Attorneys who are the subject of counter-claims of legal malpractice often denigrate the quality of the counterclaim by arguing that it merely a reflexive way of not paying their bill. Sometimes they are right, which devalues the balance of well-pleaded legal malpractice claims. Sometimes the threat of a legal malpractice case has even shakier footing. Here is an example.
Zappin v Comfort 2015 NY Slip Op 51339(U) Decided on September 18, 2015 Supreme Court, New York County Cooper, J. is the story of a husband-father-lawyer who was recently sanctioned for what the court found to be outrageous conduct, including threats of a legal malpractice case against the attorney for the child. The entire decision deserves to be read.
“More often than not, it is a problem when lawyers choose to represent themselves in their own lawsuits. As no less an authority than the United States Supreme Court has written, “[t]he adage that a lawyer who represents himself has a fool for a client’ is the product of years of experience by seasoned litigators” (Kay v Ehrler, 499 US 432, 437 ). In the words of the High Court, an attorney appearing pro se is “deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and making sure that reason, rather than emotion, dictates the proper tactical response to unforseen developments in the court room” (id.).
Despite the Supreme Court’s admonition, it is all too common for spouses who are lawyers to represent themselves in divorce proceedings. Because matrimonial practice is a specialized area of the law, with its own rules and ways, most lawyers who attempt to proceed pro se find themselves ill-equipped to competently handle the procedural and/or substantive aspects of their divorce cases on their own. And because a contested divorce is almost guaranteed to be emotionally charged, a self-represented lawyer may be hard-pressed to summon the level of rational thought and independent judgment that is required of a capable litigator.
This divorce case, unfortunately, presents a situation where an attorney has used his pro se status to inflict harm on his wife, their child and the court, and in so doing has caused significant harm to himself. Plaintiff, Anthony Zappin, an attorney admitted to practice in the courts of the State of New York, is a lawyer at a major law firm where he specializes in patent infringement litigation. He has chosen to be his own attorney in an action where his access to the parties’ infant son is a central issue and where there are allegations of domestic violence.[FN1] Rather than act in a constructive manner, plaintiff has done everything in his power to undermine the legal process and use his law license as a tool to threaten, bully, and intimidate. As will be discussed below in further detail, his ill-advised behavior seriously calls into question his fitness to practice law. It is also, according to defendant and the attorney for the child, indicative of a personality that makes plaintiff incapable of properly parenting the parties’ child.
As a direct result of plaintiff’s conduct in this case, the attorney for the child, Harriet N. Cohen, Esq., (the “AFC”) has been forced to bring the two motions that are now before the court. The first motion (Motion Sequence 19) is to quash a subpoena served on her by plaintiff. The second motion (Motion Sequence 21) is for permission to communicate with the New York State Office of Professional Medical Conduct (the “OPMC”) and to release court documents in connection with a disciplinary complaint plaintiff filed with the OPMC against the psychiatrist she retained as an expert witness, as well as to require plaintiff to bear responsibility for the legal fees her expert incurs and financial losses suffered with regard to plaintiff’s complaint. The AFC also asks the court to impose financial sanctions against plaintiff pursuant to 22 NYCRR 130-1.1 as a result of his actions with respect to her expert and his overall misconduct throughout the pendency of the divorce action.”
“Plaintiff’s efforts to rid himself of the AFC have not been limited to the multiple motions for disqualification that he has made to both Justice Kaplan and me — including part of his cross-motion here — but rather, those efforts have extended to tactics designed to extort, bully, and intimidate. The first was to intentionally violate Justice Kaplan’s order that he share the cost of Ms. Cohen’s services equally with defendant. He did so by refusing to pay even one dollar of the fees incurred by Ms. Cohen for her services, even as his onslaught of motions directed at her clearly caused her to expend substantial time and effort to oppose them. The idea, it appears, was to inflict financial hardship on the AFC, so that she would be unable to discharge her duty to represent the child’s interests.
When the AFC demanded payment, plaintiff responded with a threatening letter. The letter, dated February 12, 2015, which I referred to in my July 22, 2015 decision, contains the following passage:
I want to be clear, this letter is the first instance in which I am telling you that I will not pay your invoices. And, it is for the very justifiable reason that supervised visitation — which you have advocated for without any record in the case — has made me indigent.[FN4] More importantly, at each [*6]appearance, you have inappropriately threatened me with “judgments.” Putting aside the lack of respect and cordiality you have displayed to a fellow member of the bar, you are more than welcome to seek judgments against me if you feel it is appropriate. However, you should be aware that any such attempt will be swiftly and publicly met with claims against you and your firm for fraud, tortious interference with parental rights, legal malpractice and disgorgement, among others.
In spite of the threats made to her by plaintiff, the AFC pressed her claim by moving for an order directing plaintiff to pay her the many thousands of dollars that he owes. True to his word, plaintiff responded by “swiftly and publicly” retaliating against Ms. Cohen and her law firm. He did so by having Zappin Enterprises, a company which lists plaintiff and his father as its owners and plaintiff as its designated agent, and is run from the same West Virginia address where plaintiff claimed to have lived when he left New York, register the internet domain name www.harrietnewmancohen.com. “Harriet Newman Cohen” is the AFC’s full name.
The purpose of the website was chillingly clear from various postings made under the plaintiff’s father’s name. Illustrative of these postings, and indicative of the whole nature of the enterprise, are the following messages:
Harriet. You’re a very sick and greedy woman. I pray for you and hope you seek help.
I intend to keep the public apprised of your misconduct and disturbing behavior.
Quickly climbing up the Google rankings. Stay tuned for updates.”