Upstate New York Family Lawyer Blog

Articles 51 through 53:

We're in the home stretch now. These three articles are also self-explanatory and could have been omitted from the retainer agreement. They are included, however, because I believe it is very important for the client to get to know the "third attorney" in most Family Court and Supreme Court litigation involving children.

Attorneys for children play an important role in both representing their clients and protecting their clients. In fact, I am one myself, being a member of several panels in several counties throughout the Greater Capital Region.

Continue reading "#187 Retainer Agreement, Part 19 of 25" »

25. Ray Bradbury, 91, August 22, 1920 - June 5, 2012:
Writer; American science fiction writer; natural causes

Take a fervent love of reading, especially of the likes of Edgar Allan Poe, H.G. Wells, Jules Verne, Edgar Rice Burroughs, Robert Heinlein, Arthur C. Clarke, Aldous Huxley, William Shakespeare, John Steinbeck, Thomas Wolfe, Eudora Welty, Katherine Anne Porter, Edith Wharton, and far too many poets to mention, thoroughly humanize it, with a strong subtext of morality, and you will wind up with the singular individual known as Ray Bradbury.

He gained his fame with his first novel, "The Martian Chronicles", from 1950. I've attempted to read this novel several times but I always lost interest after a few pages.

My introduction to the man was via his second novel, "Fahrenheit 451", from 1953. It wasn't assigned to me in school. As with most important things in life, the book seemed to find me. A favorite teacher handed me her copy and merely said: "Read this. I think you'll like it." Teachers. Always trying to change your life in such subtle ways. And almost always succeeding.

Continue reading "#186 In Memoriam: Ray Bradbury, August 22, 1920 - June 5, 2012" »

Articles 48 through 50:

Part Four of the retainer agreement is extremely self-explanatory and needs no preface. Just read it. Once more, this could easily have been left out of the retainer agreement, but for the fact that I want all of my clients to be as fully informed as possible before the litigation commences. It just seems to be the most responsible thing to do. I do this sort of thing every day. Hell, I even dream about it (yes, I know, I need to see a therapist for this; all the more reason for me to go on vacation ASAP!). But most of my clients have never been involved in the court system before - and they don't have a clue. I'd therefore feel much more comfortable if they had at least some small measure of information concerning what they are about to confront - and pay for.

Continue reading "#185 Retainer Agreement, Part 18 of 25" »

If you grew up in the late 60s and early 70s in and around the Capital District, you no doubt remember your parents listening to that ubiquitous of all stations: WROW. Now, I'm not knocking WROW as I learned to love the station and all of the easy-listening and oldies music that my parents loved. I fell in love with all of the great crooners through WROW: Tony Bennett, Brook Benton, Rosemary Clooney, Nat King Cole, Perry Como, Bing Crosby, Bobby Darin, Judy Garland, Peggy Lee, Dean Martin, Johnny Mathis, Patti Page, Elvis Presley, Frank Sinatra, and Andy Williams. The problem was that WROW was not MY music. WROW was stuck in the past or (worse!) eviscerated the music of the present by celebrating lame cover versions. For me, I needed my daily fix of WTRY and WGFM. Only later would I discover the nirvana of WQBK.

If you had one of the cooler school buses, it had an FM radio in it. And, if you had one of the cooler bus drivers, he or she would tune it to your favorite station (WTRY, natch). And if you were extraordinarily lucky, this radio would be on all the time, from bus stop to school. Of course, this was what we thought then. In retrospect, I think all of the buses probably had FM radios to be used for positive reinforcement - and to calm the bus drivers' nerves. Only if that radio were on would we calm down enough, as a group, to be able to hear what was playing.

Continue reading "#184 What I Was Listening To ... 40 Years Ago: June 1972 Playlist, Part 2 of 2" »

Articles 46 and 47:

These two articles should also be self-evident but they are included within the retainer agreement because they are apparently not at all evident to many of my clients (which, frankly, I find surprising). As such, I find that a great deal of my retainer agreement contains helpful hints for and aspirational requests to clients. In many ways, the retainer agreement serves as a briefing tool for the client: this is how the system works and this is what you will need to do to increase your chances of success.

Continue reading "#183 Retainer Agreement, Part 17 of 25" »

There are forty-two (42) decisions for this week. This is an amazing week since, of those decisions, I found twenty-eight (28) - that's right: twenty-eight (28) - to be interesting enough to include here.

The first case is a pro se prisoner case. Why? Well, because these sorts of appeals are almost uniformly denied and dismissed, though, on occasion, they are modified - as is this one. I just happened to find this one a bit interesting - for an important reason.

The second case illustrates that grandparents can often win extraordinary circumstances cases where the parents have serious issues in caring for their children.

Continue reading "#182 Third Department Caselaw Round-Up for January 12, 2012, Part 5 of 14" »

Articles 42 through 45:

Because I so often find myself describing the substance found in these articles to almost every one of my clients, I just thought it would be easier to just encapsulate it within the retainer agreement itself.

At my most cynical (which, lately, has pretty much become daily life), I often tell my clients that litigation is like appearing in a play - and the client had damned well better rehearse for his or her role and know all their lines. Clients seem to think that they have control over so little in litigation, without realizing that they actually have control of the most important part of the litigation: themselves.

As with almost everything else in life, this section can be distilled down to a single idea and word: respect. Clients should have self-respect and act accordingly. And, as always, one should dress (and groom) for success.

In court, as in life, appearances - and especially first appearances - mean absolutely everything.

And as for respect ... yes, there are often times when I would absolutely love to tell a judge precisely what is on my mind. However, out of self-respect, I will never - ever - let a judge place me in such a vulnerable position. And neither should you!

Think before you speak! A very great deal depends on it.

