Pace University School of Law
February 8, 2006
Kathleen Donelli, Esq.*
McCarthy Fingar LLP
11 Martine Avenue
White Plains, New York 10606
_______________________________________________________________________
"INITIAL CONTACT WITH MATRIMONIAL CLIENTS"
_______________________________________________________________________
Table of Contents Page
I.
JURISDICTION
II.
Grounds
IV.
Pendente Lite Motion
VI.
Child Support
VII.
Equitable Distribution
VIII.
Maintenance
IX.
EXHIBITS
a. Client informaTION SHEET AND PACKET
(INTAKE SHEET)
b. sAMPLE sTATEMENT OF cLIENTS rIGHTS
C. jones garneau, llp sample retainer
agreement
d. Child support standards chart
e. custody questionaire
I. JURISDICTION
1. Supreme Court DRL 240
Jurisdiction
over matrimonial actions, which includes:
actions for separation, annulment, or dissolution of marriage, divorce,
declaration of the validity of a foreign judgment of divorce, and declaration
of the validity or nullity of a marriage.
2. Family Court FCA 651
Family
Court has ancillary jurisdiction in Article 4 child support, Article 8 family
offense and custody, except when prior "matrimonial actions" are
pending.
Paternity
actions and adoption proceedings in Westchester County must be brought in
Family Court. A divorce action cannot
be brought in Family Court.
3. Subject
Matter Jurisdiction DRL 75
Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA)
4. Concurrent Jurisdiction
The
Supreme and Family Court both have jurisdiction over issues of child support
and maintenance. However, once a
divorce action is commenced in Supreme Court, a subsequent action for custody
or support cannot be brought in Family Court while the divorce action is
pending in Supreme Court.
5. Referral Jurisdiction
If
a divorce action is commenced in Supreme Court after the commencement of a
support proceeding in Family Court, the Supreme Court has the power to remove
the prior Family Court proceeding to Supreme Court.
The
Supreme Court may refer an issue of support or may exercise its jurisdiction
over support even where the Family Court has previously issued an Order. In such a situation, the Family Court's
Order terminates when the Supreme Court makes an order of support, unless the
Supreme Court decides to continue the Family Court's order.
6. Integrated
Domestic Violence Court ("IDVC")
This
court is designed to allow one judge (in Westchester, Hon. Samuel Walker) to
hear all the legal issues, criminal - family court - matrimonial, that may
arise when domestic violence occurs.
When
a criminal case is pending in the Domestic Violence part of Supreme Court, the
justice presiding in that part will transfer designated Family Court cases to
the IDVC. The integrated court will
handle petitions for: custody, visitation,
paternity and family offenses. The
court will also assume jurisdiction over a petition for support; although the
support issue will still be heard initially by a Hearing Examiner. Any objections to the Hearing Examiner's
determination will be filed with and determined by the justice presiding in the
IDVC.
7.
Residency Requirements DRL 230
Either party has been a resident for a continuous
period of at least one (1) year preceding the date of commencement (“DOC”), and
the parties:
1) were married in New York; or
2) have resided in New York as Husband and
Wife; or
3) cause of action occurred in New York;
or
4) Cause
of Action occurred in New York and both parties are New York residents at the
DOC; or
5) Either party has been a resident for a
continuous period of at least two (2) years preceding the DOC.
8. Connecticut or New Jersey: Consider if issues may involve grounds, licenses or degrees, separate
property
II. GROUNDS
1. Cruel and
Inhuman Treatment
Archibald
v. Archibald, 15 A.D.3d 431, 791 .Y.S.2d 565
2.Abandonment
·
Physical
·
Constructive at 186
3.
Adultery
·
Conversion Divorce at 188
III. A) RETAINER AGREEMENTS IN DOMESTIC RELATIONS
MATTERS:
Part 1400 of the Joint Rules of
the Appellate Division (22 NYCRR 1400, Ex. I)
Effective as of November 30, 1993, attorneys in
domestic relations matters MUST:
·
give prospective clients
a statement of clients rights and responsibilities under §1400.2,
·
have a written retainer
agreement complying with the conditions and containing the information set
forth in §1400.3,
·
if the attorney wants to
charge a "minimum fee", this provision must be included in the
retainer agreement under §1400.4,
·
if the attorney wants the
option of seeking a security interest for unpaid legal fees, this provision
must be included in the retainer agreement under §1400.5,
Under DR 2-106(C)(2), attorneys must have a written
retainer agreement in domestic relations matters.
Under §202.16(c) of the Uniform Rules for the New
York State Trial Courts, a signed copy of the retainer agreement must be
attached to the Statement of Net Worth that under §202.16(f) is to be filed
with the court 10 days prior to the preliminary conference which is to be held
within 45 days after the matrimonial action has been assigned to a judge.
