|
|
|
| FAQ's
- The Matrimonial Rules |
| Uniform
Uncontested Divorce Packet Forms |
|
| Applicability |
Q1 ] Do the rules regarding attorney
conduct apply to simple support matters before Family Court
Hearing Examiners?
A ] Yes, the rules apply to all actions or proceedings in either
Supreme Court or Family Court, or any court of appellate jurisdiction
wherein the issues of divorce, separation, annulment, custody,
visitation, maintenance, child support or alimony are involved.
[22 NYCRR § 1400.1]
Q2 ] Do the rules apply to the
representation of a client with respect to the negotiation
of a Separation Agreement?
A ] Yes, for the most part. The rules pertaining to the Statement
of Client's Rights and Responsibilities [22 NYCRR § 1400.2; § 1200.10-a];
the written Retainer Agreement [§ 1400.3; § 1200.11(c)(2)(ii)];
security interests [§ 1400.5; § 1200.11(c)(2)(iii)];
the prohibition against beginning a sexual relationship with
a client [§ 1200.3(a)(7)]; and fee arbitration [§ 1400.7; § 136]
pertain to any "representation" of a client by an
attorney in "Domestic Relations matters" in general.
Moreover, good practice and the probability of recourse to
Court upon reaching an impasse in negotiations would make adherence
with the rules advisable from the outset of the attorney-client
relationship.
|
| Statement
of Client's Rights and Responsibilities |
Q1 ] What is a Statement of Client's
Rights and Responsibilities?
A] The Statement of Client's Rights and Responsibilities is
a form explaining in detail what the client should expect during
the course of a matrimonial action, including both the objectives
of the attorney and the client. The content of the Statement
of Client's Rights and Responsibilities is expressly set forth
in the text of the rules themselves [22 NYCRR § 1400.2],
as well as in a mandated, one-page form published by the Unified
Court System of the State of New York. [See Appendix
A]
Q2 ] When must an attorney give
the client the Statement of Client's Rights and Responsibilities?
A] The client must receive the Statement of Client's Rights
and Responsibilities at the time of the initial conference
and before the signing of the Retainer Agreement. An acknowledgment
of the client's receipt of the Statement of Client's Rights
and Responsibilities, signed by the client, must be obtained
by the attorney. [22 NYCRR § 1400.2; § 1200.10-a]
|
| Retainer Agreement |
Q1 ] Must the attorney have a written
Retainer Agreement with the client?
A] Yes, if there is any arrangement for, charge, or intent
to collect a fee for services to be rendered to the client.
In the case of Pro Bono representation or institutional representation
wherein a fee is not to be charged, the Retainer Agreement
is not required, and the clauses pertaining to attorney's fees
in the Statement of Client's Rights and Responsibilities may
be redacted from that statement before it is given to the client.
[§1400.1 and 1400.2]
Q2 ] What must the Retainer Agreement
contain?
A] The rules set forth 13 specific areas which must be explained
and addressed in the Retainer Agreement. While the text of
the Retainer Agreement is not mandated as with the Statement
of Client's Rights and Responsibilities, the rules require
that the terms of compensation and nature of services to be
rendered be set forth in "plain language." [See
Appendix B]
Q3 ] Must an attorney's Retainer
Agreement always include language concerning all 13 subjects
set forth in the rule.
A] Yes, if those subjects are in any way relevant to the retention.
However, if one or more of these subjects do not pertain to
the representation, they need not be included.
Q4 ] Must an attorney's Retainer
Agreement be limited to just the 13 subjects set forth in the
rules?
A] No. The Agreement an attorney makes with a client may contain
any provision which they negotiate, as long as the agreement
does not violate the Code of Professional Responsibility or
run afoul of certain special limitations applicable in matrimonial
actions (e.g., those regarding security interests, non-refundable
retainers, etc.)
Q5 ] Is the Retainer Agreement
to be filed?
A ] The rules provide that a signed copy of the Retainer Agreement
shall accompany the client's Net Worth Statement filed with
the Court. The Net Worth Statement and Retainer Agreement must
be filed in all matrimonial actions and proceedings in which
alimony, maintenance or support is in issue. [FCA § 236
Part A(2)] It must be filed in the Court in which the action
or proceeding is pending. The Retainer Agreement is then reviewed
by the Court to assure its compliance with the rules. [§202.16(c)(1)]
Q6 ] What is the scope of the Court's
review of the Retainer Agreement?
