Omnishambles and our friends at OCA

“I didn’t know what real happiness was until I got married. Then it was too late.” Barry S. Wilson
“I know nothing about sex because I was always married.” Zsa Zsa Gabor
“A girl must marry for love, and keep on marrying until she finds it.” Zsa Zsa Gabor
The Powers That Be in the New York legal system are experiencing omnishambles. That’s my story and I’m sticking to it. Omnishambles is the top new word of the year according to the Brits at Oxford University Press and it is defined as “a situation that has been comprehensively mismanaged, characterized by a string of blunders and miscalculations." Case in point: The Committee on Professional Standards has recently chastised a few of our brethren for some truly innocuous behavior, and in bringing down the hammer of justice they have gone off the rails and punished people for the smallest of offenses. Why? Beats me. Stephen Rockmacher (Rock Maker?) was censured by the Third Department for, among other things, failing to provide an itemized bill to a matrimonial client. While this is in 22 NYCRR 1210.1 (Statement of Client’s Rights), that is not generally a censorable offense. What is next? Admonition for failing to bill every 60 days or censorship for discourteous conduct? That discourteous language resulted in the censorship of Terence Kindlon after an unblemished 38 year career for viewing, handling and photographing a document on opposing counsel’s table. The offending document was an e-mail that had no effect on the presentation of proof by opposing counsel, but what the heck. No harm, but a foul nonetheless. Just after that, the Third Department suspended an attorney for a year because she was disorganized. To this, I must confess, I am guilty. But where is that in the Rules of Professional Conduct? The Third Department hangs its hat on Rule 8.4(d) of the Rules which merely says that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. No one says the offending attorney hurt a client, failed to appear or try a case, served anything late or otherwise did anything that reflected on her competence as a lawyer. As they said in the decision, “The record indicates that the instant misconduct is the result of continuing disorganization in respondent's practice of law, which has resulted in three prior admonitions by petitioner for failing to cooperate.” Yeah? Well, the suspension is stayed if counsel completes some CLE programs in law office management, but nothing is ever going to give counsel her reputation back.
On the lighter side of things, the Court of Appeals has finally published their rules requiring new attorneys (at least after January 1, 2014) to perform 50 hours of pro bono service before being admitted to practice. Here is the good news: Such services are defined as, among other things, assisting in the provision of legal services to “persons of limited means.” Now, to me every human is a person of limited means. I’ve never heard of a person without limits, even the reigning champ, Carlos Slim Helu of Mexico. That brings me to the second part of the good news: You can perform these services in any state or territory of the United States, Washington D.C. or any foreign country. So if Prince Alwaleed Bin Talal Alsaud is in need of some legal work for free in Riyadh, then hop on the next Emirates flight out of JFK. Just don’t perform those services in Antarctica.
This is where things really get weird. The Omnishambles Kings, the Office of Court Administration, published a slick flyer and put up a “Voters Guide” online to help us with our choices for various judgeships in the recent elections. Very nice of them. Unfortunately, the Third Judicial District had five people seeking the Supreme Court nod and only the two incumbents had links to their accomplishments until late in the game when two others were added. Stephen Schick, one of the eventual winners, never had a link to tout his reasons to seek the judgeship. This was not limited to the Third District as the Second District had links to the two sitting judges but not the other three candidates. So, just when and how do the boys at OCA decide who gets to inform the hoi polloi in the official “Voter Guide”? It is easy for incumbents as OCA just publishes a link to the Unified Court System Judicial Directory Guide, thereby giving the Official OCA Imprimatur of Authenticity to incumbents. See, he’s one of us! But what’s a little grandstanding for our friends and fellow members of the judiciary? After all, discourtesy, not following the rules and disorganization are only censorable offenses to practicing lawyers, not the OCA juggernaut.
So, our highest court finally issued a cruel, insensitive and job destroying decision to tax lap dances in New York. It did however contain the following personal note from Judge Smith’s brilliant dissent, which did bring a smile to my face: “I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker.” So, just to edify us in the world of evidence, the Court of Appeals has given us Grucci v. Grucci, a decision that I cannot explain. In a malicious prosecution civil lawsuit, Mr. Grucci sued his former wife for falsely accusing him of violating an Order of Protection. Mr. Grucci’s brother recorded a telephone conversation wherein Ms. Grucci supposedly stated she was never afraid of her hubby. The brother testified that the tape was fair and accurate, and yes, contained Ms. Grucci’s voice. An admission against interest if I ever heard one. Well, ignoring the fairly clear language of Richardson on Evidence, McCormack on Evidence and the New York Evidence Handbook, the Court of Appeals decided that more was required to show that the tapes were unaltered and genuine such as who recorded the conversation, how it was recorded and the chain of custody of the recording. So, now we have at least a new level of attack to keep from judicial earshot those nasty things our clients say to their spouses in recorded conversations. One wonders if this higher standard now applies to e-mails, and I see no reason why it shouldn’t.
Not that we really have to follow the Court of Appeals anyway, do we? Remember Johnson v. Chapin and Mahoney-Buntzman v. Buntzman? Those were the Court of Appeals cases that decided you do not get a credit for paying your premarital debts during the marriage, such as child support, equitable distribution or maintenance to the ex, holding, “As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected.” Well, the Second Department seems to ignore this language in two recent cases, Nidositko and Iarocci, in the latter allowing a $12,000 credit for paying a premarital separate debt. Nary a nod to Chapin or Buntzman in the decisions. So wait, maybe I can still get that recording into evidence if I can just find a Second Department case that ignores the Court of Appeals. Yes, that’s the ticket.
Happy holidays to all and to all a good night!


Matter of Rockmacher, __ A.D.3rd __ (3rd Dept., November 15, 2012), and the section on such a Rule was never cited by the Third Department.
Matter of Kindlon, 98 A.D.3rd 1227 (3rd Dept., 2012)
Matter of Moss, __ A.D.3rd __ (3rd Dept., October 11, 2012)
22 NYCRR §520.16
The Albany County guide can still be found here: http://www.nycourts.gov/vote/2012/county/albany.shtml
Matter of 677 New Loudon Corporation dba Nite Moves v. State of New York Tax Appeals Tribunal et. al., __ N.Y.3rd __ (October 23, 2012).
__ N.Y.3rd __ (November 20, 2012)
12 N.Y.3rd 461 and 12 N.Y.3rd 415 (2009)
92 A.D.3rd 653 (2nd Dept., 2012)
93 A.D.3rd 999 (2nd Dept., 2012)