By Jeffrey D. Lebowitz
Special to the Eagle
For the first time in over twenty years the Statement of Client’s Rights and Responsibilities has been amended effective February 15, 2019 by collective order of all four Appellate Departments. (See 22 NYCRR section 1400.2 of Title 22).
Much of the credit for the impetus for change came from the Matrimonial Practice and Advisory Rules Committee (MPARC) Chaired by the Hon. Jeffrey Sunshine and the subcommittee charged with seeking to amend this document.
The Statement of Client’s Rights, as its name suggests, provides a prospective client with their rights and obligations in the attorney-client relationship and must be provided prior to signing any written retainer agreement.
Some of the changes were technical in nature, but some significant substantive changes should be brought to the attention of counsel, especially those with limited matrimonial experience or clientele, and prospective clients.
While a bedrock of any client-attorney relationship, the statement nonetheless codifies the client’s responsibility to communicate honestly, civilly and respectfully with the attorney.
Where an attorney is retained, it is now codified that it is the client’s responsibility to read the retainer and ask any questions of counsel before signing the document.
The client is now made explicitly aware that the retainer may not be sufficient for the totality of legal work extended on the case.
Clients are also informed that attorney withdrawals may only be done with Court permission.
If withdrawal is granted or the relationship ends for other reasons, the balance of any retainer not expended must be returned to the client.
Of particular importance to attorneys who represent the monied party: clients are made aware that the client may need to pay or contribute to the opposing client’s costs.
Similarly, the non-monied spouse is made aware that the opposing party may be ordered to pay counsel fees. But — and this is a big but — if the monied spouse fails to pay, they are still responsible for attorney’s fees and other costs.
The client is also made aware that court costs and expert fees for reports and testimony are the client’s responsibility, though reimbursement may be sought.
The client is now expressly notified that frivolous conduct or conduct that intentionally delays the case — not unheard of in matrimonial litigation — may subject the offending client to monetary sanctions.
The new Statement deals with another source of attorney-client friction by informing the prospective client that the cost of the case may exceed the counsel’s original estimate.
Clients and attorneys are reminded through these recent amendments that they must maintain open and honest communications during business hours and that lack of honesty and veracity may be cause for an attorney to seek to be discharged by the court.
Consistent with the first update since 1995, an attorney is required to explain to the client the Automatic Orders, new Maintenance Guidelines amd Child Support Guidelines if they have children under the age of 21.
Clients are now specifically informed that they need to be present and timely at oral arguments, hearings and trials unless excused by the court.
While clients maintain the ultimate authority for the course of the case, including settlement, the amended rules allows the attorney to send written correspondence to the client expressing disagreement with how the litigant wishes to proceed with the case.
An attorney’s right to a retaining lien is now expressly set forth in the new rules.
Clients are also informed that once a judgement is signed, a new retainer agreement is necessary to “re-retain” the lawyer.
That provision addresses a common misunderstanding in that, where a court order directs transfer of a co-op or house, additional documents are still required to effectuate the actual transfer. Such work, if done by the original attorney, must be specifically addressed in the initial retainer.
Lastly, the fee arbitration jurisdictional amounts re specifically laid out — from $1,000 to $50,000 dollars — in the new rules.
The changes take a pragmatic approach to real-life issues that have arisen between clients and attorneys over the last 23 years. The amendments are designed to set forth mutual responsibilities in order to limit problems before the commencement of an official attorney-client relationship.
But time will be the greatest barometer of the efficacy of these changes.
Jeffrey D. Lebowitz is a retired Supreme Court Justice. He is special counsel to the Garden City Firm of Jaspan Schlesinger, where he concentrates in complex Matrimonial and Commercial matters. He is a member of both MPARC and the subcommittee that helped draft the proposed changes.