THE NOVEMBER, 1993 RULES IN MATRIMONIAL CASES , THE MORE SIGNIFICANT CHANGES
By Sari Friedman, Esq.
In November of 1993, the Office of Court Administration promulgated new rules for matrimonial cases. Included in these new rules is a client's Bill of Rights, a copy of which must be given to each client at the inception of the attorney-client relationship. If you hired an attorney after November of 1993 who did not give you these rules, then chances are he or she does not regularly practice matrimonial law. Nevertheless, you can ask for it.
The Retainer Agreement
The new rules require that there be a written Retainer Agreement that details the attorney-client relationship. While it has always been customary for attorneys to give clients a written Retainer Agreement, not everyone did and rarely did these Agreement provide the level of detail that is required today.
To comply fully with the new rules, most attorneys now issue a six page agreement covering billing procedures, payment and other details of the relationship.
Billing and Payment Procedures
There are specific changes in billing procedures and rules for resolving client-attorney disputes. Under the new rules, clients must be given detailed statements every sixty days. The statements must show the date a particular service was performed, the nature of the work, and the amount of time it has taken. Summary bills that simply state the total time billed and provide a general description of what was done are now prohibited.
Another significant change covers rules for delayed payments. Previously, if a client incurred substantial fees that could not be paid for until certain property was liquidated in divorce, the attorney would take a Mortgage or Confession of Judgment to secure payment. Today, this is not allowed without first obtaining court permission to notice to the other side.
There is also a change concerning substitution of attorneys.
The outgoing attorney now is prohibited from holding on to a file until an outstanding bill is resolved.
Under the November 1993 rules, an attorney must now submit an Attorney Certification whenever a client swears to the truth of a particular document. The Certification essentially states that the attorney has no knowledge that any of the statements the client has sworn to are false. As reasonable as this may sound, it can often interfere with attorney-client privilege. Clients will generally seek to confide in an attorney who is sworn to secrecy. But with the new Attorney Certification requirement, it may be necessary for attorneys to advise clients to limit what is said in order to be sure the attorney is not provided with knowledge that would interfere with his or her ability to sign a Certification.
Case Management Changes
There is an additional change in case management. Today, judges regularly sign Preliminary Discovery Orders, setting dates by which various aspects of the discovery process must be completed. As a practical matter, these dates frequently need to be adjourned because various complications or other reasons develop that render it is not possible to complete discovery in the time table provided. onetheless, this new case management procedure does tend to help move cases through the court system faster than they had been moved in the past. Judges today are under considerable pressure to met certain standards and goals concerning the speed with which cases are disposed of.
The purpose of the 1993 rules was to address many of the complaints and problems that existed in many client-attorney relationships and to help to improve those relationships. Additionally, the rules seek to expedite the progression of an action through the system.
Clients should know about the Bill of Rights and should ask their attorney to explain any portion of it that they do not understand.