without the well-established procedural safeguards that are in place in the criminal context, such as a mechanism for ascertaining what may have happened between attorney and client outside the record, is not a workable solution (see CPL article 440). In the absence of a similar procedure for evaluating ineffectiveness in termination of parental rights proceedings, the majority declares counsel's performance constitutionally deficient on the face of a murky record. Because I believe both that the recognition of a parallel right to the effective assistance of counsel requires a corresponding method for adjudicating these claims and that, in any event, the result reached by the majority here is not supported by the record in this case, I respectfully dissent.

Mother's twin daughters were born in February 2020 and were removed from her care several months later. In November 2020, mother admitted to neglecting the children due to her untreated substance abuse condition. The Onondaga County Department of Children and Family Services (DCFS) commenced this proceeding in October 2022 to terminate mother's parental rights on the ground of permanent neglect.^[1]

At the initial appearance, DCFS advised the court that it had been unable to serve mother with the petition, but "believe[d] that she may be in treatment." Family Court authorized substitute service and assigned mother new counsel, the attorney who is the subject of this ineffective assistance claim. Mother did not appear at the next court date. However, the agency advised the court that the caseworker had spoken with mother about the possibility of a surrender and that they believed mother was "willing to do that." Family Court found mother to be in default and scheduled the matter for "either a trial or a surrender."

At the commencement of the scheduled fact-finding hearing, mother appeared remotely from an inpatient treatment facility while her assigned counsel appeared in person. The court broached the subject of whether mother would be agreeing to a surrender and mother's counsel replied, "I have not had a chance to discuss that with my client." The court then asked mother if that was something she was willing to entertain, and mother responded in the negative. The court then took a brief recess, advising mother's counsel that "[i]f you'd like to step out and give your client a call and talk to her about the possibility of a surrender, I will allow you to do that."

Following the recess, Family Court indicated that it would proceed with the fact-finding hearing, stating "I realize I found [mother] in default, but I will allow everyone to participate today, because everyone's here." When the court asked if there was "[a]nything anyone . . . want[ed] to say before [they] started," mother's counsel replied, "this is the first time I've actually even had a chance to speak to my client, so I'm going to remain mute during this hearing." The court admonished counsel, "You can't do that, . . . . You're the assigned attorney, and she's here. . . . [Y]ou can't remain mute. You have to represent her. Whether she hasn't contacted you, or you haven't contacted her, you've been assigned on this case." After confirming that counsel had been assigned the previous month, the court observed "[t]hat's a lifetime in Family Court. It's been a month, and if she didn't contact you, or you didn't contact her, she has the benefit of counsel, and you need to do your job and represent her, and call her as a witness, or not. You can certainly—after the [agency's] case in chief—have a[n] opportunity to speak to her to see whether she wants to . . . testify or not. But you are also well-versed in this type of law, and you can't stay silent, because she's here. So you gotta participate." Mother's counsel then inquired, "[d]o we have those records that were subpoenaed?" In response, counsel for the agency discussed the three exhibits they would be introducing into evidence. Moments later, father's counsel "request[ed] an adjournment, just for the record" and the court denied same^[2] . Mother's counsel neither requested an adjournment nor joined in father's request.

During the agency's case-in-chief, mother's counsel made relevant objections and noted that the exhibits had not been made available to him until the Friday before the hearing. After counsel asserted that he was at a disadvantage because he could not confer with mother during the proceedings, the court granted him a five-minute recess to allow him to call mother. Immediately following the recess, mother requested to represent herself. The court conducted a thorough inquiry and mother waived her right to counsel. Mother represented herself for the remainder of the proceeding, with assigned counsel as standby counsel.^[3]

Notably, at a subsequent proceeding, Family Court expressed concern that mother was engaging in a "delay tactic" by checking out of her treatment facility after her court appearances and then checking back in again before her next scheduled trial date. The court ultimately determined that mother permanently neglected the subject children and, following a dispositional hearing terminated mother's parental rights.

The Appellate Division affirmed, finding, as relevant here, that mother received meaningful representation during the time she was represented by counsel (232 AD3d 1244 [4th Dept 2024]).

As noted above, the majority adopts the criminal standard for ineffective assistance of counsel to evaluate the claim in this case. The problem is not the legal standard itself—if an individual is entitled to constitutionally effective representation, the well-settled meaningful representation standard is the bar that must be reached. The problem is the application of that standard to the Family Court, both because the majority's one-size-fits-all approach fails to account for the unique challenges presented in the handling of Family Court cases—particularly the piecemeal fashion in which most hearings are conducted and statutory commands regarding the timing of certain hearings—and because there is no available mechanism for a postjudgment hearing to determine matters that may not appear on the record.

"The constitutional requirement of effective assistance of counsel will be satisfied when `the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation'" (People v. Flores, 84 NY2d 184, 187 [1994], quoting People v. Baldi, 54 NY2d 137, 147 [1981] [emphasis omitted]). "[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings" (People v. Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and citations omitted]). As we have recognized, "[g]enerally, the ineffectiveness of counsel is not demonstrable on the main record but rather requires consideration of factual issues not adequately reflected on that record" (People v. Maffei, 35 NY3d 264, 269 [2020] [internal quotation marks and citation omitted]). "[A]lthough there may be some cases in which the trial record is sufficient to permit a defendant to bring an ineffective assistance of counsel claim on direct appeal, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" (id. at 269-270 [internal quotation marks and citations omitted]).

Here, in the absence of this statutory procedure, the majority evaluates mother's claim on the face of the record and concludes that mother was deprived of constitutionally adequate representation. Despite acknowledging that we do not know what transpired in the two brief conferences between mother and counsel prior to mother's request to represent herself, the majority concludes that counsel's "failure to communicate" with mother in a timely fashion "means that counsel necessarily failed to explain the proceedings to the mother, prepare her for testimony, and ascertain her objectives" (majority op at 11) and, alternatively, that even assuming counsel had tried and failed to connect with mother prior to the hearing, counsel was ineffective for failing to request an adjournment. These are conclusions reached without record support.