Continue reading "#181 Retainer Agreement, Part 16 of 25" »

24. Richard Dawson (born Colin Lionel Emm), 79, November 20, 1932 - June 2, 2012:
Actor; British (and then American) actor, comedian, and game show host; esophageal cancer

Yeah, I can definitely see him as a "Colin". He's another actor I lost track of once I went away to law school.

I first came to know Richard Dawson as Corporal Peter Newkirk, the wise-cracking jack-of-all-trades Brit on "Hogan's Heroes", one of my favorite shows as a kid. Yeah, the show was stupid as all hell but to a 6-year old it was great. And while Bob Crane was the natural star of the show, as Colonel Hogan, my love for everything British made Newkirk my favorite. In retrospect, I find the show a bit offensive, to say the least.

After "Hogan's Heroes", Dawson went on to another early favorite of mine: "Rowan and Martin's Laugh-In". Sock it to me! "Laugh-In" was one of those shows where adults and kids could watch it and both would come away from it having watched two entirely different shows. This is something I didn't fully appreciate until I caught re-runs of the show many years later on "Nick at Nite".

Continue reading "#180 In Memoriam: Richard Dawson, November 20, 1932 - June 2, 2012" »

Articles 38 through 41:

Again, this should all be self-evident, but I prefer to state the obvious so that the client is as informed as possible. The basic slant to these articles is to allow for the attorney to prepare for the litigation in every conceivable way while only involving the client in the more important aspects of the litigation itself.

I think that most clients are a bit surprised to discover how incredibly boring litigation can be. Ever wonder why you so rarely see television shows concerning what really goes on in Family Court and Supreme Court? Because it would be like watching paint peel. It is the rare case that is actually scandalous or shocking.

Continue reading "#179 Retainer Agreement, Part 15 of 25" »

And in the place of the departing albums and artists are twenty-two (22) new ones:

1. Alice In Chains, "Black Gives Way To Blue";
2. Collective Soul, "Dosage";
3. The Fiery Furnaces, "Widow City";
4. Flogging Molly, "Float";
5. Foxboro Hot Tubs, "Stop Drop And Roll!!!";
6. Gin Blossoms, "Outside Looking In: The Best Of The Gin Blossoms";
7. Missy Higgins, "The Sound Of White";
8. Hootie And The Blowfish, "Scattered, Smothered And Covered";
9. Indigo Girls, "Come On Now Social";
10. Lenny Kravitz, "Greatest Hits";
11. Lostprophets, "Start Something";
12. Matchbox Twenty, "Mad Season";
13. Mumford And Sons, "Sigh No More";
14. The New Pornographers, "Challengers";
15. Nine Days, "The Madding Crowd";
16. Ra Ra Riot, "The Orchard";
17. Sleigh Bells, "Treats";
18. Smash Mouth, "Astro Lounge";
19. Steely Dan, "Two Against Nature";
20. Swati, "Small Gods";
21. Yo La Tengo, "Popular Songs"; and
22. Young The Giant, "Young The Giant".

Continue reading "#178 What I'm Listening To: June 2012 Playlist, Part 2 of 2" »

Articles 33 through 37:

Here is another section of the retainer agreement that needs no further explanation as it very simply speaks for itself. At the heart of most litigation is regular client contact and multiple contacts with third parties, all in hopes of negotiating the best possible settlement for the client, if at all possible.

Continue reading "#177 Retainer Agreement, Part 14 of 25" »

June is an awesome month for so many reasons. Of course, growing up, the best reasons were school getting out, an end to most rules, and languid days spent in the water or on the road. Once school was out, it was possible to be up at the crack of dawn with a jump into the pool, followed very quickly by my siblings and friends. Aside from potty breaks and lunch, there really was no reason to come out of the water until your lips were turning blue. And, once out of the water, one had a tendency to fall immediately to sleep. As my father would say in later years: "that pool was the best babysitter we ever had."

Those first few weeks after school was over were the best. You could sleep in if you wanted to, but who wanted to? Sunlight was burning and there were all sorts of things to do! And if being in the pool couldn't keep us satisfied, then we'd be off on daylong bike trips around the neighboring towns. These bike trips always seemed to end at a burger joint somewhere or at a comic book store. And, on the trip back home, we'd engage in spirited debate over who was the best superhero and why.

Continue reading "#176 June" »

Articles 29 through 32:

Inevitably, in almost every agreement and contract I have ever seen, you'll have articles or clauses that address miscellaneous information and you have no idea where to put them. So, you try to group like with like and place them all together in one particular spot. Such is the case with these four (4) articles.

These articles address minor, commonsensical issues that almost always pop up during the course of the litigation, especially where cases appear to be headed for trial.

Continue reading "#175 Retainer Agreement, Part 13 of 25" »

23. Robin Gibb, 62, December 22, 1949 - May 20, 2012:
Musician; British singer and songwriter; liver and kidney failure

I only began to grudgingly appreciate the genius of Robin Gibb after he and his other two brothers became superstars as the Bee Gees. However, I had heard of him before his huge fame and I liked what I heard.

Being an audiophile, I was well aware of the Bee Gees, in some of their earlier incarnations. When they hit the big time, I felt, like most of my friends, that they had sold out and gone completely commercial. That was most uncool to snobs like audiophiles.

As I recall, their first big hit - before their latter-day, glitzy incarnation - in the United States was in 1967 with the bittersweet and strangely named "New York Mining Disaster 1941". Like so many others who were fooled by the incessant rumor-mongering, I honestly thought that this song was released by the Beatles under a pseudonym. Even after we should have known better, we still suspected John, Paul, George, and Ringo were messing with us. Listen to it again and you'll see what I mean. It really does have a Beatlesque feel to it, especially with the harmonies. It still raises goose bumps.

