Important New Decisions - December 28, 2013

First Department Holds Parents Who Are Directed to Pay Fees of Attorney Appointed to Represent Child May Raise Defense of Legal Malpractice to Attorney's Claim For Fees. In Venecia C. v. August V., --- N.Y.S.2d ----, 2013 WL 6325172 (N.Y.A.D. 1 Dept.), the divorced parents had three children, age 17, 14 and 11. In the divorce action, although the parties stipulated to joint custody, it was left to the trial court to direct that plaintiff mother would have primary residential custody in the marital apartment in Manhattan. In 2009, the mother moved for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, and the father responded by moving for a change of custody. The motion court appointed the attorney for the children in this context. On November 22, 2011, the attorney for the children moved for an order directing the father to pay the outstanding fees he owed in the amount of $2,034.60, and for an additional sum covering the cost of making the enforcement application. The attorney for the children stated that the father never objected to any of her bills and had previously paid his 30% share of the fees billed. The motion court granted the motion by the attorney for the children, ordering the father to pay the sum of $2,034.60 for his share of outstanding fees, as well as $1,500 for fees she incurred in making the application. It rejected the argument that the Court's ruling in Mars v. Mars (19 AD3d at 196), gave a parent the right to challenge the fee of an attorney for the child on the ground of malpractice. In any event, it found no factual basis for the malpractice claim. The Appellate Division, in an opinion by Justice Saxe, held that parents who are directed to pay the fees of the attorney appointed to represent the children may raise the defense of legal malpractice to that attorney's claim for fees. He observed that in Mars v. Mars (19 AD3d at 196), the Court held that a parent may assert legal malpractice as an affirmative defense to a Law Guardian's fee application "to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship." He noted that the ruling was limited by the then-prevailing view that attorneys appointed as law guardians for children in divorce cases often functioned in a role similar to a guardian ad litem, advocating for what they believed to be the best interests of the child, as opposed to what the child desired. The Court reaffirmed the essence of the Mars v. Mars ruling, namely that a parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Notwithstanding that the father may have standing to assert such a defense, Justice Saxe agreed with the motion court that the father's accusations here did not establish a prima facie showing of legal malpractice and disciplinary violations. He also found that the father never objected to any of the bills presented by the attorney for the children despite the fact that they were in his possession for a significant amount of time (Pedreira v. Pedreira, 34 AD3d 225 [1st Dept 2006] ). The court therefore acted properly in ordering him to pay the fees under an account stated theory (Shaw v. Silver, 95 AD3d 416, 416 [1st Dept 2010] ). Second Department Holds Petitioner must Demonstrate Respondent’s Conduct Was Intended to Cause, or Recklessly Created a Risk of Causing, Public Inconvenience, Annoyance, or Alarm. In Casie v Casie, --- N.Y.S.2d ----, 2013 WL 3813824 (N.Y.A.D. 2 Dept.) the Second Department, in an opinion by Judge Skelos, held that to establish the family offense of disorderly conduct, a petitioner must demonstrate that the challenged conduct was intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. On February 15, 2012, the petitioner, Dionne Cassie, filed a family offense petition against her husband, Richard Cassie which alleged that, on February 11, 2012, the parties engaged in a dispute or altercation because the husband had promised that he was going to leave the marital home and had "reneged on his promise." According to the wife, the husband attempted, unsuccessfully, to push her down a flight of stairs, twisted her arm, causing pain, and pushed her against a wall. Based upon this alleged conduct, the wife asserted that the husband had committed the family offenses of, among others, attempted assault, assault in the second or third degree, harassment in the first or second degree, and disorderly conduct. The wife requested an order of protection requiring the husband to stay away from her and the marital home. At the close of the evidence, the Family Court found that the husband "engaged in the offense of disorderly conduct in the home, in that he fought with [the wife]." The court thereupon issued a two-year order of protection , directing the husband to refrain from various forms of conduct, such as harassment and disorderly conduct. The Appellate Division reversed in an opinion by Justice Skelos. He observed that in a family offense proceeding, the petitioner has the burden of establishing, by a "fair preponderance of the evidence," that the charged conduct was committed as alleged in the petition. (Family Ct Act § 832). Under the Penal Law, "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture;..."(Penal Law § 240.20). Justice Skelos pointed out that critical to a charge of disorderly conduct is a finding that the disruptive statements and behavior were of a public rather than an individual dimension". In that respect, a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem. In assessing whether an act carries public ramifications, relevant factors to consider are the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances. The complicating factor in this case, which was a family offense proceeding rather than a criminal action, is that Family Court Act § 812 provides: "For purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place" (Family Ct Act §812[1] ). The husband contended that, even though the Family Court Act specifies that the conduct need not occur in a public place, the petitioner must nonetheless prove either an intent to cause public inconvenience, annoyance, or alarm, or the reckless creation of a risk thereof. Justice Skelos pointed out that the First and Fourth Departments had held, albeit summarily, that lack of proof of an intent to cause, or reckless creation of a risk of causing, public ramifications, required dismissal of those branches of family offense petitions that charged the respondent with disorderly conduct. Matter of Janice M. v. Terrance J. ,96 A.D.3d 482, 945 N.Y.S.2d 693 (1st Dept); Matter of Brazie v. Zenisek, 99 A.D.3d 1258, 951 N.Y.S.2d 458(4th Dept). Here, the Court now held that even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct. The plain language of the provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place. The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense-specifically, the place where it is committed-and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be. The Court held that that the wife was required to prove that the husband's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm. The wife did not sustain that burden. Accordingly, the order of protection was reversed, on the facts, the petition was denied, and the proceeding is dismissed.