Although the majority purports to apply the criminal ineffective assistance of counsel standard to this case, it does not actually evaluate the circumstances in their totality, relying instead on the fact that counsel had not spoken with mother before the fact-finding hearing began, that he did not request an adjournment and that he "appeared unprepared." In this regard, the majority freely acknowledges that the reasons for the lack of communication between attorney and client "are pure speculation" (majority op at 9). However, in the process of assuming that counsel made unsuccessful attempts to contact mother prior to the hearing, the majority recognizes that the inability to consult with her prior to the hearing would not, in itself, necessarily be ineffective (see majority op at 9). As a result, the majority must ultimately conclude that the problem is really counsel's failure to request an adjournment and his apparent lack of preparation.

Since we are engaging in speculation, it is not difficult to posit a reasonable explanation for any lack of preparedness on counsel's part, particularly if he was having trouble getting in touch with mother. As noted above, prior to the fact-finding hearing Family Court had found mother in default and the agency represented that they believed mother was willing to consent to a surrender. Thus, counsel may not have requested an adjournment prior to the commencement of the fact-finding hearing because he may not have anticipated that they would be proceeding with a hearing, or at least not a plenary hearing in which mother's participation would be required. Nor is the failure to request an adjournment after it became clear the fact-finding proceeding was going forward, or to join in the adjournment request by father's attorney, impossible to explain on this record. After vacating mother's default, Family Court directed counsel to participate regardless of whether he had had an opportunity to consult with his client and denied father's counsel's request for an adjournment. Counsel could have gleaned that any request for an adjournment on his part would be futile. In addition, to the extent the majority draws the conclusion that counsel was unprepared because, once he was told he had to proceed, he questioned whether the subpoenaed records were available to be reviewed, that is yet another ambiguity in this record^[4] . Later in the proceeding, when the agency's exhibits were being introduced into evidence, counsel stated, in the course of an objection to the admissibility of the records, that he "would like the Court to realize that these exhibits were not made available to counsel until this past Friday." An eminently reasonable conclusion to be drawn from this statement is that counsel had, in fact, reviewed these records prior to the fact-finding hearing, but for whatever reason, did not have them in front of him in the courtroom.

The majority cites People v. Droz (39 NY2d 457 [1976]), as an example of a case where an unprepared attorney who failed to communicate with their client prior to trial was found ineffective (majority op at 8). But, that the effective assistance of counsel requires more than "a person with a law degree" being present in the courtroom, and necessarily incorporates a degree of preparation appropriate to the circumstances of the case, are unremarkable propositions (People v. Bennett, 29 NY2d 462, 466 [1972]; see Strickland v. Washington, 466 US 668, 690-691 [1984]). We review ineffective assistance of counsel claims under a meaningful representation standard and, as explained, the only thing that is clear from this record is that attorney and client had not had an opportunity to connect prior to the first day of the fact-finding hearing. In this vein, the attorney in Droz was not found ineffective solely due to a lack of preparation, but based on "all the omissions and errors of defense counsel," including bringing highly prejudicial information to the jury's attention and opposing the trial court's declaration of a mistrial based on that prejudicial error, due to counsel's misapprehension of the law (see 39 NY2d at 461-463). Indeed, in the criminal context, the defendant has the burden of "overcom[ing] the strong presumption that defense counsel rendered effective assistance" (People v. Ambers, 26 NY3d 313, 317 [2015]). The majority applies a contrary presumption to find mother's counsel ineffective here (compare Matter of Juanita A. v. Kenneth Mark N., 15 NY3d 1, 4, 6 [2010] [characterizing counsel's failure to consult with father, where counsel admitted the "file fell through the cracks," as "troubling"]).

Putting aside any disagreement as to the application of the meaningful representation standard in this case, the absence of a mechanism for determining what may have happened off the record leaves parents in termination proceedings, who are statutorily and constitutionally entitled to the effective assistance of counsel, in a sort of due process purgatory. As in the criminal context, presumably a significant portion of ineffective assistance claims will not be suitable for adjudication on a cold record. Consequently, although the majority deems counsel to have been ineffective under the circumstances presented here, any parent who does not have a record-based claim will be left without a remedy. The legislature should address this inequity in a manner that accommodates both the parents' right to effective assistance of counsel and the priority of permanency for the children.^[5]

Order reversed, without costs, and matter remitted to Family Court, Onondaga County, for a new hearing.

[1] The father subsequently surrendered his parental rights, and he is not a party to this appeal.

[2] At the previous appearance, the court informed the parties that it would reserve decision on the permanent neglect finding until the next appearance, during which the dispositional hearing would also occur.

[3] Although our dissenting colleagues disagree that we should apply this standard to Family Court proceedings, they offer no alternative standard that, in their view, would be better suited.

[1] Mother has not visited with the subject children since May 2022.

[2] As noted in the majority opinion, father ultimately agreed to a surrender of his parental rights. His rights are not at issue on this appeal.

[3] Between appearances at the ongoing fact-finding hearing, counsel continued to communicate with mother and negotiated with the agency for more favorable terms on a potential surrender. In addition, mother permitted now-standby counsel to conduct a direct examination of her and give a brief closing statement at the dispositional hearing. At the close of the termination proceeding, Family Court thanked counsel "for all you've done in this matter."

[4] The majority does not disturb the Appellate Division's conclusion that mother made a valid waiver of the right to counsel (see 232 AD3d at 1244). Nonetheless, the majority references both the court's conduct and mother's apparent lack of understanding of the proceedings following that valid waiver in its discussion of counsel's alleged lack of preparation (see majority opinion at 9-10). Needless to say, these circumstances, occurring after counsel was relieved of his representation, have nothing to do with whether counsel rendered ineffective assistance.