Not long after came the beautiful "Massachusetts" and I was hooked. So, this is how I first came to know the Bee Gees.

Continue reading "#174 In Memoriam: Robin Gibb, December 22, 1949 - May 20, 2012" »

Articles 23 through 28:

Inevitably, retaining an attorney always comes down to money: how much is it going to cost? And in addition to retaining an attorney, the client needs to understand that there are various costs and fees involved in most litigation. It is also helpful if a client understands how the attorney gets paid via the retainer payment.

And, frankly, the sooner the "money issues" are out of the way, the better, so that the client and the attorney can begin to concentrate on the client's case.

What most clients often fail to realize is that the retainer payment is very often the minimum payment that they will make to the attorney. In instances where there are going to be multiple court appearances or where the litigation is or becomes complicated, then the client will likely have to pay the attorney more money for the duration of the litigation.

In my case, my retainers are most often $2,500.00. This basically purchases twenty-five (25) hours of my time, with the exception of things like mileage and postage. If the case takes more than twenty-five (25) hours to resolve, then the costs will increase accordingly. If the case takes less than twenty-five (25) hours to resolve, then I will return every penny that I have not yet earned.

Continue reading "#173 Retainer Agreement, Part 12 of 25" »

Today's pair of cases is actually different aspects of the same case. Essentially, the case entailed two (2) separate orders, with both having been appealed separately. Because the outcomes of each order, on appeal, are different - and because the case has been assigned two (2) separate and distinct numbers, the case is herein treated as if it were two entirely different cases. Confusing? Perhaps. Just bear with me.

There are forty-two (42) decisions for this week. This is an amazing week since, of those decisions, I found twenty-eight (28) - that's right: twenty-eight (28) - to be interesting enough to include here.

I've been doing this for a long time and it is truly painful to see families destroyed - even if it is for the benefit of the child. I have therefore often wondered what simple thing the court could do that would, at the very least, salve my conscience about terminating parental rights. And I think I've discovered something very simple and elegant, which would both constantly place the parents on notice and insulate both the court and DSS from any civil proceedings: the first words on the record and the last words on the record should be the judge's and those words should be simple and rote: "Should your child or children remain in the care and custody of DSS for a period of at least one (1) year, then you run the risk of having your parental rights to the child or children terminated and the child or children would then be freed for adoption by other people. You must act in good faith to do everything possible to remove your child or children from the care and custody of DSS as quickly as possible."

While I understand that judges often state this on the record, or something very similar, it should happen so often as to become a mantra so that no party or attorney to the litigation could possibly forget it.

Continue reading "#172 Third Department Caselaw Round-Up for January 12, 2012, Part 4 of 14" »

Article 22:

I stand ready, willing, and able to represent clients who wish to litigate matters in courts outside the Capital Region, namely the counties of Albany, Rensselaer, Saratoga, and Schenectady. I very often litigate cases in the more distant counties of the Greater Capital Region, namely the counties of Columbia, Fulton, Greene, Montgomery, Schoharie, Warren, and Washington. Some more than others. Of particular note is the camaraderie of the bars of Saratoga, Warren, and Washington, in which I find I do the majority of my work at the present time, together with Schoharie County and, occasionally, Albany, Fulton, Montgomery, Rensselaer, and Schenectady counties. I have not had a case pending in the counties of Columbia or Greene this year - yet.

Representing a client beyond the Greater Capital Region is very probably not a good idea as it becomes increasingly expensive to the client to do so, with the cost of both mileage and travel time very quickly eating into the retainer. More often than not, it makes more sense to retain counsel within, or as close as possible to, the county in which the matter is being litigated. Thus, I tend to do a great deal of business in Saratoga County. Yet, I have often appeared in the eleven (11) counties of the Greater Capital Region.

And, in some rare circumstances, I even appear in courts well outside the Greater Capital Region. If and when such a retainer appears likely, I very strongly advise my client to be fully apprised of the entirety of Article 22.

Continue reading "#171 Retainer Agreement, Part 11 of 25" »

There are forty-two (42) decisions for this week. This is an amazing week since, of those decisions, I found twenty-eight (28) - that's right: twenty-eight (28) - to be interesting enough to include here.

Yeah, yeah, I know, I know, I'm waaaaay behind here; dealing with January decisions deep in June. In any event, I hope to post a lot more on recent caselaw in the Third Department once we move into July. Who knows, I might even get caught up!

So, here we are at blog post #170, continuing this series, when last we dealt with these matters way back at blog post #130. What can I say? Life gets in the way.

The first case involves a parent making bald allegations of sexual abuse by the other parent of their child. This case stands for the simple proposition that if you are going to make such incendiary allegations against a person, then you had damned well better have substantial (medical) evidence to support these allegations. Otherwise, things will likely go badly for you and you will have no one to blame but yourself.

The second case is a vignette of what can happen if you decide to be an absent parent. Either take care of your children or DSS will take care of your children - and maybe take away your children, if you don't get your act together.

Continue reading "#170 Third Department Caselaw Round-Up for January 12, 2012, Part 3 of 14" »

Another couple of articles that speak for themselves. Probably the biggest question I get from potential clients is this: "how much do you charge for x?" As if it's an a la carte menu of some sort. Still, since it's a question I hear over and over again from almost every potential client, it only made sense to include it in the retainer agreement.

Another big question is the cost of travel to the various courts. And this is where charging a client more than $100.00 per hour can run into a ton of money. Yet, at $100.00 per hour, the rate turns out to be fairly reasonable - especially if court appearances can be kept to a minimum. Obviously, the farther away the court, the more expense the cost of the court appearance. Conversely, the cost of travel for a court appearance in one of the counties of Albany, Rensselaer, Saratoga, or Schenectady is very reasonable.

