To BE ARGUED By:ELLIOTT SCHEINBERGTIME REQUESTED: 10 MINUTES

Q,tourt of ~ppeaIs~tate of .Jaem ~ork

PERRY FRANKEL,Plaintiff-Respondent,

-against-

KARYN FRANKEL,Defendant,

SCHLISSEL, OSTROW, KARABATOS, POEPPLEIN,CENDER & FISHER, PLLC,

Non-Party Appellant.

BRIEF ON BEHALF OF AMICUS CURIAE,AMERICAN ACADEMY OF MATRIMONIAL LAWYERS,

NEW YORK CHAPTER

ELLIOTT SCHEINBERG, ESQ.Attorney for the American AcademyOf Matrimonial Lawyers,New York Chapter750 Third Avenue - 29th FloorNew York, New York 10017(212) 490-0009

Nassau County Clerk's Index Number: 12446/98

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ii

CASES iv

STATUTES vi

QUESTIONS PRESENTED FOR REVIEW ······1

INTEREST OF AMICUS 2

PRELIMINARY STATEMENT ····· · .. ············ 3

ARGUMENTS

POINT ICOUNSEL FEES HAVE LONG BEEN ACKNOWLEDGEDAS A FAILSAFE TO FINANCIAL DISPARITYWHICH PERMITS THE NON-MONIED SPOUSE, TYPICALLY THE WIFE,TO PARTICIPATE MEANINGFULLY IN THE LITIGATION 4

POINT II

FRANKEL IS CONTRARY TO: CODIFIED PRINCIPLES OF STATUTORYCONSTRUCTION THAT THE LEGISLATIVE INTENT BE EFFECTUATED,FIRST AND FOREMOST, AND TO THE PRECEDENT AUTHORITY OFO'SHEA AND DECABRERA 'VHICH HELD THAT THE ELIMINATIONOF THE WORDS "DURING THE PENDENCY OF THE ACTION" BROADENEDTHE SCOPE OF THE STATUTE WITH THE LEGISLATIVE INTENT 8

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POINT III

DECISIONAL AUTHORITY, LIKE ITS STATUTORY COUNTERPART,HAS STEADFASTLY HELD THAT AN ABSENCE OF AMBIGUITY IN ASTATUTE DOES NOT MANDATE A SUBSTITUTION FOR REASONEDINTERPRETATION: EFFECTUATING THE LEGISLATIVE INTENT IS THEPREEMINENT RESPONSIBILITY ..................................•......... 17

POINT IV

STATUTES ARE PRESUMED NOT TO WORK HARDSHIPS NOR INJUSTICE,NOR ARE THEY CREATED IN A VACUUM TO LEAVE PARTIES WITHOUTA REMEDY; DECISIONAL AUTHORITY AND THE LEGISLATURE HAVEBEEN CONSISTENT IN THEIR EFFORTS TO PREVENT UNJUST RESULTSTO COUNSEL AND CLIENTS; IF PERMITTED TO STAND, FRANKELWILL HARM COUNSEL AND LITIGANTS 21

POINT V

IT IS SETTLED LAW THAT A TIMELY FEE APPLICATIONIS KEY TO THE PRESERVATION OF AN OUTGOING ATTORNEY'SRIGHTS TO A HEARING WITHIN THE CONTEXT OF THE ACTION;ALTHOUGH TIMELY ASSERTED FRANKEL RESULTED IN A FORFEITUREOF THE RIGHT 26

POINT VI

OUTGOING COUNSEL IN FRANKEL SEEKS TO PRESERVE APROCEDURAL RIGHT NOT TO IMMEDIATELY ENFORCE A SUBSTANTIVEONE TO THE CLIENT'S DETRIMENT AS SEEMS TO CONCERN THEMAJORITY; THESE CONCERNS CAN BE EASILY REMEDIED WITHOUTPREJUDICE TO COUNSEL 32

POINT VII

PURSUANT TO THE PRINCIPLES OF STATUTORY CONSTRUCTIONDRL §237(a) AND JUDICIARY LAW §475 ARE STATUTES IN PARI MATERIAWHICH MUST BE ACCORDED ANALOGOUS AND PARALLEL READINGSBECAUSE THEY SEEK TO PROTECT THE SAME CLASS OF PEOPLE-ATTORNEYS; FRANKEL CONTRAVENES THIS COURT'S RULINGIN KLEIN v. EUBANK UNDER §475 35

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POINT VIII

FRANKEL ERRED IN RULING THAT NEITHER STATUTE NOR CASELAW GRANTS A DISCHARGED ATTORNEY A RIGHT TO APPLY INHIS OR HER OWN NAME FOR RETROSPECTIVE FEES AGAINST THEADVERSARY SPOUSE, EITHER WITHIN OR WITHOUT THEMATRIMONIAL ACTION 39

POINT IX

DRL §237(a) PLACES COUNSEL FOR THE NON-MONIED SPOUSEIN LIMITED PRIVITY DIRECTLY WITH THE OTHER SPOUSE 42

POINT X

FRANKEL NOT ONLY DEVASTATES COUNSEL'S PROCEDURAL RIGHTSBUT IT ALSO ASSAULTS HIS OR HER SUBSTANTIVE RIGHTSBY EXPOSING UNCOLLECTED FEES TO DISCHARGEABILITY INBANKRUPTCY 44

CONCLUSION 45

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Albano v. Kirby, 36 N.Y.2d 526, 330 N.E.2d 615,369 N.Y.S.2d 655 (1975) 11, 18

Bartow v. Bartow, 212 A.D.2d 564, 622 N.Y.S.2d 562 (2ndDept., 1995) 28

Braithwaite v. Braithwaite, 299 A.D.2d 383, 749 N.Y.S.2d 564 (2ndDept., 2002) 28

Buono v. Fantacone, 676 N.Y.S.2d 343,252 AD.2d 917 (3rdDept., 1998) 26

Charpie v. Charpie, 271 A.D.2d 169, 710 N.Y.S.2d 363 (1st Dept., 2000) 4,6

Cullen v. Naples, 31 N.Y.2d 818, 291 N.E.2d 587, 339 N.Y.S.2d 464 (1972) 28

DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176,518 N.E.2d 1168 (1987) passim

Frankel v. Frankel, 309 A.D.2d 65, 764 N.Y.S.2d 135 (2ndDept., 2003) passim

Fumarelli v. Marsam Development, Income., 92 N.Y.2d 298,703 N.E.2d 251, 680 N.Y.S.2d 440 (1998) 17

Gleckman v. Kaplan, 626 N.Y.S.2d 549, 215 AD.2d 527 (2ndDept., 1995) 26

Haser v. Haser, 271 A.D.2d 253, 707 N.Y.S.2d 47 (1sl Dept., 2000) 39,40

Hinden v. Hinden, 122 Misc.2d 552, 472 N.Y.S.2d 248 (NYSupCt., 1983) 4

Hogan v. Culkin, 18 N.Y.2d 330, 221 N.E.2d 546, 274 N.Y.S.2d 881 (1966) 11, 18

Hogan v. Hogan, 194 AD.2d 520, 598 N.Y.S.2d 310 (2d Dept., 1993) 30

In re Spong, 661 F.2d 6 (2nd Cir., 1981) 44

Kaplan v. Reuss, 113 AD.2d 184,495 N.Y.S.2d 404 (2ndDept., 1985), affd,68 N.Y.2d 693, 497 N.E.2d 671,506 N.Y.S.2d 304 (1986) 30,35,39,40

Katzman v. Katzman, 284 AD.2d 160, 725 N.Y.S.2d 849 (1sl Dept., 2001) 15

Klein v. Eubank, 87 N.Y.2d 459,663 N.E.2d 599, 640 N.Y.S.2d 443 (1996) ..... 36,37,38,39

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Monteleon v. Monteleon, 558 N.Y.S.2d 106, 163A.D.2d 372 (2nd Dept., 1990) 30

New York Life Ins. Co. v. Aitkin, 125 N.Y. 660, 26 N.E. 732 (1891) 27

New York State Bankers Ass'n v. Albright, 38 N.Y.2d 430,343 N.E.2d 735,381 N.Y.S.2d 17 (1975) 17

O'Shea v. O'Shea, 689 N.Y.S.2d 8, 93 N.Y.2d 187,711 N.E.2d 193 (1999) passim

Peterson v. Daystrom Corp. 17 N.Y.2d 32, 215 N.E.2d 329, 268 N.Y.S.2d 1 (1966) 17

Pratt v. Pratt, 282 A.D.2d 941, 723 N.Y.S.2d 734 (3Td Dept., 2001) 26

Price v. Price, 69 N.Y.2d 8,503 N.E.2d 684,511 N.Y.S.2d 219 (1986) 18

Rankin on Behalf of Bd. of Ed. of City of New York v. Shanker, 23 N.Y.2d 111,242 N.E.2d 802, 295 N.Y.S.2d 625 (1968) 18, 19

Rubenfeldv. Rubenfeld, 279 A.D.2d 153, nON.Y.S.2d 29 (1stDept., 2001) 27

Sadofsky v. Sadofsky, 431 N.Y.S.2d 594, 78 A.D.2d 520 (2nd Dept., 1980) 26,27

Salvano v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 85 N.Y.2d 173,647 N.E.2d 1298,623 N.Y.S.2d 790 (1995) 27

Scotto v. Dinkins, 85 N.Y.2d 209,647 N.E.2d 1317,623 N.Y.S.2d 809 (1995) 19

Shapiro v. Shapiro, 579 N.Y.S.2d 22, 179 A.D.2d 525 (1stDept., 1992) 26

Stevenson v. News Syndicate Co., 302 N.Y. 81,96 N.E.2d 187 (1950) 28

Sutka v. Conners, 73 N.Y.2d 395,538 N.E.2d 1012, 541 N.Y.S.2d 191 (1989) 19

Zielinski v. Zielinski, 676 N.Y.S.2d 252,252 A.D.2d 800 (3Td Dept., 1998) 28

STATUTES

DRL §236 (B) (1) (d) (3) 18DRL §237(a) passim

Civil Practice Act § 1169 15Judiciary Law §475 passim

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New York Statutes §72 12New York Statutes §76 10New York Statutes §91 10New York Statutes §92 8,9,43New York Statutes §94 11New York Statutes §95 14New York Statutes §96 8, 9, 13New York Statutes §98 12New York Statutes §111 10New York Statutes §112 8,9New York Statutes §124 12, 16New York Statutes §144 22New York Statutes §146 21,22New York Statutes §191 8, 9, 11, 13New York Statutes §193 16New York Statutes §194 10, 15New York Statutes §221 35New York Statutes §222 16New York Statutes §230 10,21,22New York Statutes §234 14

QUESTION PRESENTED FOR REVIEW

Does the right conferred by DRL §237(a) for "the attorney for either spouse" to seek

counsel fees and expenses "in his own name in the same proceeding" extend to counsel who had

been discharged without cause and who timely asserted the claim during the pendency of the action?

