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Judiciary Law section 35(8)(b)

This is a proceeding wherein the court is called upon to determine whether the attorney for the defendant’s application to be relieved as attorney of record should be granted, if the defendant’s applications brought pro se while still represented by counsel are properly before the court, whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c), whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection, whether or not the defendant should have the benefit of a court assigned interpreter and the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

GG, an attorney of her own choosing, presently represents the defendant. Defendant’s counsel moved by order to show caused dated 5 November 2010, to be relieved. GG seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about GG and his representation of her. In open court, on 17 November 2010, defendant stated she wished to discharge GG and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

On 7 October 2010, GG represented the criminal defendant in a temporary custody hearing before this court. The court after the hearing awarded temporary custody of the infant issue to the father, the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence. On one occasion he sought medical assistance at an emergency room.

Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were no prior applications for an order of protection notwithstanding the present application in this matrimonial action or the two prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent.

Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on 17 November 2010. That hearing was adjourned so GG could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two orders to show cause pro se while still being represented by counsel and not informing GG of her intent to do so. On 22 November 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

Defendant’s first pro se order to show cause is dated 9 November 2010, and seeks temporary custody of the parties’ child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court.

Shortly thereafter, defendant presented another order to show cause on 17 November 2010. This order to show cause was rescheduled on 17 November 2010, due to defendant’s failure to serve same and is returnable on 10 December 2010. Defendant annexed to this application photographs of the parties’ child’s genitalia and matter removed from the child’s nose by insertion of a cotton swab. The photographs of the naked child were removed from the application and placed in a sealed envelope which is maintained by the part clerk. The third order to show cause seeks, inter alia, similar requests for relief.

Defendant’s second pro se order to show cause is dated 17 November 2010. Defendant seeks temporary custody; an expanded visitation schedule; new counsel; forensic evaluation; and for the court to change the attorney for the child.

Plaintiff moved by order to show cause dated 17 November 2010 wherein he seeks the suspension of visitation and supervised visitation. This application is returnable on 10 December 2010.

Defendant filed an appeal, pro se at the Appellate Division, Second Department. She sought leave to appeal two orders of this court dated 6 October 2010, and 7 October 2010, respectively, to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County. On 18 November 2010, the Appellate Division, Second Department rendered a decision and order on motion wherein it was ordered that the branch of the motion which is for leave to appeal is denied, that the branches of the motion which are to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County, are denied as academic and further orders that the application is denied.

At the initial appearance, defendant requested a Mandarin interpreter which was provided, although defendant often lapsed into using the English language or answered questions in English before the translation was completed. The court has observed defendant speak in English, answer in English and respond to her attorney while the court and others are speaking in English. All of defendant’s submissions are in English.

Now defendant requests an Indonesian interpreter for the first time. The Indonesian interpreter was present in court on 17 November 2010. Notwithstanding the interpreter’s presence, defendant at times used the interpreter and at other times did not, but readily understood and spoke English in response to the court’s questions to GG and responded in English.

Defendant’s counsel noted that she recently became a United States citizen. Her written submissions are hand written in English.’.

In Matter of Dunn, Lake v M.P.C. Trucking and Rivardeneria v New York City Health and Hospitals Corp., it was emphasized that as a general rule, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court’s decision should not be overturned absent a showing of an improvident exercise of discretion.

It is clear to this court that there is a breakdown in the attorney client relationship between defendant, and GG and defendant’s conduct renders it unreasonably difficult for counsel to carry on his employment. As such GG can no longer serve as the attorney of record.

Defendant’s filing of motions and orders to show cause and the seeking of relief in different courts without ever notifying one’s lawyer is, in this court’s opinion, a per se basis to be relieved as counsel of record. The failure to notify counsel of the acts of the client and the effects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis. The court opines that a litigant should proceed in a civil proceeding by way of a pro se application only under rare and special circumstances and must inform their attorneys of their intentions.

Defendant again requests that this court appoint counsel to be paid with government funds. She states the she needs counsel who truly understands domestic violence and who is ready for her case. The court finds it problematic to provide court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons as what defendant did. The court is mindful though that the right to counsel in a custody or visitation dispute is fundamental as held in Williams v Bentley. The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding is a denial of due process and requires reversal, without regard to the merits of the unrepresented party’s position.

Accordingly, counsel shall be appointed for defendant by separate order subject to an order that if it is found at trial that defendant secreted or transferred separate or marital assets then the costs of the court appointed attorney to the government may be ordered reimbursed to the State of New York at a future date. Defendant is cautioned that the discharge or failure to cooperate with the newly appointed counsel may result in necessitating that defendant proceed self-represented in the future.

With the court having determined that GG is entitled to be relieved, the remaining issue is whether there should be a stay of the proceedings pursuant to CPLR 321 (c). While a litigant is usually entitled to a 30 day stay pursuant to CPLR 321 (c) to obtain new counsel, here there is a request for a stay by outgoing counsel and a request by the defendant herself that counsel be assigned by the court and paid for by public funds. This court is of the opinion that with the appointment of counsel the need for a thirty day stay is obviated.

Defendant is enjoined from proceeding pro se in Supreme Court without notifying her attorney and may only proceed pro se if she is unable to contact that attorney. This court notes that the issuing of a stay would affect the parties’ rights to seek judicial relief during the thirty day period. In the event defendant seeks further relief from the Family Court, defendant must inform the Family Court of the existence of the case.

The court has on the record removed all of the photographs of the child’s genitalia and they are kept sealed by the clerk of the part together with any copies. The court also notes that the plaintiff was awarded temporary custody of the parties’ child after a full evidentiary hearing and plaintiff is the only individual authorized to obtain medical services or treatment for the child absent an emergency. While the defendant has agreed to stop undressing the child at the police precinct during exchanges of the child, she must now also stop bringing the child to emergency rooms and doctors absent a true medical emergency. While she claims ACS has not returned her phone calls if she truly believes that the child is neglected she shall contact the ACS hotline. The court, pending further order, directs the defendant not take photographs of the child’s genitalia or stick cotton swabs in the child’s nose to remove matter and then photograph same and attach it to papers alleging to show the court that the child has an illness.

While it has been held in certain types of proceedings, there is an absolute right to an interpreter, here, it is clear to the Court that the defendant is able to speak and rapidly respond in cohesive and intelligent English.

The defendant participated in a temporary custody hearing on 7 October 2010. Although a Mandarin interpreter had been provided for prior appearances defendant choose to proceed with the temporary custody hearing without the services of an interpreter. The defendant’s testimony was coherent and comprehensible. There was no manifestation of need for an interpreter. Defendant’s application is denied.

The issue of the defendant’s request for an order of protection and plaintiff’s request for suspension of visitation will be the subject of an evidentiary hearing. If properly served, the court will hear oral argument of defendant’s other orders to show cause which appear in part to be best delineated as motions to renew or reargue on 10 December 2010. An attorney for defendant and a forensic shall be appointed by separate orders. The cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimbursing the State of New York for her share.

Kings County Domestic Violence Attorneys, Kings County Custody Attorneys and Stephen Bilkis & Associates are experts in these fields of law. Should you have questions regarding the case and you have similar issues you want to discuss, contact us at our toll free number or visit our place of business.

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