[5] Before the procedures of CPL article 440 were enacted to address claims of ineffective assistance of counsel in the criminal context, there existed the ancient writ of error coram nobis whereby a defendant could seek judicial redress of claims not evident on the face of the record (see e.g. People v. Andrews, 23 NY3d 605, 610-611 [2014]). I do not suggest that the majority should take this opportunity to declare a new writ of error coram nobis for Family Court cases in the absence of a legislative solution—quite the contrary—but even that precipitous "solution" would put more safeguards in place than the procedural void that the majority leaves in its wake today.

E-FILING ISSUE FOR MATRIMONIAL ATTORNEYS

A new subsection has been added to Section 202.16 to the Uniform Rules for the Supreme Court and County Court and it is effective immediately. It governs electronic filing in matrimonial actions and in new section 202.16-c, paragraph (8) provides a new requirement:

Within 60 days after a judgment of divorce, separation, annulment or declaration that a marriage is void or voidable, attorneys must remove their representation from NYSCEF.  In the past, attorneys could remove their representation from NYSCEF only after a consent to change attorney was filed, a court authorized withdrawal or change of attorney, attorney left the firm representing the client or the case was reassigned within the office or attorney had filed a limited scope appearance and you completed that purpose.  

But none of those four options currently on NYSCEF apply to the new requirement that attorneys withdraw representation following entry of a judgment or QDRO. As of today, those are still the only four options on NYSCEF that allow an attorney to withdraw representation.  Hopefully NYSCEF will soon be updated to include the new requirement.

BEING RELIEVED AS COUNSEL IS NOT A UNILATERAL AFFAIR

KALAMATA CAPITAL GROUP, LLC v. AJP REMODELING, LLC, 2023 NY Slip Op 51301 - Kings Co.  Supreme Court 2023:

"The instant action alleges causes of action premised upon a breach of a merchant cash advance contract.

Plaintiff Kalamata Capital Group, LLC is a corporation operating in New York (see NYSCEF Doc No. 30 ¶ 1). Defendants are companies organized or situated in Georgia as well as an individual (see id. ¶¶ 2-3). Allegedly, according to Plaintiff, Plaintiff and Company Defendants entered into an agreement whereby Plaintiff agreed to purchase all rights to Company Defendants' future receivables having an agreed upon value of $78,100.00 (see id. ¶ 6). Individual Defendant Julio Andres Penaranda Jr. personally guaranteed the contract, per Plaintiff (see id. ¶ 8).

Defendants' attorneys, Usher Law Group P.C., answered the complaint and responded to Plaintiff's discovery demands (see NYSCEF Doc No. 4-6, 12-18). They now move to be relieved as counsel (see NYSCEF Doc No. 76).

Defendants' attorneys claim that "undersigned counsel was advised that the Defendants no longer with to be represented by counsel" (NYSCEF Doc No. 76 ¶ 10). On June 20, 2023, a letter was sent by Usher Law Group P.C. to Defendants, purporting to confirm that in accordance with the latter's request, the firm would no longer be representing them, and "In order for this firm to be relieved as counsel for you[r] matter, please sign the attached affidavit and return it to us as soon as possible in the postage paid envelope enclosed" (NYSCEF Doc No. 78 at 2).

During oral argument the Court asked appearing counsel if he wished to provide an in-camera disclosure as to why counsel of record sought to be relieved. Appearing counsel declined the offer and provided no additional information.

II. Movant's Arguments

Movant law firm Usher Law Group cites case law for the proposition that "New York Courts have long held that an attorney mad [sic] end the relationship with a client at any time for good cause and on reasonable notice to the client. (See In re Dunn, 205 N.Y 398, 403 (1912)" (NYSCEF Doc No. 76 ¶ 12). Movant cites a provision of the New York Rules of Professional Conduct, "1.16 (b)(6)," that does not exist (see id. ¶ 13). This asserted provision purportedly "states that a lawyer may withdraw from representing a client if the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client or; (7) other good cause for withdrawal exists so long as it can be accomplished without material adverse effects on the interest of the client" (id.).

III. Discussion

Here, the Defendants' counsel seeks to be relieved. No opposition to Defendants' attorneys' motion has been filed. No appearance has been made in opposition.

In 1912, the Court of Appeals established that an attorney may terminate his relationship with a client in litigation "at any time for a good and sufficient cause and upon reasonable notice" (Matter of Dunn [Brackett], 205 NY 398, 403 [1912]).

"As a general rule, an attorney may obtain leave of court to terminate the attorney-client relationship at any time upon reasonable notice, for a good and sufficient cause, including the client's failure to pay legal fees and the failure to cooperate in his or her representation so as to cause a breakdown in that relationship (see 22 NYCRR 1200.0, Rule 1.16 [c]; Misek-Falkoff v Metro. Tr. Auth., 65 AD3d 576, 577 [2d Dept 2009]; Rivarderneria v New York City Health and Hosps. Corp., 306 AD2d 394, 395 [2d Dept 2003]; Tartaglione v Tiffany, 280 AD2d 543, 543 [2d Dept 2001]; Adler v Mitchell, 2022 NY Slip Op 50665[U], *2, 2022 NY Misc LEXIS 3194, *3 [Sup Ct, NY County, Jul. 25, 2022])" (Ventura v Choi, 2023 WL 4290358, *1 [Sup Ct, NY County, June 29, 2023, No. 805374/2016].) However, an attorney's right to withdraw as counsel is not absolute, and a sound reason must be provided why counsel should be allowed to withdraw (see Matter of Jamieko A., 193 AD2d 409 [1st Dept 1993]).

Conduct on the part of the clients rendering it unreasonably difficult to carry out the employment effectively is a valid ground for terminating the attorney-client relationship (see Rann v Lerner, 160 AD2d 922 [2d Dept 1990]). However, not every dispute between a client and an attorney warrants withdrawal (see Willis v Holder, 43 AD3d 1441 [4th Dept 2007]; LeMin v Central Suffolk Hosp., 169 AD2d 821 [2d Dept 1991].

