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The relationship between attorney and client in the matrimonial/family law field is highly regulated so as to avoid conflicts of interest and appearances of impropriety. The Matrimonial Rules set forth at 22 NYCRR part 1400 set forth certain mandatory requirements that govern attorney conduct in addition to those ethical rules that are set forth in the Code of Professional Responsibility. The Matrimonial Rules require, among other things, that a mandatory Statement of Client’s Rights and Responsibilities be provided at the initial consultation even prior to being retained and even if the attorney is never retained. 1 The statement provides a list of requirements and obligations governing the attorney-client relationship including what must and what must not be contained in any retainer agreement. Written Retainer Agreement A written retainer agreement is mandatory in domestic relations matters. 2,3 The retainer must, at the very least, be in compliance with the requirements of the Statement of Client’s Rights and Responsibilities and must contain the following information: 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; the attorney shall provide information concerning fee arbitration in the event of such dispute or upon the client’s request. The Matrimonial Rules also prohibit against “nonrefundable fees,” 4 governs the extent to which an attorney may acquire a security interest to secure his or her fee against the client 5 and requires fee arbitration to be offered in advance of the attorney’s ability to file suit in the event of a dispute as to the attorney’s fee. 6 ‘Behrins & Behrins v. Sammarco’ In Behrins & Behrins PC v. Sammarco, 305 AD2d 346, 759 N.Y.S.2d 151 (2d Dept 2003), the court refused to allow counsel to recover outstanding fees for failure to properly apply to the court on notice prior to accepting a confession of judgment from the client. In Bishop v Bishop, 295 AD2d 382, 743 NYS2d 724 (2d Dept 2002), the court denied an attorney the right to a charging lien for failure to have a proper matrimonial retainer, statement of client’s rights and responsibilities and failure to bill as required. In Herrick v. Lyon, 7 AD3d 571, 777 NYS2d 141 (2d Dept 2004); 7 counsel representing the ex-wife in post-divorce litigation was denied recovery from his client of legal fees when he failed to give the client notice of her right to arbitrate the fee dispute prior to commencing suit in violation of 22 NYCRR Part 136. 8 Failure to substantially comply with the Matrimonial Rules will serve to preclude the attorney from recovering counsel fees from his or her own client 9 and to preclude the client from recovering counsel fees against their spouse. 10 While the former has been well-established since the advent of the rules, the latter circumstance illustrates the peril which can result to a matrimonial/family law practitioner. In Wagman v Wagman, 11 the Appellate Division Second Department on June 1, 2004 reversed the lower court’s award of counsel fees where the attorney who sought the award, on behalf of his client, failed to file the retainer agreement or to bill at least once every 60 days. Clearly, the result of such failure to comply with the rules by counsel resulted in the client not being able to recover counsel fees from the more economically fortunate spouse. While the attorney has presumably waived the right to recover any balance due from the client by counsel’s own conduct, the client may have further recourse against counsel for malpractice assuming that such a claim remains timely and damages exist. Disciplinary Proceedings In addition to the economic losses that can result from failure to substantially comply, disciplinary proceedings may also result from a failure to abide by the Matrimonial Rules. 12 In Matter of Pollard, 13 the Second Department in suspending an attorney for one year, considered a disciplinary count of failing “to provide a client with a written retainer agreement in a matrimonial matter, in violation of Rules of this Court (22 NYCRR) �1400.3, and Code of Professional Responsibility DR 1-102 (a) (5) and (7) (22 NYCRR 1200.3 [a] [5], [7]).” The Fourth Department in the case In re Bonafede, 14 censured an attorney for among other things, violating “DR 2-106 (c) (2) (22 NYCRR 1200.11 [c] [2]) � entering into an arrangement for, charging or collecting a fee in a domestic relations matter without executing a written retainer agreement and DR 2-106 (f) (22 NYCRR 1200.11 [f]) � failing to provide a prospective client in a domestic relations matter with a statement of client’s rights and responsibilities at the initial conference