May a client have his attorney present when he undergoes a court-ordered psychological evaluation in a contested custody case?

In this case, a contested matrimonial action, there are allegations of a lack of parental fitness by each parent against the other. The court will not recount these allegations other than to acknowledge that they are reasonably alleged in the papers before the court. The court, upon request of the wife, ordered both parties to engage in a psychological evaluation.^[FN1] The court asked counsel to stipulate to the appointment of the evaluator, and added that if they were unable to agree, the court would select one. The parties were unable to agree and the court solicited recommendations from both [*2]counsel, selected the evaluator, and signed an order confirming the evaluation.^[FN2] Husband's counsel objected to the court's selection and further asserted that he wanted to be present when the evaluator interviewed his client. Shortly thereafter, this court signed an order to show cause permitting the husband to assert his claim to have his counsel present during the evaluation. The wife filed papers in opposition to the husband's request, and this court heard oral argument.

Husband's counsel acknowledges that prior to filing the order to show cause, he had a conversation with the evaluator, requesting he be permitted to be present during the evaluation.^[FN3] The evaluator responded in an email to the husband's counsel stating: "It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary." The husband's attorney also raises a question concerning communications between the evaluator, the court, and counsel. Husband's counsel argues that wife's counsel's statement that she is willing to be bound by whatever the evaluator determines leads to a conclusion that the evaluator is "in the wife's camp." Wife's counsel strongly suggests that this assertion is untrue.

In the wake of these discussions, this court received several communications regarding the issue. For clarity purposes:

On October 24, 2012, this court received a copy of a letter from the evaluator to all counsel in the case.

On October 25, 2012, this court received an email from the husband's counsel, which included copies of several letters previously exchanged between the parties.

These communications were submitted to the court prior to the motion and during oral argument. Husband's counsel objected to the evaluator's communications with the court. This court held that the communications were in the nature of seeking clarification on the scope and scheduling of the ordered evaluation and that they were neither improper nor prejudicial. In response to the evaluator's comments, husband's counsel argues that he has previously been permitted to attend psychological evaluations and, when present, he sits behind the client and takes notes. (He did not state whether he was permitted to ask questions during these evaluations.)

Wife's counsel suggests that the reason for opposing counsel's insistence on being present relates to allegations that the husband has smoked marijuana in the garage of the marital residence. She also refers to the husband's prior arrests in Florida related to DWI. almost a decade ago. The husband, in his reply affidavit, does not dispute these [*3]allegations. The wife submitted an affidavit from the court-appointed evaluator in which he notes that he had a discussion husband's counsel about the use of illicit drugs. Husband's counsel replied that he offered a question regarding possible drug use purely as a "hypothetical question" concerning the husband's right against self-incrimination.

The evaluator further asserts that he had a telephone conversation with husband's counsel, and that he insisted on being present for any interview portions of the evaluation, but not during the administration of formal psychological tests. He states that the attorney told him that he wanted to be present to "protect his client from potentially self-incriminatory statements" and that husband's counsel "questioned the relevance of a history of drug use to a custodial evaluation." The evaluator responded that "the presence of third parties in such evaluations was not permitted by [his] office due to the way in which it would change the interactions between a patient and an evaluator." The evaluator did offer the husband's counsel the right to attend the initial evaluation, in which the process is described, and informed consent is obtained.

The evaluator's affidavit also stated that:

The husband's attorney made it clear that he would seek to prevent his client from providing spontaneous responses to open-ended or specific questions asked during the course of the interview, responses and information which are critical to an understanding of the individual.

Clinical interviews, including the taking of the social history, are not solely for the purpose of gaining the asked about information, but also an assessment of the manner in which such information is presented, the fluidity and cogency of the thought process, observation of the manifest behavior, and other critical clinical nuances and manifestations which are likely to be significantly influenced by the presence of an attorney or any other third party.

There is considerable professional literature in the field to support the practices of his office and which suggest that the presence of attorneys (or other third parties) has significant potential for undesirable influence on the interactions, behavior, and statements of the individual being evaluated. Discussed is the potentially negative influence and consequences of an attorney's presence during an evaluation, as it changes the manner in which the patient/client interacts with the evaluator.^[FN4]

Based upon the aforementioned data, his training and experience, it is the evaluator's belief that the presence of an attorney (or other third party) during a psychological evaluation has a significant likelihood of skewing the data obtained, and impacting the behavior and test results of the person being evaluated.

The evaluator informed the court that he would not allow any attorney to be present during [*4]the examination. It should be noted that, both in his papers and during oral argument, the husband's counsel never suggested that he would ask questions or verbally interrupt the examination. He told the court that he would sit behind his client and say nothing.^[FN5] Importantly, during the motion argument of this case, the husband never produced any contrary authority regarding the impact of an individual's presence on the integrity of the examination.^[FN6] The court also notes that the evaluator here has conducted other psychological examinations and previously testified as a qualified expert on psychological matters before this court. This court concludes that the evaluator is an expert on the conduct of a psychological evaluation and his opinion on the consequences of a third-party's presence is properly before this court.

While there is some conflict, New York courts have historically permitted an attorney to be present at a court-ordered psychological evaluation in a contested custody matter. Even so, a review of the case law on attorney access to examinations and its constitutional and statutory underpinnings is required before reaching any conclusions on this application. In 1971, the Court of Appeals explored attorney assistance in court-ordered examinations in Lee v. County Court, 27 NY2d 432 (1971). The court held that a criminal defendant is entitled to have counsel present at psychiatric examinations to make more effective use of his basic right of cross-examination, but added:

We see no merit to the argument that defense counsel should be permitted to take an active role at the examination, or that he should be allowed to advise his client not to answer questions put to him by an examining psychiatrist or make objections. As in Wade situations, the function of counsel is limited to that of an observer. Both the defense attorney and the prosecutor may take notes and save their comments or objections for the trial and cross-examination of the examining psychiatrist. Additionally, a copy of the medical report must be furnished to both sides, and although no stenographic transcript of the examination is required, if one is made, it shall be made available to both sides prior to trial.