The courts have an "inherent and statutory power to regulate the practice of law" (Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471, 474 [1977]), and that power includes the authority to deny a motion to withdraw "because of the attorney's failure to show good and sufficient cause warranting withdrawal under the Code of Professional Responsibility"^[1] (J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929, 930 [4th Dept 1988]; accord Willis v Holder, 43 AD3d 1441 [4th Dept 2007]).

After an attorney has withdrawn it would be foolhardy to believe that the Defendant will easily be able to obtain a new attorney as "whatever the basis of permitted withdrawal, and certainly where it is based on insufficient merit of the claim or defense, prospective new counsel will, understandably, be reluctant to accept the representation" (Diaz v New York Comprehensive Cardiology, PLLC, 43 Misc 3d 759, 764 [Sup Ct, Kings County 2014]).

"The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (McDonald v Shore, 100 AD3d 602, 603 [2d Dept 2012] [internal quotation marks and citations omitted]).

Moving counsel cites a nonexistent provision of the Rules of Professional Conduct. There is no paragraph (6) of subdivision (b) of Rule 1.16, as cited to by counsel. Rule 1.16 enumerates circumstances under which an attorney may ethically withdraw from representing a client. Subdivision (b) of Rule 1.16 provides:

(b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when:

(1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or

(4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].)

Permissive withdrawal is governed by subdivision (c) of Rule 1.16:

(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action with which the lawyer has a fundamental disagreement;

(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;

(6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;

(8) the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal;

(9) the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(10) the client knowingly and freely assents to termination of the employment;

(11) withdrawal is permitted under Rule 1.13(c) or other law;

(12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or

(13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.

(22 NYCRR 1200.0, Rule 1.16 [b] [emphasis added].) No paragraph in subdivision (c) of Rule 1.16 was referenced by moving counsel.

In addition to the Rules of Professional Conduct, CPLR 321 (b) (2) states, "An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct."

Furthermore, when an attorney seeks to be relieved of counsel, moving papers must contain specific allegations in order to be relieved as counsel; conclusory statements are not sufficient (see Kramer v Salvati, 88 AD2d 583 [2d Dept 1982]). In Kramer, the Appellate Division found that the moving papers of plaintiffs' attorneys seeking to be relived of their responsibilities based their application on "various differences," but there was "no specification whatsoever of this conclusory assertion" (id. at 583). Supreme Court's denial of the attorneys' motion was sustained.

It must be emphasized that when an attorney undertakes to represent a defendant in a civil action, there exists a presumption that the representation will continue in good faith throughout the course of the litigation (see Moustakos v Bouloukos, 112 AD2d 981 [2d Dept 1985]; Blondell v Malone, 91 AD2d 1201 [4th Dept 1983]). An attorney cannot unilaterally terminate a relationship with clients simply by failing to perform services expressly or impliedly authorized by them (see Leffler v Mills, 285 AD2d 774 [3d Dept 2011]). One should not enter into a client representation with the aforethought that the attorney can earn a quick fee and then let the client loose. "As the saying goes, `in for a penny, in for a pound' (Edward Ravenscroft, The Canterbury Guests; Or, A Bargain Broken, act v, scene 1 [1695])" (People v Graves, 163 AD3d 16, 22 [4th Dept 2018]).

Here, Defendants' counsel's only explanation for being discharged was a conclusory one-sentence statement: "In June of 2023 undersigned counsel was advised that the Defendants no longer with [sic] to be represented by counsel and forwarded a letter confirming the same." The sentence appears to convey that the Defendants forwarded a letter confirming a desire not to be represented by counsel. Actually, counsel prepared an affidavit for the individual Defendant to sign both on his own behalf and on behalf of Company Defendants. The affidavit was sent along with a cover letter. The affidavit was never signed and returned by the individual Defendant. (See NYSCEF Doc No. 78.)

Since no details were provided by counsel, this Court is left in the dark as to why the breakdown in the attorney-client relationship occurred, whether Defendants truly wished to have counsel relieved, and whether they understood the consequences of being without an attorney. One would presume that if they wished counsel to no longer represent them, they would have signed the affidavit and returned it. At a minimum, they would have sent something in writing acknowledging their intentions. However, there is nothing from them.

This does not mean that as a sine qua non a client must execute a writing to memorialize a desire to have counsel relieved as their attorneys. But when counsel offers nothing more than an enigmatic one-line statement without details and without an offer to explain the situation in camera, and despite having the opportunity to sign something to the effect that they don't want the attorneys representing them, the clients do not return it executed, this raises a question on the Court's part as to what has transpired. This Court cannot acquiesce so easily to rendering parties to litigation, especially Defendants in a breach of contract case, without legal representation.

Relieving oneself of counsel is not a unilateral affair. Counsel must show good cause to be relieved. Here, Defendants' counsel has not demonstrated good and sufficient cause with sufficient allegations. Present are none of the above cited reasons for permitting dissolution of the attorney-client relationship — such as a failure to pay legal fees, a failure to cooperate, client actions rendering it difficult to carry out the representation, lack of a meritorious defense, illegal conduct taking place, or the client proposes to undertake illegal conduct. The present circumstances, including the lack of an in-camera explanation and the non-return by Defendants of the pre-written affirmation, prompt this Court to decline to exercise its discretion to relieve counsel from representation.

IV. Conclusion

Accordingly, it is hereby ORDERED that Defendants' counsel's motion to be relieved is DENIED.

[1] The Code of Professional Responsibility was replaced by the Rules of Professional Conduct in 2009."

ATTORNEY ISSUE WITH ATTEMPT TO TERMINATE GUARDIANSHIP

IMHO, if the application is being contested - the only real change is that the state picks up the legal fees but, with 18-B rates, it will be less than the private rate.

