New York Court holds that parents may assert legal malpractice as a defense to fee claims arising from attorneys’ representation of their children.

November 30, 2013 | Professional Liability | Complex Torts & Product Liability | Directors & Officers Liability | Insurance Coverage

Traditionally in New York, law guardians appointed in custody disputes were often viewed as taking on a role similar to that of a guardian ad litem, advocating for what they believed to be the best interests of the child, rather than advocating for the outcome desired by the child. Because these law guardians were often functioning in roles as guardians, rather than as attorneys, New York courts had limited parents’ abilities to assert legal malpractice as a defense to law guardian fees. In Mars v. Mars, 19 A.D.3d 195, 797 N.Y.S.2d 49 (1st Dep’t 2005), lv. dismissed 6 N.Y.3d 821, 846 N.E.2d 468, 813 N.Y.S.2d 38 (2006), the court had held that while a parent could assert legal malpractice as a defense to a law guardian’s fee application, that defense was limited to challenging the portion of fees attributable to advocacy, as opposed to guardianship.

However, in 2007, the role of the law guardian was changed by a newly–promulgated rule of the Chief Judge, 22 N.Y.C.R.R. §7.2. This rule changed the name of the position from “law guardian” to “attorney for the child” and required the attorney to zealously advocate for the child’s position, in consultation with the child, so long as the child is capable of “knowing, voluntary and considered judgment.”

In Venecia V. v. August, 2013 N.Y. App. Div. LEXIS 8067, 2013 NY Slip Op 8140 (N.Y. App. Div. 1st Dep’t Dec. 5, 2013), the motion court had ordered a father to pay his share of fees for the attorney for the children arising out of a custody dispute, and the father sought to challenge the entire fee on the ground of malpractice. The First Department held that where, as here, the children were “capable of decision–making”, the attorney for the children’s role was solely as an advocate, rather than as a guardian, the father had standing to challenge the entire fee by asserting a defense of legal malpractice.

The attorney for the children had argued against this result on policy grounds, claiming that permitting this type of defense would allow parents dissatisfied with the results of their custody claims to use malpractice challenges to avoid payment and would negatively impact the effectiveness of attorneys for children by giving those parents control over the representation of their children. The court disagreed, stating that “[t]he possibility that a parent who feels aggrieved over the developments in a custody of visitation dispute may claim malpractice as a means of avoiding payment of the attorney’s fee does not warrant the granting these attorneys complete immunity against the defense of legal malpractice.”

However, the Court cautioned, a parent asserting a legal malpractice defense is still required to make a prima facie showing in order to warrant further evidentiary proceedings. The Court rejected the father’s claim of malpractice in this instance, holding that there was insufficient evidence that the children’s attorney breached her professional duties by failing to recognize that the children were being manipulated by their mother to warrant a further hearing.

Practice Note: This rule may result in an increase in malpractice claims being asserted against attorneys for children as a defense to fee claims; nevertheless, such claims should be dismissed where the attorneys were merely advocating on behalf of the child’s wishes.

Reprinted with permission from the December 2013 lpl eAdvisory – ABA Standing Committee on Lawyer’s Professional Liability.  All rights reserved.


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