Defendant appeals from the order of the Supreme Court, New York County (Matthew F. Cooper, J.), entered August 30, 2011, which, to the extent appealed from as limited by the briefs, set forth a parenting access schedule in accordance with an interim March 7, 2011 order and the parties' May 11, 2011 so-ordered stipulation and directed plaintiff to cooperate in having the parties' daughter participate in all activities leading up to her first holy communion; the order, same court and Justice, entered on or about March 23, 2012, which, to the extent appealable, denied his motion to renew and reargue orders dated August 23, 2010, September 16, 2011 and September 26, 2011, which, inter alia, awarded plaintiff a cost of living increase in child support, and directed him to pay support arrears and add-on expenses; and order, same court and Justice, entered March 26, 2012, which granted the motion of the attorney for the children to direct him to pay outstanding fees, and awarded the attorney for the children additional fees for making the application.
August V., New York, appellant pro se.
Venecia M., respondent pro se.
Jo Ann Douglas, New York, attorney for the children.
Luis A. Gonzalez, P.J. Peter Tom David B. Saxe Sallie Manzanet-Daniels Judith J. Gische, JJ.
This appeal, arising in the context of a contentious post-divorce dispute, raises a variety of challenges to the court's determinations involving custody, visitation and expenses. While the bulk of these issues may be briefly addressed seriatim, we must address at greater length the unresolved question of whether 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. Determination of this issue requires us to decide whether, as defendant father claims, Mars v Mars (19 A.D.3d 195 [1st Dept 2005], lv dismissed 6 N.Y.3d 821 ) gives him legal standing to assert the legal malpractice defense.
The divorced parents have three children, now ages 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. Substantial further litigation ensued beginning in 2009, when 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 this Court's ruling in Mars v Mars 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.
In Mars v Mars (19 A.D.3d at 196), this 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." Our 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. Accepting the rule of Bluntt v O'Connor (291 A.D.2d 106 [4th Dept 2002], lv denied 98 N.Y.2d 605 ), which held that absent special circumstances, a parent in a visitation dispute lacks standing to bring a legal malpractice claim against a child's court-appointed law guardian, we limited our ruling to the portion of the law guardian's fee representing the work that consisted of advocacy rather than guardianship.
However, in 2007, the role of the law guardian was changed by a newly-promulgated Rule of the Chief Judge (22 NYCRR § 7.2) that renamed the position "attorney for the child, " and required those attorneys 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]). It further requires that the attorney for the child should be directed by the child's wishes after fully explaining the available options and making recommendations to the child, as long as the child is 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, and 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, after 2007, the distinction made by our ruling in Mars is no longer necessary in cases such as this; where the child is capable of decision-making, the task of the attorney for the child is generally solely advocacy, rather than guardianship, 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. Rule 7.2 does not in any way vitiate the Mars ruling; on the contrary, it renders it more generally applicable.
We reaffirm 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 ...