A ] The Court's review of the Retainer Agreement is to assure
that the Agreement complies with the requirements set forth
in the rules. [§1400.3]
|
| Security Interest |
Q1 ] Do the rules prohibit an attorney
from taking a security interest in a client's real or personal
property in order to secure the payment of my fees?
A ] No. However, the rules do limit the use of certain security
devices and regulate the manner in which a security interest
may be obtained. [§202.16(c)(2) and §1200.11(c)(2)(C)]
Q2 ] What is considered a security
interest under the rules?
A] The rules apply when an attorney seeks to obtain a confession
of judgment, promissory note, lien on real property, or a security
interest to secure his or her fee. [§1200.11(c)(2)(C)]
Q3 ] What does an attorney have
to do to obtain a security interest during the course of his
or her representation of the client?
A] The rules require the following:
(1) The client must be advised in the written Retainer Agreement
whether, and under what circumstances, the attorney might seek
a security interest.
(2) An application must be made to the Court, on notice to
the adversary, for approval of the proposed security interest.
(3) The Court may grant the application only after review of
the parties' finances and on application for attorney's fee.
[§ 1400.5]
Q4 ] Is there any limitation upon
the collection of attorney's fees via a court-approved security
device?
A] Only if the secured property is the marital residence. While
there are no limitations on the enforcement of other security
interests, the rules provide that an attorney shall not foreclose
upon a mortgage placed on the marital residence while the spouse
who consents to the mortgage remains the titleholder and the
residence remains the spouse's primary residence. [§1200.11(c)(2)(C); §1400.5(b)]
|
| Non-refundable
Fee |
Q1 ] Can an attorney charge the
client a fee to retain his or her services which is not refundable
if the client wishes to discontinue the action or retain another
attorney?
A ] No. The rules expressly prohibit non-refundable retainer
fees or the charging of any fee beyond an agreed-upon hourly
rate, which is not refundable in the event the attorney is
discharged prior to the conclusion of the action. [§1200.11(c)(2)(B)]
See Also, Matter of Cooperman, 83 N.Y.2d 465, 611 N.Y.S.2d
465, 633 N.E.2d 1069 (1994).
Q2 ] Do the rules prohibit an attorney
from collecting a bonus, minimum fee or other fee beyond the
hourly rate if the attorney concludes the matter for which
he or she was retained?
A ] No. The rules allow for minimum fee arrangements, provided
the same are reasonable and are based upon the continuation
of representation to the conclusion of the action or proceeding.
In addition, the minimum fee arrangement must be explained
in detail in the Retainer Agreement signed at the outset of
the attorney-client relationship.
|
| Fee Arbitration |
Q1 ] In the event that the attorney
has a dispute with the client regarding fees charged, must
the attorney submit the dispute to arbitration?
A ] The rules require that an attorney must submit a fee dispute
to arbitration, at the election of the client. Furthermore,
in the event of a fee dispute, the attorney is required to
provide the client with the necessary information regarding
arbitration.
Q2 ] May an attorney require a
client to submit a fee dispute to the arbitration process?
A ] No. The rules only require the submission of a fee dispute
to arbitration upon the election of the client. Therefore,
the client has the option to refuse arbitration if he or she
so desires.
Q3 ] Are there specific rules governing
the Fee Dispute Arbitration process?
A ] Yes. The Rules of the Chief Administrator, Part 136 detail
the rules governing the Fee Dispute Arbitration process. Also,
an informational pamphlet like this one, explaining Fee Dispute
Arbitration, is available through the office of the Administrative
Judge for each District of the New York State Supreme Court.
|
| Application |
Q1 ] Do the Case Management Rules
apply to all matrimonial and family law matters?
A ] No. The Case Management Rules apply only to contested actions
and proceedings in the Supreme Court in which Statements of
Net Worth are to be filed pursuant to Domestic Relations Law §236
and in which a judicial determination is to be made with respect
to counsel fees pendente lite, maintenance, custody and visitation,
child support and/or the equitable distribution of property.
This would also include those actions referred to Family Court
by the Supreme Court pursuant to §464 of the Family Court
Act. [22 NYCRR §202.16(a)]
|
| Case Management
Time Constraints |
Q1 ] What are the rules supposed
to accomplish with respect to case management?
A ] The rules are intended to promote efficient, cost-effective
resolution of matrimonial actions through early Court intervention.
