| Potter v MacLean |
| 2010 NY Slip Op 05827 [75 AD3d 686] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Rebecca Potter, Respondent, v Daniel MacLean, Appellant, et al.,Defendant. |
—[*1] Schlather, Stumbar, Parks & Salk, Ithaca (Diane V. Bruns of counsel), forrespondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered August 13,2009 in Tompkins County, which denied defendant Daniel MacLean's motion to, among otherthings, quash and vacate a restraining notice and information subpoena issued by the TompkinsCounty Support Collections Unit.
Plaintiff and defendant Daniel MacLean (hereinafter defendant) were married in 1999 andhave two children (born in 2001 and 2003). After their separation, a court order was issued in2005 requiring defendant to pay $800 per month in child support, plus $200 in monthlymaintenance to plaintiff. He was ultimately found to have willfully violated that order and, in2007 when a divorce action was commenced, defendant was found to owe more than $20,000 inarrears on this obligation. Defendant subsequently retained the law firm of Thaler & Thaler torepresent him in the divorce action and paid them a $15,000 advance on their fee. Later, theamount that defendant owed on his support and maintenance obligation had increased to $33,000and, in an effort to satisfy that arrearage, the Tompkins County Support Collections Unit serveda restraining notice and an information subpoena on Thaler & Thaler in regard to the $15,000retainer fee (see CPLR 5222, 5224). Defendant moved to quash the subpoena and vacatethe restraining notice on the retainer fee. Supreme Court denied defendant's motion, and he nowappeals.[*2]
Defendant argues that the retainer fee held by Thaler &Thaler is not subject to restraint because these funds were used to ensure that he has legalrepresentation in the divorce action. However, CPLR 5222 (a) provides that a restraining noticemay be issued upon any person, except for a judgment debtor's employer, and funds heldin escrow for the purpose of retaining an attorney are not included in the statutory list of moneyand property exempt from such restraint.[FN*]
Moreover, funds held by an attorney as a retainer for legal services to be rendered have beenfound to be subject to a preattachment restraining order (see Pahlavi v Laidlaw Holdings,180 AD2d 595, 595-596 [1992], lv denied 80 NY2d 760 [1992]; see also GalaEnters., Inc. v Hewlett Packard Co., 970 F Supp 212, 217 [SD NY 1997]). Such funds, evenif deposited in an escrow account, may be attached as long as they are subject to the judgmentdebtor's "present or future control," or are required to be returned to the judgment debtor if notused to pay for services rendered (Gala Enters., Inc. v Hewlett Packard Co., 970 F Suppat 217; see Koroleski v Badler, 32 AD2d 810, 811 [1969]). Here, defendant retained aninterest in the funds that were not used to pay for the legal services rendered by Thaler & Thaler,and the retainer agreement governing the disposition of such a fee specifically provided that suchfunds would ultimately be returned to defendant.
Defendant also claims that the funds used for the retainer were borrowed from family andfriends and, therefore, should not be subject to a restraining notice. However, any legal right tothe return of any portion of the retainer fee belonged to defendant—and not to his familyor friends—and it is that interest that provides a legal basis for restraint of the funds.While not unmindful of the impact this decision may have on defendant's ability to retaincounsel, we note that a party in a matrimonial proceeding does not have a constitutional right tocounsel (see Matter of Smiley, 36 NY2d 433, 438 [1975]). Moreover, we reach thisconclusion solely upon the factual circumstances presented in this case, as well as thelong-standing significance and emphasis placed upon a parent's duty to provide child support forhis or her children. Therefore, under the circumstances presented here, specifically the fact thatdefendant has willfully violated his obligation to provide financial support for his children andthe retainer fee was paid to Thaler & Thaler in a manner in which defendant has access to anyunused funds, we conclude that the restraining order was properly placed on the retainer funds.
Finally, as to defendant's claim that the information subpoena was "totally inappropriate andserves no useful, justifiable purpose," we note that the details regarding a client's feearrangement with his or her attorney "is a collateral matter which, unlike communications whichrelate to the subject matter of the attorney's professional employment, is not privileged"(Matter of Priest v Hennessy, 51 NY2d 62, 69 [1980]; see Oppenheimer v OscarShoes, 111 AD2d 28, 29 [1985]).
Cardona, P.J., Mercure, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: CPLR 5222 (e) excludesSupplemental Security Income, Social Security, public assistance (welfare), spousal support,maintenance, child support, unemployment benefits, disability benefits, workers' compensationbenefits, public or private pensions, veteran's benefits, a certain portion of recently earned wagesand a certain portion of bank accounts with funds and Black Lung benefits.