If the answer to the above question is "yes", then may counsel who was discharged

without cause proceed against the other spouse within the context of the same action?

Amicus respectfully submits that: (1) the current state of the law and the legislative

intent behind DRL §237(a) require that both of the aforementioned questions be answered in the

affirmative, and (2) that any analysis against which the issues herein are examined, which are

respectfully presented herein to the Court, clearly establish that no other conclusion is permissible.

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INTEREST OF AMICUS

The American Academy of Matrimonial Lawyers (AAML) is a national association of more

than 1,500 experienced matrimonial attorneys from almost all ofthe 50 United States, who specialize

in issues related to marriage, divorce, annulment, custody, child visitation, property valuation,

property distribution, maintenance and support. The AAML was founded in 1962 to "encourage the

study, improve the practice, elevate the standards, and advance the cause of matrimonial law, with

the end that the welfare of the family and society be preserved."

The New York Chapter of the AAML (NYAAML), the amicus herein, was formed in 1966

as one the AAML's 30 state chapters. NY AAML's membership consists of more than 170 certified

fellows, including counsel for the Non-Party Appellant and counsel for amicus herein, all of whom

are experienced matrimonial practitioners and members of the New York Bar.

The Order ofthe Appellate Division, Second Department, entered Sept. 8,2003, raises legal

issues whose scope and application are of significant and statewide importance in the enforcement

of public policy and which transcend the individual interests of Plaintiff and Defendant herein.

Therefore, the AAML NY Chapter, respectfully requests this Court to grant the accompanying

motion for leave to appear as amicus curiae on submission and argument ofthe appeal and for leave

to file the within proposed brief.

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PRELIMINARY STATEMENT

The issue presently before the Court will directly impact the future landscape of

matrimonial litigation by specifically determining whether or not it remains the public policy to

permit the wife, the typically non-monied spouse, to participate meaningfully in a divorce action as

opposed to regressively rolling back DRL §237(a), as did the majority opinion in the Second

Department, to an era where wives were required to scavange for fees or be relegated to capitulation

in their divorce actions ..

Amicus respectfully submits that, for the reasons set forth below, an affirmance of

Frankel will work a double injustice: one on counsel who is discharged without cause and the other

on future dependent spouses who will be unable to secure experienced counsel to stay the course in

complex matrimonial actions. Frankel will re-usher in a period which public policy had best deemed

consigned to history.

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POINT I

COUNSEL FEES HAVE LONG BEEN ACKNOWLEDGED AS A FAILSAFETO FINANCIAL DISPARITY WHICH PERMITS THE NON-MONIEDSPOUSE, TYPICALLY THE WIFE, TO PARTICIP ATE MEANINGFULLYIN THE LITIGATION

Counsel fee awards are grounded in public policy which fosters the socially beneficial

philosophy that financial imbalance between spouses not be permitted to tip the scales in divorce

litigation in favor ofthe monied spouse. The essence of this notion is captured in the statutory phrase

"to enable that spouse [typically the wife]! to carry on or defend the action or proceeding" (DRL

§237(a)).

The language in DRL §237(a) "[A ]ny applications for counsel fees and expenses may

be maintained by the attorney for either spouse in his own name in the same proceeding" offers

additional avenues of empowerment to the dependent spouse by way of: (a) inducement to trial

counsel by protecting future fee claims within the context of the matrimonial action rather than via

arduous litigation in a plenary proceeding, and (b) granting counsel the right to seek payment directly

from the other spouse.

Progressive legislation and decisional authority have combined to further shield the

non-monied spouse from capitulation by taking ameliorative strides towards economic parity so as

to make experienced counsel equally accessible to both parties. In Hinden v. Hinden, 122 Misc.2d

552,472 N.Y.S.2d 248 (NYSupCt., 1983), one of the earliest forerunners on this issue, the trial

J O'Shea v. O'Shea, 689 N.Y.S.2d 8, 93 N.Y.2d 187, 711 N.E.2d 193 (1999); Charpie v.Charpie, 271 A.D.2d 169, 710 N.Y.S.2d 363 (1st Dept., 2000); DeCabrera v. Cabrera-Rosete,524N.Y.S.2d 176, 70N.Y.2d879,518N.E.2d 1168(1987)

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court emphasized the fundamental disadvantage imposed upon the dependent spouse:

In a matrimonial action where both parties are presumed to be entitled to relief ...thereshould be rough equality in the resources available to each party in the course of the

contest.

* * *

As a practical matter, then, should one spouse have substantially greater economicleverage during the litigation (and negotiation) process than the other, that fact mayhave a profound effect on the ultimate resolution both because of its psychologicalimpact on the parties and because of its effect on their ability to finance the litigation.It is particularly unfair to "nickel and dime" a wife in the period (now frequently veryprotracted) prior to trial just because her husband presently has control ofthe pursestrings. Indeed, the principal intendment of the Equitable Distribution Law was tofree spouses (particularly wives) from the tyranny of "title" ownership. Sheinkman,McKinney's Domestic Relations Law, C236B:4 ("Marital Property"). However, ifthat tyranny is allowed to continue up to the date of final judgment, the legislativepurpose will, in many instances, have been defeated. Consequently, a rougheconomic equality prior to trial should be maintained so that the negotiations of theparties are truly free of duress and overreaching and "are arrived at fairly and

equitably.

In O'Shea v. O'Shea, 689 N.Y.S.2d 8, 93 N.Y.2d 187, 711 N.E.2d 193 (1999), this

Court, too, emphasized the significance of balancing economic endurance throughout the litigation.

o 'Sheil analyzed the evolution of the statutory scheme into its present state which is fashioned to

redress the prevalent dilemma visited upon the non affluent spouse, the wife: "[T]his advanced the

objective that marital litigation is best shaped not by the power of the bankroll but by the power of

the evidence."

O'Shea further stressed the importance of continuing in the direction of DeCabrera

v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168 (1987), which held that

"flexibility and judicial discretion are essential devices in adjusting financial disparities in litigation."

This enactment [DRL §237], which has deep statutory roots, is designed to redress

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the economic disparity between the monied spouse and the non-monied spouse.Recognizing that the financial strength of matrimonial litigants is often unequal -working most typically against the wife - the Legislature invested Trial Judges withthe discretion to make the more affluent spouse pay for legal expenses ofthe needierone. The courts are to see to it that the matrimonial scales of justice are notunbalanced by the weight of the wealthier litigant's wallet.

O'Shea's analysis of the legislative history behind the amendment to DRL §237(a)

could hardly ring any more clearly regarding the underlying legislative intent to specifically authorize

.prior counsel to make a fee application in counsel's own name:

This bill provides that applications for counsel fees and expenses may be maintainedby an attorney in the same matrimonial action wherein he has rendered services andhas been subsequently discharged by his client. The purpose is to protect attorneyswhen they are discharged without cause from having their right to counsel feesrelegated to a civil court action. Hereunder the claim for counsel fees may be keptalive in the matrimonial action. The attorney is given the right to bring such actionin his own name (Sponsor's Mem., L. 1978, child. 444, 1978 Legislature. Ann., at

262).

Charpie v. Charpie, 271 A.D.2d 169,710 N.Y.S.2d 363 (1st Dept., 2000), also took

aim at the social realities of dependent wives and the imminent harm resulting from unequal

financial stations:

Recognizing the economic realities that women frequently earn less than theirhusbands ... [A]nd, recognizing that when divorcing spouses have vastly differentaccess to funds, a spouse who lacks financial resources may not be able to obtain thenecessary assistance so as to achieve a just resolution of the issues, the moniedspouse may be directed to pay counsel fees to the lawyer of the nonmonied spouse(Domestic Relations Law § 237[a]).

The unusual circumstance of having one litigant pay the other side's counsel fees,even during the course of the litigation, while unique to matrimonial litigation,reflects the recognition of the unequal economic positions of men and women in atraditional marriage arrangement. Counsel fees are awarded "to make sure thatmarital litigation is shaped not by the power of the bankroll but by the power oftheevidence" (Scheinkman, Practice Commentaries, McKinneys Cons Laws of NY,Book 14, Domestic Relations Law C237:1, at 6, citing O'Shea v O'Shea, 93 NY2d

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187).

In Frankel v. Frankel, 309 A.D.2d 65, 764 N.Y.S.2d 135 (2nd Dept., 2003), the

majority in the Second Department erred in reversing the trial court which had correctly held that,

under governing law, counsel for the wife who had been discharged without cause could bring suit

against the other spouse for fees within the context of the matrimonial action in discharged counsel's

own name pursuant to DRL §237(a).

The majority held that the absence of any ambiguity or any overriding language in

the statute required a strict reading that DRL §237(a) applies only to the current attorney of record

and not to any former counsel. The issue presently before the Court cannot be confined to a semantic

vacuum without giving weight to the profound long term devastation that an affirmance of Frankel

will have on embattled spouses in complex matrimonial actions who require but are unable to retain

experienced trial counsel.

Frankel, thus, imposes a chilling affect because dependent spouses will be unable "to

carry on or defend thtp action or proceeding" if counsel is predictably unwilling to risk losing

significant rights in the event of a discharge or withdrawal, see, Point IV, infra.

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POINT II

FRANKEL IS CONTRARY TO: CODIFIED PRINCIPLES OF STATUTORYCONSTRUCTION THAT THE LEGISLATIVE INTENT BEEFFECTUATED, FIRST AND FOREMOST, AND TO THE PRECEDENTAUTHORITY OF O'SHEA AND DECABRERA WHICH HELD THAT THEELIMINATION OF THE wORDS "DURING THE PENDENCY OF THEACTION" BROADENED THE SCOPE OF THE STATUTE WITH THELEGISLATIVE INTENT

Decisional authority and the doctrine of statutory construction emphatically and

repeatedly exhort our courts to apply legislative intent as the primary purpose in statutory

construction. Unlike the dissent, the majority ignored codified principles of statutory construction

as well as decisional precedent by applying a narrow literalism to DRL §237(a) that entirely excised

the legislative intent therefrom.