MATTER OF JESSICA LM, 2023 NY Slip Op 23264 - NY: Surrogate's Court, Suffolk 2023:

"Before the court is an application by Jessica L.M. ("Jessica"), who was previously found by this court to be a person with a developmental disability, to terminate her SCPA 17-A guardianship, and revoke the letters of guardianship of the person issued to Paul M. and Deborah M., Jessica's parents.

The record reflects that by decision dated April 2, 2001, and decree dated April 10, 2001, Paul M. and Deborah M., Jessica's parents, were appointed the co-guardians of the person and property of Jessica. The letters of co-guardianship of the property were revoked by order of the court dated June 27, 2007. The petition currently before the court indicates that Paul M. passed away on February 1, 2022. No appeal was ever taken with respect to any of the foregoing orders.

Jurisdiction has been obtained over all persons listed in the petition as necessary parties. Deborah M., the current SCPA 17-A guardian filed opposition to the relief requested.

By her petition, Jessica seeks to terminate her guardianship on the grounds that the guardianship is not necessary, is not in her best interests, and is not the least restrictive means of providing Jessica with the support she may require (US Const Amends V & XIV; NY Const, art I, § 6). Jessica also asserts that she is not a person with a developmental disability within the meaning of SCPA 17-A, that the current guardianship was based on insufficient evidence and violated her due process rights, and that the guardianship is not in her best interests.

In support of their original guardianship petition, the co-guardians submitted affirmations from two examining physicians which indicated that Jessica had been diagnosed with the following: Asperger's syndrome, attention deficit/hyperactivity disorder, bipolar disorder, learning disorder, anxiety disorder, and mild cerebral palsy. The co-guardians also submitted Neuropsychological Evaluations which indicated that Jessica's overall abilities fell within the very superior range, with a Wechsler Intelligence Full Scale IQ of 133 in 1991 and within the average range in 2000, with a Wechsler Intelligence Full Scale IQ of 106.

The court has previously decided several similar uncontested petitions, and in those cases, a guardian ad litem was appointed to verify the allegations set forth in the petition. However, in this case, objections have been filed and issue has joined, leaving the court faced with the question of whether or not to appoint a guardian ad litem, particularly since petitioner is represented by counsel. In addition, the court had further concerns in this matter as to whether or not petitioner's counsel, who is based in Rochester, New York, had been freely retained. Thus, with the consent of all counsel, a hearing on the narrow issue of petitioner's representation was held before the court. Since the petitioner urged that any determination with respect to her should be based upon the provisions and protections of Mental Hygiene Law Article 81, it was agreed that the provisions of MHL §81.10 would be utilized at such hearing. After the hearing the court allowed the parties to submit briefs.

Petitioner's attorney submitted a brief reiterating her argument that Jessica has never been lawfully determined to have a lack of capacity such that she is unable to choose her own counsel, that Jessica demonstrated through her testimony a clear ability to understand the nature and consequences of her decisions as well as her process in retaining counsel, and that Jessica freely and independently chose her counsel.

Mental Hygiene Law (MHL) 81.10(a) provides, in relevant part, that in addition to the court having the ability to appoint counsel, the subject of a MHL Article 81 proceeding has the right to choose and engage legal counsel of the person's choice. However, the court must determine that retained counsel has been chosen freely and independently by the alleged incapacitated person (Id.).

The ability to have counsel of one's own choosing, however, is not absolute. The Court of Appeals of New York has held that

". . . although an individual possesses no absolute right to representation by an attorney of his choice (Greene v Greene, 47 NY2d 447, 452; People v Hall, 46 NY2d 873, cert den 444 U.S. 848; United States v Hobson, 672 F2d 825, and cases cited in footnote, at p 829, cert den 459 U.S. 906; United States v Cunningham, 672 F2d 1064, 1071; United States v Armedo-Sarmiento, 524 F2d 591, 592; United States v Sexton, 473 F2d 512, 514), any restriction imposed on that right will be carefully scrutinized. (United States v Hobson, supra; People v Doe, 98 Misc 2d 805.) An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association (N.A.A.C.P. v Button, 371 U.S. 415; NY Const, art I, '9) and the Sixth Amendment right to counsel (cf. Faretta v California, 422 U.S. 806; NY Const, art I, '6) and will not yield unless confronted with some overriding competing public interest (Matter of Kelly, 23 NY2d 368, 378, n 3; People v Doe, supra; Matter of Gopman, 531 F2d 262, 268)" (In re Abrams, 62 NY2d 183, 196).

Therefore, while mindful of the restrictions placed on the court by the holding in Abrams, the court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person" (Matter of Caryl S.S. (Valerie L.S.), 45 Misc 3d 1223(A), 1223A). This is particularly necessary in a proceeding such as the one at bar, where findings have already been made with respect to petitioner's capacity and co-guardians have been appointed.

As previously noted, the question before the court appears to be one of first impression in the context of a SCPA 17-A Guardianship proceeding. As such, no case law could be located to guide the court. Moreover, there is precious little case law decided under MHL §81.10(a) with respect to this issue. Finally, there appears to be no guidance on the issue provided in the Law Revision Commentaries.

It appears that the facts herein are most analogous to those in Matter of Caryl S.S. (Valarie L.S.), supra. In that proceeding, the court found it "troubling" that the attorney purportedly selected by the AIP (alleged incapacitated person), had no prior relationship with the AIP, was brought into the case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP. The court then disqualified that attorney from further representation and appointed independent counsel for the AIP.

