Good and Evil

Did you ever get the impression that matrimonial disputes are a battle between good and evil? I don’t, but some lawyers do. I am always representing Dracula to their Van Helsing, and the struggle through the divorce process is a Crusade to vindicate the good, fair, pure, virtuous party [not my client] from the ravages of the diablerie maleficent [my client] for leaving the poor spouse and the kiddies for that bimbo waitress at the Colonie Diner or some such nefarious deed. You get the picture. In reality, there is usually a sharing of fault and goodness, and in any event it doesn’t matter to me since we are just talking about money here, and not pain and suffering type money, right? So the zealous representation of a client need not include the excoriation of the opposing spouse in letters, pleadings or briefs, OK? At least that’s what I hope. In any event, the Second Department issued a warning to the bar that such comments can be sanctionable to the attorney or the client under the accursed sanctions rule . In Wecker v. D’Ambrosio , the Second Department on its own motion ordered the parties and their counsel to show cause why sanctions should not awarded against a mother and/or her counsel. The sanctionable conduct? Prosecuting the appeal by impugning the father’s suitability as a custodial parent. Wow. Don’t we all do that? Not exactly. Here the mother’s brief described the father as a “misfit”, “miscreant” , “lazy lout” and a “psychopath”. For many lawyers, this is the grist for the custodial mill of affidavits and closing arguments. For the Second Department, it is sanctionable! Mom or her counsel crossed the line here, suggesting that the father was fencing stolen property for having a jewelry business, and stating that the father “paid the forensic psychologist for a biased report”. Then things got really dicey, as counsel asserted that “no judge in her right mind” would have given custody to the dad, and opined that the court’s “laughable”, “irrational” decision may have “resulted from corruption”. Boy, that’s telling them! So, the Second Department wants an affidavit of the good faith basis for these statements in the brief. I’d love to see that affidavit. “Well, er, you see, I know dad was a lazy miscreant because a birdie told me so on the way to the courthouse. And that remark about corrupt judge, well, I saw her taking a wad of cash from that psychopath psychologist just after his testimony.” Yeah, right.