Family Law Summary-KL

Family Law Summary-KL - FAMILY LAW Prof Pieper FOUNDATIONAL...

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FAMILY LAW – Prof Pieper FOUNDATIONAL RULES - the NY Supreme Court has exclusive subject matter jurisdiction over “matrimonial actions.” CPLR 105(p) defines a matrimonial action as a divorce, annulment, dissolution, judicial separation, declaring the nullity of a void marriage or declaring the validity or nullity of a foreign divorce judgment - NY divorce lawyers must give a client a “bill of rights” and a signed , written retainer agreement with a fee schedule and an estimate of the total legal fee. If she neglects to do so, she forfeits the right to a legal fee . - Retainer agreement is different than an engagement letter – an engagement letter is not signed by the client. The retainer agreement is. - A Retainer letter is important to get - matrimonial lawyers must get them and file with the court – because if they don’t, down the road, there may be a fee dispute – and if so, and the client goes to another lawyer, and tells them they don’t have a retainer letter, you are not going to be able to recover any fees - Contingent fees in “matrimonial actions” are prohibited . a. But, in post-divorce proceedings, i.e. collecting child support, they are ok. - Non-refundable fees are prohibited. o Discourages the client from exercising his/her right to discharge the lawyer at any time. Unethical. Cooperman case. - No contingency fees in Marital Actions – but CPLR 104p specifically defines what constitutes “marital actions”. Post-divorce collection cases – it is ok to take contingent fees. - Sex with a client is prohibited . Why? Because you are taking advantage of the client – taking advantage of the situation/knowledge you have of the marriage problems. - Hourly billings must be submitted to the client at least every 60 days . - Liens to secure the fee must be approved by the court on notice to the other spouse. A court-approved lien on the client’s residence cannot be foreclosed while the client is still living in that house. - In any legal dispute regarding a fee, on an amount of $1,000 $50,000, mandatory arbitration can be demanded, but only by the client, unless earlier the attorney and client had mutually agreed that either lawyer or client could demand to arbitrate a fee dispute. o Absent an agreement, the lawyer cannot demand a fee arbitration. o Not limited to matrimonials – applies to every civil action in NY. - The attorney must give his/her client notice and 30 days to demand arbitration before the attorney can commence a law suit for the fee. - With an arbitration, you don’t need to have a lawyer. You can bring it before a bar association where you can act without counsel. - If the arbitrator becomes aware of professional misconduct< she shall forward such evidence to the appellate division grievance committee after arbitration - Either party can seek de novo judicial review if unsatisfied with the results at arbitration – but, arbitration award is inadmissible in the court proceeding, and the arbitrator can’t be called as a witness.
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