Continue reading "#169 Retainer Agreement, Part 10 of 25" »

22. Donna Summer, 63, December 31, 1948 - May 17, 2012:
Musician; American singer and songwriter; lung cancer

Another shocking death. I had no idea that she was fighting lung cancer, which she apparently attributed to having inhaled toxic particles following the 9/11 terrorist attacks in New York. This obviously scares the hell out of me since I happened to be there at the time of the attacks and I continued to work there for many weeks after the attacks. I'll never forget that horrible smell: sort of a cross between fireworks and burning flesh. Lovely.

Well, like every pre-teen boy in America, I remember Donna Summer most from her first huge hit of 1975, "Love To Love You Baby".

Whoa. THAT song got my attention.

Continue reading "#168 In Memoriam: Donna Summer, December 31, 1948 - May 17, 2012" »

I absolutely love this time of year. And I love temperatures in the triple digits. And I love the humidity. And I love dew points above 70. Yeah, I know, I'm twisted.

Then again, in the depths of winter, I love blinding snow that drifts to the roof and wind chills down around -40º.

Summer is supposed to be as hellishly hot as winter is supposed to be hellishly cold. And that's the way I like it. Because, really, how often do you honestly think Upstate New York is going to experience 100 degree days? If we're lucky, maybe a handful of days, all between the first day of summer and the middle of July. Sometimes, we'll even get hit with a nasty heat wave throughout August. The point is, this sort of weather is a cherished rarity.

Continue reading "#167 Hot Fun In The Summertime!" »

Article 18:

When I was brainstorming how I would craft a comprehensive retainer agreement, one of the things I wanted to make sure to include was a period of time, somewhere in the middle of the litigation, where I could have a kind of informal rap session with the client, completely off the clock. Ultimately, it took the form of the concept of a free lunch. I liked the idea of a "free lunch" because we are constantly told in life that there is no such thing as a free lunch. But what if there were? What if someone took the time to spend a full hour just talking to another person - for free - about the status of their case? About the nitty-gritty. About the down and dirty. What if? And wouldn't be even better if it could be done in a relaxing environment, over lunch?

When I worked in The City and on The Island, some of the most productive exchanges I ever had with co-workers, bosses, or clients was either over lunch ("breaking bread") or after hours over some drinks. It was as though everyone took their masks off and got down to reality. Just cut through the crap and get down to the real deal. During the business day, I learned how to practice law. During lunches and happy hours, I learned how NOT to practice law. And, sometimes, learning what NOT to do is more important than learning what to do.

Continue reading "#166 Retainer Agreement, Part 9 of 25" »

Funny thing about college kids: they go away to college one person and come back a completely changed individual. And they think nothing of it - like it's always been that way. However, to an independent observer, it never ceased to amaze me how "going away to college" can so completely change a person. And, of course, this was probably my motivating factor in wanting to go away to college myself: I wanted to become a new person, something and someone radically different from the old stick in the mud that I thought that I was.

So, like clockwork, Joe could be counted on to come back from college with a new collection of dozens of new albums. Joe was like the Pied-Piper of new and exciting sounds. And these radical sounds, in turn, changed us as well. How could they not?

This was right around the time when the Vietnam War was crashing to a close and Joe was now happily assured that - even if he were to fail out of school - at least he wouldn't be facing The Draft. As a result, Joe was a very, very happy man. And, as I recall, the Summer of '72 was among the happiest in memory. I remember lots of sun and fun and lots of great music. I remember having enormous amounts of free time to just hang out with my best friend in his older brother's bedroom and groove to what has to be the best music I have ever heard in this world. It was my musical awakening.

Continue reading "#165 What I Was Listening To ... 40 Years Ago: June 1972 Playlist, Part 1 of 2" »

Article 16:

As you may have guessed, there are ethical requirements which attorneys must comply with concerning the ending of the attorney-client relationship. These requirements are found in the Rules of Professional Conduct, which govern the ethical behavior of attorneys.

As you might imagine, these rules attempt to encompass every conceivable situation wherein the attorney-client relationship is ended. Therefore, the rules can be a bit complicated. However, it is so important for both the attorney and the client to fully understand all of the possible circumstances for terminating the relationship, that the rule is incorporated into the retainer agreement as Article 16.

Article 17:

In the event that a dispute over the attorney's fee(s) arises, the client has the right to a fair and independent resolution of the fee dispute by an arbitrator.

Thankfully, I have never had a fee dispute arise with a client and I hope never to have one in the future.

Continue reading "#164 Retainer Agreement, Part 8 of 25" »

Or, How To Continue To Beat A Dead Horse. I promise, this will be the last time I visit this particular subject for a while. At least until some new caselaw comes along to give me a reason to revisit it.

Also, these matters only pertain to Article 6 (custody), 8 (family offenses), and 10 (neglect and abuse) cases. They do NOT pertain to Article 3 (juvenile delinquency) or Article 7 (persons in need of supervision) cases, where it is perfectly acceptable for a parent to retain an attorney for the child.

While there is no substitute for reviewing the various applicable cases and statutory laws in this matter before opting to represent a child, there is basically a short list of "dos and don'ts" that apply here. This list should be commonsensical and should be seen as merely a starting point in the independent representation of a child.

Continue reading "#163 Some Meditations On Independently-Retained Attorneys For Children" »

Article 15:

Like every other aspect of life, just as things begin, they also end. However, with regard to the attorney-client relationship, the ending has to be ethical, legal, and protective of the client's interests.

Most times, the attorney-client relationship will come to an end through the settlement or trial of the litigation. I would go so far as to say perhaps 95% of the time, this is how matters are resolved.

