Jackanapes and Ear Licking

“I married beneath me, all women do.” Nancy Astor
“The secret of a happy marriage remains a secret.” Henny Youngman
“How many husbands have I had? You mean apart from my own?” Gábor Sári, now known as Zsa Zsa Gabor (1917- )
Things have gotten a little out of hand for our beloved profession lately, but that is not news. It is the bend of the branches to the winds of regulation in our profession that keeps me amazed and amused. Case in point: The Commission on Judicial Conduct recently found it appropriate to censure a judge for playing poker with his friends at the Fraternal Order of Eagles in 2008. Of course there is nothing wrong with that, but that didn’t stop the sanctimonious ninnies from bringing the hammer down on the Honorable Paul Hensley, a District Court Judge in Suffolk County. It seems that the operator of the poker game kept a small portion of the pot (ante) and that is illegal. For some reason unknown to me, the members of the Commission found that Judge Hensley’s lawful participation in the poker game “reflects adversely on the judiciary as a whole.” It does? Of course this was supposedly compounded when the game was investigated by the police by Judge Hensley telling them truthfully that he was a judge. They surmise this implied he was seeking special treatment, but for what? He didn’t do anything illegal. To add insult to injury the Commission published a “Press Release” on July 6, 2012 concerning Judge Hensley’s censure and entitled it “District Judge Censured for Participating in Illegal Poker Games.” Does that sound like he did something illegal? Of course it does, but these guys have no shame. Like most lawyers, I am asked from time to time if I would like to be a judge. Reading this stuff convinces me that I could never do it, and I sympathize with all the members of New York’s Judiciary who put their careers (and personal lives) in the hands of these jackanapes.
Case Number Two: Lawrence McCreery, a 64 year old attorney in Kauai, which I am guessing is in Hawaii. Attorney McCreery was found guilty of harassment for licking the back of his client’s ear while discussing her child custody case. Now, I have scoured the Unified Court System’s Domestic Relations Statement of Clients Rights and Responsibilities and I find nothing in there about licking a client’s ear from the front or the back. Maybe things are different in the Aloha State, but if we can’t lick a client’s ear every now and then, why bother going to work?
Case Number Three: Perhaps Counselor McCreery could have benefited from one of the CLE offerings from an organization that is called “The Likeable Lawyer.” It seems that someone in Texas thought it was a good idea to give seminars through the web, CD, DVD or live lectures on such topics as Lessons from Aristotle or From Headaches to Handshakes. The former, along with a host of other such offerings, were accredited by our friends at OCA for CLE credit in New York. It all reminded me of candidate Barack Obama telling candidate Hillary Clinton that she was likeable enough in 2011. Every matrimonial lawyer who has practiced for more than a year has been retained by some client because an opposing spouse considered the lawyer exactly the opposite of likeable. How this constitutes Continuing Legal Education is beyond me as I cannot fathom why likeability has anything to do with the practice of law. I am guessing I could just as easily give advice on how to succeed by being unlikeable, but why bother. If the Office of Confused Adults considers this a valuable trait for the New York practitioner, who am I to argue?
While all this is going on, not one word of caution or admonition to Super Lawyer James Winkler, who graduated Albany Law School with me. Since he probably went to class, our paths never crossed. In New York, in case the OCA folks forgot, we have Standards of Civility. I know because it is right there on the Unified Court System website. One of them is, “Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses.” So I read with dismay Mr. Super Lawyer’s remarks about Christie Brinkley when she amicably resolved her differences with Winkler’s client, Peter Cook. Winkler told everyone who would listen (and who wouldn’t) before the settlement of Ms. Brinkley’s claims, “This is the work of a second-rate celebrity starved for attention." Really James? Then with the settlement, Winkler the Celebrity Critic said that Mr. Cook received “financial compensation for having to address Ms. Brinkley's frivolous lawsuit against him." To top it off, he said, “The settlement we reached proves Ms. Brinkley’s claims were baseless and that a hearing would have only proved to be a further embarrassment for her." Really? While I am sure some people consider this zealous advocacy, to me it qualifies for uncivil, inappropriate commentary that should not be tolerated by the Powers that Be. Of course, they are too busy censuring a guy for legally playing poker with his friends.
Let me step off my soapbox here to give you the latest news from my favorite Appellate Division. It is rare, but every now and then the Third Department writes an “opinion” as opposed to a memorandum decision. When it involves a matrimonial matter, we should pay attention. On July 12, 2012 they came down with Rinzler v. Rinzler, which held that one can bring a no fault divorce during the pendency of one’s fault divorce as the second action does not constitute the same cause of action. Here, the Plaintiff had unsuccessfully sought consent to discontinue the first action, but for some reason his wife declined. The Third Department came to the correct result, and one wonders what the wife was trying to accomplish by the dismissal of the second action and the litigation of the first action. Except for a large legal bill (which is of course no reason at all), there did not seem to be any reason to delay the inevitable.
Let me ask you something. If you get married and at the wedding party, flush with love and other such nonsense, you put your hubby’s name on your million dollar home, what happens when he sues you for divorce the next day? Does he get (a) half the house or (b) nada or as the Ashkenazim say, bupkus. The Third Department opts for (a) for no good reason, reversing a slew of Court of Appeals and appellate authority to the contrary. Faster than you can say “separate property credit,” all was lost to the wife who inherited the family farm from her father during the marriage. As executrix of the estate, she foolishly conveyed the property to herself and her beloved husband. He left six years later and held his hand out for whatever the trial court would give him. The answer: half. In upholding this travesty of justice, the Third Department said that since she put his name on the deed, she transmuted the separate property into marital property. OK, I buy that but what about her credit for the value of the separate property she contributed to the marital pot? “Nonsense” saith the Sages of State Street. Since there was no “acquisition” of the separate (now marital) farm, as if she had sold a premarital house to buy a marital house, then there is no separate property credit. Her only way to stop such a result is to prove to the court that she did not “intend” her husband to have an interest in the farm, which of course was not true. This twisted result takes the Equitable out of the Equitable Distribution Law. As for the wife’s deceased father, to quote the great philosopher Ralph Kiner, “If Casey Stengel were alive today, he’d be spinning in his grave.” Keep spinning, dad.
Hasta la vista, baby.

