Our New Albany County Courthouse

“But above all, the courthouse: the center, the focus, the hub; sitting looming in the center of the county's circumference like a single cloud in its ring of horizon, laying its vast shadow to the uttermost rim of horizon; musing, brooding, symbolic and ponderable, tall as a cloud, solid as a rock, dominating all: protector of the weak, judicate and curb of the passions and lusts, repository and guardian of the aspirations and hopes ..." William Faulkner, Requiem for a Nun “Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Thurgood Marshall Originally dedicated in 1916, we can all welcome the restoration of this magnificent edifice. After a six year hiatus, the Albany County Courthouse is again the hub of legal activity for our county. Six years and $53 million after it was closed for renovations, we can now enjoy the splendor of our huge neo-Classic limestone monument, thanks to our friends at BBL Construction Services who held the costs to just under $18 million over the original budget. You know, the people who brought you that bungalow of judicial economy: The Albany County Family Court on Clinton Avenue. On the hill, but on the level, as they say. This building is truly magnificent, but its greatest asset is not structural. Finally, the civil judiciary and courtrooms of Albany County are under the same roof. For the first time in six years, the judges who preside over our clients’ disputes can convene and learn and dare I say schmooze over the daily business of moving lawsuits through the system. In the past, all Supreme Court Judges comprised a fraternity of sorts, there being no women on the bench thank you very much. Republican or Democrat, Acting, Visiting or Retired, they all met for lunch at The Ambassador on Elk Street to review the news of the day, the foibles of the poor lawyers, the evidentiary and legal issues, and of course the gossip. The younger judges learned at the foot of the masters, and the collective knowledge of the judiciary was passed down bringing certainty and consistency to the practice of law. It was great. Young lawyers were welcomed to the practice with enthusiasm, and older counsel were complemented, lampooned and chastised with good humor and a feeling of camaraderie. One can only hope that a small part of that feeling resumes with the concentration of our judges and lawyers under one roof. It is an opportunity without parallel. Lawyers used to go to the courthouse to file papers or argue motions, but we would never leave without seeing what was going on in each courtroom. One learned the jury selection and cross examination techniques of the best, and now that opportunity has returned. Just sit in the lovely GAR coffee shop and one is likely to see Judge Graffeo of the Court of Appeals, Justices Malone, Stein, Egan and McCarthy of the Appellate Davison, or any one of the myriad Supreme Court and Acting Supreme Court judges for a chat on the day’s happenings. As always, the clerks, court reporters and attendants are the true source of the real happenings of trials in the courtrooms. After all, this is the place where Daniel Prior made his reputation as the greatest trial attorney of his time. Long before he represented Legs Diamond across the Hudson, his unsuccessful defense of Anna Antonio was one of the great works of legal advocacy in the 20th Century in Albany. One still hears of his defense of Manny Strewell in the O’Connell kidnapping case in the 1930’s. As for me, I remember the best of them in the 1980’s and 1990’s. Who could forget Armand Riccio proclaiming to the media after a conviction of his client, “Today I am ashamed to be a white man.” It was Armand who brought a compact mirror to Judge Clyne’s court because, “Judge, the prosecutor faces the jury and sees the effect of the testimony of any witness; on the other hand I, your honor, can only look at you.” Judge Clyne had Mr. Riccio bring the mirror to the bench. It was smashed by Judge Clyne’s gavel, whereupon Mr. Riccio said, “Your honor, not only is that seven years bad luck, it is reversible error.” How can you not love that? This was the home of the Appellate Division, Third Department from 1916 until 1972. It was also the site of the famous Amadou Diallo trial, where four New York City police officers were tried in 2000 and the New York City press learned of the Hon. Joseph C. Teresi, who received excellent grades from defense and prosecution alike in his efficient handling of this difficult and contentious trial. During the first day of that trial, I remember freezing outside the courthouse waiting to conference a case before Judge Bernard Malone in some matrimonial matter. When I finally reached the three or four Albany police officers in front of the magnetometer or whatever it was, I was asked what my business as in the courthouse that day. I said, “No justice, no peace” which got me a thorough patting down from a few of Albany’s Finest, but a free pass the next day when my frozen body presented itself at the doors of justice. This is also the place where the great Justice Edward Conway went down to the cells with a litigant who refused to sign a deed in a divorce matter leading to his civil incarceration. Judge Conway had never sentenced anyone to jail. No, not ever. Judge Conway felt so bad he rode the elevator to the Sheriff’s cells and ultimately said, “Don’t do it for your wife, do it for me. I have never sentenced anyone to jail, and I