A ] Through the requirement that the plaintiff either file
a Request for Judicial Intervention (RJI) no later than 45
days from the date of service of the summons and complaint
(or summons and notice) or no later than 120 days from the
date of service if a notice of no necessity is filed with the
Court. Whether the RJI is filed within 45 days or 120 days,
the Court will schedule a preliminary conference within 45
days from the filing of the RJI. [§202.16(a)]
|
| Certification of
Documents |
Q1 ] What is an attorney or self-represented
litigant required to certify?
A ] Pursuant to amendments to become effective on March 1,
1998, every pleading, written motion, and other paper served
on another party or filed or submitted to the Court shall be
signed by an attorney (or by a party if the party is not represented
by an attorney) with the name of the attorney or party clearly
printed or typed directly below the signature. By signing a
paper, an attorney or party certified that, to the best of
that person's knowledge, information and belief, formed after
an inquiry reasonable under the circumstances, the presentation
of the paper or the contentions therein are not frivolous as
defined in subsection © of section 130-1.1, including
that the substance of the factual statements therein is not
false. [§130-1.1]
|
| Preliminary
Conference |
Q1 ] How does a preliminary conference
differ from a pre-trial conference?
A ] Unlike a traditional pre-trial conference, which generally
is scheduled after the filing of a Note of Issue and Statement
of Readiness, the preliminary conference is designed to provide
early court intervention, diminish motion practice, schedule
discovery, and limit issues, so as to promote the expeditious
conclusion of matrimonial actions. [§202.16(f)]
Q2 ] Does an attorney schedule
a preliminary conference?
A ] No. It is not the attorney's responsibility to schedule
the preliminary conference. The Court is required to schedule
a preliminary conference within 45 days of the assignment of
the case, which assignment is made upon the filing of a Request
for Judicial Intervention. However, it is the attorney's responsibility
to file the Request for Judicial Intervention.
Q3 ] What notice is given of the
preliminary conference date?
A ] Preliminary conferences are scheduled by means of a preliminary
conference order, which, in addition to setting the time and
place of the conference, will also specify the papers to be
provided to the Court, including the parties' Net Worth Statements.
Statements of Net Worth are to be filed and exchanged by the
parties no later than 10 days prior to the preliminary conference.
In addition, the parties must provide the Court and opposing
counsel with a copy of the Net Worth Statement at the time
of the conference. [§202.16(f)(1)]
Q4 ] Assuming the action cannot
be settled at the preliminary conference, what do the rules
require to be accomplished?
A ] The rules provide that at the close of the preliminary
conference, the Court "shall":
(1) Direct the parties to stipulate in writing or on the record
as to all resolved issues, which the Court shall then "so
order";
(2) Direct the parties to stipulate, in writing or on the record,
as to all issues with respect to fault, custody and finances
that remain unresolved;
(3) Fix a schedule for discovery as to all unresolved issues;
and
(4) In a non-complex case, the Court must also schedule a date
for trial not later than six months from the date of the conference.
[§202.16(f)(3)]
Q5 ] What else do the rules empower
the Court to do at the preliminary conference?
A ] The rules also provide that at the close of the preliminary
conference, the Court shall schedule a compliance conference
so as to enforce the directions made at the preliminary conference
without the necessity of additional motion practice, unless
the Court dispenses with the conference based upon a stipulation
of compliance filed by the parties.
The Court also may:
(1) Grant pendente lite relief, including the award of interim
attorney's fees;
(2) Appoint a Law Guardian or direct the parties to file with
the Court a list of suitable law guardians for selection by
the Court within 30 days of the conference; and
(3) Direct that a list of expert witnesses be filed within
30 days of the conference, from which the Court may select
a neutral expert. [§202.16(f)(3)]
Q6 ] If an issue is not identified
as unresolved at the time of the preliminary conference, are
the parties barred from ever raising it during the course of
the action?
A ] The rules do not completely preclude the subsequent assertion
of such an issue, but they do provide that the issue may not
be asserted absent a showing of "good cause."
Q7 ] Must an attorney bring his
or her client to the preliminary conference or compliance conference?