New York Statutes §§96, 92, 112, and 191:The Primary Goal of the Courts is to Ascertain and give Effect to the Intention of the Legislature

Implementation of the legislative intent is the sine qua non recurring theme

throughout the scheme of statutory construction. 0 'Shea's declaration that "[D]omestic Relations

Law §237(a) marks our present place in a long legislative and decisional law journey that carries us

to our result" resonates a key principle of statutory construction which directs that "[I]n all cases the

legislative intent is to be effectuated; not frustrated" Comment, NY Statutes §96. The underlying

and inescapable commonality between the many different statutes on this issue is that courts are

discouraged from exalting a mechanical application ofliteralism over matters of public policy:

(a) § 92. Legislative intent as primary consideration: The primary consideration ofthe courts in the construction of statutes is to ascertain and give effect to the intentionof the Legislature.

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The Comment to §92 could not possibly be any more vigorous with respect to "_th_e

duty of courts" in the application of this rule as a fundamental principle of statutory construction:

...in the construction of statutes the basic rule of procedure and theprimary consideration of the courts is to ascertain and give effect tothe intention of the Legislature. Hence the legislative intent is said tobe the "fundamental rule." "the great principle which is to control.""the cardinal rule" and "the grand central light in which all statutesmust be read."

The intent of the Legislature is controlling and must be given forceand effect. regardless of the circumstance that inconvenience,hardship. or iniustice may result. Indeed the Legislature's intent mustbe ascertained and effectuated whatever may be the opinion of theiudiciary as to the wisdom. expediency. or policy of the statute. andwhatever excesses or omissions may be found in the statute.

(b) NY Statutes §191: the intention of the Legislature, which is the primaryconsideration in the construction of amendments, is determined from the languageof the statute or from extrinsic aid.

(c) NY Statutes §112, Departure from Literal Construction, instructs:The construction of various particular statutes illustrate the principle that literallanguage of an enactment is not always controlling and that the courts may departfrom a literal construction in order to carry out the legislative intention.

(d) NY Statutes §96 provides: A basic consideration in the interpretation of astatute is the general spirit and purpose underlying its enactment, and thatconstruction is to be preferred which furthers the object, spirit and purpose of thestatute. The Comment to NY Statutes §96 articulates a clear direction to avoid literalreadings where the ultimate intent of the Legislature will be lost:

...a court in construing a law will sometimes be guided more by itspurpose than its phraseology. Language of a statute is not to beaccepted in all of its sheer literalness without regard to the objectwhich the statute was designed to accomplish; and a statute is not tobe read with a literalness that kills meaning, intention, purpose, orbeneficial end for which the statute has been designed.

(e) The Comment to NY Statutes §96 reads:Statutes always have some purpose or object to accomplish, whose sympathetic andimaginative discovery is the surest guide to their meaning, and a basic and necessaryconsideration in the interpretation of a statute is the general spirit and purposeunderlying its enactment. Thus it is frequently held that the words of a statute are

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construed with reference to its subiect-matter and the obiect sought to be obtained;and that construction is to be preferred which furthers the obiect spirit and purposeof the statute.

(f) Comment, NY Statutes §91: The object ofthese is not to lay down inflexibleprinciples which are obligatory on the courts when it is possible to apply them, butto render assistance in determining the legislative intent, which is the primaryconsideration in the construction of all statutes.

New York Statutes §§230, 112,96, 76, 111, 191, and 194:Caution Against Implementing the Literal Word over the Legislative Intent

The Legislature's promotion ofthe intent and the spirit ofthe law over the literalism

of the word, irrespective of how _unambiguous that word may be, is continually heralded in both

statute and case law.

NY Statutes §76 warns against frustrating legislative intent. The Comment to this

statute, also, admonishes that the lack of ambiguity is not the dispositive factor in statutory

construction because "it is clear intent, not clear language, which precludes further investigation as

to the interpretation of a statute."

NY Statutes §§230 and 112 further caution against enslavement to the word and

impress the importance of allowing the Legislative intent to breath life into the very words

themselves.

The Comment to §2302 echoes the message that "[T]he literal meanings of words are

not to be adhered to or suffered to defeat the general purpose and manifest policy intended to be

2 Also, see, NY Statutes §111, "Departure from Literal Construction."

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promoted,,3 and like New York Statutes§ 191, supra, it further admonishes against blindly wielding

the sword ofliteralism at the expense ofthe legislative purpose especially where the objective is to

correct a wrong:

In considering the necessity of literal construction of a statute or the propriety of adeparture therefrom, it must be kept in mind that the intent of the Legislature is theprimary object sought in the interpretation of statutes: and that whenever suchintention is apparent it must be followed in construing the statute. While suchintention is first to be sought from a literal reading of the act itself, and the words andlanguage used, giving such language its natural and obvious meaning, it is generallythe rule that the literal meaning of the words used must yield when necessary to giveeffect to the intention of the Legislature. In the interpretation of statutes, the spiritand purpose of the act and the objects to be accomplished must be considered andgiven effect, and the literal meanings of words are not to be adhered to or sufferedto defeat the general purpose and manifest policy intended to be promoted. The letterof a statute is not to be slavishly followed when it leads away from the true intent andpurpose of the Legislature or leads to conclusions inconsistent with the generalpurpose of the statute or to consequences irreconcilable with its spirit and reason; andstatutes are not to be read with literalness that destroys meaning, intention, purposeor beneficial end for which the statute has been designed.

Still again, in the Comment to NY Statutes §94, we are warned not to succumb to

literalism but to look beyond the unintended consequences which may result by applying the letter

rather than the soul:

In some circumstances, however, the literal meaning of a statute may be avoided toeffectuate the legislative intent. A strict literal construction is not always to beadhered to, and the literal wording of a statute may be required to give way to theexpressed object of the lawgivers. So it has been held that language of a statute maybe freely dealt with, since the words of the statute ought to be made subservient tothe intent and not contrary to it. In keeping with the mandate to carry out thelegislative intent, courts may interpolate or transpose words; enlarge or restrain theirmeaning; required; or disregard them entirely where their presence or absence isobviously a mistake ...Even grammatical construction and punctuation as it appearsin the statute must yield to give effect to the intent of the Legislature.

3 See, Albano v. Kirby, 36 N.Y.2d 526,330 N.E.2d 615, 369 N.Y.S.2d 655 (1975);Hogan v. Culkin, 18 N.Y.2d 330, 221 N.E.2d 546,274 N.Y.S.2d 881 (1966)

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The Comment to §98 directs that "[A] statute must receIve such reasonable

construction as will, if possible, render all its parts consistent with its scope and purpose.,,4

Thus, generally a particular provision of an act is not to receive a special meaning atvariance with the general purpose and spirit of the act. Inconsistency in the samestatute is thought to be contrary to the intent of the lawmakers, and hence it is to beavoided. Grammatical construction may be changed when the meaning is plain, andit is necessary to make the change to harmonize the provisions of the act.

The clarity of the aforementioned statutory goals are cogently reenforced in both the

Bill's accompanying Memorandum and in the history of counsel fees as set forth in O'Shea.

Frankel, however, erroneously reached its regressive ruling based exclusively on a strict black letter

reading in derogation of the many directives that the legislative intent be given priority.

New York Statutes §§124 and 72:Statutory Interpretation Requires an Exploration of the Social Climate

During the Time of a Law's Enactment as well as Its Evolution across History

O'Shea's pronouncement that" [D]omestic Relations Law § 237 (a) marks our present

place in a long legislative and decisional law journey that carries us to our result" is also particularly

relevant against the backdrop of NY Statutes §124, captioned "Extrinsic Aids to Interpretation", and

§72, which point to the significance of exploring the social climate during the time of a law's

4The legislative intent for such a construction is set forth in the Comment to §98 whichmandates that conclusions similar to those resulting from the interpretation received by theAppellate Division:

A statute must receive such reasonable construction as will, if possible, render allits parts consistent with its scope and purpose. Thus, generally a particularprovision of an act is not to receive a special meaning at variance with the generalpurpose and spirit of the act. Inconsistency in the same statute is thought to becontrary to the intent of the lawmakers, and hence it is to be avoided.Grammatical construction may be changed when the meaning is plain, and it isnecessary to make the change to harmonize the provisions of the act.

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The Comment to §98 directs that "[A] statute must receIve such reasonable

construction as will, if possible, render all its parts consistent with its scope and purpose.,,4

Thus, generally a particular provision of an act is not to receive a special meaning atvariance with the general purpose and spirit of the act. Inconsistency in the samestatute is thought to be contrary to the intent of the lawmakers, and hence it is to beavoided. Grammatical construction may be changed when the meaning is plain, andit is necessary to make the change to harmonize the provisions of the act.

The clarity ofthe aforementioned statutory goals are cogently reenforced in both the

Bill's accompanying Memorandum and in the history of counsel fees as set forth in O'Shea.

Frankel, however, erroneously reached its regressive ruling based exclusively on a strict black letter

reading in derogation of the many directives that the legislative intent be given priority.

New York Statutes §§124 and 72:Statutory Interpretation Requires an Exploration of the Social Climate

Durin€! the Time of a Law's Enactment as well as Its Evolution across History

O'Shea's pronouncement that "[D ]omestic Relations Law § 237 (a) marks our present

place in a long legislative and decisional law journey that carries us to our result" is also particularly

relevant against the backdrop of NY Statutes §124, captioned "Extrinsic Aids to Interpretation", and

§72, which point to the significance of exploring the social climate during the time of a law's

4The legislative intent for such a construction is set forth in the Comment to §98 whichmandates that conclusions similar to those resulting from the interpretation received by theAppellate Division:

A statute must receive such reasonable construction as will, if possible, render allits parts consistent with its scope and purpose. Thus, generally a particularprovision of an act is not to receive a special meaning at variance with the generalpurpose and spirit of the act. lnconsistency in the same statute is thought to becontrary to the intent of the lawmakers, and hence it is to be avoided.Grammatical construction may be changed when the meaning is plain, and it isnecessary to make the change to harnl0nize the provisions of the act.

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enactment as well as its legislative history.5

The statutory scheme emphasizes the importance of effectuating the contemplated

reform by considering "[T]he peculiar circumstances which surround particular persons or things and

moved the lawmaking body to legislate regarding them may be considered in ascertaining whether

ample grounds existed for discrimination between them by statute" (NY Statutes §96). The purpose

behind counsel fee awards is so well chronicled that there is absolutely no room for doubt regarding

the Legislature's obiective or intent.