However, once you have practiced long enough, it is pretty much inevitable that an attorney will meet up with a client with whom the relationship will sour. Hopefully, any hurt feelings can be mended and the relationship salvaged. Nevertheless, the attorney might be so unavailable that the client simply gives up. Or the client becomes so uncooperative that the attorney simply cannot properly defend the client.

Personally, I try to be as candid, frank, open, honest - and available - as possible from Day One. I don't sugarcoat things and I don't lie. Ever. And I expect the client to return the favor.

Probably the biggest issue in this particular area is non-payment by the client. Nothing infuriates an attorney more than working hard for a client and not getting paid for those efforts. It is for this reason that most attorneys - myself included - insist upon a sizeable retainer at the commencement of the litigation. If the client later becomes a deadbeat, then at least the attorney has received a decent retainer to soften the blow.

As the saying goes: once bitten, twice shy.

Continue reading "#162 Retainer Agreement, Part 7 of 25" »

And now the third and last case in the series, together with some thoughts on the topic.

Case 3.
Torelli v. Torelli, 50 A.D.3d 1125, 855 N.Y.S.2d 376 (2nd Dept., 2008)
Suffolk Supreme - Mackenzie
Issues: Attorney for the Child; Best Interests; Custody; Divorce; Right to Counsel
Cited Statutes: none
Affirmed

This case does not shed any further light on this area of law but it is included here for purposes of illustrating how this area of law is evolving.

In an action for divorce, the mother's mother (the child's maternal grandmother) retains an attorney who then makes a motion to remove the court-assigned attorney for the child. Very unsurprisingly, this motion is denied, and the independently-retained attorney appeals. The matter is affirmed on appeal with costs. What does this mean? It means that the Second Department was probably annoyed that the independently-retained attorney who perfected the appeal apparently did not take the Third Department case of La Bier v. La Bier to heart and act accordingly.

Thus, though to a lesser degree, Torelli stands for in the Second Department what La Bier stands for in the Third Department. Can it be long before the First and Fourth Departments agree, thereby mooting any action by the Court of Appeals?

Continue reading "#161 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 5 of 5" »

There is little need to comment on Article 14 other than to read it very carefully.

Article 14. THE ATTORNEY'S AND THE CLIENT'S RECIPROCAL RIGHTS AND RESPONSIBILITIES

The Attorney and the Client have certain reciprocal rights and responsibilities to one another.

If the Client ever has any questions about these rights, or about the way the Client's case is being handled, the Client should not hesitate to ask the Attorney. The Attorney will be readily available to represent the Client's best interests and keep the Client informed about your case.

The Attorney may not refuse to represent the Client on the basis of race, creed, color, sex sexual orientation, age, national origin or disability.

The Client is entitled to be represented by an attorney who will be capable of handling the Client's case; show the Client courtesy and consideration at all times; represent the Client zealously; and preserve the Client's confidences and secrets that are revealed in the course of the Attorney-Client relationship.

The Client is entitled to a written retainer agreement, which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. At the Client's request, and before the Client signs the agreement, the Client is entitled to have the Attorney clarify in writing any of its terms, or include additional provisions.

Continue reading "# 160 Retainer Agreement, Part 6 of 25" »

21. Carlos Fuentes, 83, November 11, 1928 - May 15, 2012:
Writer; Mexican novelist and essayist; hemorrhage

I was introduced to this writer by a bohemian acquaintance in college, at a time in my life when my politics began their long leftward crawl. Amidst the raucous atmosphere of a college ratskeller, and probably after a bit too many beers, the friend tossed a dog-eared paperback my way, barely held together by its tenuous spine, and yelled over the din "Read it. It'll change your life."

Uh-huh. Sure it would.

I glimpsed its faded cover: "The Death of Artemio Cruz", by Carlos Fuentes. It looked pretty inconsequential to me. And it was yet more reading when I would often have to read two to three hundred pages a night just to keep up with all of my courses. And it was written by a Mexican I'd never heard of. I was unimpressed. Color me jaded.

Remember, this was back in the day when MTV blared from every conceivable speaker and screen on the planet, telling us all in a Bowiesque voice that too much was never enough. I'm pretty sure that American culture in general jumped the shark at this time, circa 1985.

So, when someone made a superlative statement like that - in an era when superlatives were the norm - I pretty much disregarded it along with the rest of the cultural white noise of the time. But, I still read the book.

Continue reading "#159 In Memoriam: Carlos Fuentes, November 11, 1928 - May 15, 2012" »

Articles 12, 13, and 14:

Once a client signs the retainer agreement and pays the retainer, in full, then the attorney immediately gets to work on the client's legal issues. Of course, without a signed retainer agreement - or the payment of the retainer in full - the attorney reserves the right to refrain from acting on the client's behalf. This should be obvious but my experience has proven that it is often anything but to some clients.

A contract must be signed and a precise amount of money must exchange hands. Once this occurs, the entirety of the attorney-client relationship immediately comes into being.

I do not work for free and I can only work within the framework of a contract. Besides, it is far easier to receive payment in advance than it is to have to keep hounding a client for the money they may never pay you if you fail to get it all up front. Also, the attorney is ethically and legally obligated to return any of the client's money that is not earned. Again: this should be obvious. So, if the client's legal matter is concluded and the attorney's services cost less than the original retainer payment, then the client will receive the balance of the unearned retainer payment from the attorney.

Attorney-client confidentiality should be obvious, together with the need for the attorney to be readily available to the client.

Continue reading "#158 Retainer Agreement, Part 5 of 25" »

And now the second half of the second case in this series ...