A ] Both parties personally must be present in Court at the
time of the preliminary conference. The parties also must be
present in Court at the time of the compliance conference,
but the Court may excuse their presence. If the parties are
present in Court, the judge personally shall address them at
some time during the conference. The level of contact between
the parties and the judge may vary from case to case; the judge
is not required to invite the parties to participate in the
conference. Instead, the judge may address the parties briefly
either before or after the conference.
|
| Expert Witnesses |
Q1 ] Do the rules change the procedure
to be followed with regard to an expert witness whom a party
expects to call at the time of trial?
A ] Yes. The rules expand the disclosure requirements of CPLR §3101(d)
and require the exchange and submission to the Court of a written
report from each expert no later than 60 days before the date
set for trial. Reply reports, if any, must be exchanged and
submitted no later than 30 days before such date. [§202.16(g)]
Q2 ] Are there any penalties for
the failure to submit a report pursuant to the rules?
A ] Yes. The Court may, in its discretion, preclude the use
of an expert, and the rules specifically require that the late
retention of experts and consequent late submission of reports
shall only be permitted upon a showing of good cause. Furthermore,
the reports exchanged between the parties shall be the only
reports admissible at trial except for good cause shown. [§202.16(g)]
Q3 ] Since the reports are to be
filed with the Court, are they to be used differently from
the disclosure previously available under CPLR§3101(d)?
A ] Yes, within the Court's discretion. Pursuant to the rules,
the Court has the discretion to permit the use of the written
report as a substitute for direct testimony, where the reports
are submitted by the expert under oath and the expert is present
and available for cross-examination. More importantly, the
Court has the discretion, in a proper case, to hold a party
bound by an expert's report in his or her direct case.
|
| Interim Counsel
Fees |
Q1 ] Do the rules require the granting
of interim awards of counsel fees?
A ] While the rules do not mandate the granting of interim
attorney's fees, they do require an articulation of the reason
and rationale of the Court's decision when an application for
interim fees is denied or deferred. [§202.16(k)(7)]
|
| Disciplinary Rules
Or Court Rules |
Q1 ] Do these rules merely govern
practice in the Courts or are there more far-reaching implications?
A ] Some of the rules are incorporated into the Disciplinary
Rules of the Code of Professional Conduct, and, as such, violation
of the rule can subject an attorney to any disciplinary measure
provided with respect to the violation of the Disciplinary
Rules. For example, the prohibition against commencing a Sexual
Relationship with a client during the course of representation
appears only in the Disciplinary Rules. [§1200.3(7), (DR1-102)].
|
Other regulations
incorporated into the Disciplinary Rules include:
1. Requirement of Client's Statement of Rights and Responsibilities
(§1200.10-a; 1400.2).
2. Requirements regarding Retainer Agreements and security
for fees (§1200.11(e) [DR2-106]; 1400.3;1400.4; 1400.5)
3. Submission to Fee Dispute Arbitration (§1200.11(e)
[DR2-106]; 1400.7).
|
| Appendix A |
Statement Of Client's Rights And Responsibilities
Your attorney is providing you with this document to inform
you of what you, as a client, are entitled to by law or by
custom. To help prevent any misunderstanding between you and
your attorney please read this document carefully.
If you ever have any questions about these rights, or about
the way your case is being handled, do not hesitate to ask
your attorney. He or she should be readily available to represent
your best interests and keep you informed about your case.
An attorney may not refuse to represent you on the basis of
race, creed, color, sex, sexual orientation, age, national
origin or disability.
You are entitled to an attorney who will be capable of handling
your case; show you courtesy and consideration at all times;
represent you zealously; and preserve your confidences and
secrets that are revealed in the course of the relationship.
You are entitled to a written retainer agreement which must
set forth, in plain language, the nature of the relationship
and the details of the fee arrangement. At your request, and
before you sign the agreement, you are entitled to have your
attorney clarify in writing any of its terms, or include additional
provisions.
You are entitled to fully understand the proposed rates and
retainer fee before you sign a retainer agreement, as in any
other contract.
You may refuse to enter into any fee arrangement that you find
unsatisfactory.
Your attorney may not request a fee that is contingent on the
securing of a divorce or on the amount of money or property
that may be obtained.
Your attorney may not request a retainer fee that is nonrefundable.
That is, should you discharge your attorney, or should your
attorney withdraw from the case, before the retainer is used
up, he or she is entitled to be paid commensurate with the
work performed on your case and any expenses, but must return
the balance of the retainer to you. However, your attorney
may enter into a minimum fee arrangement with you that provides
for the payment of a specific amount below which the fee will
not fall based upon the handling of the case to its conclusion.