O'Shea Represented a Dramatic Departure from Traditional Interpretations ofDRL §237(a)

O'Shea dramatically expanded DRL §237(a)to include the correctness of counsel fee

awards for services rendered before an action has even been formally commenced as well as for

those rendered in connection with a counsel fee hearing. 0 'Shea tracked the history and progressive

thinking behind counsel fee awards across one and a half centuries as reflected in the various

legislative amendments6 and judicial pronouncements, each slated to bridge another schism between

5Indeed, the purpose and applicability of a statute cannot be considered without firstdiscussing its legislative history, and it has been held that legislative history is not to be ignored,even if words be clear...the courts will look at the contemporary history of a statute and thehistorical background thereof as an aid to interpretation; and these aids will show thecircumstances under which the statute was passed, its object and the mischief at which it wasaimed. The conditions under which act was adopted and evil intended thereby to be curedmaterially explain the purpose of the Legislature.

6 Comment. New York Statutes §191: Amendatory acts alter the text of a proposed bill oran existing enactment. Their purpose is usually to make an old statute express and conform to amore recent legislative intention, or to rectifY an error.

Ascertainment and effectuation of the intention of the Legislature is the primaryobiect in the construction of statutorY amendments, and the policy of the

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the needy spouse's inaccessibility to funds and the ability to mount a successful prosecution of her

case.? Notably, the Court observed that each successive statute further expanded judicial discretion

as part of a vigorous campaign to shore up the rights of the less affluent spouse. Significantly, the

legislation should be determined from the language of the amendment, ifunambiguous, or from extrinsic aids, if there is uncertainty as to its meaning. _It_ispresumed that an amendment was made to effect some purpose. and to make somechange in the existing law.

In considering the meaning and effect of the amendatory act, it is desirable to havein mind the previous condition of the law on the subject, and the history andpurposes of the statutes which are amended. The Legislature will be assumed tohave known of existing statutes and judicial decisions in enacting amendatorylegislation. In arriving at the legislative intent, the language of an amendment maybe construed in the light of previous decisions construing the original act, it beingpresumed that the Legislature had such judicial construction in mind whenadopting the amendment.

? This is in keeping with the Comment to NY Statutes §191 which stresses that "[I]nconsidering the meaning and effect of the amendatory act, it is desirable to have in mind theprevious condition of the law on the subject, and the history and purposes of the statutes whichare amended."

Also, see, (a): NY Statutes §95.Consideration of the mischief to be remedied: The courts in construing a statuteshould consider the mischief sought to be remedied by the new legislation, and theyshould construe the act in question so as to suppress the evil and advance the remedy.

COMMENTIn construing statutes the cause and necessity of a law are always of value; and inpassing upon matters of legislative intent and competence, the courts do not merelyread the bare and product of the legislative labors, but rather they read the statute inlight of the state of facts which were found by the Legislature and which promptedthe enactment.

Thus courts should look at the old law, and the mischief sought to be remedied by thenew legislation, and they should construe the act in question so as to suppress the eviland advance the remedy.

(b): Comment, New York Statutes §234The cause for the passage of the act, and the evil to be remedied, are highly

important in the construction of statutes, and may give a word a different meaningfrom that which its etymological definition would entail.

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dissenters in Frankel pointed to Katzman v. Katzman, 284 A.D.2d 160, 725 N. Y .S.2d

2001), where the First Department, relying on O'Shea, affirmed a counsel fee award 10 tht'

attorneys in a subsequent action for legal services performed in a prior dismissed action \\'hkh

award is fully consistent with the spirit and the letter of 0 'Shea because this Court did not curU\H

its ruling to the context in which the services were performed, to wit, negotiations or litigation.

Notwithstanding Frankel's conclusion that "[A]bsent a clearer expression in the

statute itself, we should not pave the way for what will be the certain result of the construction the

discharged attorneys seek here", the fact remains that "the clearer expression" is, in fact,

prominently displayed within 0 'Shea and DeCabrera wherein the removal ofthe words "during the

pendency of the action" from the statute was held to mandate an expansive reading of the statute

rather a constricted one.

Under former Civil Practice Act § 1169 the court was authorized to award counselfees "during the pendency" of the action. This clause does not appear in DomesticRelations Law §237. The deletion is critical and supports our conclusion that a courtin its discretion may award counsel fees for services and expenses performed orincurred before the action began. The statute allows the court to do so at any timeafter the start of the action up through the entry of final judgment. Our interpretationis based on the Legislature's obvious and purposeful omission of the phrase "duringthe pendency," in support of its goal of expanding judicial discretion in allocatinglegal expenses.8

Furthermore, and very significantly, long before 0 'Shea, this Court, in DeCabrera

v. Cabrera-Rosete, 524 N.Y.S.2d 176,70 N.Y.2d 879, 518 N.E.2d 1168 (1987), underscored the

implications arising from the deletion of the word "necessary" from DRL §237(a):

8 This is consistent with the principles of statutory construction as set forth in NY Statutes§194, Amendments in form of reenactments, which states "Generally, where an amendatorystatute purports to set out all of the matter in the original act any matter omitted is considered asrepealed."

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[DRL] §237 replaced §1169 of the Civil Practice Act, and - significantly - omittedthe word "necessary" which had preceded the phrase "to enable the wife to carry onor defend the action." This omission left the courts with flexibility when consideringapplications for counsel fees.

Frankel's insular reading of DRL §237(a) gave no deference to its continuing

legislative and decisional evolution regarding its predicate foundation, to wit, the empowerment of

the non-affluent spouse to equally compete in the judicial arena. The majority opinion resorted to

a regressive posture which stunts the salutary objective of the legislation.9 As discussed in detail

below, Frankel stands alone against governing law in its net affect that a dismissal of counsel

without cause illogically further distances counsel from the right to seek long awaited payment, an

implausible and unjustifiable conclusion which is evidenced from 0 'Shea's explication of current

law as the product of the "unswerving direction" of the law across the past 150 years.

This Court's blueprint of §237(a)'s evolutionary process was clearly not undertaken

without purpose but rather to emphasize the material implications of the various amendmentslO

which repose greater discretion in the courts. Frankel sets this issue back about one century.

9 See, NY Statutes 124, Comment; fn 5, supra

10 The significance of this effort in O'Shea is bolstered by §§193(a) and (b) and 222 of

NY Statutes:(a) Legislature, by enacting an amendment of a statute changing the languagethereof, is deemed to have intended a material change in the law.

(b) Effect of surrounding circumstances:The effect of subsequent legislation on prior legislation depends to some extent onthe surrounding circumstances, including controversies which may have arisenwith respect to the interpretation of the original act, and judicial decisions.

(0 'Shea does not directly refer to the Comment in NY Statutes §222.)Comment to §222: It is a general rule of statutory construction that earlier statutesare properly considered as illuminating the intent ofthe Legislature in passinglater acts, especially where there is doubts as to how the later act should beconstrued, since when enacting a statute the Legislature is presumed to act withdeliberation and with knowledge of the existing statutes on the same subject.

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POINT III

DECISIONAL AUTHORITY, LIKE ITS STATUTORY COUNTERPART,HAS STEADFASTLY HELD THAT AN ABSENCE OF AMBIGUITY IN ASTATUTE DOES NOT MANDATE A SUBSTITUTION FOR REASONEDINTERPRETATION: EFFECTUATING THE LEGISLATIVE INTENT ISTHE PREEMINENT RESPONSIBILITY

Frankel's extraction of legislative intent from nothing beyond a superficial

examination for the presence of ambiguity goes contrary to this Court's pronouncements as well.

This Court has warned that the absence of ambiguity does not limit further inquiry into the intent of

a statute. Fumarelli v. Marsam Development, Income., 92 N.Y.2d 298, 703 N.E.2d 251, 680

N.Y.S.2d 440 (1998), referred to effectuating the legislative purpose as a court's "preeminent

responsibility":

To answer the question, therefore ...the Court must now look beyond the language ofthe statute. Our preeminent responsibility in that endeavor is to search for andeffectuate the Legislature's purpose.

InPetersonv. Daystrom Corp. 17N.Y.2d 32, 215N.E.2d 329, 268N.Y.S.2d 1 (1966)

an oft ,cited decision, this Court squarely confronted the issue present herein:

A mechanical reading of these words would seem to support the board's view andrequire an affirmance. But we are not bound to accord a literal interpretation to thislanguage if to do so would lead to an egregiously unjust or unreasonable result. (See,e.g., Eck v. United Arab Airlines, 15 N Y 2d 53, 62; Matter of New York Post Corp.v. Leibowitz, 2 NY 2d 677, 685; see, also, Cabell v. Markham, 148 F. 2d 737, 739,

affd. 326 U. S. 404.)

New York State Bankers Ass'n v. Albright, 38 N.Y.2d 430, 343 N.E.2d 735, 381

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N.Y.S.2d 17 (1975Y\ emphasized that "literalism is no substitution for reasoned interpretation as

regards statutory construction" irrespective of the absence of any ambiguity within the statute:

While the statutes may appear literally 'unambiguous' on their face, the absence ofambiguity facially is never conclusive. Sound principles of statutory interpretationgenerally require examination of a statute's legislative history and context todetermine its meaning and scope.

* * *The words men use are never absolutely certain in meaning; the limitations of finiteman and the even greater limitations of his language see to that. Inquiry into themeaning of statutes is never foreclosed at the threshold; what happens is that oftenthe inquiry into intention results in the conclusion that either there is no ambiguityin the statute or that for policy or other reasons the prior history will be rejected infavor of the purportedly explicit statement ofthe statute ...Frequently. however. evenwhen the plain meaning did not produce absurd results but merely an unreasonableone 'plainly at variance with the policy of the legislation as a whole' this Court hasfollowed that purpose. rather than the literal words. When aid to construction of themeaning of words, as used in the statute, is available, there certainly can be no 'ruleof law' which forbids its use, however clear the words may appear on 'superficialexamination. '

Price v. Price, 69 N.Y.2d 8,503 N.E.2d 684, 511 N.Y.S.2d 219 (1986), observed

that the directive that the first step is to learn the meaning from within the context of the statute

itself, however, the inquiry can, by no means. stop there:

In construing Domestic Relations Law § 236 (B) (1) (d) (3) anddetermining whether the Legislature intended that efforts of thenontitled spouse as homemaker and parent should be included, wemust, of course, look to the particular words for their meaning, bothas they are used in the section and in their context as part ofthe entirestatute. But we must also look beyond the statutory language andconsider the history leading to the adoption of the EquitableDistribution Law and the legislative purpose and policy

11 See, Rankin on Behalf ofBd. of Ed. of City of New York v. Shanker, 23 N.Y.2d 111,242 N.E.2d 802, 295 N.Y.S.2d 625 (1968); Albano v. Kirby, 36 N.Y.2d 526, 330 N.E.2d 615,369 N.Y.S.2d 655 (1975); Hogan v. Culkin, 18 N.Y.2d 330,221 N.E.2d 546,274 N.Y.S.2d 88]

(1966)

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considerations underlying this radical change in the DomesticRelations Law (L 1980, child 281, § 9) (see, Ferres v City of NewRochelle, 68 NY2d 446, 451; New York State Bankers Assn. vAlbright, 38 NY2d 430, 434, 436, 437; McKinney's Cons Laws ofNY, Book 1, Statutes § § 91, 92, 96, 124). For it is fundamental thatin "the interpretation of statutes, the spirit and purpose of the act andthe objects to be accomplished must be considered. The legislativeintent is the great and controlling principle" (People v Ryan, 274 NY149, 152; see, Matter of Petterson v Daystrom Corp., 17 NY2d 32,38).

