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| FAQ's
- The Matrimonial Rules |
Rules
Governing Conduct:
Applicability (2)
Statement of Client's
Rights & Responsibilities (2)
Retainer Agreement (6)
Security Interest (4)
Non-refundable Fee (2)
Fee Arbitration (3)
Disciplinary Rules Or Court Rules
Other regulations incorporated into the Disciplinary Rules |
Rules
Governing Case Management:
Application (1)
Case Management Time
Constraints (1)
Certification of Documents (1)
Preliminary Conference (8)
Expert Witnesses (3)
Interim Counsel Fees (1)
Trials and Hearings (1)
Appendix A:
Statement of Client's Rights & Responsibilities
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| Rules Governing Conduct |
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| 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 [ §1400.2; §1200.10-a (DR2-105)]; the written Retainer Agreement [§1400.3; §1200.11(c)(2)(ii)]; security interests [§1400.5; § 1200.11(c)(2)(iii) (DR2-106)]; the prohibition against beginning a sexual relationship with a client [§1200.3(a)(7)(DR1-102)]; and fee arbitration [§1400.7; Part 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.
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| 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. [ §1400.2; §1200.11(f) ( DR2-106)]
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| 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 that 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." [ §1400.3]
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. [§1400.3] 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)]
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| 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); §1200.11(c)(2)(iii)( DR2-106); §1400.5]
Q2 ] What is considered a security
interest under the rules?
A] A security interest may include a confession of judgment, a promissory note, or a lien on real property. [§1400.05]
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)]
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| 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)(ii); §1400.4]
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. [§1400.4]
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| 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 ] Yes, if the client requests arbitration. As now required in all civil matters, a matrimonial attorney must submit a fee dispute to arbitration. 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. 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 137, Fee Dispute Resolution Program, detail the process. An informational pamphlet explaining Fee Dispute Resolution, is available through the office of the Administrative Judge for each Judicial District.
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| Disciplinary Rules Or Court Rules |
Q1 ] Does failure to comply with rules subject an attorney to disciplinary action?
A ] Yes. These rules are incorporated into the Disciplinary Rules of the Code of Professional Conduct, and, as such, violation of a 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)].
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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).
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| Rules Governing Case Management |
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| Applicability |
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 (alimony), custody and visitation, child support 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)]
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| Case Management
Time Constraints |
Q1 ] What are the time constraints with respect to case management?
A ] The plaintiff must 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)]
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| Certification of
Documents |
Q1 ] What is an attorney or self-represented
litigant required to certify?
A ] Every pleading, written motion, and other paper served on another party or filed or submitted to the court must 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 certifies 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 (c) of section §130-1.1-a, including that the substance of the factual statements therein is not false. [§130-1.1-a (b)]
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| 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. [§202.16(f)(I)]
Q4 ] Are there any specific items of disclosure that the rules require to be completed in preparation for the preliminary conference?
A: Yes, the rules require that the following items be filed and exchanged no later than ten days prior to the preliminary conference:
(1) Statements of Net Worth;
(2) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
(3) all filed state and federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
(4) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file state and federal income tax returns;
(5) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;
(6) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to: (A) any policy of life insurance having a cash or dividend surrender value; and (B) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit-sharing plans, Keogh plans, 401K plans or other retirement plans. [§202.16(f)(1)]
Q5 ] Assuming the action cannot be settled at the preliminary conference, what happens next?
A ] The rules provide that at the close of the preliminary
conference, the court must:
(1) Direct the parties to stipulate in writing or on the record
as to all resolved issues, which the Court then shall "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, with the requirement that a Note of Issue be filed within six months from the commencement of the conference unless this period is shortened or extended in the discretion of the court.
(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)]
Q6 ] What else do the rules empower
the court to do at the preliminary conference?
A ] The court also must 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; [§202.16(f)(2)]
(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)]
Q7 ] 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 issue may not be asserted absent a showing of "good cause."
[§202.16(f)(3)]
Q8 ] 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 must 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. [§202.16(f)(3)]
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| Expert Witnesses |
Q1 ] Do the rules add to the statutory 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 may permit the late retention of experts and consequent late submission of reports only upon a showing of good cause. Furthermore, the reports exchanged between the parties are the only reports admissible at trial except for good cause shown. [§202.16(g)(2)]
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 report is 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. [§202.16(g)(2)]
Q4 ] Does this new requirement concerning expert reports do away with the Demand for Experts pursuant to CPLR §3101(d)?
A ] No. The rules supplement this discovery device and also reemphasize that responses to demands for expert information pursuant to
CPLR §3101(d) must be served within 20 days following the service of the demand. [§202.16(g)(1)].
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| Interim Counsel
Fees |
Q1 ] Must the court grant 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)]
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| Trials and Hearings |
Q1 ] Do the rules make provisions with respect to the scheduling and conducting of trials and hearings in matrimonial matters?
A ] Yes. The rules require that hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day until conclusion. The rules also recommend that the trial of all other issues should proceed day to day to the extent feasible. [§202.16(l)].
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| 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.
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Administration