and prior to the signing of a written retainer agreement.” The Third Department in In re Roosa 273 AD2d 535, 709 NYS2d 659 (3d Dept 2000) also censured counsel where among other violations, the attorney ” . . . also failed to provide his divorce client with the proper Statement of Client’s Rights and Responsibilities (see 22 NYCRR 1200.3[a][5], [7]; 1400.2); improperly accepted a partial fee prior to entering into a written retainer agreement with him (see 22 NYCRR 1200.3[a][5], [7]; 1200.11); entered into a retainer agreement that did not contain all of the provisions required by this court’s rules (see 22 NYCRR 1200.3[a][5], [7]; 1400.3) . . . “ While there were other violations of the Disciplinary Rules involved in the referenced cases, the disregard of the Matrimonial Rules were among the factors considered by the court. ‘Substantial Compliance’ What remains clear is that the court is closely examining the conduct of counsel in order to determine if there is “substantial compliance” with the Matrimonial Rules. The ability to recover counsel fees particularly where there is a substantial discrepancy between the economics positions of the parties is often crucial to the less fortunate spouse. This issue has been repeatedly elaborated upon in such well known decisions as DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 (1987), O’Shea v O’Shea, 93 NY2d 187, 711 NE2d 193 (1999), Frankel v Frankel, 2 NY3d 601, 814 NE2d 37 (2004) and Charpie v Charpie 271 AD2d 169 (1st Dept 2000). Putting the client in jeopardy of not being able to recover counsel fees from the monied spouse by failing to substantially comply with the rules is a risk no attorney should take. This is a particularly dangerous area for attorneys who do not regularly practice matrimonial law . As is set forth above, an attorney also runs the risk of not being able to collect fees from his or her own client for legal services that have otherwise been properly performed. In a recent matter, Ross v Delorenzo, NYLJ, Oct. 22, 2004 at 23 col 3 (Sup Court, Suffolk County, Burke, J.) where counsel was seeking to collect a minimum of $173,000 from his former client, the court invalidated a matrimonial retainer where one of three retainer agreements was found to be an impermissible contingency fee retainer, 15 which was not in compliance with the Code of Professional Responsibility or the Matrimonial Rules. The court limited counsel to recovery under his hourly rate on the third retainer, which was the only one filed with the court in accordance with 22 NYCRR 1400.3. The “Matrimonial Rules” are clear and concise as they relate to practicing in the field of domestic relations law under the 22 NYCRR Part 1200. Any attorney seeking to represent a client in any domestic relations or family court matter, a modification proceeding, a divorce or even an “uncontested” matrimonial should be familiar with and ensure substantial compliance with the rules. Lee Rosenberg is a partner in the law firm of Saltzman Chetkof & Rosenberg in Garden City, N.Y., with a practice concentrating in matrimonial and family law. [email protected]. Endnotes: 1. 22 NYCRR 1400.2 2. 22 NYCRR 1400.3 3. A retainer agreement complying with the Matrimonial Rules must also accompany the Net Worth Statement and be filed with the court. 22 NYCRR 202.16 (c)(1) 4. 22 NYCRR 1400.4 5. 22 NYCRR 1400.5 6. 22 NYCRR 1400.7 7. See also, Paikin v. Tsirelman, 266 AD2d 136, 699 N.Y.S.2d 32 (1st Dept 1999). In Paikin, the First Department has held that the need to offer arbitration exists even if there is no actual dispute as to the reasonableness of the fee while in the Second Department, it has been held that if there is no dispute arbitration need not be offered prior to a collection action being commenced. Rotker v Rotker, 195 Misc.2d 768, 761 N.Y.S.2d 787 (Sup Ct, New York County 2003); Scordio v Scordio, 270 AD2d 328, 705 NYS2d 58 (2d Dept 2000) 8. Fee dispute arbitration in domestic relations matters is governed by Part 136 if representation commenced before Jan. 1, 2002 and by Part 137 for all subsequent matters. 9. Julien v Machson, 245 AD2d 122, 666 NYS2d 147 (1st Dept 1997) 10. Wagman v Wagman, 8 AD3d 263, 777 NYS2d 678 (2d Dept 2004); Mulcahy v Mulcahy, 285 AD2d 587, 728 NYS2d 90 (2d Dept 2001) 11. Endnote 10 12. Matter of Pollard, 290 AD2d 83, 734 NYS2d 600 (2d Dept 2001); In re Bonafede, 308 AD2d 120, 765 NYS2d 282 (4th Dept 2003) 13. Endnote 12 14. Endnote 12 15. Contingency fee retainers are prohibited in domestic relations matters (DR 2-106) including post judgment proceedings to collect arrears. NYSBA Ethics Opinion 747 11/5/01(15-01)

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