* * *

With this background we turn to an analysis of the words of thestatute, being guided by the accepted rules of construction that: (1)statutory language is generally given its natural and most obviousmeaning (McKinney's Cons Laws of NY, Book 1, Statutes § 94; see,Association of Contr. Plumbers v Contracting Plumbers Assn., 302NY 495,500); and (2) ifthere is nothing to indicate a contrary intent,terms of general import will ordinarily be given their full significancewithout limitation (McKinney's Cons Laws of NY, Book 1, Statutes§ 114; Matter of Board of St. Opening, 133 NY 329, 333-334).

Sutka v. Conners, 73 N.Y.2d 395, 538 N.E.2d 1012,541 N.Y.S.2d 191 (1989), spoke

oflegislative intent as "the great controlling principle":12

In matters of statutory interpretation generally, and particularly here, legislative intentis "the great and controlling principle." Legislative intent may be discerned from theface of a statute, but an apparent lack of ambiguity is rarely, if ever, conclusive.Generally, inquiry must be made of the spirit and purpose of the legislation, whichrequires examination of the statutory context of the provision as well as its legislativehistory .

Rankin on Behalf of Bd. of Ed. of City of New York v. Shanker, 23 N.Y.2d 111,242

N.E.2d 802,295 N.Y.S.2d 625 (1968), cast a light on the importance of effectuating the legislative

12See, Scotto v. Dinkins, 85 N.Y.2d 209, 647 N.E.2d 1317, 623 N.Y.S.2d 809 (1995)

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goal:

Our discussion of the statutory question may well begin by noting that a primarycommand to the judiciary in the interpretation of statutes is to ascertain and effectuatethe purpose of the Legislature. In finding such purpose, one should look to the entirestatute, its legislative history and the statutes of which it is made a part.

The Legislative Intent behind DRL Q237(a) as Introduced to the Bar

Not only do the Sponsor's Bill to the Memorandum and cases such as O'Shea and

Decabrera provide insight as to the legislative thinking behind DRL §237(a) but Frankel overlooked

another key resource: how was this statute's objective first introduced to the bar. Otherwise stated,

what was the bar's understanding from the Legislature as to what this statute would do if enacted?

_ what situation would it improve or correct? This critical sampling of key infonnation is

reproduced in the Appellant's brief wherein reference is made to the supporting comment by the

Family Law Section of the New York State Bar Association. Appellant states:

Also contained within the Assembly bill jacket in support ofthe legislation is a letterdated May 23, 1978, from Lester Wallman, Esq., then Chainnan of the Committeeon Legislation of the Family Law Section. In pertinent part, Mr. Wallman wrote asfollows:

The captioned Act, which has been passed by both the Senate and theAssembly and is presently before the Governor for signature, providesthat applications for counsel fees and expenses may be maintained byan attorney in the same matrimonial action wherein he has renderedservices and has been discharged without cause by his client.

This Act would serve to retain such attorney's claim for fees in thesame matrimonial action and thereby avoid having the claimremanded to another court and another judge for a decision. Inessence, this Act would save the courts much time and muchmanpower.

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POINT IV

STATUTES ARE PRESUMED NOT TO WORK HARDSHIPS NORINJUSTICE, NOR ARE THEY CREATED IN A VACUUM TO LEAVEPARTIES WITHOUT A REMEDY; DECISIONAL AUTHORITY AND THELEGISLATURE HAVE BEEN CONSISTENT IN THEIR EFFORTS TOPREVENT UNJUST RESULTS TO COUNSEL AND CLIENTS; IFPERMITTED TO STAND, FRANKEL WILL HARM COUNSEL ANDLITIGANTS

There is a statutory presumption that "[A] statute should be construed in a manner

which will not work hardship or injustice" NY Statutes §146. The Comment expounds:l3

Prominent among the objectionable consequences sought to be avoided in theconstruction of statutes are hardship and injustice, and courts will take intoconsideration the fact that one construction will lead to hardships which anotherwould avoid. It will be presumed that the Legislature did not intend that a statutewould have an unjust effect, and, unless the language forbids, it must be given aninterpretation and application consistent with such presumption. The Legislature isnot lightly to be charged with enacting a statute which will operate harshly orunjustly; and, if a statute apparently has such effect, some other construction is to besought if possible.

Where there is any doubt about the proper interpretation of a statute, it should receivethat construction which would not work hardship or iniustice. The courts shouldstrive to avoid a construction which would make a statute uniust, or create a hardship.Thus if a fair construction can be found which gives force to the whole act and to thelegislative intent, and does not work an iniustice, it must necessarily be adopted.

An interpretation of an act should be avoided which would injuriously affect therights of others, and that sense should be attached to its provisions which willharmonize its objects with the preservation and enjoyment of all existing rights ....

Where a particular application of a statute in accordance with its literal sense willproduce iniustice, another and more reasonable interpretation should be sought.Accordingly, the courts will disregard the letter of the law and follow its spirit whenthe letter causes hardship or iniustice.

13 See, Comment to Statutes §230: Especially is a literal construction to be avoided whenit results in objectionable consequences, hardship, or injustice. The court is not bound to accord aliteral interpretation to language of a statute if to do so would lead to an egregiously unjust orunreasonable result.

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New York Statutes §§144 and 230The Legislature is Presumed not to Intend to Enact Laws which Leave a Party without a Remedy

Similarly, the Legislature is presumed not to have intended to enact laws that leave

a party without a remedy.14 Frankel's application ofDRL §237(a) simultaneously strips counsel of

a legislatively intended and protected right to an expeditious hearing and the dependent spouse's

ability to secure counsel throughout the litigation thereby clearly emasculating the purpose of the

statute which is, clearly, impermissible under New York Statutes §§144 and 146.

It is no secret that the matrimonial bar, like no other, 15faithfully carries the financially

weak spouse for periods up to several yearsJ6 without a definite payment date in sight relying

principally on little more than the client's own desperate assurance of integrity which, until Frankel,

was further secured by statutory failsafes allowing counsel to bring suit against the other spouse

along with the concomitant entitlement to an expeditious resolution once the client no longer recalls

the promiseY DRL §237(a) and Judiciary Law §475 - which must be read together, see, below,

14 "[T]he Legislature does not contemplate the leaving of a party without a remedy, and aconstruction of a statute which would have such an effect is to be avoided. That statutes shouldbe interpreted "work ably" (Comment to NY Statutes §144, Avoidance of ObjectionableConsequences). "[A] construction of a statute which tends to sacrifice or prejudice the publicinterests" is not permitted because it is "presumed" that the "use of every effort on the part of theLegislature to enact laws will promote the public interests and the intention will not be imputedto the Legislature of enacting a law which will be injurious to the welfare of the state, or hamperthe officials of the state in the proper discharge of their duties."

15Unlike, for instance, the personal injury bar where payment is a virtual certainty uponreceipt of funds from the carrier.

16 In the matter herein, the Appellant shouldered the wife for over three years including 33days of a custody trial which any practitioner knows to be a grueling experience.

17 This revivifies the popular maxim that no good deed goes unpunished.

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Statutes In Pari Materia - were codified as protection against unprincipled clients who try to defeat

their obligations to their attorneys ..

The harsh reality is that law office economics involves substantial overhead which

is not as compassionate to a client's plight. Frankel is particularly onerous on solo practitioners or

other small firms who require a regular infusion of funds to stay afloat. Complicating collection

procedures not only unjustifiably punishes discharged counsel (without cause) as his undue reward

but will also work hardships on future litigants due to the predictable hesitancy by counsel

everywhere to engage complex matters involving indefinitely deferred payment and arduous and

uncertain collection There is hardly any doubt that if any attorney knew in advance of engagement

that: (a) an eventual judicially approved agreement to an expeditious resolution of fees would be of

no value, and (b) an ill willed procedural fine point resting exclusively within the hands of the

unscrupulous client and his or her former spouse who are seeking to evade paying the outstanding

balance will penalize counsel for having placed his or her trust in the Court's representation that

jurisdiction would be preserved, untold havoc would occur because no sensible attorney would agree

to such a condition of retention - hardly what the Legislature contemplated in its enactment ofDRL

§237(a) and its amendments.

There is a bit of practical wisdom which instructs that word travels fast among

litigants who quickly learn what they can get away with. Frankel has revived the old game show

"Beat the Clock." Frankel, in its present state, arms a deceitful litigant with an additional tool with

which to willfully defraud his or her outgoing counsel via a series ofrepeated steps: (a) continually

retain fresh counsel , (b) promise payment from the proceeds of the case, as assured to the discharged

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Appellant herein, (c) even agree on the record to preserve counsel's rights to a speedy fee

determination within the action, (d) mount a later challenge against that stipulation on a procedural

technicality, as did the parties in Sadofsky, supra, and Haser v. Haser, infra, and (e) then defeat that

assurance via a procedural ace-up-the-sleeve by dismissing each attorney by only an instant ahead

of counsel's application to have the fee determination heard within the action thereby effectively

destroying their statutory rights to have the matter heard within the action.

Frankel applied iust this type of approach by holding that the "attorney for either

spouse" means the current attorney of record for that party, notwithstanding the clear language of

DRL 237(a) which makes no such reservation:ls The open-court reservation was held to have been

of no avail, because by that time, the wife's attorneys had already been discharged, and it was, by

then, too late to preserve anything.

Frankel, in its present form, requires counsel to jump through costly wasteful hoops

while waiting for several years before the completion of the plenary proceeding against either his

client; the other spouse (if seeking relief under Judiciary Law §475 - see, Haser v. Haser, infra), or

both, at which time the client may be judgment proof.