Case 2.
Matter of B.M., 15 Misc.3d 1123(A), 841 N.Y.S.2d 217 (Table) (Fam. Ct. 2007)
Orange Family - Woods
Issues: Attorney for the Child; Best Interests; Neglect; Right to Counsel; Sexual Abuse
Cited Statutes: FCA Art. 10
Not Appealed

"It is also unclear what role A.J., Esq. would play in this litigation as counsel for the child as a witness. The Law Guardian is the child's attorney and responsible for representing the child's wishes as well as for advocating for the child's best interest. To carve out an exception to the Law Guardian's representation of the child would undermine the Law Guardian's overall ability to carry out her independent role in these proceedings. There is no evidence that the child is unsatisfied with the Law Guardian's representation of her. See, Matter of Elianne M., 196 A.D.2d 439 (1st Dept., 1993). Indeed, the Law Guardian is well versed and experienced in difficult matters such as the one presently before the Court. On the other hand, A.J., Esq. is not a member of Law Guardian Panel, Second Department. See, NY Ct. Rules §679."

"A.J., Esq. represented the child as a witness in the criminal proceedings, but this representation does not automatically extend to the Family Court matter. It is this Court's experience that a child can be subjected to undue stress and pressure to change his or her story because so often allegations such as those in the petition can destroy a family. The Court is in no way implying that either respondent has pressured the child to do so, but in order to insure that her best interests are protected neutral and independent counsel appointed by the Court namely the Law Guardian shall represent her for purposes of this matter. Therefore, it is hereby"

Continue reading "#157 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 4 of 5" »

Much of the retainer agreement speaks for itself. And while a great deal of it may be deemed commonsensical, I'd much prefer it to be an explicit statement of the facts, found within a retainer agreement, rather than an unspoken presumption of the attorney which the client may not share - or even be aware of.

It's much better to have an understanding in writing, no matter how obvious it may seem to anyone not a party to it.

I've also included one of my pet peeves in the retainer agreement: no texting! I absolutely hate texting. I find little of redeeming value to it at all. It is the laziest form of communication I can think of, often with little or no substance. So, if you want to reach me, you may do so by a number of methods - but texting is not one of them.

Yes, I know this makes me seem like an old-fashioned stick-in-the-mud. But I am not about to spend any portion of my often busy days glued to a keyboard too small to accommodate any of my fingers properly, as tens or hundreds of texts fly back and worth. I can't imagine a bigger waste of time. : )

Continue reading "#156 Retainer Agreement, Part 4 of 25" »

20. Donald "Duck" Dunn, 70, November 24, 1941 - May 13, 2012:
Musician; American rock and blues guitarist; natural causes

Alright, I guess I'll have to admit it right up front: I had absolutely no clue who Donald "Duck" Dunn was until I heard the "Briefcase Full Of Blues" album, back in late 1978. In no time at all, this album became one of the many soundtracks of high school. I loved the original sketch of the Blues Brothers on Saturday Night Live and I loved the idea that the sketch had now taken on a life all its own. Jake and Elwood Blues were marketing geniuses: hip blues covers plus schoolboy comedy equaled mucho moolah.

I loved the album and played it to death, having to buy a new one not long after.

Of course, I have the compact disc now and I listen to it on occasion. I never bought any of their subsequent albums because, frankly, they sucked. But their debut album is still amazing after all these years, from the intro to the outro. And, really, how the hell do you replace a voice and personality like John Belushi? Yeah, you can't. So don't.

Continue reading "#155 In Memoriam: Donald Dunn, November 24, 1941 - May 13, 2012" »

Three brief articles ...

Article 3:

Personally, I've found that I much prefer to be able to speak with or meet with people without the thought that I am being charged for the courtesy. Frankly, I consider it to be poor form for one human being not to be able to sit down and have a few words with another for a few minutes without money entering the mix.

Granted, the flip side to this is that some people, when given an inch, opt to take a mile, thereby monopolizing a person's time to the point of annoyance. I'm a firm believer in a middle ground.

Therefore, I have a standing rule that I will meet with any potential client for the period of one (1) hour, for a free initial consultation. If the consultation drags on beyond the one (1) free hour, then the person can start paying me at the rate of $100.00 per hour. If the person wishes to retain me, then so much the better.

Article 4:

I like to be as specific as possible with a client as to precisely what it is that I will be doing for the client. This is addressed later on in the retainer agreement as well, in Article 71.

Article 5:

Once retained, I like to remind clients that every communication between the client and me is subject to being billed. Granted, my billing rate is a reasonable $100.00 per hour but it is very easy for phone calls, letters, faxes, and emails to slowly start to add up to quite a bit of money.

Continue reading "#154 Retainer Agreement, Part 3 of 25" »

And now the first half of the second case in this series ...

Case 2.
Matter of B.M., 15 Misc.3d 1123(A), 841 N.Y.S.2d 217 (Table) (Fam. Ct. 2007)
Orange Family - Woods
Issues: Attorney for the Child; Best Interests; Neglect; Right to Counsel; Sexual Abuse
Cited Statutes: FCA Art. 10
Not Appealed

This case is very problematic, in light of La Bier. If anything, this case makes it much more onerous for a child to retain a truly independent attorney. While this case is not controlling, I would bet you lunch that it will very strongly influence all future appeals in this area of law. Again, all emphasis in quoted text is my own.

Orange County DSS filed a neglect petition against the mother of a 14-year old girl upon allegations that the mother's boyfriend had sexually molested the girl. It was alleged that the mother failed to protect her daughter by allowing the boyfriend to sleep in close proximity to the daughter - even after the mother was made aware of the allegations of sexual abuse!

The court assigned an attorney for the child and, thereafter, at the initial appearance, both the court-assigned attorney for the child and an independently-retained attorney for the child appeared on the child's behalf. Unsurprisingly, the two attorneys argued over this matter and, at the conclusion of the appearance, the Court issued a bench order wherein it refused to recognize the independently-retained attorney for the child, but allowed said attorney to make any motions that attorney deemed necessary.