do not want you to be the first.” The guy signed, of course. There is so much more to tell: Judge Conway’s jury who awarded the plaintiff, “All of it.” The jury who asked if they could award more than the plaintiff asked for, only to deliver a no cause. When collared by the plaintiff’s attorney, the foreman said, “Counsel, we were never going to give your client any money. We just didn’t know the answer to the question.” The great Bruce Sullivan, who never had a verdict against him for over $100,000, drinking the supposed tainted Coca Cola bottle with a rat in it during summation. The great William Kunstler (with our own Lewis Oliver) defending two men accused of possessing illegal firearms during the famous Apartheid Rugby Tour, otherwise known as the match between the great South African Springboks against the American Eagles at Bleeker Stadium. The jury acquitted the men. Kunstler spent every morning and break reading the Wall Street Journal. This new building is not without its flaws. What can you expect for $53 million? Perfection? The two main elevators are not coordinated, so one must press both buttons and hope for the best. Why coordinate them after all? In ancient times the one elevator was used just for criminals and sheriffs, and so what if there are no criminals in the building anymore? The fourth floor courtroom is timed to have the lights go out if there is no movement every five minutes or so. Energy saving and all that. It is just rather uncomfortable for a judge to have the lights go out during a trial if some slothful lawyer or litigant has not moved sufficiently vigorously for the sensors to keep the lights on. And what is meant by the term “Men’s” which is the only lettering on the room containing the blokes’ loo. Now, I’m not one to slavishly stick to the dictates of Messieurs Strunk and White, but I do believe a possessive pronoun needs a noun following it somewhere. Men’s what? You don’t want my answer to that question, so please, just complete the thought, will you guys? So, it is time to revel in our good fortune. If you have a slow day at the office, just stop by for a cup of coffee, some snappy repartee and don’t forget to see what is going on in the various courtrooms before you double punch those elevator buttons on the way to the Men's. See you there.

Pro (and Amateur) bono

“If you want to sacrifice the admiration of many men for the criticism of one, go ahead, get married.” Katherine Hepburn “I think men who have a pierced ear are better prepared for marriage. They've experienced pain and bought jewelry.” Rita Rudner “Assisting in meeting the urgent need for legal services is a necessary and essential qualification to becoming a lawyer.” Jonathan Lippman, Law Day 2012 Did you catch the little ditty on the front page of the Wall Street Journal the other day about high priced lawyers? Nary a matrimonial guy there, but it seems quite a few lawyers are now charging in excess of $1,000 an hour. According to legal consultants Hildebrandt Baker Robbins the average partner in a law firm now bills at $575 an hour. Since we matrimonial guys are tied to the hourly rate, and we specialize in the increasingly arcane world of complex equitable distribution and support rules, one wonders when we will start charging such fees in upstate New York. As bankruptcy attorney Harvey Miller said, “The underlying principle is if you can get it, get it.” Amen to that Brother Harvey. The News of the Weird this month comes courtesy of the United States Tax Court who slammed one of the fine citizens of the Fourth Judicial District for over $300,000 in back taxes for improperly deducting as alimony money he turned over to his now ex-wife in a postnuptial agreement. It all started with the Child Support Standards Act, which of course is not an act at all but a law. There is a little known provision regarding the definition of income which allows one to deduct the following from one’s taxable income: “Alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement.” So, you have a couple of children and your marriage has gone sour. You are in love with someone else and you have a boatload of income coming as a result of being a professional baseball player. Rather than see all that income fly into the coffers of your former spouse, why not give it to wife #2 in the form of a postnuptial agreement? Presto chango, I’m a poor minor league baseball manager and gee, I can multiply 25% of that kind of impecunity just fine, thank you very much. Remember Dave La Point? He is currently the manager of the great Rockland Boulders professional baseball team who toil in lovely Pomona, New York. Formerly he was the pride of the Glens Falls High School Indians and he had a fine career as a major league pitcher for, among others, the Center of Evil in the Universe aka the New York Yankees. In 1989 he divorced his first wife, by whom he had two children. In 1990 he had a daughter by another woman, and in the subsequent child support proceeding he claimed that the strict application of the CSSA required him to pay $25 per month in spite of the fact that in the preceding year he earned $900,000 pitching for the Center of Evil. In 1994, wife number one sought child support and she was awarded the magnificent sum of $100 per week based on his income of $40,000 as a General Manager of the Adirondack Lumberjacks. He immediately sought a downward modification of support since his only income was $24,000 at that