Lomanto v. Agbelusi

Filing 46

OPINION AND ORDER re: #45 FIRST LETTER MOTION for Conference re: #34 Letter, #36 Letter Terminating provisional appointment of Thacher & Request for In Camera Interview with the Children addressed to Judge J. Paul Oetken from Oummih Law Group, PLLC dated 11/17/20 filed by Angelo Lomanto, #44 FIRST MOTION to Appoint Counsel and request for in camera interview. filed by Angelo Lomanto. Simpson Thatcher & Bartlett LLP and Professor Jennifer Baum are hereby appointed as co-counsel for the minor children R.A.L. and S.M.L in this Hague Convention proceeding. (Signed by Judge J. Paul Oetken on 11/17/2022) (ate)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANGELO LOMANTO,

Petitioner,

22-CV-7349 (JPO)

-v-

OPINION AND ORDER

ANTHONIA ADUKE AGBELUSI,
Respondent.

J. PAUL OETKEN, District Judge:
On October 24, 2022, attorney Sarah Phillips of the law firm Simpson Thatcher &
Bartlett, LLP (“Simpson Thatcher”) filed a notice of appearance in this Hague Convention case
on behalf of the minor children, R.A.L. and S.M.L. On October 25, 2022, the Court
provisionally appointed Simpson Thatcher as counsel for the children, pending briefing by the
parties. Simpson Thatcher, the Petitioner (the father), and the Respondent (the mother) all
submitted letter briefs. (Dkt. Nos. 32–37). On November 10, 2022, at a telephone conference on
a different dispute in this case, the Court again heard arguments from the Petitioner’s counsel
opposing the appointment of Simpson Thatcher as counsel for the children. Petitioner submitted
a further letter on November 17, 2022. (Dkt. No. 44.) Now, having considered all of these
submissions, as well as the parties’ oral arguments, the Court hereby designates Simpson
Thatcher and Professor Jennifer Baum, the Director of the Child Advocacy Clinic at St. John’s
University School of Law, as co-counsel for the minor children R.A.L. and S.M.L.
I.

Appointment of Counsel for the Minor Children
Petitioner first generally objects to the appointment of an attorney for the children, as

“the Mother has several attorneys on her team who are tasked of rendering proof” related to the
defenses that pertain to the children, such as “grave risk of harm” and the children’s wishes, and

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“the defenses asserted by the Mother are identical (duplicative) if the issues that would need to
be addressed by the Attorney for the Children.” (Dkt. No. 34 at 2; Dkt. No. 36 at 3.)
The Court disagrees. Appointing independent counsel for the children in this case is
“consistent” with the procedures “adopted by district courts in Hague Convention cases.”
Johnson v. Johnson, No. 11 Civ. 37, 2011 WL 569876, at *2 (S.D.N.Y. Feb. 10, 2011); see also
Sanchez v. R.G.L., 761 F.3d 495, 508 (5th Cir. 2014) (“Granting the children representation in
appropriate situations is consistent with the Supreme Court's view that ‘courts can achieve the
ends of the Convention and ICARA—and protect the well-being of the affected children—
through familiar judicial tools[.]’”) (quoting Chaffin v. Chaffin, 568 U.S. 165, 178 (2013)). This
case presents complex and delicate issues that pertain to the children, and so appointment of
counsel is not only consistent with regular practice in Hague Convention cases, but it is also
warranted. This is particularly true where it is possible that one or more children may be
questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58
A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) (“While not determinative, the wishes of an
almost 14–year–old child are certainly entitled to great weight.”).
Moreover, Petitioner’s suggestion that the defenses pertaining to the children should be
covered solely by Respondent’s counsel is likely to lead to more conflicts, not less. This line of
argument assumes that the children’s interests and views will be coextensive with their mother’s,
while the appointment of independent counsel for the children is appropriate precisely because
they may not be coextensive. Nor does the Court find it necessary to wait until after an in
camera review with the children to appoint counsel, as Petitioner’s counsel suggests. (See Dkt.
No. 44 at 2.) It is already clear that independent counsel for the children is warranted. Finally,
despite Petitioner’s contentions, the appointment of independent counsel for the children does