In the within proceeding, Jessica testified that she previously had disputes with her mother, who is the appointed guardian herein, over who would provide care and assistance (or, as Jessica put it, her "staff"). She also testified that it was her staff who advised her that she could terminate her guardianship, found the entity who currently employs her counsel herein, and served as liaison between counsel and her. She never discussed counsel's experience with such matters. Moreover, she similarly testified that she did not independently seek to interview any other attorneys or law firms to provide her with services, nor had she ever utilized the services of an attorney before for any purpose.^[1]

This court, like the court in Matter of Caryl S.S. (Valarie L.S.), supra, is troubled by the facts elicited during the course of the testimony of the subject of the proceeding. The same entity that was one of the major points of dispute between Jessica and her guardian seem to have (1) suggested to her that she could remove her mother's involvement in her decision making by terminating her guardianship; (2) found her attorneys who would represent her in such an application; and (3) had the attorneys make first contact with Jessica, the client, instead of Jessica making the effort to contact them.

As in Matter of Caryl S.S. (Valarie L.S.), supra, while it may not be unusual for an attorney to be contacted or selected by a relative or, as here, an acquaintance, it is unusual when that entity is at risk of being discharged by the guardian and makes such efforts in what could be construed as an attempt to preserve a relationship that benefits it financially.

The court does not, and cannot on the limited inquiry conducted herein, find any wrongdoing on the part of either the agency providing services or counsel. However, the testimony provided by the subject of the proceeding does provide the basis for a determination that Jessica merely acquiesced in the selection of counsel made by her "staff." Although the petition herein alleges that Jessica is a college graduate who has lived on her own since 2008 and makes decisions for herself with minimal assistance from others, her testimony makes it clear that she played a minimal role in the decision-making process with respect to selecting an attorney. Further, it appears that the process was managed by her "staff," an entity that could conceivably benefit financially from the termination of the guardianship, given that the current guardian and Jessica seem to have disagreements as to who would provide care to Jessica.

For these reasons the Court finds and determines that counsel herein has not been chosen freely and independently by Jessica, and as a result Jessica's current counsel is disqualified from representing her in this proceeding. As the testimony confirmed that petitioner is receiving governmental services, and thus may not be financially able to engage private counsel, the court shall appoint independent counsel from the 18-B Assigned Counsel Plan by separate order."

ATTEMPTING TO DISQUALIFY COUNSEL IN MATRIMONIAL

ST v LT 2021 NY Slip Op 50792(U) Decided on August 16, 2021 Supreme Court, Nassau County Prager, J. :

"The Defendant moves by Notice of Motion for an Order disqualifying the firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys for the Plaintiff.

BACKGROUND

The above-captioned action for divorce was commenced on December 19, 2018 with the filing of the Summons and Complaint. Plaintiff ST (the "Ex-Husband") and Defendant LT (the "Ex-Wife") (together, the "Parties") entered into a Stipulation of Settlement dated December 31, 2018 (the "Stipulation"), which resolved all issues incident to the divorce. The Stipulation was incorporated, but not merged, into the Judgment of Divorce entered on September 24, 2019 (the "Judgment").

Pursuant to the Stipulation, the Parties agreed that they would share joint legal custody of their son GST (the "Son"), born June 30, 2011, and that the Ex-Wife would have residential custody of the Son, subject to the Ex-Husband's parenting time.

On January 7, 2020, the Ex-Husband filed a Petition for Modification in the Nassau County Family Court seeking to expand his parenting time with the Son. The Ex-Wife filed a [*2]post-judgment motion in the instant action, seeking to remove and consolidate the Family Court proceeding with the instant action, and for sole legal custody of the son. The Parties stipulated to the removal and consolidation of the Family Court proceeding. The Ex-Husband cross-moved for sole legal and residential custody of the Son.

By Decision and Order dated September 21, 2020, by Hon. Thomas Rademaker, J.S.C. (the "Decision & Order") (NYSCEF Doc. 107), the Court (i) denied the Parties' respective applications for sole custody; (ii) modified the Stipulation and Judgment so as to award final decision-making authority to the Ex-Wife; and (iii) awarded legal fees in the sum of $20,000 to the Ex-Wife.

On or before September 29, 2020, the Ex-Husband filed an appeal from the Decision & Order in the Appellate Division, Second Department (the "Appeal") (NYSCEF Doc. 115). To represent him in the Appeal, the Ex-Husband retained Michael R. Gionesi, Esq., of the law firm of TABAT, COHEN BLUM, YOVINO & DIESA, PC, (the "Firm"), who had not represented him previously, either in the divorce action or in the underlying post-judgment proceedings.

On or about November 2, 2020, the Ex-Wife moved to disqualify the Firm from representing the Ex-Husband in the Appeal (NYSCEF Doc. 156). By Decision dated February 8, 2021, the Appellate Division denied the Ex-Wife's motion (NYSCEF Doc. 157).

On March 1, 2021, Mr. Gionesi, on behalf of the Firm, filed a Notice of Appearance in the instant post-judgment proceeding (NYSCEF Doc. 145). The instant motion to disqualify the Firm from representing the Ex-Husband herein was filed on March 17, 2021. The matter was conferenced by the undersigned, to whom the proceeding had been reassigned, and was marked fully submitted on June 16, 2021.

DISCUSSION

The Ex-Wife seeks to disqualify the Firm from representing the Ex-Husband in these post-judgment proceedings on the ground that she had consulted with a member of the Firm prior to the commencement of the divorce action, and had disclosed confidential information to him that could be prejudicial to her in the instant proceedings.

In her Affidavit in Support (NYSCEF Doc. 147), the Ex-Wife avers that prior to the commencement of the divorce action, in or about 2017, she consulted with Robert A. Cohen, Esq., an attorney of the Firm. She claims that the consultation lasted at least one and one-half (1½ ) hours, during which time she revealed several facts relating to the care and custody of the Son. Specifically, she states:

"I expressed my fears and concerns as to Plaintiff's mental health, conduct and his behavior towards our son and myself. I gave a detailed account of specific events and incidents of Plaintiff's actions to illustrate my fears. I advised counsel what I wanted and what I believed my husband's reaction would be to my requests." Affidavit in Support, ¶4.

The Ex-Wife notes that after the initial consultation, she did not retain Mr. Cohen. She does not indicate that she had any further contact with Mr. Cohen.