B) FAILURE
TO OBTAIN A RETAINER AGREEMENT IN DOMESTIC RELATIONS MATTERS BARS AN ATTORNEY
FROM COLLECTING LEGAL FEES
Bishop v. Bishop, 743 N.Y.S.2d 724 2002 N.Y. App. Div. LEXIS 5976
(2d Dep't 2002):
It is well settled that a "[matrimonial]
attorney is precluded from seeking fees from his or her client where the
attorney has failed to comply with 22 NYCRR 1400.3, which requires the
execution and filing of a retainer agreement that sets forth, inter alia, the
terms of compensation and the nature of services to be rendered." (Mulcahy v. Mulcahy, 285 A.D.2d 587,
588, 728 N.Y.S.2d 90; see Kayden v. Kayden, 278 A.D.2d 202, 717 N.Y.S.2d
908; Potruch v. Berson, 261 A.D.2d 494, 688 N.Y.S.2d 897). Likewise, an attorney's failure to provide a
prospective client with a statement of rights and obligations will also
preclude collection of a fee (see Hunt v. Hunt, 273 A.D.2d 875, 876 ,
709 N.Y.S.2d 744), as will the attorney's failure to provide itemized bills at
least every 60 days (see Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d
147; Kaplowitz v. Newman, 185 Misc.2d 205, 206, 713 N.Y.S.2d 115). The failue to abide {**3]
by these rules, "'promulgated to address abuses in the practice of
matrimonial law and to protect the public,'" will result in preclusion
from recovering such legal fees (Mulcahy v. Mulcahy, supra at
588, quoting Julien v. Machson, supra).
Settembrini v. Settembrini, Unpublished, Hon. Fred Shapiro (N.Y. Sup. Ct.
August 19, 2002).
Attorney sought unpaid legal fees from client he
represented in a matrimonial matter.
Attorney represented client in prior estate and tax matters but did not
ask the client to sign a retainer agreement.
Attorney also did
not ask client to sign a written retainer agreement until after beginning
representation in the matrimonial action. Attorney was allowed to recover
fees earned subsequent to the time he provided the client with a Statement of
Client’s Rights and Responsibilities and executed a retainer agreement for the
matrimonial action, because there was substantial compliance with the
matrimonial rules, which is a prerequisite to recovering unpaid legal
fees. The court disallowed fees of over $20,000 for work attorney completed
prior to the date client signed the written retainer agreement.
C. AN
ATTORNEY CAN CHARGE FOR AN INITIAL CONSULTATION WITHOUT A RETAINER AGREEMENT
BUT MUST HAVE A SIGNED STATEMENT OF CLIENT’S RIGHTS AND RESPONSIBILITIES
NYSBA Opinion 685 3/19/97
Prospective
clients in matrimonial matters must be provided with the Statement of Client’s
Rights and Responsibilities, but need not be asked to sign retainer agreements,
at consultations that occur before the attorney has agreed to undertake the
representation. An attorney can charge
the client for the initial consultation so long as he or she provides the
client with a clear understanding of the cost of the consultation and the
method by which it will be calculated.
D. MAY NEED A NEW RETAINER AGREEMENT WHEN
PARTNER CHANGES
LAW FIRMS
Esanu Katsky Korins & Siger, LLP v. Stoessinger, N.Y.L.J. 9/20/01 at 17 (Civil Ct. N.Y. Co.
September 2001)
Attorney was retained in June 1993, prior to
the November 30, 1993 effective date of
22 NYCRR 1400 et seq. and Part 136.5(c) (the "Matrimonial Rules") and
continued to represent the client when he changed law firms in 1995. The court denied his claim for legal fees in
the amount of $17,613.61 incurred while at his former law firm, reasoning that
the client had retained the attorney's former law firm and without evidence of
an assignment of rights from his former law firm, the attorney lacked standing
to pursue a claim for legal fees owed to his former law firm.
The court then denied his claim for legal
fees in the approximate amount of $53,000 incurred while at his current law
firm because the attorney failed to obtain a written retainer from the client
after he changed law firms in 1995. Citing Flanagan v. Flanagan, 267 A.D.2d 80
(1st Dep't 1999) and Julien v. Machson, 245 A.D.2d 122 (1st Dep't 1997),
the court reasoned that the attorney was not entitled to recover attorneys fees
incurred at his new law firm because he had not substantially complied with the
Matrimonial Rules.
Lesson:
Get a written assignment of rights and a new retainer letter for each
active client when changing law firms.