10 Reasons to Do Pro Bono

In honor of National Pro Bono Week this October:
10. If you do not do it, no one else will. Rule 6.1 of the New York Rules of Professional Conduct calls pro bono participation "aspirational." You may aspire to play second base for the Red Sox, but you won't. If we only aspire, then we never accomplish anything.
9. It's easy. The clients have very little at stake, but it means the world to them.
8. Judges appreciate that you perform free legal services for the poor, and they (a) remember and (b) talk among themselves. Hey, you never know when you'll need that adjournment or a few more days to respond to something.
7. They will write about you in the bar association newsletter and your mother will think you are really special.
6. No one is more grateful than the poor. They see very little of the milk of human kindness, and when they receive it you are everything to them. You will never receive such positive feedback among those who pay for your services.
5. Practicing law is a precious gift, and if you do not use it to give to others then you shouldn't be a lawyer. Try animal husbandry or stock brokerage.
4. You learn something. Where else do they divorce by reason of imprisonment for three consecutive years or skate on the rent because of the warranty of habitability, whatever that is?
3. If you do not know what you are doing, there's lots of nice people to help you. The best of the best in any specialty will help you through it for free. If they do not, they are not the best of the best.
2. It does not take much time. For the most part there is nothing to fight about, and most of the opposing litigants are just as happy to be (a) divorced, (b) rid of the tenant or (c) free of the debt that will never be collected.
1. It will make you better looking. Look what it did for me.

