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Law Office of James B. Lesperance, Jr. The Chocolate Factory Suite 203, Building 1 20 Prospect Street Ballston Spa, New York 12020 Office: (518) 885-­‐2902 Fax: (518) 885-­‐2903 Cell: (518) 257-­‐0201 jlespera@nycap.rr.com Mailing Address: P.O. Box 139 Ballston Spa, New York 12020 Visit the firm at www.upstatenewyorkfamilylaw.com and www.upstatenewyorkfamilylawyerblog.com Business hours: 9:00am to 9:00pm, Monday through Friday; By Appointment Only Date, Year
Service via electronic means is not accepted
RETAINER AGREEMENT
THIS IS A LEGALLY BINDING CONTRACT!
PLEASE READ IT CAREFULLY!
This retainer agreement is entered into between JAMES B. LESPERANCE,
JR., ESQ., referred to in this retainer agreement as the “Attorney", and CLIENT'S
FULL NAME, referred to in this retainer agreement as the “Client".
"A lawyer's time and advice are his stock in trade."
-Abraham Lincoln (famous lawyer)
Article 1. TABLE OF CONTENTS
Part 1. The Attorney-Client Relationship
Part 2. The Expenses of the Litigation
Part 3. The Preparation for the Litigation
Part 4. The Course of the Litigation
Part 5. The Objectives of the Litigation
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 1 of 50
Pages 4-17
Pages 18-26
Pages 27-33
Pages 34-46
Pages 46-50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Part 1. The Attorney-Client Relationship:
Article 2.
Preface
Article 3.
The Free Initial Consultation
Article 4.
The Nature of the Legal Services to be Rendered to the
Client by the Attorney
Article 5.
The Client's Responsibility to Conserve the Retainer
Payment
Article 6.
The Terms of Legal Representation
Article 7.
The Retainer Payment
Article 8.
The Failure of the Client to Pay to the Attorney the
Retainer Payment in Full
Article 9.
The Retainer Payment is Refundable
Article 10.
The Retainer of the Attorney by the Client and the IOLA
Account
Article 11.
The Commencement of the Attorney's Services
Article 12.
Confidentiality
Article 13.
The Attorney's Availability to the Client
Article 14.
The Attorney's and the Client's Reciprocal Rights and
Responsibilities
Article 15.
Termination or Withdrawal of Representation
Article 16.
Rules of Professional Conduct Regarding an Attorney's
Termination of Representation
Article 17.
Fee Disputes
Article 18.
The Free Lunch
Pages 4-17
Pages 4-6
Page 6
Page 6
Pages 6-7
Pages 7-8
Page 8
Pages 8-9
Page 9
Page 9
Pages 9-10
Page 10
Pages 10-11
Pages 11-13
Pages 13-14
Pages 15-16
Pages 16-17
Page 17
Part 2. The Expenses of the Litigation:
Pages 18-26
Article 19.
The Client's Understanding of the Attorney's Billable
Hours
Page 18
Article 20.
The Schedule of Established Office Charges
Pages 18-19
Article 21.
The Schedule of Established Travel Charges in the Capital
Region
Pages 19-21
Article 22.
The Schedule of Established Travel Charges in the Greater
Capital Region
Pages 21-23
Article 23.
Monthly Billing of the Client for Services Rendered by the
Attorney
Page 23
Article 24.
Semi-Monthly Withdrawals from the Retainer Payment by
the Attorney
Pages 23-24
Article 25.
Disbursements
Page 24
Article 26.
Court Fees
Page 24
Article 27.
The Replenishment Payment
Pages 24-25
Article 28.
The Failure of the Client to Pay to the Attorney Any
Replenishment Payment in Full
Page 25
Article 29.
The Final Replenishment Payment is Refundable in Whole or in
Part to the Client
Page 25
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 2 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Article 30.
Article 31.
Article 32.
The Trial Retainer
Additional Expenses
Other Fee Provisions
Pages 25-26
Page 26
Page 26
Part 3. The Preparation for the Litigation:
Article 33.
Client Meetings
Article 34.
Client Contact
Article 35.
Third-Party Contacts
Article 36.
Review of Documents
Article 37.
Legal Research
Article 38.
Contact with the Opposing Party in the Litigation
Article 39.
Contact with Third-Parties in the Litigation
Article 40.
Preparing for a Court Appearance
Article 41.