Koeth v. Koeth, 2002 NY Slip Op 40046U (Sup. Ct. Nassau Co. 2002)
Attorney sought enforcement of his charging
lien. A retainer agreement had been
executed between the attorney’s law firm and his client in 1995 in compliance
with 22 NYCRR 1400.3 and client received a Statement of Client’s Rights and
Responsibilities in compliance with 22 NYCRR 1400.2. Attorney
left his law firm several months later and continued to represent client in her
matrimonial action without executing a new retainer agreement or tendering a
Statement of Client’s Rights and Responsibilities. The court held that the attorney was entitled to the fees earned
after leaving his law firm. Client-defendant
cited in support of its position Potruch v. Berson, (Supreme Ct., Nassau
Co. Index No.29881/1997) [aff’d, 261 A.D.2d 494; 688 N.Y.S.2d 897 (2d 1999)],
in which the plaintiff-attorney was denied legal fees for failing to comply
with 22 NYCRR 1400.
The court distinguished Potruch from
this case. In Potruch, the retainer
agreement was signed between the law firm and the client before the attorney
seeking the fees became affiliated with the firm. The
attorney in Koeth, however, was employed at the firm at the time of the
execution of the retainer agreement, which was executed on firm letterhead on
which the attorney’s name was printed as a “name” partner. The attorney in Potruch transferred
to second and third firms as well, and still no retainer was executed. In
Koeth, the court found that the attorney’s second firm adopted the
retainer of the former firm and that the attorney, in two subsequent motions
filed on behalf of client, also adopted the original retainer agreement. In addition, the attorney sent out all bills
to the client on his letterhead.
Finally, and most compelling, is that the client, on
three occasions, ratified the original retainer agreement in her motions to the
court and acknowledged her awareness of the status of the legal fees paid on
account. The court, in allowing the
fees, stated that the attorney’s conduct did not violate the “spirit and
purpose” of the rules.
Distinguished: Esanu may be distinguished from Koeth, because in Esanu,
the client never signed a Retainer Agreement, while in Koeth, the client
signed a Retainer Agreement with the first firm.
Hunt v. Hunt,
273 A.D.2d 875, 709 N.Y.S.2d 744 (4th Dep't 2000).
The Wife's motion papers were stricken due to her
attorney's failure to file the requisite certifications pursuant to 22 NYCRR
202.16(e) and 130.1.1a.
Wife's attorney was not entitled to attorney's fees
because the attorney also violated the Matrimonial Rules by not providing a
statement of client's rights and responsibilities and a written retainer
agreement. The court rejected the attorney's argument that the Matrimonial Rules
did not apply because the attorney was retained before November 30, 1993,
reasoning that the "motion brought by plaintiff was a new 'claim' within
the meaning of 22 NYCRR 1400.1."
Lesson:
Get a Statement of Clients Rights and Responsibilities, as well as a
written retainer agreement, when representing a client on what a court might
determine to be a new "claim" or a "substantial" change in
the scope of legal services.
F. ADDITIONAL CASES INVOLVING A FAILURE TO OBTAIN A RETAINER
AGREEMENT AND/OR COMPLY WITH ADDITIONAL MATRIMONIAL RULES
In the Matter of Melinda Pollard, 2001 N.Y. App. Div. Lexis 12186 (2d Dep't 2001)
Attorney suspended from the practice of law for one
year because when she was retained in September 1998 to obtain an uncontested
divorce for client, she failed to provide a written retainer agreement and did
not file the necessary documents to procure the divorce until November 1999
(after the client filed a complaint).
Anne R. Mueller, Plaintiff v. Thomas Pacicca,
Defendant, 179 Misc.2d 392, 684
N.Y.S.2d 753 (City Court of New York, White Plains) (1998) (Friia, J.).
Attorney directed to refund legal fees where she
failed to serve a notice to arbitrate under 22 NYCRR 136.5(a) and (c) until 8
days after commencement of action for unpaid legal fees and where she failed to
obtain a written retainer agreement under 22 NYCRR 1400.3.
K.E.C., Plaintiff v. C.A..C., Defendant, 173 Misc.2d 592, 661 N.Y.S.2d 175 (Sup. Ct., Kings
Co.) (1997) (Yancey, J.).
Denying charging lien for failure to timely provide
Statement of Rights to client and otherwise comply with Matrimonial Rules.
Susan Moraitis, Plaintiff v. Dean Morris, Defendant, 181 Misc.2d 510, 694 N.Y.S.2d 588 (Sup. Ct.,
Nassau Cty.) (1999) (Jonas, J.).
Denying retaining lien for failure to provide notice
of right to arbitration. Denying
charging lien, without prejudice to renew once notice of right to arbitration
was served.
L.H., Claimant v. V.W., Defendant, 171 Misc.2d 120, 653 N.Y.S.2d 477 (Civil Ct.,
Bronx Cty.) (1996) (Ling - Cohan, J.C.C.).
Dismissing Civil Court action of matrimonial lawyer
to recover fees for failure to plead compliance with the Matrimonial Rules.