time as manager of Dave La Point’s Pitchers, a sports bar owned by the future wife number two. That didn’t work. Wasn’t it the great Gore Vidal who quipped, “Oh what a tangled web is woven when divorcees conceive?” In any event, with all these children and women filing things, can you blame the guy for coming up with some kind of scheme to limit his CSSA income? Well, here is what he did: prior to marrying wife number two, the aforesaid owner of Pitchers sports bar, Mr. La Point knew that he would probably receive mucho dinero as a result of the resolution of a collusion lawsuit involving major league baseball. So, if I just sign a postnuptial giving all that income to wife number two, then it cannot be considered for child support of my kiddies by wife number one and that other Gold Digger, right? Isn’t that what DRL §240(1-b)(b)(5)(vii)(B) says? Sure it does, Dave. So, he marries wife number two and signs a postnuptial agreement giving wife number two all of the money from the collusion lawsuit. At this point Mr. La Point was at the end of his major league career, pitching just two games in the majors after signing the agreement, and then ultimately retiring as a minor league player a few years later. Here is where the worm turned, and not for the better. In 2002, wife number two filed for divorce. Oops. Mr. La Point tried to set aside the postnuptial as inherently unfair, which it was, but again that didn’t work. Mr. La Point filed separately for 2002 and 2004 and declared income of $284,000 in 2002 and $384,000 in 2004 from the collusion settlement, all of which went to wife number two under his postnuptial agreement. However, since it was payment to a wife under an agreement, he deducted all of the money as alimony on his income tax returns. Unfortunately, the agreement provided that wife number two was to receive the money even if she died, and that is a no-no to the Internal Revenue Service since all alimony (maintenance) must end on the death of a payee spouse or it is not deductible. Did you know that? In any event, seizing on this provision of the postnuptial, Mr. La Point was assessed over $300,000 in taxes and interest. So let’s see, wife number two received all the money, and he had to declare and pay income taxes on all of it. Is this a great country or what? As always, the Law Day festivities in the Friedman household included a stiff margarita and watching the webcast of the remarks of the Chief Judge of the Empire State. This year was a doozy. Chief Judge Jonathan Lippman announced that beginning in 2013, before anyone can be admitted to the bar to practice in New York State he or she must complete 50 hours of participation in “law-related and uncompensated pro bono service.” The New York Times immediately weighed in on the subject, calling it “a worthy step in the right direction.” In any event, Judiciary Law Section 53 invests the Court of Appeals with the power to create the conditions for admission to the bar. Although we are still waiting for the Court of Appeals to publish the exact language of this rule, the New York State Bar Association has solicited our comments, as though it was not already a fait accompli having received the Good Housekeeping Seal of Approval from the four Presiding Justices of the Appellate Divisions and certainly the members of the court. Certainly I was not asked. Were you? So, here is my humble response to the state bar, just for yucks: Can you imagine spending $180,000 at Albany Law School (their numbers, not mine), studying for and passing the bar and being told that you need to do 50 hours of work in law related and uncompensated pro bono service? So, you are not even licensed to practice, you cannot give legal advice or appear in a courtroom, and you have to FIND some law related program that will put up with you for 50 hours for free. Where are you going to find that, and just what OCA bureaucrat is going to certify this program as appropriate? I’ll bet that guy is not “uncompensated.” This is stupid, like most of the great reforms of our system in the past 15 years. Many of these poor law students cannot even get a job, let alone repay their student loans, and now we are going to delay them from reaping the benefits of the fruits of their labors to work in some program for nothing for 50 hours. Why? If the licensed attorney in New York only has to “aspire” to do pro bono work, why impose such a burden on those who can least afford it? Here is my theory: because they can. The New York Constitution gives the Court of Appeals the right to set the terms and conditions of admission to the bar, and so what if the term and condition has NOTHING to do with the ability to practice law? Hell, why not just make them wash our cars for a while? It is bad enough that they pass on one’s “good moral character and requisite fitness for an attorney” whatever that means. It was enough to keep a guy from practicing in the Third Department because he didn’t pay his school loans on time, even though no lawyer has been disbarred for discharging all of one’s debts in bankruptcy. So, don’t pay your student loans, you are not FIT to practice law. But before you can get to those babies, find some place that will let you hang around for 50 hours of law related uncompensated service in the name of the Court of Appeals. I am just glad I am not applying to practice law in New York. I would have given up long ago. I am sure the state bar is glad they asked. Later