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not necessarily mean that they are “intervening” in the case. Cf. Sanchez v. R.G.L., 761 F.3d
495, 508 (5th Cir. 2014) (declining to allow the children to formally intervene.) Indeed, even
where courts have declined to allow the children to formally intervene in a case, as in Sanchez,
they have nonetheless found it appropriate to appoint counsel for them. See id. (appointing a
guardian ad litem for the children to ensure “that the children’s fundamental interests [were]
represented as embodied in the Hague Convention.”)
The role of the children’s counsel here is quite limited. Petitioner correctly states that
this case is not concerned with the underlying custody dispute, but rather with whether the Hague
Convention requires the removal of the children from the United States back to Spain. As
Simpson Thatcher notes in its first submission:
the scope of children’s counsel’s representation in a Hague
Convention proceeding is limited to precisely [the] types of issues
raised under the Convention. Counsel does not perform a best
interests analysis or make custody-related recommendations . . . .
Accordingly, as the children’s counsel, our role would be to
advance the children’s articulated wishes, assist the children in
understanding the proceedings and to appear on their behalf as
needed by the Court to assess the parties’ claims.
(Dkt. No. 33 at 2.) For this limited purpose and for the needs of this case (where, contra
Sanchez, both the mother and father purport to represent the children’s interests) the appointment
of counsel for the children is appropriate, rather than the appointment of a guardian ad litem.
II.

Appointment of Simpson Thatcher
Petitioner also specifically objects to the appointment of Simpson Thatcher as counsel for

the children. This case — as Petitioner recognizes — concerns delicate issues, and therefore
benefits from attorneys experienced in this area. The specific nature of these proceedings also
warrants the appointment of counsel with tailored experience in the representation of children in
Hague Convention proceedings. Simpson Thatcher has prior experience in this specific role, in

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addition to “a robust pro bono practice representing children in New York State Family Court
proceedings in seeking special findings orders related to abuse, neglect or abandonment, in
support of petitions for special immigrant juvenile status.” (Dkt. No. 33 at 2.) 1 Accordingly,
Simpson Thatcher has shown that it is well qualified in the very skill set that Petitioner contends
is required here.
Petitioner additionally argues that neither Simpson Thatcher nor Sarah Phillips can be
appointed because neither is “registered with the Office of Court Administration pursuant to
Rule 36 of the Rules of the Chief Judge,” which Petitioner argues is a “pre-requisite” to
accepting a role as a guardian ad litem. (Dkt. No. 34 at 4.) Petitioner appears to be referring to
the local rules governing New York State Court and New York State Family Courts, rather than
the rules of the Southern District of New York. There is no such requirement in this Court.
Finally, as stated, the Court hereby appoints counsel for the children, not a guardian ad litem.
Finally, Petitioner objects to the appointment of Simpson Thatcher because it was
referred to the matter by Davis Polk & Wardwell LLP (“Davis Polk”), the pro bono
representation for the Respondent. While ideally both parties would agree to the appointment of
representation for the minor children, it is not required. See Taveras v. Morales, 22 F. Supp. 3d
219, 229 (S.D.N.Y. 2014), aff’d sub nom. Taveras ex rel. L.A.H. v. Morales, 604 F. App’x 55 (2d
Cir. 2015) (explaining that “over Petitioner’s objection—but consistent with the procedures of
other courts that have adjudicated Hague Convention cases—the Court also appointed an