Continue reading "#153 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 3 of 5" »

This month, twenty-two (22) albums have run out of steam:

1. Arcade Fire, "Neon Bible";
2. Mickey Avalon, "Mickey Avalon";
3. Bloc Party, "Silent Alarm";
4. Cage The Elephant, "Cage The Elephant";
5. The Cat Empire, "Two Shoes";
6. Citizen Cope, "The Clarence Greenwood Recordings";
7. The Flaming Lips, "At War With The Mystics";
8. Ben Folds, "Songs For Goldfish";
9. Foo Fighters, "One By One";
10. The Mars Volta, "Frances The Mute";
11. Dave Matthews, "Some Devil";
12. People In Planes, "As Far As The Eye Can See";
13. Stone Sour, "Stone Sour";
14. Sum 41, "All Killer No Filler";
15. 311, "From Chaos";
16. Train, "Drops Of Jupiter";
17. Unwritten Law, "Music In High Places";
18. Vampire Weekend, "Vampire Weekend";
19. Vendetta Red, "Between The Never And The Now";
20. Weezer, "Weezer";
21. The XX, "XX"; and
22. Thom Yorke, "The Eraser".

Continue reading "#152 What I'm Listening To: June 2012 Playlist, Part 1 of 2" »

The most important aspect of a person's involvement with the legal system is the relationship the person has with their attorney. A person's attorney is effectively their alter ego and the attorney has to do everything in the attorney's power to protect the interests of the client. Thus, the attorney-client relationship is at the very core of our legal system, and for good reason.

Ever try to navigate the court system without the benefit of having an experienced attorney? If so, then I strongly suspect that the experience was probably most painful. Attorneys have normally completed four (4) years of college and three (3) years of law school. Of course, there are always exceptions to this rule of thumb, but the overwhelming majority of attorneys have had at least seven (7) years of higher education beyond high school.

Therefore, being a pro se litigant (a party in a litigation who does not have an attorney) is often unwise insofar as a pro se litigant is almost always at the disadvantage of having virtually no knowledge of the court system and how it works, as compared to a standard attorney.

I often ask litigants if they feel educated enough to engage in the practice of medicine and take out a person's appendix. No? Then why the hell would they feel educated enough to engage in the practice of law and defend themselves when they have no idea what they are doing. It is a recipe for disaster.

Do your homework and find an attorney you get along with and who you feel you can trust. Once you do that, the rest is generally easy.

Continue reading "#151 Retainer Agreement, Part 2 of 25" »

19. Maurice Sendak, 83, July 10, 1928 - May 8, 2012:
Illustrator and writer; American children's author; complications from a stroke

The most amazing part of life, other than life itself, is how quickly each and every one of us comes to take it for granted. We just assume that every day will pretty much be the same as the last, and the same as the next, with only gradations of change. And, for the most part, we're correct in that assumption.

However, those people, places, and things that we learn to take for granted from an early age always seem to be the ones that are missed the most when we are inevitably parted from them. Such is the case with Maurice Sendak.

From a very early age, I was only aware of the man with the funny name because he wrote and illustrated one of my favorite books. For the longest time, it was my absolute favorite book and I wanted it read to me night after night after night until I was able to memorize the whole damned thing.

Continue reading "#150 In Memoriam: Maurice Sendak, July 10, 1928 - May 8, 2012" »

And now on to the first of the three (3) cases ...

Case 1.
La Bier v. La Bier, 291 A.D.2d 730, 738 N.Y.S.2d 132 (3rd Dept., 2002)
Albany Family - Duggan
Issues: Attorney for the Child; Best Interests; Custodial Interference; Custody; Right to Counsel; Willful Violations of Orders
Cited Statues: FCA Art. 6
Affirmed

As luck would have it, I happen to know many of the attorneys involved in this particular case. Furthermore, any emphasis found in quoted text is solely my own.

The parties are the divorced parents of two (2) boys. In 1998, the parties had an Order of Custody whereby they were granted joint legal and shared physical custody of the children, whose ages were approximately eleven (11) and twelve (12), with a two-week rotating parenting time schedule.

In 2000, the mother thereafter filed a petition for modification of custody, seeking sole custody of the children, alleging that the father was refusing to effectively communicate with her and was engaging in public displays of anger toward the children. Furthermore, the mother informed the court that her sons had informed her and their attorney (then called a law guardian) that they wanted to live with her and that they had grown tired of the rotating parenting time schedule.

Continue reading "#149 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 2 of 5" »

Before an attorney can do anything for a client, the client needs to retain the attorney. The basis for the retainer of the attorney by the client is a contract called the retainer agreement.

Many attorneys have clients read and review a boilerplate document of anywhere from two (2) to ten (10) pages in length, most of it written in such a way as to make it extremely difficult for anyone but an attorney to understand.

The whole purpose of this series of blog posts is to introduce readers to what I believe would be the most appropriate retainer agreement for those areas of law within which I spend most of my time practicing, namely family law and matrimonial law.

I am publishing this retainer agreement insofar as it would become common knowledge at some point, since judges sometimes ask to review an attorney's retainer agreement and attorneys are required to file retainer agreements with the court in matrimonial actions.

Besides, any potential clients might find it instructive to read the various blog posts of the retainer agreement first, rather than dive in and try to review a 50 page, 20,000 word document (20,074, actually) all at once.

So, without further ado, I give you the preamble and Article 1 of the Retainer Agreement ...