Id. at 444. The Court of Appeals, extrapolating from the Supreme Court decision in United [*5]States v. Wade, 388 US 218 (1967), held that the examination of a criminal defendant, who had asserted an insanity defense, was a "critical stage" of the criminal proceeding and thus, counsel was constitutionally permitted to attend, although his role was simply as an observer.^[FN7]

A decade later, the Court of Appeals considered the presence of counsel in a psychiatric examination in Matter of Alexander L., 60 NY2d 329 (1983). In that case, the court extended the right to counsel in the Family Court Act to require that counsel be present in an examination required as part of a termination of parental rights proceeding. In considering the application of In re Alexander L. to this case, several distinctions are apparent. First, the right to counsel was found in the specific statutory command for assistance of counsel in Section 262 of the Family Court Act.^[FN8] The court simply extended that right of assistance to psychological examinations in termination of parental rights proceedings in Family Court. Second, the court decision was based on facts that differ from those present here. In In re Alexander L., the examiner refused to permit the attorney to attend and rendered a report based on observations in a brief and informal encounter with the subject in his office. Even though the subject had not been formally examined, the trial court admitted the examiner's testimony. The Court of Appeals held that the admission of this seemingly incomplete testimony was error under the Family Court Act. Third, there is no discussion in In re Alexander L. of the "critical stage" analysis underlying the application of the constitutional standards from United States v. Wade, as the court held in Lee v. County Court. The court did note that the psychiatric evaluation has "pre-eminent importance" and that there were "concomitant advantages for trial purposes that would be expected to attend the attorney's presence during this critical phase of the litigation."Nonetheless, the court did not invoke a constitutional justification for counsel's presence at the psychiatric examination in In re Alexander L. The justification, the Court of Appeals advised, rested in the express language of a guarantee of the assistance of counsel in the Family Court Act. Fourth, the court recognized that there may be instances in which counsel may not be present for such examinations and allocated the burden of proof to the party objecting to the attorney's presence. The court stated:

Conceivably, in a particular instance there might be cause to conclude that the validity of a psychiatrist's examination might be compromised by the presence or intrusive conduct of a third person - as, perhaps, the parent's counsel. In such a circumstance, bearing in mind the regard in which the right to the assistance of counsel is held, the court might nevertheless properly restrict the attorney's presence despite the parent's willingness [*6]and desire to the contrary. The predicate for such a restriction however may not be the failure of the parent to demonstrate a negative, i.e., the absence of the prospect of impairment, but must be a positive showing, usually by the examining expert on the initiative of the petitioner or the court, that there is justification in a particular case for exclusion of the third person or restrictions on his or her conduct during the examination.

In re Alexander L. at 336. Critical, for this case, is the fact that the party objecting to the attorney's presence in In re Alexander L. failed to meet its burden to show "a justification" for excluding the attorney. The court refused to countenance the cursory explanation offered by the objectant, which claimed that the attorney's presence violated a "policy" of the Bureau of Mental Health. The court described the policy:

[T]o conduct interviews with patients in private, giving as the reason for such practice the fact that such an interview was an extremely private one and an intimate one' and that the presence of another person or even extraneous noises and the presence of a person in the second room would be very disturbing and certainly would hinder an open evaluation, and an honest and open statement or statements on the part of the patient'.

In re Alexander L. at 334. In view of this language, the Court of Appeals did not mandate counsel's attendance at all psychiatric examinations as a constitutional or blanket right in all civil cases. Instead, the court held that in cases in which statutes mandated a right to counsel in a "important phase" of a civil proceeding, an attorney would be permitted to attend the psychiatric examination unless the objectant to such attendance produced evidence of a "justification" for the exclusion of counsel. In the words of the court: "More is required than what was presented here, which was only a statement of the blanket policy of the Bureau of Mental Health Services." In re Alexander L. at 337.

Subsequent New York courts took an expansive view of a litigant's request to have counsel present in medical and psychiatric examinations. "A party is entitled to be examined in the presence of [his or] her attorney or other representative so long as [that person does] not interfere with the conduct of the examinations . . . unless [the] defendant makes a positive showing of necessity for the exclusion of such an individual." Jessica H. v. Spagnolo, 41 AD3d 1261,1262 (4th Dept. 2007); citing A.W. v County of Oneida, 34 AD3d 1236, 1237-1238 (4th Dept. 2006); see Ramsey v. New York University Hospital Center, 14 AD3d 349 (1st Dept. 2005) (attorney permitted to attend a psychiatric examination provided attorney does not unduly interfere with the examination); Lamendola v. Slocum, 148 AD2d 781 (3rd Dept. 1989); McNeil v. State, 8 Misc 3d 1028A (2005) (claimant has a "right" to have his counsel attend neuropsychological examination); Koons v. Koons, 161 Misc 2d 842 (Sup. Ct. New York Cty. 1994) (court-ordered psychiatric examination is a critical stage of custody proceeding and counsel should be present) . The party opposing the participation of the attorney has the burden of establishing that "the presence of the attorney or other representative will "impair the validity and effectiveness" of the neuropsychological examination. Jessica H. v. Spagnolo at 1262, citing Matter of Alexander L. at 332; Sommer v Pierre, 2008 NY Slip Op 31407U (Sup. Ct. New York Cty. 2008) (unless the opposing party demonstrates a necessity for exclusion, a party's attorney in a personal injury action may be present as an observer during any neurological [*7]examination of the party, so long as the attorney does not interfere with the conduct of the examination); Matter of Tanise B., 119 Misc 2d 30 (Fam. Ct. Bronx Cty. 1983).^[FN9]

In A.W. v County of Oneida, 34 AD3d 1236, 1237-1238 (4th Dept. 2006) the court held that in the case of an infant subject to a neuropsychological examination, counsel could be present physically, electronically, or otherwise when the examination occurred. The court remitted the matter to Supreme Court to define the parameters of the physical, electronic, or other presence of plaintiff's attorney in order to minimize that persons' impairment of "the validity and effectiveness of the examinations." Id. In other instances, if there was no evidence that the attorney would interfere in the examination, it was an abuse of discretion for Supreme Court to exclude counsel. Ponce v Health Ins. Plan, 100 AD2d 963 (2nd Dept. 1984) (an adult plaintiff is entitled to counsel so long as they do not interfere with the conduct of the examinations); Jakubowski v Lengen, 86 AD2d 398, 400-401 (4th Dept. 1982).