Counsel for the Ex-Wife acknowledges that the Appellate Division denied the Ex-Wife's motion to disqualify the Firm, but argues that the circumstances herein are distinguishable. In the Appeal, counsel asserts, the Appellate Court's consideration was limited to the Record on Appeal. In the instant post-judgment proceedings, there is no such limitation. Here, counsel contends that insofar as custody and visitation remain at issue, any confidential information received by Mr. Cohen is material to the instant proceedings and could be used by the Firm to the Ex-Wife's detriment. Counsel argues that any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety.

In opposition, the Ex-Husband submits the Affidavit of Robert A. Cohen, Esq., sworn to on April 13, 2021 (NYSCEF Doc. 161), along with Mr. Cohen's intake sheet and intake notes from his consultation with the Ex-Wife (NYSCEF Docs. 159 and 160). Mr. Cohen states that the Ex-Wife consulted with him on June 3, 2016. He states that he has no independent recollection of the consultation. The intake sheet and intake notes (to the extent that they are legible) appear to reflect basic information about the spouses, including their age, employment, income, insurance, and assets. According to Mr. Cohen, all of the information disclosed during the consultation was required to be disclosed to opposing counsel during the underlying matrimonial action. He states that the notes do not reflect any information regarding the Ex-Husband's mental health or conduct toward the Son, and that generally, if such information were reported to him, it would be his practice to include it in his notes, as it would be relevant to the issue of child custody.

Mr. Cohen also affirms and represents that, although he has no information on this case other than what appears on the intake sheet and intake notes, he will have no involvement or participation of any kind in connection with the instant post-judgment matter (or the Appeal). He notes that he works out of the Firm's offices in Hauppauge, whereas the files on the instant matters are maintained exclusively in the Firm's Garden City offices.

The Ex-Husband also submits the Affirmation of Michael Gionesi, one of the Firm's attorneys handling this matter (NYSCEF Doc. 154). Mr. Gionesi contends that the Appellate Division heard the identical allegations, and considered the same arguments, as are now before the Court with respect to the Firm's disqualification, and that there is nothing new or different that would warrant a different result. As a factual matter, he argues that the Ex-Wife's allegations concerning confidential information revealed to Mr. Cohen are conclusory, self-serving and unsubstantiated. As a legal matter, he argues that a party's right to counsel of one's own choosing is a valued right that is not easily overcome. The mere appearance of impropriety, standing alone, is not sufficient for disqualification.

Mr. Gionesi asserts that there is no prejudice to the Ex-Wife in the Firm's continuing to represent the Ex-Husband. He cites Mr. Cohen's notes, which suggest that the 2016 consultation did not include a discussion of the Ex-Husband's mental condition or any other information relevant to the issues of custody and visitation. Moreover, Mr. Gionesi argues, the consultation pertained to the underlying divorce action, whereas the instant matter is a post-judgment proceeding. The confidences allegedly revealed to Mr. Cohen five years ago, in contemplation of the divorce action, are not relevant here. Finally, Mr. Gionesi affirms that Mr. Cohen will have no involvement in the instant post-judgment proceedings (or the Appeal), and he will have no communication with any attorney, or access to any physical or computer files, pertaining to this [*3]case.

In Reply, the Ex-Wife challenges the characterization of her allegations as conclusory and self-serving. She argues that she cannot be required to disclose the specific facts that she related to Mr. Cohen, insofar as to do so would reveal the very confidences that she seeks to protect. She reiterates her argument that disqualification is necessary to avoid prejudice and the appearance of impropriety.

The disqualification of an attorney is a matter that rests within the discretion of the Court. Lauder v. Goldhamer, 122 AD3d 908, (2d Dept. 2014). "A movant seeking disqualification of an opponent's counsel bears a heavy burden. . . . A party has a right to be represented by counsel of its choice, and any restrictions on that right must be carefully scrutinized." Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4 (1st Dept. 2015) (internal citations and quotation marks omitted). See also Aryeh v Aryeh, 14 AD3d 634 (2d Dept. 2005). Such right "is a valued right which will not be superseded absent a clear showing that disqualification is warranted." Halberstam v. Halberstam, 122 AD3d 679 (2d Dept. 2014).

The right to counsel of one's choice is not absolute, however, and must be balanced against a potential client's right to the protection of his confidential disclosures. Mayers, supra. The duties of an attorney with respect to a prospective client's disclosures are set forth in the Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.18. Rule 1.18 provides, in relevant part:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a 'prospective client.'(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;(ii) the firm implements effective screening procedures to prevent the flow of information [*4]about the matter between the disqualified lawyer and the others in the firm;(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and(iv) written notice is promptly given to the prospective client; and(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.

In weighing the competing interests, a time-worn principle, still adhered to in certain circumstances, holds that any doubts about the existence of a conflict of interest must be resolved in favor of disqualification, and that the mere appearance of impropriety is sufficient to warrant disqualification. See Cohen v Cohen, 125 AD3d 589 (2d Dept. 2015); Halberstam v Halberstam, 122 AD3d 679 (2d Dept. 2014).

A line of authority has developed in recent years, however, that reflects an evolving standard applicable to a motion to disqualify. As discussed at length by Justice Dollinger in Lyons v Lyons 50 Misc 3d 876 (Sup. Ct. Monroe Cty 2015), and revisited two years later in EMB v AMB 55 Misc 3d 1202(A) (Sup. Ct. Monroe Cty, 2017), courts across the appellate departments, in response to the flood of disqualification cases and the adoption of the new Rules of Professional Conduct, are tending to engage in a more fact-specific inquiry, and to require the movant to show something more than the mere appearance of impropriety. Justice Dollinger cites a long line of cases in which Courts articulate, in various formulations, a standard requiring a fact-based "clear showing" of potential prejudice to the party seeking disqualification. See EMB v AMB, supra, and Lyons, supra; see, e.g., Lovitch v Lovitch , 64 AD3d 710 (2d Dept. 2009) ("Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney.") Justice Dollinger concludes: "This court understands that 'the appearance of a conflict' - an apprehension that a former attorney knows a secret that will be used against his former client - is a powerful fear among litigants. But, mere fear of disclosure - even when cloaked in the language of an 'appearance of a conflict' - is not enough: recent case law and changes in the Rules of Professional Conduct require that there must be some proof of the transfer of confidential information and a real risk of its disclosure to the detriment of the current litigant before a court, utilizing its discretionary powers, grants disqualification." EMB v AMB, supra.