Appellant herein relied not only his client's assurance of payment upon the

IS DRL §237(a) provides, in pertinent part: ... the court may directeither spouse ... to pay such sum or sums of money directlv to theattornev of the other svouse to enable that spouse to carry on ordefend the action or proceeding as, in the court's discretion, justicerequires ... Anv avvlications for counsel fees and exvenses mav bemaintained bv the attornev for either svouse in his own name in thesame proceeding. (Emphasis supplied.)

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tennination of the case but also upon the statutory and decisional failsafes that were confinned by

the court. After a successful representation by the Appellant, his client duplicitously discharges him

and the Appellate Division rewards her by further pulling the rug from under him - even a mechanic

possesses a stronger lien.

As noted by the Appellant, "the majority's OpInIOn would leave an attorney

discharged without cause with a claim only against her or his fonner client, effectively writing out

of the statute the provision allowing an award to the "attorney of the other spouse." In essence,

Frankel triggers a legal avalanche of consequences which the Legislature and our courts have made

every effort to avoid.

Furthermore, despite the statutory directive that counsel fee awards be made

periodically during the pendency of the action, such is, in fact, not what occurs in the real world

where the issue is routinely deflected to the trial court thereby spelling inordinate periods of time

where wife's counsel remains uncompensated while the financially well heeled spouse continues to

oil his or her engine with regular payments. The final result is that it is counsel who is denuded of

his statutory rights under §237(a).

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POlNT V

IT IS SETTLED LA\V THAT A TIMELY FEE APPLlCATION lS KEY TOTHE PRESERV ATlON OF AN OUTGOING ATTORNEY'S RlGHTS TO AHEARlNG \VITHIN THE CONTEXT OF THE ACTION; ALTHOUGHTIlVIELY ASSERTED FRANKEL RESULTED IN A FORFElTURE OF THERIGHT

It is settled law that a post-judgment award of counsel fees for services rendered prior

to the judgment is not permitted where fees were not previously requested. The cases are legion in

support of the proposition that once an application for counsel fees has been made prior to the entry

of judgment in that action counsel is entitled to enforce the fees within the context of that action

rather than via plenary proceeding.19 A sampling of authority follows.

Sadofskv v. Sadofskv

A quick review of the facts readily reveals the matter herein well conforms to

Sadofsky v. Sadofsky, 431 N.Y.S.2d 594, 78 A.D.2d 520 (2nd Dept., 1980), and other precedent

authority whose decisions pivot around the timeliness of outgoing counsel's application for fees.

19 Pratt v. Pratt, 282 A.D.2d 941,723 N.Y.S.2d 734 (3rd Dept., 2001), jurisdiction will beconferred if the application was made during the pendency of the action and prior to the entry ofjudgment.; Buono v. Fantacone, 676 N.Y.S.2d 343, 252 A.D.2d 917 (3rd Dept., 1998), the lowercourt had retained jurisdiction over outgoing counsel's application for counsel fees because theapplication was made prior to the final judgment and the court had specifically granted leave toreapply at the conclusion of the proceedings.; Shapiro v. Shapiro, 579 N.Y.S.2d 22, 179 A.D.2d525 (151Dept., 1992), although a trial court ordinarily lacks the authority to make post judgmentaward of fees for services rendered prior to the entry of a divorce judgment, the result is differentwhere the issue of legal fees had been raised and preserved before judgment was entered andspecifically deferred by the court until trial.; Gleckman v. Kaplan, 626 N.Y.S.2d 549, 215 A.D.2d527 (2nd Dept., 1995), the court did not err in directing the plaintiff to pay the defendant's formercounsel outstanding attorney's fees because the court had reserved decision on the issue beforedismissing the complaint.

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In Sadofsky, the seminal decision on this issue, the parties reconciled after a four day

trial and placed a stipulation on the record. Immediately thereafter, just as herein, the wife's attorney

asked the trial court to fix his fees. Neither the husband's lawyer nor either of the parties objected;

the court "reserved decision." The husband and wife both discharged their attorneys and together

retained a new lawyer to oppose counsel's application on the ground that the court had no

jurisdiction over fees, that a plenary suit was required.

The Appellate Division affirmed the trial court's ruling that under the circumstances

it had jurisdiction to properly entertain the application despite the fact that DRL §237(a) states that

such awards are "to enable the wife to carry on or defend the action." As posited by the trial court,

that statute "is silent with respect to awarding counsel fees where the action has been withdrawn *

* * To say that because the plaintiffs attorneys made the application moments after the parties

reconciled and indicated to the Court their desire to withdraw their respective actions, counsel fees

may not be granted, would be bowing to semantics." This Court, along with others, has cautioned

against adherence to hollow formality where such would produce an untenable conclusion.20

Sadofsky found support in the then recent amendment to DRL §237(a) which

provided that "(a)ny applications for counsel fees and expenses may be maintained by the attorney

for the wife in his own name in the same proceeding"21, and an earlier order of Special Term had

20New York Life Ins. Co. v. Aitkin, 125 N.Y. 660, 26 N.E. 732 (1891); Salvano v.Merrill Lynch, Pierce, Fenner & Smith, Inc., 85 N.Y.2d 173,647 N.E.2d 1298,623 N.Y.S.2d790 (1995); Rubenfeld v. Rubenfeld, 279 A.D.2d 153, 720 N.Y.S.2d 29 (1 sl Dept., 2001)

21L. 1978, ch. 444, eff. June 19, 1978.

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thereby reserved the issue of counsel fees for the trial.

Bartow v. BartowBartow v. Bartow, 212 A.D.2d 564, 622 N.YS.2d 562 (2ndDept., 1995), during the

parties' divorce proceeding, counsel moved (1) to be relieved as defendant's counsel for health

reasons, and (2) for a hearing to fix the fees for legal services rendered. The court granted the branch

of the motion to relieve the appellant as the defendant's counsel and directed him to turn over the file

to the defendant, but deferred a determination ofthe amount of counsel fees owed to the time of trial.

The plaintiffs attorney was ordered to inform the appellant of any settlement or trial date.

Neither the plaintiffs attorney nor the defendant informed the appellant when the

matter was settled. After the divorce judgment was entered, the appellant learned of the settlement

and moved for a hearing to fix his legal fees. The Appellate Division held that the application for

the hearing at the earliest possible time, which, in this case, was after judgment was entered.

Zielinski v. ZielinskiZielinski v. Zielinski, 676 N. YS.2d 252,252 A.D.2d 800 (3rdDept., 1998), held that

the court clearly reserved judgment on the issue of counsel fees prior to entry of the judgment

without objection from defendant; thus, a post-judgment determination of this issue was not

improper. As in Sadofsky and Zielinski, there was no objection from opposing counsel in Frankel.22

22 The majority further eroded settled law that parties to a lawsuit are free to chart theirown procedural course at the trial and may fashion the basis upon which a particular controversywill be resolved (Stevenson v. News Syndicate Co., 302 N.Y. 81,96 N.E.2d 187 (1950); Cullenv. Naples, 31 N.Y.2d 818, 291 N.E.2d 587, 339 N.YS.2d 464 (1972); Braithwaite v.Braithwaite, 299 A.D.2d 383, 749 N.YS.2d 564 (2ndDept., 2002).

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Firstly, however, the absence of any objection from the other party further

underscores the understanding of the parties that the rights of the Non-Party Appellant would be

preserved in the manner argued by the Appellant, completely consistent with the statute. It would

be erroneous to place emphasis on the presence or absence of an objection from the other party as

the exclusive determinant because such an adaptation would read a condition into the statute which

the Legislature did not include therein, to wit, that the rights of discharged counsel may be

determined within the context of the same action provided that there is no objection from the other

party .

Secondly, for obvious reasons, the absence of any objection from the other spouse

should not carry any weight whatsoever. It is an unassailable argument that the judiciary or the

Legislature would never place the rights of opposing counsel seeking to recover fees from the other

spouse squarely in the balance of the very spouse with whom counsel had just engaged in battle.

It is unthinkable that the rights of outgoing counsel for one spouse could hang in the balance of that

other spouse. Accordingly, albeit a bit of added trimming, the consent of the opposing party merits

no consideration.

"A conference was held on the record before the Trial Court on March 30, 2001,at which time Ms. Frankel confirmed her discharge of the Firm without cause andwith the Trial Court's knowledge and approval, the Firm expressly reserved itsright to pursue its prior application to the Trial Court for additional fees due andowing. At that time, there was no objection from Dr. Frankel's counsel to theFirm's reservation of its statutory right (pursuant to DRL §237(a)) to seek anadditional award from Dr. Frankel of counsel fees incurred on Ms. Frankel'sbehalf. The Firm's fee application was to be made after an attempt to resolve theissue of fees with Dr. Frankel's counsel (R.149-150, 158-160)" (quoted fromNon-Party Appellant's Statement of Facts).

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HOfJanv. Hogan[n Hogan v. Hogan, 194 A.D.2d 520, 598 N.Y.S.2d 310 (2d Dept., 1993),

approximately two weeks after the court rendered a memorandum decision and order dismissing the

complaint, counsel for the defendant wife made a formal application for an award of counsel fees.

Although the Trial Court denied the application holding that it lacked jurisdiction to make such an

award inasmuch as the application had been made after the action was dismissed, the Appellate

Division reversed and remitted, holding that the defense counsel had "taken reasonable steps to

preserve the issue at the appropriate time, the court should not have dismissed the action without

taking further proof on the outstanding issue of counsel fees."

Monte/eon v. MonteleonMonteleon v. Monteleon, 558 N.YS.2d 106, 163 A.D.2d 372 (2nd Dept., 1990), cited

by the majority, affirmed the trial court's denial of outgoing counsel's motion to set aside the

stipulation of settlement entered into between the parties. It was correctly held that counsel lacked

standing to question the actions taken by the parties in settling their dispute. Monteleon's relevance

herein is puzzling in that there is no issue regarding prior counsel's standing to upset a valid

agreement to which he was not a party.

Kavlan v. Reuss

Analogizing from a sister statute, in Kaplan v. Reuss, 113 A.D.2d 184,495 N. YS.2d

404 (2nd Dept., 1985), affd, 68 N.Y2d 693, 497 N.E.2d 671,506 N.YS.2d 304 (1986), the Second

Department emphasized that timely assertion of an intent to enforce the charging liens under

Judiciary Law §475 is criticallest tardiness result in the loss of the right to move via motion within

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the principal action and compel a plenary action against the client.