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Petitioner attaches the official firm bio of Sarah Phillips, the Simpson Thatcher attorney
who has appeared in this case, to argue that while Simpson Thatcher may have experience,
Phillips herself does not. This argument is unpersuasive. Public firm bios are often intended for
use in advertising to paying clients and rarely reflect the full extent of an attorney’s experience.
Moreover, Phillips will be representing the children not as a solo practitioner, but as an attorney
with Simpson Thatcher, with access to its resources and collective prior experience.
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attorney” to represent the minor child.) (internal citations omitted.) Here, after considering the
parties’ submissions, the needs of this case, and the professional rules governing attorneys, the
Court determines that no conflict exists that precludes Simpson Thatcher from representing the
children in this case.
Petitioner has failed to show that any action beyond a “mere referral” links Simpson
Thatcher to Davis Polk, or to identify any case law demonstrating that a “mere referral” creates
an impermissible conflict or bias. Rather, in custody proceedings — an analogous situation in
terms of the importance of the independence of counsel for the children — courts have made
clear that it is permitted for a parent to “merely refer[]” counsel to their children, while
maintaining that parents may not actually retain the counsel. Fargnoli v. Faber, 105 A.D.2d
523, 524 (3d Dep’t 1984) (analyzing the independence of the children’s counsel and stating that
“children involved in Family Court proceedings can be represented by counsel of their own
choosing and even by counsel to whom they are merely referred by a parent.”) (emphasis added.)
Nothing beyond a mere referral has occurred here.
There is no significance, as Petitioner suggests, to where Phillips sat during the hearing.
Not only is her seat in the courtroom irrelevant, but it was also involuntary — she was instructed
to sit at the Respondent’s table by the Court’s courtroom deputy. Notably, Petitioner’s counsel
was not then present to acquiesce in Phillips joining her at her table. Petitioner also argues that
Simpson Thatcher is tainted by bias because Sanctuary for Families, which assisted Respondent
in obtaining pro bono counsel, honored a different attorney at Simpson Thatcher for his work on
a wholly different case. This too is irrelevant and no evidence of bias. If anything, it
demonstrates that Simpson Thatcher has institutional experience in the difficulties inherent in
litigating family disputes.

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The rules of professional conduct governing attorneys are also significant here. In the
case of a conflict barring their own retention, attorneys are “ethically permitted to refer
prospective client[s] to another attorney or list of attorneys who are competent in the field.”
N.Y. City Bar Formal Op. 2016-1. If a mere referral necessarily linked the two separate law
firms together, as Petitioner suggests, then no attorney could ever refer another to a prospective
client.
Petitioner’s argument also assumes that Simpson Thatcher would simply ignore its
ethical duties to its clients, the children. The loyalty of a lawyer to her client is a cornerstone of
the legal profession. As court-appointed counsel for the children, Simpson Thatcher is obligated
to “zealously advocate the child[ren]’s position.” Donna Marie C. v. Kuni C., 134 A.D.3e 430,
431 (1st Dep’t 2015.) In so doing, counsel for the children may at times support or oppose relief
sought by a particular parent, but this alone “is not evidence of bias.” Id. As stated in New York
Rule of Professional Conduct Rule 1.2, “a lawyer shall abide by a client’s decisions concerning
the objectives of representation and … shall consult with the client as to the means by which
they are to be pursued.” (emphasis added.) Likewise, Rule 2.1 requires that “[i]n representing a
client, a lawyer shall exercise independent professional judgment and render candid advice.”
These obligations may not be tempered by the fact that a lawyer may have been referred by
another lawyer to the client. And finally, Rule 5.4(c) clearly states that “[a] lawyer shall not
permit a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
Finally, Petitioner’s chief objection to the appointment of an attorney for the children, as
argued in the hearing on October 25, was the possibility that it might create some delay. This
matter is proceeding on an expedited basis, as required by the Hague Convention and in

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accordance with Petitioner’s wishes. The process of finding and appointing wholly new counsel
for the children would necessarily introduce delay, as would the time required for that attorney to
familiarize herself with the case and clients. This change would also likely be disruptive for the
children, who are undoubtedly already affected by the ongoing legal disputes between their
parents. These considerations, as well as the Court’s determination that no legal conflict exists,
weigh against making decisions based on the purely atmospheric concerns that Petitioner raises.
III.

Appointment of Jennifer Baum as Co-Counsel
As the foregoing indicates, this case is highly contested and concerns delicate issues

likely to be traumatic and emotional for the children. Both parties have levied allegations
pertaining to the children’s health and welfare. Out of an abundance of caution, the Court has
determined that it is appropriate to add court-appointed co-counsel with experience representing
children in Hague Convention cases. The Court therefore appoints Professor Jennifer Baum, the
Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel
along with Simpson Thatcher for both minor children.
IV.

Conclusion
Simpson Thatcher & Bartlett LLP and Professor Jennifer Baum are hereby appointed as

co-counsel for the minor children R.A.L. and S.M.L in this Hague Convention proceeding.
SO ORDERED.
Dated: November 17, 2022
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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