Following a custody/visitation dispute, a parent may assert a malpractice claim as a defense to the application for the payment of fees of the Attorney for the Children. However, in its December 5, 2013 opinion in Venecia V. v August V., the Appellate Division, First Department, held that no malpractice had been committed, and no hearing was required to reach that conclusion.
The parties were the divorced parents of three children, now ages 17, 14 and 11. In their divorce action, the trial court had directed that mother would have primary residential custody in the marital apartment in Manhattan. When the mother moved for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, the father responded by moving for a change of custody. Jo Ann Douglas was then appointed Attorney for the Children.
Among the decisions below, New York County Supreme Court Justice Matthew F. Cooper allowed the relocation. The father’s visitation schedule was modified to account for the children’s schedule, including various extracurricular activities that required them to be in New Jersey.
Opposing the fee application of the Attorney for the Child (“AFC”), the father claimed that attorney had committed malpractice. He claimed that the children’s attorney ignored her professional duty by advocating the position advanced by two out of the three children (that they wanted to relocate with their mother), when the children lacked the “capacity for knowing, voluntary and considered judgment.” The father also claimed that the AFC violated the rules governing professional conduct in matrimonial matters by ignoring “abundant evidence that her clients’ judgment was not voluntary and in fact was manipulated by their mother.” The father charged that the AFC ignored the forensic expert’s observations and conclusions that the mother controlled and manipulated the children, and purposely alienated the children from him. He further argued that the AFC failed to consider post-relocation events, engaged in improper ex parte communications with the court, and assisted the mother in reducing his visitation.
On the AFC’s application for fees, New York County Supreme Court Justice Matthew Cooper ordered the father to pay of $2,034.60 for his 30% share of outstanding fees, as well as $1,500 for fees the AFC incurred in making the application. In doing so, Justice Cooper had held that a parent had the right to challenge the fee of an AFC on the ground of malpractice. In any event, Justice Cooper found no factual basis for the malpractice claim.
The First Department held that a malpractice claim may, indeed, be asserted by a parent defensively. The appellate court noted when considering the fee applications of “Law Guardians” before the role of the attorneys appointed to represent changed, the First Department had held in Mars v. Mars,19 A.D.3d 195, 797 N.Y.S.2d 49 (2005), that a parent may assert legal malpractice as an affirmative defense, at least “to the extent of challenging that portion of the fees attributable to advocacy, as opposed to guardianship.” 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 First Department limited its ruling to the portion of the law guardian’s fee representing the work that consisted of advocacy rather than guardianship.
However, the First Department here noted, in 2007, the role of the law guardian was changed by a newly-promulgated Rule of the Chief Judge (22 NYCRR § 7.2). The position was renamed “attorney for the child.” Such attorneys are charged to “zealously advocate the child’s position.” The rule states that the attorney for the child must “consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (§ 7.2[d]). Attorneys for the child are mandated to be directed by the child’s wishes after fully explaining the available options and making recommendations to the child, as long as the child was capable of knowing, voluntary and considered judgment (§ 7.2[d]). Only when the attorney is convinced that the child lacks the capacity for knowing, voluntary and considered judgment, or if following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, may the attorney advocate a position contrary to the child’s wishes. Even then the attorney must inform the court of the child’s articulated wishes if the child wants the attorney to do so (§ 7.2[d]).
Accordingly, the First Department here held, the distinction between guardianship and advocacy made by the ruling in Mars is no longer necessary. Where the child is capable of decision-making, the task of the AFC is generally solely advocacy, as long as the child is capable of knowing, voluntary and considered judgment. The portion of the Mars decision allowing a parent to raise malpractice as a defense to a fee application for that portion of the fee earned by advocacy has become applicable to the attorney’s entire fee claim.
A parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The AFC, 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.
The AFC protested that if this type of defense were allowed generally, parents dissatisfied with the results of their custody claims will use malpractice challenges to avoid paying, resulting in a proliferation of applications for enforcement of ordered fees. She also suggested that the threat of malpractice claims from disgruntled parents would have a negative impact on the effectiveness of attorneys for children, by giving those parents control over the representation of their children. The First Department disagreed.
