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In a prior column for Outside Counsel, 1 I addressed the issue of the Matrimonial rules set forth at 22 NYCRR 1400, et seq. While that article primarily focused upon the potential pitfalls in recovering counsel fees from one’s own client, it also touched upon the perils faced by counsel in the recovery of counsel fees from the adverse spouse when he or she has not substantially complied with the rules with his or her own client. In what appeared at that time to be a case of first comment on that issue, the Appellate Division, Second Department, in Wagman v Wagman, 2 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. While a prior Second Department case, Mulcahy v Mulcahy, 3 had held “An attorney may recover a fee from an adversary spouse where there is substantial compliance with 22 NYCRR 1400.3,” Wagman affirmed the negative, to wit: failure to substantially comply with the Matrimonial rules vis-�-vis your own client results in that client’s inability to recover from their spouse. Two Recent Decisions That finding has now been further considered in two recent decisions – the Second Department’s holding from November 2006 in Sherman v. Sherman 4 and the January 2007 exploration into the Matrimonial rules’ purpose by Supreme Court Justice Jeffrey S. Sunshine in Harding v Gilbert. 5 In Sherman, the attorney for the wife performed post-judgment services which included seeking money judgments against the former husband due to his noncompliance with the terms of the judgment of divorce. The wife’s attorney also sought the recovery of counsel fees from the husband for rendering those services, only to have been denied that relief in Supreme Court. On appeal, the Second Department affirmed the denial of counsel fees as the post-judgment retainer agreement between the wife’s counsel and the wife merely ratified the provisions of the predivorce retainer and did not set forth all of the rules’ required provisions anew. The Court held,
Here, the retainer agreement between the appellant and her attorney terminated by its own terms upon entry of the judgment of divorce. Contrary to the appellant’s contention, the filing of a new retainer agreement in support of the instant motion for a postjudgment attorney’s fee, which purportedly ratified the former agreement, did not amount to substantial compliance with the matrimonial rules (see Wagman v. Wagman , 8 AD3d 263, 777 N.Y.S.2d 678). Accordingly, the Supreme Court properly concluded that the appellant’s attorney was not entitled to recover a fee for postjudgment services rendered to the appellant.
In Sherman, a proper retainer agreement apparently existed and expired of its own terms in the issuance of the divorce judgment. The post-judgment retainer, having ratified the prior retainer merely re-establishes and continues the terms already agreed to. There is no apparent diminution of the client’s knowledge of what is expected nor of the attorney’s obligations nor of the client’s responsibilities. Labeling this “failure to substantially comply” with the Matrimonial rules is not in keeping with the intent of the rules. Certainly if counsel does not substantially comply with the rules as to his own client, and the client then becomes nonobligated for the attorney’s fee, the nonobligated client should not be able to recover that fee from his or her spouse as a windfall. That does not seem to be the case, however, in Sherman and justice does not appear to have been done. Common Sense Meaning Contrary to what seems a draconian result in Sherman, Justice Sunshine, in Harding, endeavors to find a common sense meaning to the Matrimonial rules and find equity in its application. In citing to Justice Jacqueline W. Silbermann’s report “The Matrimonial Rules – Ten Years Later,” Justice Sunshine quotes,
In particular, requiring a detailed explanation of the fee arrangement, coupled with regular itemized billing, would ensure that a client knew in advance what charges could be incurred as well as kept regularly informed of what charges had in fact accrued. Eliminating the element of surprise – and ignorance in this regard was meant to address a common source of conflict between attorney and client as the case progressed. (See “Rules Governing Attorney Conduct: 22 NYCRR Part 1400, Procedure for Attorneys in Domestic Relations Matters” . . .
In Harding, the wife sought recovery of an additional $20,000 in pendente lite counsel fees from the husband. In opposing the application, the husband alleged that the wife’s attorney was not in substantial compliance with the Matrimonial rules in that billing was not undertaken at least once every 60 days pursuant to 22 NYCRR 1400.2. The facts indicate that while the wife retained counsel on March 1, 2006, the first bill was not generated until June 1, 2006, with the next three bills being dated June 27, Sept. 1 and Oct. 30. The court determined that, what amounted to one missed billing statement, did not constitute nonsubstantial compliance with the rules.
In this case, the wife’s counsel’s omission of one billing statement does not rise to the level of ‘substantial noncompliance.’ Clearly, the intent of 22 NYCRR 1400.2 requiring attorneys to bill their clients every 60 days was to keep litigants apprised of the amount of legal expenses they were incurring for legal services in a timely manner. (Footnote omitted) In the case at bar, the husband seeks to utilize what wife’s counsel contends is an inadvertent omission of a mandate, which is clearly designed to protect a litigant in the relationship with their lawyer, to prevent a nonmonied spouse from collecting a pendente lite counsel fee. This court will not apply such a standard, to do so would allow the husband with a superior “pocketbook” who has paid his attorneys significant sums of monies to prevent the wife from seeking counsel fees and the ability to be adequately represented because of one missed billing that was 30 days late. Under these circumstances, a first billing in 90 days instead of 60 does not mean that counsel was not in ‘substantial compliance’ with the rules. The rule was intended to protect the client, not prevent the adversary from being directed to pay a nonmonied spouse’s fee based upon a 30-day late bill (see Winkelman v. Furey , 281 AD2d 908 [4 Dept 2001]).
Conclusion The fact-sensitive application of the Matrimonial rules by Justice Sunshine is appropriate. However, the question arises: If Ms. Gilbert’s retainer was exhausted in the first 90 days and she was then asked to pay a balance due, would her attorney have forfeited that additional fee in light of the failure to have properly billed in the event the matter resulted in a fee dispute? While the lack of a bright line determination of “substantial compliance” on billing would seem to leave the door open for two missed bills, or three . . . , it should not. Justice Sunshine distinguishes the holding in Wagman by noting significantly that the attorney therein failed to timely file the retainer agreement or present evidence of any billing having been rendered at least every 60 days. Violators of the rules should not go away unscathed and the rules should be applied strictly to those who by their conduct do a disservice to their clients and to the profession. It is imperative, however, that the court apply the facts to the law in hopes of achieving some amount of justice. We should be pleased that, with thoughtful analysis, such as was undertaken in Harding, this can actually result. Lee Rosenberg, a partner at Saltzman Chetkof & Rosenberg in Garden City, is a fellow of the American Academy of Matrimonial Lawyers. Endnotes: 1. Lee Rosenberg, Outside Counsel, “The Matrimonial Rules: Counsel Fees and Ethical Considerations,” NYLJ Jan. 5, 2005 at 4, col 4. 2. 8 AD3d 263, 777 NYS2d 678 (2d Dept. 2004) 3. 285 AD2d 587, 728 NYS2d 90 (2d Dept. 2001) 4. 34 AD3d 670 (2nd Dept 2006) 5. NYLJ, Jan. 22, 2007, at 27 col 1 (Sup Ct Kings County, Sunshine, J.); 2007 NY Slip Op 50057(U).

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