Continue reading "#148 Retainer Agreement, Part 1 of 25" »

18. George "Goober" Lindsey, 83, December 17, 1928 - May 6, 2012:
Actor; American character actor; natural causes

If you were a kid growing up in the 1960s, then you can probably whistle this theme song by heart. Of course, I'm talking about "The Andy Griffith Show". It was sort of a Norman-Rockwell-meets-the-Marx-Brothers in southern rural America. And while you might think that such a concoction would be a form of torture, it kept 6-year old boys glued to their family's huge black-and-white Zeniths while their mother's got some housework done.

I loved the show and watched it religiously whenever it was on. My favorite characters were Barney Fife (played by Don Knotts) and, of course, Opie Taylor (played by a very young Ron Howard). But, above all the rest, I was somehow obsessed with the character that would become my version of the epitome of The Ultimate Hayseed: Goober Pyle, as played by George Lindsey. I couldn't understand how an adult could be so seemingly retarded and yet so utterly likeable. Still, while the man was dumber than a box of broken hammers, he was a wizard at fixing cars. And no matter how stupid the man was, you simply could not dislike the guy. In fact, he was the kind of person you wouldn't mind as the neighborhood bumpkin, to pal around with and lift your spirits.

Continue reading "#147 In Memoriam: George Lindsey, December 17, 1928 - May 6, 2012" »

Funny you should ask!

Well ... not a hell of a lot, actually.

Sooner or later (put your money on later), the Court of Appeals might address this question. However, until then, we will need to read the tea leaves from all four (4) judicial departments in the state. Currently, it seems that only the Third and Second Departments have addressed this issue in any form. But it is quite possible that the First and Fourth Departments would be inclined to go along with what they have decided.

Again, the short answer is simple: make your displeasure known, to both the attorney for the child AND the court itself, IMMEDIATELY! The best advice is the most obvious: the squeaky wheel gets the grease.

What you need to know is that the Attorney for the Child Program has recently mandated that attorneys for the child cannot be paid by the state of New York until and unless they submit a sworn affidavit attesting to the fact that they actually met with the child, to which the court has assigned them, on at least one occasion. However, meeting at least once with your client is basically doing the bare minimum to provide adequate legal representation to the client. Yet, one needs to be grateful for this step in the right direction, at the very least.

Continue reading "#146 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 1 of 5" »

A quick word as to the changes afoot here at www.upstatenewyorkfamilylaw.com.

First and foremost, I am now able to accept credit card payments through the website via the wonderful people at PayPal. PayPal has also informed me that I will likely be able to acquire their soon-to-be-released "phone swiper" (which is the coolest thing I've seen in a very long time!) sometime in July. This will make things so much easier for all concerned.

No more issues of waiting for checks to clear. No more issues of cash payments. No more issues of being unable to accept a particular credit card. Now, so long as you have at least one (1) of four (4) different kinds of credit cards - Visa, Master Card, American Express, or Discover - you will be able to retain me quickly and efficiently, all over the internet. Better yet, for the client, I eat the credit card fee, while the client acquires whatever free points the credit card issuer is handing out. It's a win-win for both of us.

Second, I've fine-tuned the retainer agreement. After several weeks' worth of effort, I finally crafted the retainer agreement that I wanted. There was only one little problem: it ran a bit long. Okay, it ran a lot long. In my effort to craft The Perfect Retainer Agreement, I created a document the size of a novella: fifty (50) pages long and over 20,000 words.

Yeah. I know.

Continue reading "#145 A Modest Proposal, Part 3 of ..." »

17. Adam "MCA" Yauch, 47, August 5, 1964 - May 4, 2012:
Musician; American rapper; throat cancer

MCA's death came as a shock to me as I thought he was in remission and that the Beasties were just about to go on tour again. I like the new album, "Hot Sauce Committee Part Two", and it seems obvious that their old creative juices are still flowing. I guess the "Part One" to this work may never see the light of day, though it appears to have been completed back in 2009.

My little brother, Scott, turned me on to the Beastie Boys way the hell back in early 1987, just after I'd gotten back from my term abroad in London and just before I was about to graduate from college and take the plunge and go to law school. I was a musical snob back then and I wasn't about to listen to something called white-rap or hip-hop. Still, I had to admit that I liked the album art on "License To Ill", with the 727 widebody crashing into a mountainside, but looking suspiciously like a joint. Very sly.

Continue reading "#144 In Memoriam: Adam Yauch, August 5, 1964 - May 4, 2012" »

I'm not one for complaining, generally, but, sometimes, you've really got to just cut loose and vent. This is a vent, not a rant. Two entirely different things. A vent involves personal concerns. A rant involves worldly concerns.

May sucked. There. I said it. Still, perhaps I should clarify: late May and early June sucked. Doncha wanna know why!? Where do I even begin!?

I've just gone through two weeks of hell. First, my computer dies. Just dies. When a computer starts making barking sounds - yeah, barking sounds - that ain't a good thing. In fact, I thought the damned thing was possessed. Ruff. Ruff. Roooooof. RerrrrrrrraaaaaOOOOOOORRRR! Ploinck! And then a little puff of smoke. That can't be good. That smell? Yeah, that's my money burning.

Off to the computer guy. So, thinking I'd be down only a day or two, I'm not too worried. By Day Four, I'm worried. And work starts piling up. I then start to wonder if the computer is still under warranty. I can't remember. Just great.

Then the kitchen faucet breaks. Luckily, the faucet is under warranty, so no cost to me. But it will take a week to ship the parts from the dark side of the moon. Thank god we have a dishwasher or we'd be doing dishes in the bathroom. Not a pleasant thought.

Next? Oh, c'mon, there's always a next. Next, my car breaks down in the middle of nowhere. I pull off to the side of the road and wonder what I have done to deserve having the cosmos take this massive crap on me.

Continue reading "#143 May" »