The possibility that a parent who feels aggrieved over the developments in a custody or visitation dispute may claim malpractice as a means of avoiding payment of the attorney’s fee does not warrant granting these attorneys complete immunity against the defense of legal malpractice.
However, the appellate court emphasized that asserting such a defense will not necessitate further evidentiary proceedings in every case. Notwithstanding that the father may have standing to assert such a defense, the First Depatment agreed with Justice Cooper that the father’s accusations here did not establish a prima facie showing of legal malpractice and disciplinary violations, No hearing was warranted.
The First Department affirmed Justice Cooper’s finding that Ms. Douglas had properly advocated the positions of the children, representing them zealously, competently, and professionally. There was no merit to the father’s contention that the children’s expressed positions regarding the proposed move to New Jersey were not voluntary. Nothing in the record established that the children lacked the capacity for voluntary judgment as required by rule 7.2.
Nor was there any merit to the accusation that the AFC ignored the forensic expert’s findings, or other evidence of alienation. The Court Rule actually prohibits the AFC from advocating a position contrary to the child’s stated position unless the attorney is “convinced” that “the child lacks the capacity for knowing, voluntary and considered judgment” (7.2[d]). There was no evidence that the children lacked the requisite capacity.
While the forensic expert indicated his view that the mother had engaged in behavior that alienated the children from their father, he also found that the father had estranged himself from the children by his own actions. Moreover, Justice Cooper had spoken directly with the children, and determined that the children were not rehearsed or coached, and that they desired to move to New Jersey.
Evidence of overreaching or bad behavior by one parent that may influence a child caught in the middle of a custody dispute does not automatically require the child’s attorney to be “convinced” that the child’s stated position is involuntary.
The cross-examination of the father by the AFC did not improperly undermine the forensic expert’s testimony. Indeed, her role as the children’s advocate required her to do so. Regardless of whether the children’s position aligned with the mother’s, it was neither malpractice nor a violation of disciplinary rules for the AFC to advocate for that position. Nor was there anything inappropriate about the AFC questioning the father at the relocation trial about the various schooling options. Her examination of him was essential to her role as an advocate for the children; its purpose was not to be degrading.
There was no basis for the father’s claim that the motion court’s decision was dictated, or inordinately affected, by the AFC. There was nothing substantiating the claim that the AFC committed disciplinary violations or engaged in improper ex parte communications with the court, or that such communications influenced Justice Cooper.
As to the relocation and visitation rulings, the First Department noted that Justice Cooper had made a determination that was in the children’s best interest while also ensuring that the father has significant visitation.
Finally, it was noted that the father never objected to any of the bills presented by the AFC despite the fact that they were in his possession for a significant amount of time. Justice Cooper, therefore, acted properly in ordering him to pay the fees under an account stated theory.
On the appeal, the parties were not represented by counsel.
Comment: Just when would a malpractice defense be viable? If the child expressed a preference to live with mom, for example, and mom “wins,” how could the defense work: the child’s lawyer “won.” If the child’s preference is not followed by the court, would not the losing parent first be compelled to attack his or her own lawyer? Why blame the child’s lawyer for something the party’s own lawyer could do? If the child’s preference is not followed, and the successful parent claims the fee should not be paid because the child’s lawyer’s malpractice caused the successful parent to win, such is tantamount to an admission that the successful parent should not have custody.
It would appear that the only time this defense could every be raised would be, as here, to assert that the attorney for the child failed to argue that the child’s position (adverse to the losing parent) was not a knowing, voluntary and considered judgment, or failed to alert that court that following the child’s wishes would likely to result in a substantial risk of imminent, serious harm to the child. As this issue would have to be disclosed to the trial court, and that court would have the resources available to investigate this issue, this basis for a “malpractice” claim would appear never appropriate. After all, it takes the AFC out of the role of advocate, and into the old guardianship mode. Moreover, the losing parent would also have the ability to lead the effort to show that the child’s adverse position should not be followed.