Before reviewing other aspects of this issue, this court notes that the reasoning of all of these cases seems to rest on a judicial gloss in Rule 3121 of the CPLR. In Jakubowski v Lengen, 86 AD2d 398, 400-401 (4th Dept. 1982), a case cited as authority by husband's counsel in this application, the court described the presence of attorneys at evaluations as "explained by the longstanding and seldom challenged practice of attorneys accompanying and being with their clients at physical examinations." The Jakubowski court cites Milam v. Mitchell, 51 Misc 2d 948 (Sup. Ct. Niagara Cty. 1966), which references the same "practice" of lawyers being permitted to attend examinations. The court in Jakubowski noted that neither CPLR 3121 or the court rules expressly provide for an attorney's presence at medical or psychiatric examinations, but "more importantly, they do not provide for his exclusion." In short, the Fourth Department acknowledged that even though CPLR 3121 says nothing about a client's right to have counsel present during a psychiatric examination, theabsence of any express statute or rule prohibiting counsel's attendance apparently condones the prior "practice" of permitting counsel to attend. On this slender reed of a "negative inference," found in the absence of language specifically excluding counsel in CPLR 3121, the Fourth Department held that a client was presumed to have a right to have counsel present at a physical examination.

Despite this broad-reaching principle, the Fourth Department in Jakubowski v. [*8]Lengen acknowledged that the examining room should not be turned into a hearing room and held that, while the objectant failed to meet his burden of proof, the court had the power to prevent the attorney from intruding on the examination. In Jakubowski, as well as the numerous cases cited above, the proof that disruption of the examination would occur by counsel's presence was insufficient to curtail the "practice" that the court said was inferred from the CPLR and the Fourth Department rules. However, what emerges from Jakubowski is an important guidepost for this matter: there is no constitutional or statutory right to have counsel present in psychiatric examinations in civil cases in New York. The Fourth Department in Jakubowski describes it solely as a "practice." While many of the other recent cases cite Jakubowski and otherwise canonize this "practice" into a "right,"^[FN10] none of them cite any broader authority for the proposition that an attorney may participate in a psychiatric examination. And all of these cases articulate the exception to the rule articulated in Jakubowski: if an objectant produces proof that an attorney's presence will impair the effectiveness and validity of the examination, the court may exclude counsel.

Here, husband's counsel relies, in significant part, on the Jakubowski v. Lengen holding. In Jakubowski, the court cites a California case, Shariff v. Superior Ct of City and County of San Francisco, 44 Cal2d 508 (1955), which, according to the Fourth Department, supported the presence of counsel during a physical examination. The Jakubowski court repeated a portion of the Shariff opinion:

Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril. The plaintiff, therefore, should be permitted to have the assistance and protection of an attorney during the examination.

Shariff at 510, cited in Jakubowski at 401. However, subsequent California opinions have not extended the principles of Shariff to psychiatric examinations. In fact, the California Supreme Court refused to permit attorneys to be present during psychiatric examinations of their clients. Vinson v. Superior Ct., 43 Cal3d 833 (1987) (finding no right for the attorney to attend the psychiatric examination and leaving that decision to the trial court's discretion); Edwards v. Superior Ct., 16 Cal3d 905 (1976) (litigant had no right to have counsel present during psychiatric examination); Toyota Motor Sales v. Superior Ct., 189 Cal.App.4th 1391 (2010) (trial court erred in permitting litigant's counsel to sit in another room and listen to and monitor an independent psychiatric examination). As the California Court of Appeals noted, largely quoting directly from Edwards v. Superior Ct.:

Unlike a physical examination, which consists of little or no analysis of the examinee's mental processes, a psychiatric examination is almost wholly devoted to a careful probing of the examinee's psyche for the purpose of forming an accurate picture of his mental condition. . . . the basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject. Also, the presence of counsel may largely negate the value of the examination. Surely the presence [*9]and participation of counsel would hinder the establishment of the rapport that is so necessary in a psychiatric examination. [A] psychiatric examination of a party in a civil case should ordinarily be conducted without counsel if the examination is to remain an effective and meaningful device for ascertaining the truth.

Golfland Entertainment Centers, Inc. v. Superior Court, 108 Cal.App.4th 739, 747 (2003). In Toyota Motor Sales, the California Court of Appeals concluded that counsel's "contemporaneous monitoring of the psychiatric examination" would interfere with its accuracy:

[C]ounsel's presence in another room would interfere with [the examiner's] ability to establish the rapport with [the subject] necessary for the examination, especially given [the subject's] ability to speak with his attorney in person at breaks (though not on the subject of the examination), and might well influence [the subject] to answer questions in a particular way so as to please his attorney whom he knows is contemporaneously monitoring the examination.

[A]bsent evidence to the contrary (and there is none), it must be presumed that the examiners will act appropriately. Moreover, short of interrupting the examination to pose objections—the type of disruptive conduct that the general rule against the presence of attorneys is designed to prevent—we fail to see how monitoring the examination will in any way serve to protect [the subject] against such supposed abuses. We note, too, that the court ordered [the subject] and his attorney not to discuss the substance of the examination. Thus, the presence of [the subject's] attorney cannot be described as necessary to give him advice at breaks in the examination so as to minimize the speculative dangers [the subject] describes.

Toyota Motor Sales v. Superior Ct. at 1397.

The California evolution away from permitting counsel's presence in psychiatric examinations and putting the burden on the party seeking to admit counsel, to some extent, undercuts the continuing vitality of the Jakubowski line of cases.^[FN11] In California, any [*10]"practice" that would permit an attorney to attend a psychiatric examination takes a back seat to the need for independent, unbiased, and neutral examinations in the truth finding process, and the party seeking to admit counsel has the burden to establish a "justification" to attend.

In line with this evolution in California, an emerging body of New York cases seems to reject the Jabukoski presumption that the objecting party must demonstrate a valid reason to exclude the attorney from a psychiatric examination. In the alternative, these cases demonstrate what circumstances can justify excluding counsel from these examinations. In Administration of Children Services v. Y.B., 2009 NY Misc Lexis 2560 (Sup. Ct. New York Cty. 2009), the court, on consent, required the mother in a neglect proceeding to undergo a mental health evaluation. The subject demanded that her attorney attend. The court held that the pre-dispositional mental health evaluation was not a "critical stage" of the proceeding, and hence the subject had no right to have counsel present. The court noted that, unlike the circumstances in In re Alexander L., there was no express statutory right to counsel at the proposed psychiatric examination. In searching for a constitutional right to have counsel attend, the court distinguished Matter of Alexander L., noting that the Court of Appeals simply held that counsel's presence was only required at "critical stages" of litigation. The mental health examination at issue before the court in Administration of Children Services v. Y.B. was not "a critical stage" in a neglect case because it was "neither adversarial nor does it create a risk of substantial prejudice to Respondent." Id. at p. 11. The court noted that the evaluation was "not utilized as the primary or exclusive evidence" and "was not statutorily required, but . . . merely an additional aid to the court." Id.at p. 12. The court held that the rationale for allowing counsel to participate in "critical stages" was to "preserve the party's right to a fair trial and the right to meaningful cross-examination." But the court reasoned that even if the party's counsel was not present, the subject's "right to effective assistance of counsel remains fully protected . . . because the report will be available to all counsel, the evaluator is subject to cross-examination and [the subject] may submit a contradictory psychiatric examination." Id. The court added:

At the neglect dispositional phase, the court takes many factors into consideration for the placement of the child and the proper dispositional orders, and the mental health evaluation is not the primary or exclusive evidence. Indeed, such an evaluation is not even mandated. The mental health evaluation is merely an additional tool to aid the court in determining the appropriate disposition. It is no more a factor to consider than a respondent's drug and alcohol test results, the reported observations by a social worker of the habitability of a respondent's home, the reported observations of a respondent's interactions with their child at supervised visits, etc. To rule that a pre-dispositional mental health evaluation is a critical stage, invoking a constitutional right for a respondent's attorney to attend, would create a slippery slope where a respondent would then be able to argue that she enjoys a constitutional right to counsel at her drug screenings, a [*11]constitutional right for her attorney to attend a home study visit, and a constitutional right for her attorney to attend agency supervised visitation, all examples of subjects typically reviewed by the court at disposition. In this court's view, no such constitutional right to counsel exists, and Respondent's application to have her attorney observe the evaluation must be denied.

Id. at p. 26-27. The court in Administration of Children Services v. Y.B. cited other cases which had reached similar conclusions. In re Patricia P., 117 Misc 2d 826 (Fam. Ct. Bronx Cty. 1983) (counsel not permitted in psychiatric examination in placement proceeding); In re Steven E. H., 124 Misc 2d 385 (Fam. Ct. Kings Cty. 1984) (attorney denied access to non-adversarial psychiatric examination). In all of these cases, the courts concluded that, even if counsel were barred from the examination, the availability of ample post-examination procedures - access to the examiner's report, cross-examination - would protect the subject's rights.

In another context, the Third Department declined to intervene when the subject of a psychiatric examination was denied a right to have a third-party present. In Gardner v. Niskayuna School District, 42 AD3d 633 (3rd Dept. 2007), the court upheld a lower court determination to exclude a third-party from a psychiatric examination, even though there were statutory grounds for permitting his presence.^[FN12] The lower court had held that the party's post-examination rights - most importantly, cross-examination - were sufficient to protect the subject's statutory rights. The court noted:

Respondents presented evidence, however, that the presence of petitioner's husband would have compromised or invalidated the results of the evaluation, thereby frustrating respondents' statutory right to conduct a medical examination. Specifically, [the psychologist] explained that it is not "clinically appropriate" for a patient to be accompanied by a spouse into an interview because the patient's response can be "radically different, or impacted, by the presence of that other person" if, for example, the person has not shared personal information with the spouse.

Gardner v. Niskayuna School District at 636. In essence, even though a statutory "right" had been violated when the observer was denied access, the court in Gardner v. Niskayuna School District held that subject had failed to produce evidence that her ability to prepare for the hearing, formulate a defense, or effectively cross-examine the evaluator was impaired by the exclusion. In this instance, the court held that the evidence from the examiner regarding the need to exclude the observer to protect the integrity of the examination was sufficient, and shifted to the subject the burden to show that the exclusion had compromised their right to a fair hearing.^[FN13] In another instance, the Supreme Court [*12]in Mosca v. Explorer Charters, Ltd., 194 Misc 2d 360 (Sup. Ct. Kings Cty. 2002), refused to consider evidence from a psychiatric examination of the plaintiff by a psychiatrist selected by the defendant when the defendant's counsel was present at the examination. While plaintiff did not protest the presence of defendant's attorney at the time of the examination, the court noted that the subject later stated that "his [the defense attorney's] presence had such an emotionally adverse effect on me " and further that "I feel that the examination would have come out differently had the other sides [sic] lawyer not been sitting next to me on the couch." Id. at 361. The court made two noteworthy comments. First, the observation by defendant's counsel during the examination was "presumably no different than that which he could gain by talking to the examining doctor." By acknowledging this fact, the court clearly suggests that the post-examination disclosure process can provide counsel with adequate information to prepare a defense and cross-examination. Second, the court recognized the disparity between a psychiatric examination and an orthopedic or similar medical examination in that most, if not the entire diagnosis, is based upon the private conversation between the doctor and the patient. The court stated:

For an open dialogue to take place and meaningful findings to follow, it is obvious that the patient must be made to feel as comfortable as possible. The presence of a non-medical third person - particularly one who represents one's adversary (and, more particularly, when the examinee's attorney is not present) - would have to have a profound effect on a party who is being called upon to discuss the most intimate matters.

Mosca v. Explorer Charters, Ltd. at 362. In order to prevent unreasonable embarrassment, disadvantage, and prejudice to plaintiff, the court held that the interests of justice dictated that defendant be precluded from offering the testimony of the psychiatrist who examined the party while opposing counsel was present.

Mosca v. Explorer Charters, Ltd., Gardner v. Niskayuna School District, and Administration of Children Services v. Y.B. are evidence of the cross-currents of New York law that accord psychiatric examinations a different legal status when considering whether a third-party should be present during the examination. These cases recognize that the unique circumstances of a psychiatric examination generally militate against a presumption that any third-party should be present at the time of the examine. These cases also suggest New York authority on access to psychiatric examinations runs on several tracks:

The In re Alexander L. track, which suggests that if the examination is at a critical stage, then counsel must be present;

The Jakubowski track, which judicially codifies a practice that the attorney may be present unless the objecting party presents a sufficient justification to exclude counsel; and,

The emerging psychiatric track, established in Administration of Children Services v. Y.B. and its predecessors, which indicate that because of the unique nature [*13]of psychiatric examinations, the party seeking access must present a justification to attend.

In view of these different approaches of New York law, this court looks to the federal and other state courts for further guidance.