You are entitled to know the approximate number of attorneys
and other legal staff members who will be working on your case
at any given time and what you will be charged for the services
of each.
You are entitled to know in advance how you will be asked to
pay legal fees and expenses, and how the retainer, if any,
will be spent.
At your request, and after your attorney has had a reasonable
opportunity to investigate your case, you are entitled to be
given an estimate of approximate future costs of your case,
which estimate shall be made in good faith but may be subject
to change due to facts and circumstances affecting the case.
You are entitled to receive a written, itemized bill on a regular
basis, at least every 60 days.
You are expected to review the itemized bills sent by counsel,
and to raise any objections or errors in a timely manner. Time
spent in discussion or explanation of bills will not be charged
to you.
You are expected to be truthful in all discussions with your
attorney, and to provide all relevant information and documentation
to enable him or her to competently prepare your case.
You are entitled to be kept informed of the status of your
case, and to be provided with copies of correspondence and
documents prepared on your behalf or received from the court
or your adversary.
You have the right to be present in court at the time that
conferences are held.
You are entitled to make the ultimate decision on the objectives
to be pursued in your case, and to make the final decision
regarding the settlement of your case.
Your attorney's written retainer agreement must specify under
what circumstances he or she might seek to withdraw as your
attorney for nonpayment of legal fees. If an action or proceeding
is pending, the court may give your attorney a "charging
lien," which entitles your attorney to payment for services
already rendered at the end of the case out of the proceeds
of the final order or judgment.
You are under no legal obligation to sign a confession of judgment
or promissory note, or to agree to a lien or mortgage on your
home to cover legal fees. Your attorney's written retainer
agreement must specify whether, and under what circumstances,
such security may be requested. In no event may such security
interest be obtained by your attorney without prior court approval
and notice to your adversary. An attorney's security interest
in the marital residence cannot be foreclosed against you.
You are entitled to have your attorney's best efforts exerted
on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit
in your case, the attorney must safeguard the escrow in a special
bank account. You are entitled to a written escrow agreement,
a written receipt, and a complete record concerning the escrow.
When the terms of the escrow agreement have been performed,
the attorney must promptly make payment of the escrow to all
persons who are entitled to it.
In the event of a fee dispute, you may have the right to seek
arbitration. Your attorney will provide you with the necessary
information regarding arbitration in the event of a fee dispute,
or upon your request.
|
| Appendix B |
Written Retainer Agreement
1. Names and addresses of the parties entering into the agreement;
2. Nature of the services to be rendered;
3. Amount of the advance retainer, if any, and what it is intended
to cover;
4. Circumstances under which any portion of the advance retainer
may be refunded. Should the attorney withdraw from the case
or be discharged prior to the depletion of the advance retainer,
the written retainer agreement shall provide how the attorney's
fees and expenses are to be determined, and the remainder of
the advance retainer shall be refunded to the client;
5. Client's right to cancel the agreement at any time; how
the attorney's fee will be determined and paid should the client
discharge the attorney at any time during the course of the
representation;
6. How the attorney will be paid through the conclusion of
the case after the retainer is depleted; whether the client
may be asked to pay another lump sum;
7. Hourly rate of each person whose time may be charged to
the client; any out-of-pocket disbursements for which the client
will be required to reimburse the attorney. Any changes in
such rates or fees shall be incorporated into a written agreement
constituting an amendment to the original agreement, which
must be signed by the client before it may take effect;
8. Any clause providing for a fee in addition to the agreed-upon
rate, such as a reasonable minimum fee clause, must be defined
in plain language and set forth the circumstances under which
such fee may be incurred and how it will be calculated;
9. Frequency of itemized billing, which shall be at least every
60 days; the client may not be charged for time spent in discussion
of the bills received;
10. Client's right to be provided with copies of correspondence
and documents relating to the case, and to be kept apprised
of the status of the case;
11. Whether and under what circumstances the attorney might
seek a security interest from the client, which can be obtained
only upon court approval and on notice to the adversary;
12. Under what circumstances the attorney might seek to withdraw
from the case for nonpayment of fees, and the attorney's right
to seek a charging lien from the court;
13. Should a dispute arise concerning the attorney's fee, the
client may seek arbitration, which is binding upon both attorney
and client; the attorney shall provide information concerning
fee arbitration in the event of such dispute or upon the client's
request. |
|
|
|
|