On the Shoulders of Giants

“If I have seen further it is by standing on ye sholders of Giants.” Sir Isaac Newton “Agents of law in the civil area must avoid being personally involved in anything that might imply cooperation with divorce… In exercising a liberal profession, lawyers can always decline to use their profession for an end that is contrary to justice, such as divorce." Pope John Paul II’s Address to the Roman Rota, January 28, 2002 “In particular a Catholic judge cannot pronounce, except of reasons of great weight, a sentence of civil divorce – where this is in force – for a marriage valid before God and the Church.” Pope Pius XII, November 7, 1949, addressing the Union of Catholic Jurists Long before there was an Equitable Distribution Law, a Child Support Standards Act, a Family Court Act, a Unified Court System, an Office of Court Administration, cruelty divorces, NYCRR, maintenance guidelines, Statements of Clients Rights, Rules of Civility, compliance conferences or the myriad of useless Byzantine reforms that now govern the practice of matrimonial law, there were Sanford “Sandy” Soffer and Robert “Bob” Kahn. Both graduated law school under the Truman Administration, both practiced well into their ninth decades and both died this year. They defined the practice of matrimonial law in Albany by their kindness, wit, generosity and love of law and lawyers. We will not see their like again. Frankly, I do not even know if they were friends, but they had much in common and meant so much to so many lawyers. I hope this gives you a glimpse into two remarkable careers. When they first toiled in the matrimonial fields, such practices were disdained by the general practitioners and other specialists. It was considered invidious, and among Catholic lawyers it was discouraged. Divorce was not common, adultery being the only ground and the leaving of one’s spouse bering socially unacceptable except among the Hollywood elite. Sandy was not strictly a matrimonial lawyer. He was a general trial practitioner but he was known in later years as the Dean of Matrimonial Lawyers in Albany. For many years, he was the partner of a true gentleman, Abe Dorsman. Sandy’s first appearance before the Appellate Division was to successfully defend summary judgment for the princely legal fee of $965 for representation in a divorce. This was 35 years after he became a lawyer! 1 Unlike yours truly, Sandy’s career is marked by the dearth of trial and appellate reported cases. He understood the necessity to resolve and settle matters for their true value, and he was a master at convincing you, your client, his client and the court of the definition of “true value.” Like Bob, Sandy loved the law and even more his fellow lawyers. Any conversation began with a joke or an inquiry about your life, your family, your health or your practice. Thereafter, the business of the day was discussed. The strengths and weaknesses of their clients were revealed with frankness and utility. The goal of all such work was the ultimate resolution of the case, and the protection of the attorney’s confidences. Their word was their bond. There was never a need to confirm anything in writing or reduce anything to an Order. If they said it, you could bank on it. In court, you were treated with deference and respect, as was your client. They had a way of shepherding their clients to the ultimate fair result with a confidence that the litigants had done the right thing for themselves and their children. Nothing was tried just to earn a fee, and the spouse who was weaker by finance, education or habit was protected to the fullest. For a few years, I had the pleasure of being Sandy’s neighbor. We shared an interest in canoeing, and later in life he bought a Ferrari of canoes for his beloved wife Miriam so they could hoist the feather light thing onto the car. It was of course much too tippy, and Sandy reveled in lending me the thing so I could walk it to my house a few blocks away through the streets of Albany. Like Bob, he regularly called me and left messages of his enjoyment of the monthly articles I wrote for the Albany County Bar Association Newsletter. That meant the world to me. Sandy and Bob were the models for the generations of matrimonial lawyers who came after them. Anthony Cardona, long before he was a judge, and the great Stan Rosen, now both deceased, carried on the legacy of the civil resolution of matrimonial disputes through negotiation, fellowship, knowledge and hard work. Bob was a mentor and then ultimately a longstanding partner with Florence Richardson, who has been for many years an excellent, well respected matrimonial lawyer in the Capital District. It was Bob who once successfully implored an opposing wife to grant a divorce to his client so hubby could make someone else’s life equally miserable. Sandy once told an opposing husband in Albany Family Court that he could never have had (nor wanted to have had) sex with as many clients as accused, like this dumb schlemiel was wont to impugn. How could you not love those guys? One of Bob’s many cases was representing Mr. Lischynsky against his wife Ola who changed her mind after a settlement and then successfully set the whole thing aside because she didn’t sign anything.2 To this day we give homage to Ola with a Lischynsky Form recognized only in the Third Department. Bob always enjoyed a good joke, the gossip which is the honey of our practice, and the settlement of a case. In the vernacular of our specialty, he had amazing control of his clients. His reputation granted him the ability to suggest a resolution that brought a client where he or she should be, even if it was against the client’s natural instincts. That is truly the art of matrimonial practice. Bob was a matrimonial specialist, one of the first members of the American Academy of Matrimonial Practitioners, serving on its Board of Governors. Both Bob and Sandy were active in the Albany County Bar Association, with Sandy being a former President. Bob was a published author with his brother Larry, now in Senior Status as the Judge of the United States District Court of the Northern District of New York. Their Divorce Lawyers Casebook was published by St. Martins Press in 1972. They argued that most marriages might be saved, but that many truly broken marriages needed a swift resolution. Here, Bob argued for no fault divorce 38 years before the legislature came around to his wisdom. I am proud to say both Sandy Soffer and Bob Kahn were my friends. I will miss them dearly, and our profession is less today because they are not among us. I know there is a tendency to say that the practice of law was more fun in the past, and that things today are too hectic, ruthless, and churlish. I must tell you, because of Bob and Sandy, things really were a lot more fun when they were around. 1 Soffer v. Elmendorf, 108 A.D.2nd 954 (3rd Dept., 1985). 2 Lischynsky v. Lischynsky, 95 A.D.2nd 111 (3rd Dept., 1983). It was a 3-2 decision with future Court of Appeals Justice Levine writing the dissent.