Potter v. MacLean

In Potter v. MacLean, 75 AD3d 686 (3rd Dept. 2010) the husband owed more than $20,000 in arrears under a child support and maintenance order. He paid $15,000 as a retainer to a law firm. To enforce the support obligation, a county support collection unit served a restraining notice on the husband's attorney regarding the deposited funds. When the law firm moved to quash the restraint, it argued that the funds were necessary to defend the collection action. The Appellate Division, Third Department held that the husband, who had advanced the funds, retained an interest in the funds under CPLR 5222. The court declined to quash the restraining order: "funds held by an attorney as a retainer for legal services to be rendered have been found to be subject to a pre-attachment restraining order . . . Such funds, even if deposited in an escrow account, may be attached as long as they are subject to the judgment debtor's "present or future control," or are required to be returned to the judgment debtor if not used to pay for services rendered." (75 AD3d at 687.)