While many New York courts appear to have embraced the litigants right to insist on counsel's presence, federal courts, recognizing a concomitant policy interest, have gone the other way - refusing to permit counsel to attend such examinations. These cases cause this court some pause in considering the extent to which counsel may be "present" for the examination in this case. Rule 35 of the Federal Rules of Civil Procedure, which governs psychiatric examinations, does not address whether an attorney may be present during the examination. See Borreca v. J.B. Hunt Transp. Servs., 2008 US Dist LEXIS 41727 (ED NY 2008). In that respect, Rule 35 resembles New York's CPLR 3121; neither statute explicitly mentions a "right" or "practice" to have counsel in medical or psychiatric examinations. As noted above, the New York courts, in the absence of any legislative guidance in the CPLR, and when confronted with the question of an attorney's access, blessed a "longstanding practice" that permitted attorneys to attend such examinations. The federal courts, apparently unwilling to act without direct legislative authority, generally interpret Rule 35 to prohibit attorneys from being present during psychological examinations. See Mandujano v. Geithner, 2011 WL 2550621 (ND CA 2011) (courts generally prohibit third-party observers - including counsel - from attending a mental examination because of the potential for interference, intrusion, or contamination of the process); Letcher v. Rapid City Regional Hosp., Inc., 2010 US Dist LEXIS 46959, 18 (WD SD 2010) (in denying request for presence of counsel, the court commented that the overwhelming weight of authority in federal courts is against allowing an attorney in a medical examination); DiBari v. Incaica Cia Armadora, S.A., 126 FRD 12, 13 (ED NY 1989) (when no evidence is presented to deviate from the general rule under Rule 35, plaintiff's counsel is barred form sitting in during the plaintiff's examination). The arguments advanced before this court mirror the federal rationale for excluding counsel from the examination:

The court finds that a Rule 35 "examination should be divested of any adversary character," because of "the special nature of such an examination, which relies upon unimpeded one-on-one communication between doctor and patient." Di Bari v. Incaica Cia Armadora, S.A., 126 FRD 12, 13 (ED NY 1989) (internal citations and quotations omitted). Indeed, the court concurs with the Diocese that the presence of an extra person at the examination could reduce the independent nature of the examination by inhibiting [a litigant's] likelihood to provide candid responses to sensitive questions. While the court recognizes that the presence of a third party at the examination may also give [a litigant] moral support, this would be true in all cases involving a mental examination of this type. Thus, [the litigant's] request does not distinguish this case from others or constitute a special circumstance.

Favale v. Roman Catholic Diocese of Bridgeport, 235 FRD 553, 557 (D Con 2006). In United States v. Byers, 740 F2d 1104, 1119 (DC Cir 1984), the court noted that an examining psychiatrist is not an adversary and that counsel's role is extraordinary limited [*14]under those circumstances:

[A]t the psychiatric interview itself, [the defendant] was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make - not even, as we have seen, the decision whether to refuse, on Fifth Amendment grounds, to answer the psychiatrist's questions. The only conceivable role for counsel at the examination would have been to observe.

[T]he presence of counsel . . . is evidently antithetical to psychiatric examination, a process informal and unstructured by design. Even if counsel were uncharacteristically to sit silent and interpose no procedural objections or suggestions, one can scarcely imagine a successful psychiatric examination in which the subject's eyes move back and forth between the doctor and his attorney. Nor would it help if the attorney were listening from outside the room, for the subject's attention would still wander where his eyes could not. And the attorney's presence in such a purely observational capacity, without ability to advise, suggest or object, would have no relationship to the Sixth Amendment's "Assistance of Counsel."

Id.; see also United States v. McSherry, 226 F3d 153, 157 (2nd Cir 2000) (the basic tool of psychiatric study remains the personal interview which requires rapport between the interviewer and the subject). While this court cannot import the federal principle to overrule New York precedents, the court is struck by two aspects of the federal analysis. First, this court concurs with its federal colleagues: in the absence of express legislative guidance, no court should elevate a "practice" among attorneys into some form of litigant "right." Second, in fashioning an appropriate role for the attorney in this case, this court should not ignore the wise caution of the federal courts to limit an attorney's potential intrusion into the psychological examination.

Other states do not follow any specific uniform rules regarding attorney access to psychiatric examinations. Lagfeldt-Haaland v. Saupe Enterprise, Inc., 768 P2d 1144, 1147 (Alaska 1989) (aligning Alaska with those authorities which allow plaintiff's counsel to attend, as a matter of course, court-ordered medical examinations in civil cases.); Martens v. Industiral Commission of Arizona, 121 P3d 186 (Ariz. Ct. App. 2005) (denying attorney access to psychiatric examination); Vinson v. Superior Court of Alameda County, 43 Cal3d 833 (Cal. 1987) (examinee has no right to require the presence of an attorney during a psychiatric examination pursuant to California rules); Hayes v. District Court City and County of Denver, 854 P2d 1240 (Colo. 1993) (no right to have attorney present at physical examination); Polcaro v. Daniels, 2007 Conn. Super. LEXIS 945, 2007 WL 1299159 (Conn. Super. 2007) (in an unpublished opinion, the Connecticut Superior Court determined that the plaintiff could be accompanied by a representative from the law firm representing the plaintiff); McClure v. Catholic Diocese of Wilmington, Inc., 2009 Del Sup LEXIS 60 (Sup. Ct. 2009) (third party in examination room could have a chilling effect and could compromise the evaluation technique of the examiner); Rochen v. Huang, 558 A2d 1108, 1111 (Del. Super. 1988) (any attorney's presence during the intense discussions [*15]involved in a psychiatric examination of this sort would be disruptive and intimidating and could well impair the ability of the defendant to obtain a complete and fair psychiatric examination of plaintiffs); Gaskins v. Canty, 29 So3d 432 (Fla. 2d DCA 2010) (attorney can attend vocation rehabilitation examination); U. S. Security Insurance Co. v. Cimino, 754 So2d 697, 702 (Fla. 2000) (analogizing to discovery rule which would allow a videotaped examination, the court held that an insured is entitled to have an attorney present at an independent medical examination.); Broyles v. Reilly, 695 So2d 832, 834 (Fla. 2d DCA. 1997) (plaintiff entitled to have attorney present, as physician performing examination offered no case-specific reason for their exclusion); Kutner v. Urban, 2003 WL 22792239 (Mass. Super. 2003) (in an unpublished opinion, the Massachusetts Superior Court determined that the plaintiff's attorney should be allowed at independent medical examination when good cause is shown); B. D v. Carley, 704 A2d 979, 981 (NJ App.Div. 1998) (plaintiff is entitled to employ counsel during psychological examination, despite examining psychologist's preference to the contrary). While this citation chain demonstrates that many states have considered the question before this court, in most instances, the state discovery statutes that authorize medical or psychiatric examinations, are silent on a subject's right to have counsel attend examinations.^[FN14]