Preparing for Depositions
Article 42.
Preparing for Trial
Article 43.
The Client’s Dress, Appearance, and Conduct
Article 44.
The Client’s Conduct in the Courthouse
Article 45.
The Client’s Conduct in the Courtroom
Article 46.
The Client’s Conduct During the Course of the Litigation
Article 47.
The Client’s Journal
Pages 27-33
Page 27
Pages 27-28
Page 28
Page 28
Pages 28-29
Page 29
Page 29
Page 30
Pages 30-31
Page 31
Page 31
Pages 31-32
Page 32
Page 33
Page 33
Part 4. The Course of the Litigation:
Article 48.
Getting Started
Article 49.
The Initial Appearance
Article 50.
The Financial Disclosure Affidavit and the Statement of
Net Worth
Article 51.
Attorneys for Children
Article 52.
The Function of the Attorney for the Child
Article 53.
The Summary of Responsibilities of the Attorney for the
Child
Article 54.
Court Appearances
Article 55.
Discovery
Article 56.
Motion Practice
Article 57.
Depositions
Article 58.
Experts
Article 59.
Psychological Examinations and Costs
Article 60.
Parenting Classes and Costs
Article 61.
Anger Management Classes and Costs
Article 62.
Substance Abuse Testing and Costs
Article 63.
In-Patient and Out-Patient Treatment or Rehabilitation and
Costs
Article 64.
Notorious Counsel
Article 65.
Difficult Judges
Article 66.
Court Calendars
Pages 34-46
Pages 34-35
Page 35
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 3 of 50
Page 36
Pages 36-37
Pages 37-38
Page 38
Pages 38-39
Page 39
Pages 39-40
Page 40
Pages 40-41
Page 41
Pages 41-42
Pages 42-43
Page 43
Pages 43-44
Page 44
Page 44
Pages 44-45
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Article 67.
Article 68.
The Trial
Lincoln Hearings
Page 45
Pages 45-46
Part 5. The Objectives of the Litigation:
Article 69.
Other General Provisions
Article 70.
Understanding and Acknowledgment
Article 71.
The Purpose of the Attorney's Services
Article 72.
The End of the Attorney's Services
Article 73.
Appeal of Matter
Article 74.
Notice of Appeal
Article 75.
Closing
Pages 46-50
Pages 46-47
Pages 47-48
Page 48
Page 48
Page 49
Page 49
Pages 49-50
Part 1. THE ATTORNEY-CLIENT
RELATIONSHIP:
Article 2. PREFACE
This is a lengthy (50-page) legal document. As such, the Attorney has taken great
care to include as much information as possible in this document so that the Client may
become as fully-informed as possible as to all of the prominent aspects of litigation that
are most commonly found in family law proceedings and matrimonial law actions, in the
various courts of the state of New York. Therefore, this document is very large and
should be read very carefully. Nevertheless, this document does not in any way represent
to the Client to be so comprehensive as to include all possible matters which one may
encounter in the court system of the state of New York. Such a document would be next
to impossible to create and be quite voluminous indeed.
This retainer agreement carefully explains the five (5) essential aspects of the
legal services for which the Client is retaining the Attorney: 1) the attorney-client
relationship; 2) the expenses of the litigation; 3) the preparation for the litigation; 4) the
course of the litigation; and 5) the objectives of the litigation. Therefore, it is essential
that the Client very carefully read the entirety of this retainer agreement.
Most importantly of all, if the Client has any questions about any legal topic at
any time, it is absolutely necessary, in order for the Attorney to properly represent the
Client, for the Client to ask the Attorney such questions, and it is absolutely necessary for
the Attorney to provide timely and knowledgeable answers to the Client regarding such
questions. This interchange of questions and answers by and between the Client and the
Attorney is the crux of the Attorney-Client relationship and should always be kept everpresent in the minds of both the Attorney and the Client.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 4 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The goal of the Attorney in representing the Client is to make sure that the Client
is as fully-informed as possible throughout the duration of the litigation, so that the Client
may make educated decisions, which the Client may then have to live with for the rest of
the Client's life.