With respect to the case at bar, the Court is persuaded by the reasoning of the latter line of cases, and is of the opinion that the holdings therein strike the appropriate balance between a party's right to representation by counsel of one's choice, and the movant's right to protection from a former attorney or prospective attorney's breach of duty to him or her.

A standard reflective of this recent trend was articulated by the First Department in a context similar to the one at bar, where the movant sought disqualification of his adversary's attorney on the basis of having previously consulted with that attorney as a prospective client. See Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4 (1st Dept. 2015). In Mayers, the Court held that, to prevail on a motion to disqualify, the movant must make a "clear showing" that: (1) the matter for which the attorney is presently retained is the same or substantially related to the matter for which the prior consultation was sought; (2) the interests of the party whom the attorney now represents are adverse to those of the party seeking disqualification; and (3) the information relayed in the prior consultation could be significantly harmful to the party seeking [*5]disqualification in the present matter. Mayers,126 A.D.3d at 5 (emphasis supplied). That is the rule which this Court shall apply here.

As a preliminary matter, the Court finds that it is not bound by the Appellate Division's decision denying the Ex-Wife's motion to disqualify. As argued by the Ex-Wife herein, the circumstances are distinguishable. The Appellate Division's consideration on the Appeal is limited to the Record on Appeal, which includes only the documents, papers, transcripts and other evidence filed in the proceedings before Judge Rademaker. Insofar as the Firm did not represent the Ex-Husband in those proceedings, no confidential information received by Mr. Cohen could have been included in the Record on Appeal. There is no such limitation on the record in the instant proceeding, and any facts known to Mr. Cohen would not, as such, be kept outside the scope of these proceedings.

In addition, for purposes of the instant determination, the Court shall assume, without deciding, that the Ex-Wife's statements are true regarding the subject matter of the information conveyed to Mr. Cohen in her 2016 consultation.[FN1] Insofar as Mr. Cohen states that he has no independent recollection of the meeting, and given the Ex-Wife's concerns regarding disclosure of the specific confidences she seeks to protect, a hearing on the issue would be fraught with complications, and would not be sufficiently fruitful to justify the further expense and delay in these proceedings. See, generally, EMB v AMB 55 Misc 3d at 1202(A); Lyons v Lyons 50 Misc 3d at 876.

Turning to the proof required by Mayer [126 A.D.3d at 5], the Court is unpersuaded by the Ex-Husband's suggestion that there is no substantial relationship between the instant post-judgment proceedings and the underlying divorce proceedings. At minimum, both matters concern issues of child custody and visitation. Nonetheless, upon the record presented, the Court does not find that the Ex-Wife has met her burden to make a "clear showing" that disqualification is warranted. While she is not required to spell out the claimed secrets she wishes to protect in order to prevail, she must provide the Court with some information that would permit the Court to conclude that there is a reasonable likelihood that the disclosures allegedly made to Mr. Cohen could be significantly harmful to her in the present litigation. See E.M.B. v A.M.B., 55 Misc 3d 1202(A), quoting Jamaica Public Service Co. Ltd. v AIU Ins. Co., 92 NY2d 631 (1998).

According to the Ex-Wife, she provided to Mr. Cohen information relating to the following subject matter: (1) the Ex-Husband's mental condition; (2) the Ex-Husband's conduct toward herself and the Son; and (3) what she wanted in the litigation, and what she believed the Ex-Husband's response would be to her requests.

The issues before the Court in these post-judgment proceedings fall under the rubric of enforcement or modification of the terms of the Stipulation and Judgment. With respect to [*6]enforcement, the onus is on the moving party to demonstrate that the other party has not complied with such terms. The facts and circumstances relevant to this inquiry are those which occurred after the entry of the Stipulation and Judgment. With respect to modification, the onus is on the moving party to demonstrate that there has been a change of circumstances that warrants a modification of such terms. The facts and circumstances relevant to this inquiry are those that existed at the time of the Stipulation and Judgment, and those that occurred thereafter.

The Ex-Wife does not explain, let alone demonstrate, how the facts and circumstances existing in 2016, over 2-1/2 years before the entry of the Stipulation and Judgment, are relevant to the instant post-judgment proceedings. More particularly, she does not explain, or even offer a theory, as to how the knowledge of such information by the Ex-Husband's counsel could impact the instant litigation or affect her legal status.[FN2] The Court cannot be called upon to speculate on her behalf.

Here, it is not the lack of specificity regarding the information allegedly provided to Mr. Cohen that is of concern to the Court. Rather, it is a lack of clarity as to how the type of information allegedly reported to Mr. Cohen in 2016 could significantly harm the Ex-Wife in the present litigation. At minimum, some fact-based explanation is required to withstand the strict scrutiny applied to a motion to disqualify.

The Court is of the opinion that it would be an improvident exercise of discretion to deprive the Ex-Husband of representation by counsel of his choice on the basis of nothing more than the conclusory assertion of prejudice. Moreover, the steps taken by the Firm to isolate Mr. Cohen from any contact with this case going forward further attenuate any claim of prejudice, and further militate against disqualification.

CONCLUSION

The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.

Based upon the foregoing, it is

ORDERED, that the Ex-Wife's motion for an Order disqualifying the firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys for the Plaintiff is DENIED."