Zealous Advocacy and Counsel Fee Awards in Divorce: A Hazardous Relationship

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This author has reached a point in his career where, if you were to ask me what my opinion is about the law on counsel fee awards in divorce in New York, my answer would be short and sweet, quoting a 1980s Hollywood film.

You will recall the scene in the movie Big where John Heard’s character presents his idea for a clunky toy skyscraper that morphs into a robot to his colleagues at a business meeting. When Heard’s character asks if anyone has questions, Tom Hanks’ character raises his hand and says “I don’t get it.” That’s exactly where I land on the case law governing counsel fee awards in divorce: I don’t get it.

Here’s what I don’t get: the role of conduct, i.e., how a litigant and/or his or her lawyer behave throughout the course of a divorce proceeding, is too often marginalized and not anywhere close to dispositive when determining whether or not to award counsel fees.

A case in point: The Appellate Division, First Department recently decided Rennock v. Rennock, 2022 NY Slip Op 02213. On the subject of counsel fees, the decision affirming Judge Laura Drager’s $162,500 counsel fee award reads as follows: “The husband claims the wife and her counsel drove up litigation costs, but the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. Further, such award is not based solely on litigation conduct; the paramount factor is financial need …” (emphasis added).

Section 237 of the Domestic Relations Law provides for a rebuttable presumption that the monied spouse will pay the legal fees of the non-monied spouse. Under the case law, the monied spouse has no recourse to seek legal fees from the non-monied spouse under §237. That leaves the monied spouse with one, less than optimal option, which is to seek sanctions against the non-monied spouse under Part 130 (22 NYCRR §130-1.1). Leaving the monied spouse with one option—to, in essence, drop a nuclear bomb, allege bad faith and seek sanctions—is a Hobson’s choice if there ever was one.

Leveling the playing field, and ensuring that one party’s deep pockets do not overrun the other party in divorce is essential. This article is not at all meant to suggest that the non-monied spouse should be disenfranchised. That said, the conduct of the non-monied spouse—or for that matter, the conduct of each party, regardless of who is “monied” or “non-monied”—should matter more than it does under current law.

Why does this author say that the role of a litigant’s (and/or his or her lawyer’s) conduct is marginalized under current law? Because at this time, the only non-sanctionable result for a non-monied party who unnecessarily prolongs the litigation and takes unreasonable positions is a reduction in his or her own fee award, and such a result appears to be by far the exception and not the rule. For example, in TS v. ES, 2018 NY Slip OP 50129(U), the plaintiff-husband argued that he was entitled to counsel fees “as a result of defendant’s conduct in unnecessarily prolonging this action … that this action should be uncontested because child support and custody have been resolved and there is nothing to equitably distribute.”

The court’s response in TS: While the presumption in §237 can be rebutted based on “obstructionist tactics” of the non-monied spouse, “plaintiff has not provided any case law in support of his contention that Domestic Relations Law §237 provides for the payment of counsel fees by a non-monied spouse to a monied spouse as a result of obstructionist tactics. Indeed, no such case law exists.” (emphasis added).

Herein lies the question: What would happen if a litigant’s (and/or his or her lawyer’s) conduct did, in fact, potentially stand to trump the provisions of §237? Stated differently, would that not present a better deterrent to bad actors, i.e., would it not encourage better behavior amongst all parties concerned in divorce proceedings?

Nearly a decade ago, Judge Matthew Cooper issued the standout decision of Sykes v. Sykes, 41 Misc.3d 1061 (Sup. Ct., N.Y. Cty. 2013), and in that decision Judge Cooper explained that having “skin in the game” referred to the “belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation”.

Fast forward to today. Perhaps the best way to ensure that each party has skin in the game is to make it clear from the outset that how you conduct yourself in divorce proceedings may upend whatever notions either party has about entitlements to counsel fee awards, regardless of financial circumstances or need. This principle would cause attorneys to take notice, along with their clients.

At the height of the COVID-19 pandemic, Judge Jeffrey Sunshine wrote an article in this Journal where he stated, inter alia, “Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong.” Taking Judge Sunshine’s remarks further, there should be consequences to litigants—whether the monied or non-monied spouse—for bad conduct regardless of whether or not we are in a pandemic. That bad conduct runs the gamut; it could be discovery delays, unreasonably delaying settlement, and/or taking ridiculous litigation positions that cause nothing but further delay and costs.

While divorce lawyers should be zealous advocates for their clients, there’s a clear line between zealous advocacy and destructive advocacy. Our decisional law needs to draw that line in the sand. Otherwise, over-crowded dockets, unnecessary motion practice and long delays in proceedings will continue unabated. To sum it up in plain English, as a society we readily accept giving children a “time-out” for bad behavior. It may be time to give adult lawyers and adult clients a time-out here and there if they too engage in bad behavior.

“Zealous Advocacy and Counsel Fee Awards in Divorce: A Hazardous Relationship,” by Alan R. Feigenbaum was published in the New York Law Journal on June 7, 2022. Reprinted with permission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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