George Phillips, Plaintiff v. Carlota Phillips,
Defendant, 178 Misc.2d 159, 678
N.Y.S.2d 24 (Sup. Ct., Nass. Cty.) (1998) (Cozzens, J.).
Signature on retainer agreement by individual
holding client's power of attorney does not comply with Matrimonial Rules. Charging lien denied.
G. RETAINER AGREEMENT FOR REDUCED FEE
NYSBA Opinion 739 4/16/01:
A lawyer who has agreed to represent a low
or moderate income individual in a matrimonial action for a reduced fee may
include in the retainer a provision contemplating an application to the court for
counsel fees from the client's spouse at the lawyer's customary rate, provided
that in the making of an application, the lawyer informs the court of the terms
under which the lawyer has accepted the engagement.
H. MISLEADING RETAINER AGREEMENTS
NYSBA
Opinion 719 7/28/99:
A
lawyer may not incorporate into the retainer agreement additional grounds for
withdrawal other than those specified in 22 NYCRR 1400 if the lawyer does not
specify the requirements under DR 2-110 of the Code of Professional Responsibility. Specifically, DR 2-110 forbids a lawyer from withdrawing until the
lawyer obtains the consent of the tribunal, if required, and takes appropriate
steps to avoid foreseeable prejudice to the rights of the client. Withdrawing without doing so would
contravene DR 2-110 by misleadingly implying that a lawyer may terminate the
representation without complying with these requirements.
A retainer agreement is also misleading if
the agreement contains grounds for withdrawal not specified in 22 NYCRR 1400
and incorporates the statement that such circumstances “shall be good cause for
withdrawal.” The use of “shall” implies to the client that the
lawyer has an absolute right, and perhaps even a duty, to withdraw under any of
the additional enumerated circumstances.
The statement “may be good cause for withdrawal” is less
misleading.
Additionally,
it is improper to enumerate in
the retainer that in the event a client fails to pay a bill within 30 days, the
client agrees that the firm may terminate the representation. Such clause does not address whether the
client’s nonpayment was deliberate.
Disciplinary rule DR 2-110(C)(1)(f) permits a lawyer to withdraw only if
the client “[d]eliberately disregards an agreement or obligation to the lawyer
as to expenses or fees.”
I. WRITTEN
TERMINATION LETTER TO COMMENCE THREE-YEAR STATUTE OF LIMITATIONS FOR ATTORNEY
MALPRACTICE; LAST INVOICE TO COMMENCE TWO-YEAR TIME PERIOD WITHIN WHICH A
CLIENT MUST COMMENCE A FEE DISPUTE ARBITRATION
Shumsky v. Eisenstein, 96 N.Y.2d
164, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001).
The
rule of "continuous representation" tolls the three-year statute of
limitations on legal malpractice actions, but only where the attorney's
representation pertains specifically to the matter in which the malpractice was
committed. In this case, an attorney was retained to
sue a home inspector for breach of contract.
The attorney failed to commence the action before the statute of
limitations expired in March 1994. He
thereafter failed to tell plaintiffs this, and when they called to inquire
about the status of the case in October 1996, the attorney put off responding
to the inquiry because he was embarrassed.
Fourteen months later, plaintiffs sued the attorney
for malpractice. The attorney argued
that the plaintiffs were time-barred because the malpractice occurred when the
statute of limitations expired on plaintiffs' contractual claim against the
home inspector (March 1994) and plaintiffs did not file their malpractice
action until December 1997, more than 3 years later.
The Court of Appeals applied the continuous
representation rule, stating that upon signing a retainer agreement, plaintiffs
and defendant "reasonably intended that their professional relationship
would continue." Plaintiffs' attempt to contact their
attorney in October 1996 confirmed that understanding. Plaintiffs reasonably thought at the time
that their attorney was working on their case.
When he failed to return their calls, that put them on notice
that their attorney's representation had ceased. This ended the "continuous representation" toll. Since plaintiffs commenced their malpractice
action within the three-year limitations period for malpractice actions, their
action was held to be timely.
Lesson:
Consider ending a possible "continuous representation" toll by
sending clients a letter formally terminating representation. Also consider that under the new fee dispute
arbitration rules (§ 137.1(b)(6)), the client cannot commence an arbitration
where “no attorney’s services have been rendered for more than two years”
(i.e., two years after receiving the final invoice).
IV. Pendente
Lite Motions
A. When To Make a Pendente Lite Motion
Before making a pendente
lite motion, counsel needs a completed, thorough and accurate Statement
of Net Worth and should consider the following:
·
the parties' financial status quo
·
is the motion necessary to maintain the financial
status quo
·
could relief be agreed to by stipulation and/or at
a preliminary conference
·
will a letter to opposing counsel proposing interim
support be effective