In one directly analogous case from New Jersey, the court, in a contested custody case, confronted a request to videotape examinations of child's interview with a treating psychologist, which the court denied. The court offered the following important warning:

[T]he goal of a custody evaluation is to obtain the independent recommendation of an expert. It is the job of the expert to give his or her professional assessment of the raw data that the expert collects during the custody evaluation. The resulting report is not merely a compilation of raw data, but is a synthesis of information offered to the court by a trained professional. Asking the judge to review the underlying data on which the expert formed his or her conclusion is really asking the judge to assume the role of a psychiatrist or psychologist. While a court can be, and often is appropriately, asked to assess an expert's opinion, and either reject that opinion or give greater weight to the opinion of [*16]another expert, the court should not do that based on an assessment of the expert's raw data. Instead, the proper assessment of the expert should be based on traditional and well established procedures, such as the deposition and cross examination of the expert. The court, however, should not be asked to make a psychological evaluation.

Koch v. Koch, 38 A3d 703, 708 (NJ Super. 2011). Another New Jersey Court echoed this sentiment:

It is imperative that a psychiatric evaluation take place in a comfortable, non threatening environment. With the addition of an outside party, matters of personal sensitivity may be compromised. Patients may also be concerned how responses are perceived by third parties, thus compelling them to withhold or misstate information.

Stoughton v. BPOE, 658 A2d 1335, 1338 (NJ Super. 1995). Kentucky's Supreme Court, in analyzing its discovery rules,^[FN15] dealt with this question in Metropolitan Property & Casualty Co. V. Overstreet, 103 SW3d 31, 39 (Sup. Ct. Ken. 2003) and concluded:

An attorney is most likely to be problematic because of the potential to unfairly disrupt the examination. As some commentators have noted, "even a few well-timed objections could seriously undermine the examination, and it is not difficult to imagine an overzealous attorney making more than a few objections." A court order requiring the attorney to remain silent lessens the potential for disturbance, but the attorney's presence is then of doubtful utility to the examinee because an attorney may not act as a witness. . . .Thus, an attorney could not dispute a perceived inaccuracy in the doctor's testimony without jeopardizing his representation of the examinee. In fact, plaintiff's attorney advised during oral argument that this was precisely why he did not ask that he be permitted to attend the examination. While we do not hold that an attorney should never be allowed to attend an examination of his client, it is difficult to conceive of circumstances where such attendance would be warranted.

Id. This short review of holdings from other state courts exemplifies the diversity of opinions regarding an attorney's access to psychiatric examinations. One salient concern emerges from these decisions: the courts are vitally concerned about the accuracy and integrity of psychiatric examinations because they are at the heart of judicial determinations in cases involving the mental health and fitness of individuals before the court. If the courts are going to rely on independent mental health professionals for guidance on sensitive issues - such as a parent's psychological make-up and how it impacts their fitness as [*17]parents - then, the courts have a significant obligation to not let any third-party interfere with the diagnostic and evaluation protocols used by the treating professional. This caution is not without limit: courts have made it clear that a psychologist does not have the right to dictate the terms and conditions under which an examination is held. B. D v. Carley at 981.

In considering the presence of counsel at these examinations, this court notes caution would militate against permitting the attorney to be present. First, if counsel attends and any disruption occurs - either intentional or inadvertent - the entire examination could be thwarted and would need to be redone, as the court ordered in Mosca v. Explorer Charters, Ltd.. The court is not present during the examination and cannot, prospectively, control the attorney's body language or other reactions with his client. The prospect of a "do-over" if the presence of the party influenced the result would strongly suggest restricting the attorney's access to the examination. Second, as numerous New York and other state courts note, the protections available after the examination are ample - the attorney can contact the expert, review a copy of his report, and can subject the expert to cross-examination. This court is unable to find any case where the court barred an attorney from being present at the examination, permitted the subject's attorney to fully utilized his other prophylactic measures — further disclosure and cross-examination - and then ruled that the subject was denied a fair hearing because of the exclusion. When these real practical issues are analyzed, the court leans in favor of denying access to any third-party, especially if the expert, who conducts the examination at the court's direction, strongly suggests that the presence of a third-party would impact the results of the examination.

Husband's counsel argues that the Uniform Rules for the Conduct of Depositions grant the husband a right to refuse to answer any questions posed by the evaluator that intrudes on a "privilege" or that might cause "significant prejudice" to his client. See 22 NYCRR § 221.2 (a). Husband's counsel argues that the evaluator "gains no greater rights than an attorney representing a party conducting a deposition has." Reference to the Uniform Rules for conduct of Depositions does not justify the husband's argument. First, it is undisputed that the husband has a privilege against self-incrimination under the Fifth Amendment of the United States Constitution and an even broader right against self-incrimination under the New York State Constitution. People v Bing, 76 NY2d 331, 338-339 (1990) (under the state constitution, the privilege against self-incrimination, the right to assistance of counsel and due process of law have provided greater protections to accused that are "far more expansive than the Federal counterpart"). But, as countless cases note, the due process guarantee in the New York State Constitution, the entitlement to effective assistance of counsel, and the privilege against compulsory self-incrimination and the right to counsel, while indelible, are only invoked when they attach, usually in the context of a criminal proceeding. People v Lopez, 16 NY3d 375 (2011); People v Bing, at 339. See also In re Michael WW., 20 AD3d 609, 611 (2nd Dept. 2005) (the right to remain [*18]silent and to counsel under the 5th and 6th Amendments, only apply in the context of criminal proceedings); In Ughetto v. Acrish, 130 AD2d 12 (2nd Dept. 1987), the Second Department noted:

Psychiatric examinations are not the equivalent of criminal interrogations. Their primary purpose is diagnosis and the development of treatment goals, not the marshaling of incriminating' evidence. A patient's statements are not admitted against' him at a commitment hearing [where] . . . the sole intent . . .is to ascertain the patient's needs'. Indeed, the court . . . noted that instructing a patient to remain silent would needlessly undermine valid mental health objectives'.

Id. at 21.

