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.