Paskowski v. DiBenedetto

Paul B. Goldhamer, Chestnut Ridge, for respondent. Domestic Violence Law Project, New City (Julie Gamache of counsel), for petitioner. Legal Aid Society, New City (Sarah Valentine of counsel), Law Guardian.

OPINION OF THE COURT

WILLIAM P. WARREN, J. On December 6, 1999, the petitioner filed a petition for modification of a visitation order of this court dated November 26, 1997. Both parties appeared with counsel before the court on January 26, 2000 at which time the respondent's counsel made an oral application to disqualify the petitioner's attorney, Domestic Violence Law Project (hereinafter DVLP), from representation of the petitioner. Counsel for the respondent has submitted a memorandum in support of the application arguing, inter alia, that (1) the DVLP fails to meet the requirements of Judiciary Law § 495 and (2) permitting the DVLP to appear on behalf of litigants gives the appearance that the court is aligned with the DVLP and its cause. Attached to the memorandum is a letter dated October 6, 1999 from the Chair of the Rockland County Bar Association's Committee on Professional Ethics. The petitioner's counsel has submitted a letter in opposition to the motion, along with a letter dated December 16, 1999 authored by a Fordham Law School professor. The first question to answer is does section 495 of the Judiciary Law prohibit the DVLP from appearing in court on behalf of a client? While section 495 (1) of the Judiciary Law prohibits corporations or voluntary associations from appearing as an attorney-at-law in any court or furnishing attorneys or counsel or rendering legal services, subdivision (7) makes the entire section 495 of the Judiciary Law inapplicable to "non-profit organizations whether incorporated or unincorporated, organized and operating primarily for a purpose other than the provision of legal services and which furnish legal services as an incidental activity in furtherance of their primary purpose." Subdivision (7) was added to the statute in 1979 through the enactment of chapter 706 of the Laws of 1979. It is not disputed that the Rockland Family Shelter is a not-for-profit organization which provides emergency housing, services and outreach programs to victims of domestic violence and their families. The DVLP was established by the Rockland Family Shelter to provide legal counseling and representation in court to individuals who use the shelter's services. Therefore, the Rockland Family Shelter is an organization organized and of Shephard (92 AD2d 978), is distinguishable. In Shephard, the court found that the corporate name `The People's Law Firm of Jan L. Shephard, Attorney, P.C.' constituted a trade name because it suggested that the firm was controlled by the public, received public funding or provided legal services on a nonprofit basis. No such potential for deception is present in the use of the term, `The Country Lawyer.'" (Matter of von Wiegen, 63 NY2d 163, 176-177.) The use of the term DVLP is one which conveys the general nature of the work of the law office. It mostly, yet not exclusively, deals with issues involving claims of domestic violence by persons who are involved with the Rockland Family Shelter. There is no reason to conclude, nor is it argued, that the public is deceived by the name. There is no reason to believe that a court would be misled and cause it to lose its impartiality when addressing either an issue of alleged domestic violence or another, unrelated issue. As previously stated, it is the allegations in the pleadings and the proofs presented which the court looks at, not simply the name by which a law office appears in court. In cases where the issue of domestic violence is not even raised as an allegation such as support or custody issues, the fact that the law firm is named the DVLP has absolutely no bearing on the outcome of the proceeding and to claim that a court would be unduly influenced or prejudiced or misled as a result of lawyers appearing in court under the trade name DVLP is simply inaccurate. For all of the foregoing reasons, the motion to disqualify the Domestic Violence Law Project from representing the petitioner in this case is hereby denied. [*] It should be noted that even if domestic violence was an issue, at most what can be inferred by a court when a party appears via an entity such as the DVLP is that the litigant is alleging domestic violence. Assumedly, it is the pleadings which will illuminate the claim of domestic violence, not the fact that the litigant is represented by an entity calling itself the DVLP. To assume that a Judge would be influenced in his/her determination because an individual is represented by an entity such as the DVLP is to give far too much weight to a name and not nearly enough to the ability of a Judge to determine the facts based upon the evidence presented.