As a consequence, this seemingly sacrosanct constitutional principle does not apply with the same stringency in depositions in civil cases or psychiatric examinations. In depositions - which the husband seeks to equate with the psychological examination at issue in this case - courts have said:

A blanket refusal to answer questions based on the Fifth Amendment privilege against self-incrimination cannot be sustained absent unique circumstances, and the privilege may only be asserted when there is reasonable cause to apprehend danger from a direct answer (cites omitted). While the witness is generally the best judge of whether an answer may tend to be incriminating, when the danger of incrimination is not readily apparent, the witness may be required to establish a factual predicate. Thus, in order to effectively invoke the protections of the Fifth Amendment, a party must make a particularized objection to each discovery request.

WMC Mortgage Corp. v Vandermulen, 32 Misc 3d 1206A (Sup. Ct. Suffolk Cty. 2011); Cohen v. Sekura Asset Mgmt., 2010 NY Slip Op 30963U (Sup. Ct. Nassau Cty. 2010). Thus, even if this court equated the questioning by a psychological evaluator with the questioning by an attorney during depositions, the burden would fall on the subject of the evaluation to assert that the danger of self-incrimination was "readily apparent" and further assert a "factual predicate" or "particularized objection" to any specific question posed by the evaluator.

In this case, there seems to be no mystery about the subjects that the husband seeks to shield from further presentation to the court-appointed evaluator. In the wife's papers there are allegations of marijuana use by the husband and an alleged history of infractions related to drinking and driving. This conduct, if true, would certainly seem to be relevant to any issues involving custody, primary residence, and other child-related issues in this proceeding. But, at this stage, there is no evidence of any "readily apparent danger" of any criminal prosecution. Furthermore, there is no "factual predicate" asserted by the husband to warrant his refusal to ask questions concerning his past criminal violations or drug use. Chase Manhattan Bank, Nat'l Ass'n v. Federal Chandros, Inc., 148 AD2d 567 (2nd Dept. 1989) (a defendant may not assert a blanket refusal to answer questions based upon the Fifth Amendment privilege against self incrimination, and may only assert the [*19]privilege where there is reasonable cause to apprehend danger from a direct answer). The only assertion before the court is that answering certain questions may cause "substantial prejudice", but this amorphous, undefined objection does not meet the standard for a "particularized objection" required to permit the assertion of the self-incrimination privilege in this case. Therefore, under these circumstances, the husband cannot assert his right against self-incrimination to refuse to answer questions from the evaluator regarding his past criminal conduct and his current usage of any drugs, both legal and illegal.

This court also declines the husband's request to equate the examination by the independent psychologist with a deposition conducted during litigation by applying the strictures of Uniform Rules for the Conduct of Depositions. 22 NYCRR § 221.2(I) & (iii). The examination is not a simple "question-and-answer" session like a deposition. First, the evaluator does not place the witness under oath as occurs in depositions. Second, there is no transcript of the proceedings. Third, no one, other than the evaluator, is usually present during the examination, unlike a deposition which occurs with counsel and parties present. Fourth, there is no requirement that the evaluator pose questions in any particular form. Finally, there are no rules regarding relevance in these examinations. As described in the many cases cited in this opinion, "the special nature of such an examination . . . relies upon unimpeded one-on-one communication between doctor and patient." Favale v. Roman Catholic Diocese at 557. This court declines to restrict the professional judgment of the court-appointed evaluator and subject him to the rules that apply to attorneys conducting depositions. In conclusion, this court notes that any misjudgments, mistakes, errors or excessive inquiry by the examiner on matters irrelevant to his determination can - and should be - the subject of either pre-trial preclusion motions and/or vigorous cross-examination when and if the professional's opinion is aired before the trier of fact.^[FN16] This court will not tell another professional how to perform their examination and will not require this evaluator to conform to the rules for lawyers during pretrial disclosure.

In considering the husband's request for his counsel to attend, this court must also consider the potential consequence that the husband's counsel, while observing the examination, may convert his status from counsel to a witness, either for his client or his client's wife. The New York Code of Professional Responsibility requires that the attorney who is confronted with such a situation must then withdraw from the case since he may be forced to argue his own credibility before the trier of the facts. 22 NYCRR § 1200.0; Mosel v. Brookhaven Memorial Hospital, 134 Misc 2d 73 (Sup. Ct. Suffolk Cty. 1986) (if the attorney for the plaintiff were present at the examination and a controversy arose [*20]concerning the manner in which the examination had been conducted and its efficacy, the attorney for the plaintiff might be forced into the difficult position of being compelled to testify concerning the conduct of the examining physician); Ponce v. Howard Simmons, P.C., 2012 NY Slip Op 32247U (Sup. Ct. New York Cty. 2012); Machie v. Manger, 2010 WL 2132223 (D. Md. 2010) (by attending the examination, counsel may "mak[e] himself in effect a witness, with the difficulties which are likely to arise when an attorney asks questions on cross-examination based upon his own observations, and the possibility that he may wish to take the stand and thereby disqualify himself from completing the trial as the attorney.") As an alternative to the risk that the observing attorney will become a witness, numerous courts have recommended other options for counsel, whose clients are subject to examinations which the attorney does not monitor or observe. See Dziwanoski v. Ocean Carriers Corp., 26 FRD 595, 598 (D. Md. 1960) ("if counsel is concerned about the adequacy of the examination, he may . . . ask his own client questions about it, cross-examine the doctor, and, of course, inspect the report which he is entitled to demand under Rule 35."); Mitchell v. Home Depot U.S.A., Inc., 2012 U.S. Dist. LEXIS 55132 (WD KY 2012) (exclusion of any statements made by the subject during Rule 35 examination relating to non-medical matters would protect [the subject] against any admission which may affect her rights).

The danger that the observing attorney would be converted into a trial witness gives further weight to the conclusion that counsel should not observe the psychiatric examination. If the husband needs to be shielded from inquiry about irrelevant matters or "non-treatment" related questions, this court, in response to a motion in limine, can preclude the examiner from testifying at trial about "non-psychiatric matters" heard during the examination. Furthermore, the examiners report will be available to all counsel and the examiner will be subject to detailed cross-examination. In addition, while this neutral examiner will be available for presentation to the court, his word is not the final say. This court makes the final conclusion regarding the husband's fitness based on a plethora of factors — of which this examiner's report is only one — and the husband can, if objecting to the examiner's conclusions, retain his own expert to conduct a similar examination.

