The Joy of Family Law “I am a marvelous housekeeper. Every time I leave a man, I keep his house.” Zsa Zsa Gabor. “A lot of people ask me how short I am. Since my last divorce, I'm about $100,000 short.” Mickey Rooney When I started practicing law in the late 1970’s, there was no child support standards act, no equitable distribution law and no maintenance (alimony) standards act. Family law was much simpler, and many lawyers, especially in more rural areas, helped people with divorces as well as criminal matters, wills, estates and real estate transactions. But Albany County had its matrimonial specialists and they were wonderful lawyers and friends. At the time, the Catholic Church did not recognize civil divorces and it discouraged the practice of divorce law by Catholic lawyers. As a result many local family lawyers were Jewish or from other religions. They were the wonderful Robert Kahn, Larry Gordon, the hilarious Sandy Soffer and then the younger generation of Stan Rosen and Timothy Tippins. Then there was the legendary Anthony Cardona who became the Presiding Justice of the Third Department. In 2002 Pope John Paul II said that Roman Catholic lawyers should not handle divorces. “We cannot surrender to the divorce mentality. When a couple encounters difficulties in their marriage, priests and other members of the faith must be united to help them positively resolve the crisis. Lawyers must always decline to use their professional skills for ends that are contrary to justice, like divorce.'' As a result of the influence of the Catholic Church, it was not until 2010 that New York became the last state in the nation to recognize no fault divorces. Prior to that, one could defeat the distribution of assets by proving the lack of fault. One could also ask for a jury trial for proof of divorce fault which I never did, but I endured four such trials. In the last my client with weak fault grounds had to endure the testimony (without cross examination by me) of her 14-year-old son who testified he saw her holding the hands of another man at the Empire State Plaza. I was able to convince the jury to grant the divorce simply by saying, “What kind of a husband puts his 14-year-old son on the stand to testify in public before a jury and his mother about her holding someone’s hand.” That did not stop business owners and professionals from preventing the distribution of their marital businesses by claiming no fault, i.e. no adultery, abandonment, or cruel and inhuman treatment. In the meantime they would all be afflicted with the disease we called RAIDS, Recently Acquired Income Deficiency Syndrome. I think it is in the DSM-5. Yes, it was a different time but it was infinitely enjoyable. I can still hear Sandy Soffer telling a bunch of lawyers at a “motion day” (Thursday) at the courthouse, “If I had sex with all my clients as I was accused by their husbands, I’d be so tired I couldn’t get to work in the morning.” Family Law had another bright spot. When I started practicing at Ainsworth, Sullivan, Tracy and Knauf, there were no women trying civil cases before juries and never any women associates at large litigation firms like Ainsworth and Carter, Conboy. There were no such restrictions in family law. Within a few years we saw the elevation, among others, of future Court of Appeals Judge Leslie Stein at McNamee, Lochner and Flo Richardson in Bob Kahn’s firm as some of the best matrimonial lawyers in the state. Did you know that the first county-wide female Albany jurist was a Family Court judge, even before I was admitted to practice? Her name was Eileen A. Sullivan and she passed last year at the age of 103. She was appointed by Republican Governor Nelson Rockefeller in the early 1970’s in overwhelmingly Democratic Albany County when an opening occurred. She served until the next election where she was defeated by the legendary Michael Tepedino. She has two cases published in New York’s Miscellaneous Citations. Over the years, the legislature in their wisdom made Family Law beyond complicated which ended the part time family practitioners and dramatically increased the hourly rates of family law “specialists” as there were far more people seeking the services of fewer lawyers. As one attorney said at one of my NYS Bar Association CLE programs, “I think it is disgusting that someone in Albany has to pay you, Mr. Friedman, $490 per hour just to get divorced.” I replied, “I agree with you. And I’ll stop charging it as soon as people stop paying me.” But as you can see it was a fun ride thanks to the wonderful professionals who made it so. Or as the great Zsa Zsa Gabor once said, “I have learned that not diamonds but divorce lawyers are a girl's best friend.” Amen. Post Script: When I moved to California in 2015, I was treated by a local cardiologist. After a series of tests he said to me, “Mr. Friedman, I understand you were a divorce lawyer in New York.” I said, “Yes, doctor, but why?” He said, “Because you have a heart that’s never been used before.” THAT made me laugh.

