The retaining lien, a powerful tool for attorneys to force payment of legal fees, is but one of a number of strategies in the eternal attorney fee dispute world.  MG v RG  2015 NY Slip Op 51851(U)  Decided on December 10, 2015  Supreme Court, Kings County Adams, J. is an example of the lengths to which  litigants will travel in order to get the file.  This trip did not succeed.

Plaintiff is the husband and Defendant the wife in a settled matrimonial.  Now Husband sues his attorney for legal malpractice.

“Defendant’s initial post judgment application filed by his current counsel, Ilasz & Associates on April 21, 2014 sought to compel his prior counsel to turn over defendant’s entire matrimonial file (mot. seq. 4). Contemporaneously with that application, defendant filed a separate legal malpractice action against his prior counsel in the divorce action, the instant non-parties here (RG v Poplawski, Zenon et. al. 4734/14) . By order dated October 1, 2014, this Court denied defendant’s application to compel the release of prior counsel’s matrimonial file, without prejudice to his right to address his request in the context of the pending malpractice action before Hon. Wayne Saitta.

Thereafter, defendant filed an order to show cause to vacate the September 25, 2013 judgment of divorce (mot. seq. 5) alleging defendant’s incapacity at the time of the Court’s allocution. On plaintiff’s default, that application was referred to the Special Refree to hear and determine. While the motion to vacate the divorce judgment (mot. seq. 5) was pending before this Court, defendant moved in the malpractice action to appoint defendant’s sister Dorota Barbara Powroznik as defendant’s guardian pursuant to Mental Hygiene Law §81.18.^[FN2] That application was denied and the entire action was dismissed by Hon. Saitta, without prejudice to commence an Article 81 proceeding (order dated July 9, 2015). Defendant failed to disclose to this Court the July 9, 2015 order issued in the legal malpractice action and at the July 17, 2015 appearance. In light of Hon. Saitta’s order and the instant applications, this Court’s referral order to the Special Referee has since been stayed.”

“Notwithstanding the facial deficiencies in defendant’s subpoenas, the Court takes note that the very documents the defendant now seeks by way of subpoenas are the same documents defendant previously sought to compel and which relief this Court denied prior to the instant motion to vacate the divorce judgment and prior to the dismissal of the action before Hon. Saitta. This Court’s October 2014 order was made without prejudice to defendant’s right to seek same in the context of the legal malpractice action wherein the instant non-parties are the named defendants. Taking judicial notice of the filings in that action, it is clear that since denying defendant’s motion to compel, he has not sought this relief in the other action. The Court finds persuasive, Poplawski’s argument that, under the guise of defendant’s application to vacate the judgment of divorce, defendant is using the instant subpoenas as a vehicle to obtain prior counsel’s matrimonial file.

Lastly, defendant’s lack of capacity during the divorce proceedings is the premise of defendant’s post judgment application to vacate the divorce judgment. Defendant’s counsel has remained steadfast in their position that defendant currently lacks capacity to appear in this action without a guardian and that his current mental state is unchanged from his mental state throughout the divorce action. Thus, the Court finds merit in Poplawski’s argument that defendant’s counsel should not be permitted to seek relief from affirmative legal steps taken on defendant’s behalf (i.e. issuing subpoenas) while at the same time raising the issue of defendant’s competency, which issue remains unresolved.

The Court denies without prejudice to renew on proper papers Poplawski’s request for sanctions pursuant to 22 NYCRR 130.1(c). This section provides that any party or attorney may be awarded “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct.” The Court finds merit in Poplawski’s request as the technical defects in the subpoenas evidence a patent failure to comply with multiple provisions of the CPLR and, notwithstanding Poplawski’s July 29, 2015 letter request to withdraw the subpoenas, defendant proceeded and in fact filed a contempt application. However, Poplawski’s papers fail to include in any affirmation or supporting documentation the actual expenses and/or reasonable attorney’s fees incurred in connection with the instant applications. As such, the Court has no basis from which to assess an award of sanctions.”