In short, there are two short term risks in allowing the attorney to observe: the danger that the attorney might, intentionally or inadvertently, interfere with the clinical process and the risk that he might be converted into a factual witness. Meanwhile, there are ample pre and post-examination protections for the husband. The court could approve a pre-examination stipulation to restrict inquires by the examiner into the husband's past. Husband's counsel can advise him about anticipated questions. The post-examination protections are ample as well: post-examination interviews with the client, production of the report in detail, use of other experts to rebut the examiner's conclusions and detailed cross-examination at trial.

During the argument of this motion, the husband's counsel suggested that the evaluator was "in the camp" of the wife, in large measure, because the evaluator has communicated with the court regarding the examination, communicated with the husband's counsel, and submitted an affidavit in support of the wife's attempt to bar the attorney from [*21]participating in the husband's examination. As the length of this opinion indicates, this court has scoured the "electronic stacks" reviewing cases related to the putative right of access. There have been numerous cases in which the evaluator has submitted affidavits to courts arguing against the presence of attorneys in psychological examinations. In those dozens of cases, this court has never read any suggestion that the evaluator, by submitting his opinion on the impact of the attorney's presence or defending his examination practices, and those of his profession, had forfeited his status as an independent evaluator or been subject to a charge of bias. The only basis for a claim of bias is the speculative assertion that the evaluator in this case will improperly exercise his professional judgment in assessing the husband. This court declines to presume any such bias, especially when there is no specific allegation or fact in this case to sustain it. If any bias exists on the part of the evaluator, the husband's counsel's review of the final report and a vigorous cross-examination at the time of trial will expose it and the court can then elect to disregard the evaluator's opinions and observations. There is no motion to disqualify this evaluator and the court will not speculate about any bias, until there is some proof to support it.

Given the current state of New York law, this court concludes that the husband has no right to have his attorney present during the examination. The next question is whether the Jakubowski v. Lengen test is met: has the wife's attorney and the evaluator's affidavit provided a sufficient justification for excluding the attorney. In considering this aspect, this court is struck by the substantial and sound judgment of the federal courts and the numerous state courts that have held that the special nature of the psychiatric examination compels a court to deny admission to the attorney. But the stream of federal and other state precedents are not the sole evidence suggesting the wisdom of excluding the husband's attorney. Here, the evaluator raises substantial objections to the attorney's presence, including the risk that the attorney "would seek to prevent his client from providing spontaneous responses" to questions and that the presence of the third-party "has a substantial likelihood of skewing the data obtained and impacting the behavior and test results." The evaluator cites to the court publications that echo his concerns.^[FN17]

In this court's view, the evaluator's objections, backed by the stream of federal court determinations and the guidance of other states, the evaluator's clinical recommendations and other mentioned periodicals, support the conclusion that the attorney's mere presence alone in the examining room could interfere with the examination. Therefore, under the Jakubowski v. Lengen test, the wife's counsel and the evaluator have demonstrated a sufficient justification to bar the husband's attorney from the examination room.

This court also notes that two additional issues need resolution. The first is whether there is any proof to justify permitting the attorney to attend some portion of the [*22]examination. The second issue is whether the attorney can be present in an adjacent room while the examination occurs and whether the husband can recess from the examination to ask his attorney questions. In responding to the first inquiry, the court notes that the evaluator suggests the examination has two parts: the social history or interview and the testing. The husband's counsel is concerned about questions concerning the husband's alleged prior and current drug use. The attorney acknowledges that he raised the question of inquiries regarding the husband's drug use in a conversation with the examiner, after the evaluation was ordered. In short, the husband wants to be present during the "social history" phase of the examination. However, it is this phase of the examination during which the attorney's presence poses the biggest threat of interference. The evaluator will ask questions about the husband's past, including drug use. Presumably, the same questions will be posed to the wife. Wife's counsel has already alleged violations of the drunk driving laws and the mother alleges recent marijuana use by the husband. Given these facts - already aired before this court - it is difficult to conceive that the husband, through his answers to the examiner, will offer any additional information that is not already in the factual landscape of this case. Certainly, the examiner will be asking the husband questions that may be similar to questions directed at the husband during cross-examination at trial. Because the objecting wife has demonstrated a basis to exclude counsel, the exclusion should bar his attendance at the social interview portion of the examination.

In addition, there is no basis for counsel to attend the testing portion of the examination. There is no allegation - much less any evidence - that the husband would make any admissions against interest or other inculpatory or damaging statements during the testing portion of the evaluation. There is no evidence that counsel's presence during the testing portion of the evaluation would serve any purpose. For this reason, the court concludes that the attorney may not be present during the testing portion of the examination.

While husband's counsel may not attend the examination, prior to the interview he may counsel on anticipated questions and the ramifications of possible answers. It would seem that the husband's interest in protecting himself from questions regarding his past involvement with the legal authorities might be cured - and avoided - if the husband's counsel stipulated to any prior charges and provided the stipulation to the evaluator. Furthermore, the husband's attorney may counsel his client on answering specific questions related to recent drug use. These ample pre-examination tools to avoid any damaging admissions during the examination process — combined with the post-examination protections — will adequately protect the husband's interests. To balance his client's interests and as an exercise of this court's discretion to control disclosure under CPLR 3121, the attorney may attend the initial interview, where the process is explained and the informed consent obtained. But otherwise the examination will be supervised by the evaluator and the husband may not confer with his counsel during the conduct of the examination.

The discussion in this opinion leads this court to one final observation. Under the Jakubowski line of cases, this court concludes that the objecting party has produced [*23]sufficient evidence to justify excluding the attorney from the psychiatric examination in this instance. However, if this court could wipe the slate clean, it would decline to elevate New York's early 1980s "practice" of permitting attorneys to attend medical examinations to a judicially-declared presumption in favor of their attendance, as Jakubowski and later opinions have done. The logic of the federal courts and the later California courts, the absence of any direct legislative command to permit attorneys to attend psychiatric examinations in CPLR 3121, and the panoply of post-examination protections (review of the report, interview of the examiner, opportunity to obtain an additional psychiatric evaluation and cross-examination at trial), compel a conclusion that the attorney's presence should be presumed to be intrusive and damage the integrity of the examination. Furthermore, the attorney should have the burden to show that his presence is necessary to protect some identifiable right or privilege of his client before he or she be permitted to attend. This court does not possess the power to erase these precedents and move New York in a different direction, however appropriate the court may deem it to be. For now, the objecting party in this case has established a justification sufficient to deny, and otherwise limit, the husband's attorney access to his client's psychiatric examination under the current state of New York law.

Dated:December 13, 2012___________________________

Richard A. Dollinger, A.J.S.C.