Although a charging lien thus may be enforced even when the proceeds have passedinto the possession of the client or a third party with knowledge, the right to enforcesuch a lien will be waived by any action inconsistent with an intent to enforce thelien. The waiver rule is intended to prevent other parties from being misled by theattorney's actions or inaction. Therefore, if the attorney knowingly allows theproceeds to pass into the hands of the client or another party without asserting his orher rights, or if the attorney fails to enforce the lien within a reasonable time, the lienwill be deemed waived and the attorney relegated to a plenary action against theclient for any fees.

In the matter herein, the Non-Party Appellant timely preserved his statutory right to

have the matter heard within the context ofthe matrimonial action - the majority stripped him of that

right.

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POINT VI

OUTGOING COUNSEL IN FRANKEL SEEKS TO PRESERVE APROCEDURAL RIGHT NOT TO HVIMEDIATEL Y ENFORCE ASUBSTANTIVE ONE TO THE CLIENT'S DETRHVIENT AS SEEMS TOCONCERN THE MAJORrTY; THESE CONCERNS CAN BE EASILYREMEDIED \VITHOUT PREJUDICE TO COUNSEL

The majority's reasoning cannot withstand scrutiny, as cogently refuted by the

dissenters, because it stands in direct contravention of this State's public policy as evidenced from

within the Sponsor's Memorandum and subsequent decisional pronouncements. The backdrop to

Frankel's argument is the not uncommon feature in matrimonial litigation of a multiplicity of

counsel and how it might impact on any pending litigation. Frankel opined:

Absent a clearer expression in the statute itself, we should not pave the way for whatwill be the certain result ofthe construction the discharged attorneys seek here. It willopen the floodgates to countless such applications by discharged attorneys, submittedwithin matrimonial actions with which they no longer have any connection. The time,energy, and additional attorney's fees devoted to those actions ought to be spent onresolution ofthe spouses' substanti ve disputes. The potential for distraction of courts,parties, and current counsel from the matrimonial issues is magnified by the notuncommon circumstance in such litigation that clients engage a number of attorneysbefore their cases are resolved. In this case, for example, the wife had three attorneysbefore the matter settled. Former counsel's construction also would diminish theavailable funds of the monied spouse for attorney's fee applications by the newattorney representing the non-monied spouse.

All of these concerns are easily refuted and remedied. Firstly, the concern about

paving a new way is without foundation because the fact remains that the appellate court was not

asked to blaze a new trail but simply to cross an already well traveled one, as readily determinable

from the Sponsor's Memorandum and the case law emanating from this Court (O'Shea and

DeCabrera). It is significant that the issue before the Appellate Division was not one of first

..lmpressIOn.

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Even more significantly, the concerns about the "[T]he time, energy, and additional

attorney's fees devoted to those actions ought to be spent on resolution of the spouses' substantive

disputes"23 is, similarly, without merit because the relief sought herein is the preservation of a

procedural right not the immediate enforcement of a substantive right to the client's detriment. None

of these reasons is tenable because all counsel sought was to preserve an avenue of procedural relief,

not immediate substantive relief.

If a concern expressed by the majority were, in fact, to present itself in any pending

matter, courts are vested with broad discretion to emplace prophylactic measures, for example, by

not setting the hearing date on fees before the conclusion ofthe divorce action at which time the trial

court enjoys a global view of the case including property distribution and other equities all of which

will significantly impact the outcome. Although the majority sees a hemorrhaging of judicial

resources24because of applications to have counsel fees determined within the action the bottom line

is that there is not even a scratch.25

23The sotto voce innuendo in the majority opinion is that it is somehow wrong to securean attorney's right to an expeditious fee determination for all of his or her labors upon dischargefrom the case, albeit without cause. This is unjustified especially in view of the length of timethat counsel in matrimonial litigation often carries a client without pay in anticipation ofcompensation upon the conclusion of the case.

24The Appellant correctly indicates that the majority's concern about protracted litigationis inaccurate because it all it achieves is shifting the venue to another court years down the roadfollowing a plenary proceeding with the attendant accouterments of protracted litigation.

25 Frankel's reference to, inter alia, "The potential for distraction of courts [bylitigation] ..." is a rather puzzling comment. Since when do courts get distracted by litigation?That is their raison d' etre.

Furthermore, the majority's concern regarding the not unusual scenario of an array

of successor counsel is tantamount to playing "musical attorneys" where each successor attorney

steps into the shoes of prior counsel until either discharge or voluntary withdrawal. This continues

until such time that one "lucky" attorney, if not already discharged, remains in the counsel chair at

the end of the case and wins the grand prize of having his or her fee application heard expeditiously

within the action rather than via a plenary proceeding. This defies simple logic and could hardly be

representative of the intent of any clear thinking body oflawmakers.

The majority's concern that permitting counsel to sue the other party within the

context of the same action will "diminish the available funds of the monied spouse for attorney's fee

applications by the new attorney representing the non-monied spouse" is unsound and sweepingly

broad. That statement not only ignores the legislative intent but also reality and practicality because

if prior counsel had not been discharged the concern about the availability of sufficient funds to

underwrite ongoing litigation would remain ever present in the face of the outstanding balance - the

prior balance does not simply evaporate because of freshly retained counse1.26

The aforementioned concerns run afoul of the admonition (Comment, New York

Statutes §92) that "the Legislature's intent must be ascertained and effectuated whatever may be the

opinion of the judiciary as to the wisdom, expediency, or policy of the statute, and whatever excesses

or omissions may be found in the statute." Frankel is discordant with the prevalent climate as

evidenced by governing statutory and decisional authority.

26 In the matter herein, the wife consulted with two new attorneys who did absolutelynothing beyond a review of the proposed settlement agreement - hardly an effort which couldhave impacted the future financing of the case.

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POINT VII

PURSUANT TO THE PRINCIPLES OF STATUTORY CONSTRUCTIONDRL §237(a) AND JUDICIARY LAW §475 ARE STATUTES IN PARIMATERIA WHICH MUST BE ACCORDED ANALOGOUS AND PARALLELREADINGS BECAUSE THEY SEEK TO PROTECT THE SANIE CLASS OFPEOPLE - ATTORNEYS; FRANKEL CONTRAVENES THIS COURT'SRULING IN KLEIN v. EUBANK UNDER §475

It is further necessary to read that branch of DRL §237(a) which is fashioned to

protect and facilitate counsel's efforts to obtain compensation and Judiciary Law §475 side by side

because their underlying principles are engrafted onto one another under the doctrine of "in pari

materia" (NY Statutes §22l). Each seeks to protect the same class of person, an attorney, from any

unfair deprivation of rights to seek payment if discharged without cause.27 These statutes cannot

simply be read as coincidental independent entities each in a separate orbit with no impact on the

other, when, in fact, they serve a parallel purpose. These statutes are cognates and the clear

legislative intent may not be ignored so as to arrive at an inconsistent conclusion where on the one

hand there exists a vigorous effort on the part of the Legislature to protect the rights of an attorney

discharged without cause (Judiciary Law §475) while on the other hand, it is argued, the Legislature

harbored a contrary intent under another statute DRL §237(a) against the same attorney being

discharged under the same circumstances:

New York Statutes §221: Scope of Rule: (a) The phrase "in pari materia" is appliedto statutes or general laws, usually enacted at different times but with reference to thesame subject matter.

Comment: "In pari materia", when literally translated, means upon the same matteror subject. The phrase is applied particularly to statutes or general laws. usuallv

27The charging lien originated in common law and was eventually codified as JudiciaryLaw §475 to protect attorneys from being "deprived unfairly of their fees when the services theyrendered in litigation produced proceeds for their clients" Kaplan v, Reuss, 113 A.D.2d 184, 495N.Y.S.2d 404 (2nd Dept.,1985), affd, 68 N.Y.2d 693, 497 N.E.2d 671,506 N.Y.S.2d 304 (1986).

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enacted at different times but with reference to the same subiect matter. that is,statutes which relate to the same person or thing. or to the same class of persons orthings, and which are not in substance inconsistent with each other. Hence statuteswhich relate to the same person or thing, or to the same class of persons or things aresaid to be in "pari materia" and are to be construed together in accordance with thedoctrine hereinafter stated in subdivision b of this section.

* * *b. Construction with other statutesIn accordance with general rules of construction, statutes which are in pari materiaare to be construed together as though forming part of the same statute.

Comment: ...every statute is to be considered with reference to the general system oflaws of which it forms a part. It is to be inferred that a code of statutes relating to onesubject was governed by one spirit and policy and was intended to be consistent inits several parts ...An assisting statute, which might be used to aid in ascertaining thesense of a kindred law, must nevertheless yield to the basic rule of construction thatall parts of an act must be read together to collect the legislative intent.

On the contrary, the statutes being in pari materia, they are to be construed togetheras though forming part of the same statute, and should, if possible, be givenuniformity of application and construction, and applied harmoniously and

consistently.

While under the rule of in pari materia statutes enacted at the same session of theLegislature relating to the same subject should be construed together, the rule ofconstruction mav apply even though the statutes to be construed together wereenacted at different times.

Cognate subiects. Statutes on cognate subiects may be considered in determininglegislative intent, even though they may not be strictly in pari materia.

Klein v. Eubank

Klein v. Eubank, 87 N.Y.2d 459,663 N.E.2d 599, 640 N.Y.S.2d 443 (1996),28a non-

matrimonial proceeding, addressed the same issue currently before the Court albeit under the rubric

ofJudiciary Law §475, the sister statute to DRL §237 which protects the same class of people:

28Also, see, Kaplan v. Reuss, 113 A.D.2d 184,495 N.Y.S.2d 404 (2nd Dept., 1985), affd,68 N.Y.2d 693, 497 N.E.2d 671,506 N.Y.S.2d 304 (1986).

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In this proceeding brought by an attorney to enforce a statutory charging lien, theissues are whether a lawyer who was once but is no longer the attorney of record(who was not discharged for cause) may invoke the Judiciary Law § 475 lien andwhether the protection of that statute is forfeited when the attorney and clientmutually consent to the termination of their relationship. We hold that the statutorylien is available even where both of these conditions are present.

