Certo v. Fink
The general rule is that there is no right to effective assistance of counsel in civil proceedings. The plaintiffs, Paul Certo, Jr. and Carmen Barry, and the defendant, James Fink, each owned a membership interest in a charitable organization, Books Across America, LLC. Fink, the managing member, physically locked the plaintiffs out of the building, refused to pay them profits and diverted assets. The plaintiffs brought suit against, Fink, Books Across America and New England Book Company, LLC, alleging, inter alia, breach of fiduciary duty, common-law conversion, and fraudulent conveyance of assets. The court granted the plaintiffs' motion for default and for nonsuit of the defendants' counterclaim, as sanctions for Fink's repeated failure to comply with discovery. Following a hearing in damages, the court rendered judgment for the plaintiffs ordering the defendants to pay for the plaintiffs' respective shares of the profits and declared null and void certain transfers of assets and moneys from Books Across America to New England Book Company. The court ordered the creation of constructive or resulting trusts on proceeds and profits of the defendants and on accounts and assets of Book Drive, Inc.. Fink appealed, pro se, raising multiple claims including that the court awarded more relief to the plaintiffs than demanded in their amended complaint. He stressed that the plaintiffs never moved to add Book Drives as a party or amended their complaint to include relief involving Book Drives. The Appellate Court dismissed the claims raised by Fink on behalf of Book Drives and, otherwise, affirmed the judgment. The defendant repeatedly argued that Book Drives was an unrelated, uninvolved nonparty and he did not own Book Drives. Because the defendant did not show that he was authorized by statute to appeal on Book Drives' behalf or classically aggrieved by the orders regarding Book Drives, he lacked standing to assert the claims. The defendant unsuccessfully claimed that the court improperly relied on the plaintiffs' estimate of damages. The court found the plaintiffs' testimony to be honest and credible. The damages determination was not clearly erroneous. The defendant challenged the judgment claiming ineffective assistance of trial counsel. However, he did not identify an exception to the general rule that there is no right to effective assistance of counsel in a civil proceeding.