“I don’t think you can make a lawyer honest by an act of the legislature. You’ve got to work on his conscience. And his lack of conscience is what makes him a lawyer.” Will Rogers Rudolph Giuliani’s two attorneys have recently called his suspension from the practice of law “unprecedented.” They then said, “We believe that our client does not pose a present danger to the public interest. We believe that once the issues are fully explored at a hearing Mr. Giuliani will be reinstated as a valued member of the legal profession that he has served so well in his many capacities for so many years.” It is ironic that one of Giuliani’s attorneys is Barry Kamins, who was once one of five Executive Officers of New York’s court system. In the weeks prior to that ascension, Judge Kamins was the Administrative Judge for Criminal Matters in Kings County. It was reported that in a series of e-mail exchanges, Justice Kamins advised his friend, Kings County District Attorney Charles Hynes on Hynes’ reelection campaign. In telling Mr. Hynes how to attack his opponent in a debate, Justice Kamins wrote that he should “focus on the nitty-gritty of what the D.A. does each day to run the office — of course Thompson has no clue and that will come out.” Justice Kamins offered to speak to people at the New York Times and New York Law Journal editorial boards about Hynes’ endorsement, and sent, among three hundred e-mails, this ditty: “Btw, I tried to pump the Brooklyn Bar Pres for info about the debate.” Many of Judge Kamins’ e-mails were ex parte communications about the reelection of the Kings County District Attorney as well as cases before the District Attorney. It was all spelled out in a 27-page City of New York Department of Investigation Report called “Regarding Misconduct by Former Kings County District Attorney Charles J. Hynes, Justice Barry Kamins and Others.” New York’s rules for judges provide that a sitting judge “shall refrain from inappropriate political activity” as well as ex parte communications with one counsel in contested matters. Prohibited political activity includes “engaging in any political campaign for any office.” Engaging in political activity often justifies removal from office in New York. Judge Kamins was stripped of his administrative appointment and an investigation was ordered. A formal complaint was filed by the Administrator of New York’s Commission on Judicial Conduct. On September 9, 2014, the Administrator of the Commission on Judicial Conduct and Judge Kamins signed an agreement that Judge Kamins would retire as a judge. Judge Kamins agreed never to seek judicial office in the future. So, isn’t Attorney Kamins the perfect person to publicly comment on who is a valued member of New York’s legal community?

VALENTINE’S DAY GIFT OF THE NEW YORK OFFICE OF COURT ADMINISTRATION “Bureaucracy is the death of all sound work.” Albert Einstein “It is not a Justice System. It is just a system.” Bob Enyart On February 1, 2021 new rules went into place pursuant to an Administrative Order of Chief Administrative Judge Lawrence Marks. Good luck finding it on the Office of Court Administration (OCA) website. It is not among the forty 2020-2021 Latest Administrative Orders listed but it is on the website somewhere. It was never published on the website before it went into effect. After all, it only applies twenty-nine new rules to every Supreme and County Court civil case in the state. In the most recent annual report of the court system that was only 535,681 cases per year. What is the big deal? If you do happen to find the Order, do not worry. The new rules are only 62 pages long! They contain some of the most time consuming and unnecessary changes to the practice of “civil” law in the State of New York. Want to know who will benefit to benefit from these rules? Among others, insurance defense attorneys, divorce lawyers and contract lawyers. Why? Because they bill by the hour and these rules significantly increase the time needed to bring any matter to Supreme and County Court for resolution. Want to know who will not benefit from the rules? Anyone who is seeking to resolve issues by coming to Supreme Court or County Court. The new rules amend 22 NYCRR 202. Here is a small sampling of what you have in store. OCA has found it important to rule that you be on time and be familiar with your case. Otherwise, you may be considered in default. 202.1(f)(g) As you know, for any motion related to disclosure, you are required to state you have conferred with opposing counsel “in a good faith effort to resolve the issues raised by the motion.” That is no longer good enough. Why trust attorneys? In your motion papers, you now must state that you conducted an in-person or telephonic conference. That is not all. You must also state the date and time of the conference, who participated and the length of time of the conference. Apparently, emails and letters do not count. As we know, judges tell juries the rules. For deliberations, jurors are told portions of the Pattern Jury Instructions sometimes altered for the proof of a particular case. That is the art and skill of being a judge. The courts also devise a series of questions for the jury to answer, i.e. causation, damages, etc. That is no longer the plan. While attorneys could always suggest the court tell the jury proposed instructions, it is now required. You now must “provide the court with case-specific requests to charge and proposed jury interrogatories.” Submissions must be by hard copy and electronically. When do you have to do this? That depends on which new rule you read. Rule 31(b) of 202.7(g) says, “at the pretrial conference or at such other time as the court may set.” Under new Rule 202.20(h), it is “on the first day of trial or at such other time as the court may set.” So, you tell me. And by the way, your pre-trial memorandum and request for a charge must only be in 12-point type