The pivotal issue in Klein was whether the language "the attorney who appears for

a party" in Judiciary Law §47529 attaches a lien in favor of the current attorney of record or to prior

counsel as well. Klein specifically held that "an attorney need not be counsel of record at the time

the judgment or settlement fund is created in order to be entitled to the lien afforded by Judiciary

Law §475." Klein categorically rejected any construction that would interpret the present tense "the

attorney who appears for a party" as the latest attorney of record stressing rather that the language

refers to the attorney of record at the time the lien attached, not the time of its enforcement. 30

Appellant's brief correctly calls attention to the anomaly created by Frankel's refusal

to give the phrases in DRL §237(a), "the attorney of the other spouse", and Judiciary Law §475, the

29 § 475. Attorney's lien in action, special or other proceedingFrom the commencement of an action, special or other proceeding in any court orbefore any state, municipal or federal department, except a department of labor, orthe service of an answer containing a counterclaim, the attorney who appears for aparty has a lien upon his client's cause of action, claim or counterclaim, whichattaches to a verdict, report, determination, decision, judgment or final order in hisclient's favor, and the proceeds thereof in whatever hands they may come; and thelien cannot be affected by any settlement between the parties before or afterjudgment, final order or determination. The court upon the petition of the client orattorney may determine and enforce the lien.

30 Klein summarily discredits the theory that an attorney who has voluntarily withdrawn isto be treated any differently from one who has not been discharged for cause. "A rule making thecharging lien unavailable to attorneys who voluntarily withdraw would introduce a strongeconomic deterrent to the amicable settlement of attorney-client disputes" Klein, supra.

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attorney who "appears" for a party, both of which statutes speak in the present tense, a parallel

reading:

As noted in _K_le_i_n,this Court was interpreting Judiciary Law §475, which givescertain rights to "the attorney who appears for a party". The relevant statutorysection in this case, DRL §237(a), gives certain rights to "the attorney of the otherspouse". Most respectfully, there is _nosignificant difference between the words "theattorney who appears for a party" and "the attorney of the other spouse". If theformer protects discharged attorneys, so too must the latter. This is especially sowhen one considers that although Judiciary Law §475 speaks in the present tense, i.e.the attorney who "appears" for a party, [and Klein] held it to apply to a dischargedattorney who had vreviouslv "appeared" for a party. The majority of the AppellateDivision overlooked this precisely relevant authority in reaching its determination.

Accordingly, although the word "appears" is in the present tense in DRL §237(a), the

only logically conceivable construction is that it refers to the attorney of record at the time the lien

was imposed, per Sadofsky, and Klein, supra. Like Klein, this construction for DRL §237(a) is

similarly protected under statutory and decisional authority.

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POINT VIII

FRANKEL ERRED IN RULING THAT NEITHER STATUTE NOR CASELA"V GRANTS A DISCHARGED ATTORi~EY A RIGHT TO APPLY IN HISOR HER OWN NAME FOR RETROSPECTIVE FEES AGAINST THEADVERSARY SPOUSE, EITHER "VITHIN OR WITHOUT THEMATRIMONIAL ACTION

The majority in Frankel erred in its conclusion that there is neither statutory nor

decisional authority in support of the proposition that a discharged attorney has the right to apply in

his or her own name for fees against the adversary spouse, either within or without the matrimonial

action; the fact is such authority is supported by statute and case law. Klein v. Eubank, supra, which

held that the language "the attorney who appears for a party" refers to the attorney of record at the

time the lien attached, not the time of its enforcement, is squarely instructive herein. Klein stated:

Thus, under both the statute and our precedents, an attorney's participation in theproceeding at one point as counsel of record is a sufficient predicate for invoking thestatute's protection (see, Rodriguez v. City of New York, 66 N.Y.2d 825, 498N.Y.S.2d 351, 489 N.E.2d 238) ...Nor is there any suggestion ... that the Courtintended to extend lien forfeiture to the myriad of cases in which the attorney'srepresentation is discontinued by mutual consent for reasons not rising to the levelof misconduct or "just cause" on either side.

* * *Under respondents' formula, attorneys who voluntarily withdraw in these situationswould be penalized by the loss of a valuable statutory protection - the charging lien.The social or jurisprudential benefits of imposing such a penalty are not readilyapparent, but the negative consequences that would flow from such a rule may easilybe discerned ...Concomitantly, rather than encouraging attorneys to bow outgraciously when a significant difference of opinion or other reason for withdrawalarises, such a rule would give attorneys with an interest in their clients' claims everyincentive to perpetuate the relationship until they are able either to negotiate a lienagreement or to provoke the client into terminating without just cause.

Secondly, Judiciary Law §475 provides further parallel analysis: Haser v. Haser, 271

A.D.2d 253,707 N.Y.S.2d 47 (1sl Dept., 2000) and Kaplan v. Reuss, 113 A.D.2d 184,495 N.Y.S.2d

404 (2nd Dept., 1985), affd, 68 N.Y.2d 693, 497 N.E.2d 671,506 N.Y.S.2d 304 (1986).

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The issue before the First Department in Haser v. Haser, 271 A.D.2d 253, 707

N. Y.S.2d 47 (15t Dept., 2000), was the appropriate means to enforce an attorney's charging lien

pursuant to Judiciary Law §475 where the parties had collusively structured their settlement in a

manner intended to frustrate the attorney's claim for fees. The First Department held that where

parties join forces to defeat an attorney's fees a Court may look behind the agreement and the self

serving circumstances which led to it. Haser emphasized that pursuant to New York law an attorney

"may [even] enforce [a] statutory charging lien against the [other party's] own assets [which must

be done in a plenary proceeding], if he still possesses the settlement proceeds or knowingly paid

them to the plaintiff so as to deprive the attorney of compensation. The lien which attaches in the

attorney's favor cannot be impaired by a collusive settlement."

The Memorandum Decision in Frankel, underscored that under the Judiciary Law

475 a lien attaches once an attorne has a eared for a a

making a petition to the court in the proceeding where counsel appeared, rather than having to bring

a separate plenary action. The facts herein display a collusion between the parties similar to that

present in Haser.

In Kaplan v. Reuss, 113 A.D.2d 184,495 N.Y.S.2d 404 (2nd Dept., 1985), affd, 68

N.Y.2d 693,497 N.E.2d 671,506 N.Y.S.2d 304 (1986), the Second Department demonstrated the

strength of a charging lien's protection of counsel:

(a) unlike a retaining lien a charging lien does not depend upon possession but ratherupon the existence of identifiable proceeds of the litigation;

(b) a charging lien may in an appropriate case be enforced against third parties whohave taken the proceeds with knowledge ...or against a defendant who either still

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possesses the proceeds ...or who has knowingly paid the proceeds to the client so asto deprive the attorney of an earned fee.

Accordingly, even though Judiciary Law §475 does not specifically spell out a right

to bring suit against the other party/spouse, and, yet; decisional authority specifically interprets that

statute to confer precisely such a right upon outgoing counsel, the statutory tenet of in pari materia,

supra, requires no less of an interpretation to prior counsel in a matrimonial action where the statute

specifically confers the right to bring suit against a third party as set forth in DRL §237(a).

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POINT IX

DRL §237(a) PLACES COUNSEL FOR THE NON-MONIED SPOUSEIN LIMITED PRIVITY DIRECTLY WITH THE OTHER SPOUSE

The amendment to DRL §237(a) which authorized payments to be made "directly to

:he attorney of the other spouse,,3! coupled with the simultaneous amendment that "[A]ny

lpplications for counsel fees and expenses may be maintained by the attorney for either spouse in

his own name in the same proceeding" places the affluent spouse in a limited degree of statutory

privity with counsel for the financially dependent spouse. The court's discretion is limited to the

extent that it may determine no more than "the other spouse's" obligation, if any, to make a

contribution towards the non-monied spouse's legal bill. That is all. It does not have the authority

to judicially obliterate that branch of the statute out right in circumstances such as those presently

before this Court.

Frankel muzzled the legislative intent and effectively eviscerated the statute by

imposing a Mad Hatter-like conclusion whose consequences are devastating if allowed to stand:

It is important to note that the wife's former counsel is not without a remedy. Forexample, the wife, or one of her successor attorneys on her behalf, could havesubmitted a fee application, within this action, seeking the very fees that now are atissue. That may still be an option in this case.

This declaration, in effect, writes out the phrase "directly to the other spouse" with

a superseding and basically illusory remedy because a ruling that leaves the application of counsel

fees for outgoing counsel in the hands of the client and new counsel opens the door wide to mischief

and collusion such as those described in Sadofsky and Haser, supra.

3!As well as its sister statute Judiciary Law §475.

-42-

The Second Department has impermissibly created its own legislation in direct

,ntravention to statutory authority which mandates that Courts may not legislate nor impose their

isdom over that of the Legislature32•

32 New York Statutes §92.

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POINT X

FRANKEL NOT ONLY DEV AST ATES COUNSEL'S PROCEDURALRIGHTS BUT IT ALSO ASSAULTS HIS OR HER SUBSTANTIVE RIGHTSBY EXPOSING UNCOLLECTED FEES TO DISCHARGEABILITY INBANKRUPTCY

Although much attention has been appropriately devoted to the procedural

consequences if the Second Department's ruling is permitted to stand, no court has spoken to the

substantive implications. Most significantly, an attorney who has been denied the opportunity to

make an application for counsel fees directly against the other spouse in circumstances such as those

herein is not only relegated to the exclusive remedy of seeking compensation directly from his or her

client in a plenary proceeding before a judge unfamiliar with the case, which case may not be

resolved until a year or two thereafter, such counsel may further find himself or herself trying to

enforce a judgment against a former client who has either become judgment proof or is anticipating

a bankruptcy proceeding upon the conclusion of the plenary proceeding during which time the

attorney's fees will be discharged.

On the other hand, a counsel fee award under DRL § 237 (a) cannot be discharged

in bankruptcy proceedings because it is deemed to be in the nature of spousal support In re Spong,

661 F.2d 6 (2nd Cir., 1981). The hardship confronting discharged counsel, thus, extends far beyond

any procedural discomforts and assaults the viability of a significant substantive right. The trial court

is statutorily vested with the right to review applications directly against the other spouse.

A derogation of the legislative intent behind §237(a) will combine procedural and

substantive consequences that will produce a chilling affect such that experienced trial counsel will

be unavailable to the non-monied spouse.

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CONCLUSION

The American Academy of Matrimonial Lawyers, New York Chapter, respectfully requests

this Court to reverse the Order of the Appellate Division, Supreme Court, Second Judicial

Department, entered Sept. 8, 2003, and to modify said Order of the Appellate Division, so as to

reinstate the order of the Supreme Court (Miller, J.) in Nassau County, and to grant such other and

further relief as this Court may deem just and proper.

Dated: New York, NYMarch 10, 2004

Respectfully submitted,

I ,

/if} /lp1 . -J.-.I-. /.,;1 J .. -,

{lli~~~~e~~~/t£Ul-DLA]Attorney for the American Academy ofMatrimonial Lawyers, New York Chapter750 Third Avenue, 29th floorNew York, NY 10017212-490-0009

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