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Sanctions Imposed for Attorney’s Failure to Appear in Court
Gary Muldoon
Muldoon & Getz
Rochester, NY
(585) 262-5130

Sanctions and costs may be imposed for an attorney’s unjustified failure to attend a court appearance. This is provided for in Part 130 of 22 NYCRR.

Unlike Subpart 130-1, Subpart 130-2 -- by the way, who came up with these numbers? -- is limited to attorneys. Also, unlike 130-1, 130-2 applies to both criminal and civil cases.

Another set of rules, Part 125, provides for an “affidavit of engagement of counsel.” Some parts of the state routinely require these affidavits; in other areas of the state, less formality is required.

Written findings required

In awarding sanctions, the court must make a written memorandum decision or statement on the record that sets forth the offending conduct. The maximum amount of combined sanctions and costs for any single failure to appear is $2,500. § 130-2.2.

Like the rules governing “frivolous” conduct, the sanctions in Part 130 exclude town and village courts and small claims courts. § 130-2.1(a). The Housing Part of New York City Civil Court as well as Family Court support magistrates may make a determination of failing to appear without good cause. The power of a support magistrate is subject to confirmation by a Family Court judge. § 130-2.4.

Sanctions imposed for failure to appear in a medical malpractice trial were found improper, where the attorney showed good cause for seeking an adjournment. The case was complex and he could not obtain substitute counsel; weeks earlier the attorney had informed the judge of his time conflict, and he had not previously failed to appear or been sanctioned. Gutin-Nedo Hamilton ex rel. v Marshall, Cheung & Diamond, P.C., 301 AD2d 728, 753 NYS2d 548 (3d Dept 2003).

In another case, following the failure to appear at scheduled Family Court appearance, the attorney for the former husband was directed to show cause why sanctions should not be imposed. The Family Court judge held that attorney would not be sanctioned for failure to appear, even though she had not filed consent to change attorney, moved for permission to withdraw, or otherwise informed court that the former husband had discharged her and elected to proceed pro se. Sweet v Sweet, 177 Misc2d 454, 676 NYS2d 853 (Fam Ct 1998).

Sanctions in criminal cases

In Walsh v People, 206 AD2d 434, 614 NYS2d 441 (2d Dept 1994), the attorney was 23 minutes late for a hearing because of involvement in another hearing in the same courthouse. Another attorney had been asked to advise the judge of the reason for the absence. The failure to appear on time was not deliberate or without good cause. The $150 fine was vacated.

Sanctions of $150 were imposed on the assistant district attorney assigned to a Supreme Court judge’s courtroom for failing to be present when cases were called. At the time of imposing sanctions, the name of the ADA was unknown. The First Department found the judge’s decision to violate due process: the attorney was given no opportunity to be heard. People v Rodriguez, 180 AD2d 578, 580 NYS2d 292 (1st Dept 1992).

That an attorney is unprepared does not equate with failure to attend, thus sanctions are inapplicable. § 130-2.1. Premo v Breslin, 89 NY2d 995, 657 NYS2d 391, 679 NE2d 630 (1997).

“Fatal transgression” found

In one final case, a defense attorney was sanctioned for failing to make an initial appearance in a criminal case. The attorney, a sole practitioner, had two court appearances with the same judge the same week, and had sent in a formal affidavit of engagement for the other case. The reason for the attorney’s nonappearance was that he was actually on trial in another county. During the period in question, he had also been involved in a capital murder case. The attorney had previously written to the court and also had recent conversations with court personnel regarding his anticipated unavailability during that week, in the context of another criminal case. This was confirmed in a phone conversation between the two judges involved in the two conflicting court appearances. The attorney’s “fatal transgression,” as the Third Department termed it, was failing to file an affidavit of engagement.

The judge who received the affidavit of engagement but did not receive two such affidavits found this conduct to be sanctionable. A fact not mentioned in the reported decision is that the sanctioned attorney just happened to have been the opposing candidate in a previous election against the judge who imposed the sanctions. The attorney had lost that election by less than 100 votes. This, of course, had nothing to do with the decision to impose a $250 fine.

On appeal, the Third Department did not vacate the fine. Instead, finding the nonappearance to be unintentional, but stating that it was constrained by the standard of review for this situation, and holding no abuse of discretion below in the sanction for not appearing, the Third Department reduced the fine to $50. People v Dean, 288 AD2d 636, 732 NYS2d 696 (3d Dept 2001).

No awards for profiles in courage were handed out that day.

© 2008 by Gary Muldoon