in a Word document. That rule started March 1 and only applies to “non-paperless commercial parts,” whatever that is. As for other useless time-consuming rules, when every attorney in a proceeding receives a notification of a court appearance, he or she must notify all other parties by e-mail “that the matter is scheduled to be heard on that assigned date and time.” Why does every attorney in a case have to email the information to every other attorney? “There are occasions when the court's electronic or other notification system fails or occasions when a party fails to receive the court-generated notification.” So, get ready to receive the same message a lot and bill your client each time you read it. 202.23(b) How is your binder collection? On the first day of trial, you must submit “an indexed binder or notebook, or the electronic equivalent, of trial exhibits for the court's use.” I am not sure what an electronic equivalent of an indexed binder is, but you must also give a copy to each attorney in the trial. I presume that means no pro se litigants get one. You also need the originals in a similar binder or notebook for witnesses even if you do not have them as they are under subpoena. 202.20h(b) There are a bunch of other things that make little sense. You can only have ten depositions and each one cannot exceed seven hours. You need to submit a proposed order to the court with a motion. An affidavit is limited to 7,000 words and a reply affidavit is limited to 4,200. If you make a summary judgment motion you must have a “separate, short, concise” statement in numbered paragraphs of material facts to which there are no “genuine issues to be tried.” The responding papers must state the genuine issues to be tried in a short, concise, separate statement. I wonder what OCA considers short or concise. You get the idea. The pleasure of practicing trial law for lawyers, judges and staff comes from bringing people to a reasonable, timely resolution of a dispute with reasonable fees. The Office of Court Administration has a different approach. Unfortunately for litigants in New York State, in my opinion the legal fees and the time necessary to comply with these new rules will be significant for the million+ litigants affected annually. Predictably, the Chief Judge has extolled the virtues of the new rules, calling Chief Administrative Judge Marks “fantastic.” At least all those lawyers who show up late unfamiliar with their cases may diminish.

“What is it that makes us trust our judges? Their independence in office and manner of appointment.” Hon. John Marshall On January 5, 2021, a case was argued in New York’s highest court, the Court of Appeals. Two of the attorneys who argued the case are members of the law firm of Greenberg Traurig. Another attorney in the firm, Henry M. Greenberg, was appointed in 2020 to the Commission on the Future of New York’s Courts by Janet DiFiore, the Chief Judge of the Court of Appeals. Attorney Greenberg is also counsel to the New York State Commission on Judicial Nomination. That Commission nominates New York’s Court of Appeals Judges. Attorney Greenberg was counsel in 2015 when Janet DiFiore was nominated to be Chief Judge. Chief Judge DiFiore and others on New York’s Court of Appeals heard the appeal of the two Greenberg Traurig attorneys on January 5, 2021. In 2020, Chief Judge DiFiore was sued in two cases in Suffolk County Supreme Court by, among others, two Appellate Division judges, because of her elimination of judges over 70 years of age to be certified to continue in office. As is her right, Chief Judge DiFiore asked to have a private law firm represent her. On November 30, 2020, the Attorney General approved, and the State Comptroller was authorized to pay for the Chief Judge’s law firm with taxpayer money. On December 29, 2020, Greenberg Traurig filed a Record on Appeal in the Appellate Division, Third Department, stating the law firm represented Chief Judge Janet DiFiore. The attorney from Greenberg Traurig representing Judge DiFiore was Henry M. Greenberg. Therefore, on January 5, 2021, two attorneys from the law firm that then represented Chief Judge Janet DiFiore argued an appeal in front of her. Chief Judge DiFiore did not disqualify herself. Chief Judge DiFiore never indicated to the two attorneys arguing against Greenberg Traurig that she was represented by Greenberg Traurig in any capacity. Neither attorney knew of the representation at the time of the argument. They only found out about Judge DiFiore being represented by Greenberg Traurig after the February 18, 2021 decision written by Chief Judge DiFiore against their clients. On February 9, 2021, Greenberg Traurig’s Henry M. Greenberg argued in the Third Department representing Chief Judge DiFiore. On February 18, 2021, Chief Judge DiFiore published her opinion reversing the Appellate Division and holding in favor of Greenberg Traurig’s clients, Deutsche Bank and Wells Fargo Bank. On March 9, 2021, the Third Department reversed the Appellate Division and decided in favor of Chief Judge DiFiore represented by Greenberg Traurig. Shortly thereafter Judge DiFiore changed her mind and allowed the 70+ year old judges to serve again. Section 100.2 of New York’s Rules of the Chief Administrative Judge on Judicial Conduct state, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities… (B) A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment." Antonin Scalia decided Bush v. Gore in the United States Supreme Court in December of 2000 even though his son had been offered a job before the election by the law firm representing George W. Bush. What was the firm? Greenberg Traurig. The only judges in the United States not subject to Judicial Conduct Rules are the members of the United States Supreme Court. There are 11 members of the New York State Commission on Judicial Conduct. Three of them were appointed by Chief Judge Janet DiFiore.