Commencing a legal action or authorizing a law firm to act on the Client's behalf
with respect to the Client's marital or family situation is a very serious matter, with
potentially far-reaching consequences for all of the members of the Client's family, and
should be undertaken only after serious consideration, substantial soul-searching, and full
exploration of all available alternatives by the Client. Professional marriage counseling,
family counseling, or simply reopening direct lines of communication with the Client's
spouse, through civil and productive discourse, may very well resolve many marital or
familial difficulties and result in a desired reconciliation or resolution. On the other hand,
premature legal action or the engagement of attorneys can often needlessly impede such
conciliatory efforts and polarize the parties substantially.
Frankly, retaining the services of an attorney to resolve a marital or family
situation should always be a last resort, undertaken only after all other constructive
measures to address the problems of the Client have failed. This is so because,
ultimately, the Client, by engaging the services of the Attorney, is choosing to delegate,
in part, the responsibility of resolving the Client's problems to the Attorney and, more
importantly, to a judge, of whom the Client very likely knows nothing about.
The Client, by signing this retainer agreement, and engaging the services of the
Attorney, represents to the Attorney that all possible alternatives have been considered
and that the Client is absolutely certain that the Attorney's legal services are desired at
this time. Alternatively, the Client represents to the Attorney that a definite decision to
retain the Attorney has been made to protect the Client's legal interests against actual
or potential action by the Client's spouse or other party or parties.
The Client should not engage the Attorney's services unless the Client is
absolutely certain that the Client wishes to pursue legal action or negotiation with respect
to the Client's marital or family situation.
Lastly, while it is understood that this is a lengthy legal document, there are eight
(8) articles of particular importance which have been highlighted in yellow. Those
articles are as follows:
1.
2.
3
4.
5.
6.
Article 3.
Article 5.
Article 11.
Article 12.
Article 18.
Article 19.
The Free Initial Consultation
The Client's Responsibility to Conserve the
Retainer Payment
The Commencement of the Attorney's Services
Confidentiality
The Free Lunch
The Client’s Understanding of the Attorney’s
Billable Hours
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 5 of 50
Pages 5-6
Pages 6-7
Page 9
Pages 9-10
Page 17
Page 18
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
7.
8.
Article 71.
Article 72.
The Purpose of the Attorney's Services
The End of the Attorney's Services
Page 48
Pages 48-49
It is absolutely essential that the Client be fully familiar with the entirety of these
eight (8) articles, in order for the Client to have a full understanding of the crux of the
relationship between the Attorney and the Client.
Article 3. THE FREE INITIAL CONSULTATION
After almost twenty (20) years of practicing law, the Attorney has reached the
conclusion that the most conscientious and cost-efficient way to address the Client's legal
needs is for the Attorney to provide free to the Client a single hour of the Attorney's time
as an initial consultation. Once the free single hour of initial consultation has been
provided by the Attorney to the Client, the Attorney's standard rate of $100.00 per hour
commences.
Furthermore, any and all efforts expended by the Attorney, for the benefit of the
Client, if undertaken prior to the Client's initial consultation with the Attorney, will also
be considered to be free professional legal services, provided free of charge to the Client
by the Attorney.
If, at the end of this free single, one (1) hour initial consultation, the Client
decides not to retain the Attorney, the Client will owe the Attorney no money for the
initial consultation.
Article 4. THE NATURE OF THE LEGAL SERVICES
TO BE RENDERED TO THE CLIENT BY
THE ATTORNEY
This retainer agreement hereby confirms that the Client has retained this Attorney
to represent the Client with respect to either a matrimonial law action or family law
proceedings, including any attempt to resolve or negotiate a settlement of these issues.
The Client fully understands that this retainer agreement does not apply to any
matter that is not specifically and explicitly mentioned in this retainer agreement.
The Client further understands that this retainer agreement does not apply to any
appeals or post-judgment actions, proceedings, or applications and that, if such an
engagement were to be accepted by the Attorney in the future, the Attorney's
representation would have to be secured by execution of another and separate retainer
agreement. However, the retainer agreement herein in no way requires nor otherwise
obligates the Attorney to accept any such engagement in the future.
Article 5. THE CLIENT'S RESPONSIBILITY
TO CONSERVE THE RETAINER PAYMENT
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 6 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
It is extremely important for the Client to constantly bear in mind that the
retainer payment can be very easily and very quickly exhausted through the Attorney's
rendering of legal services to the Client. Therefore, the Client should refrain from
expending any more of the retainer payment than is absolutely necessary.
One of the easiest ways for the Client to very quickly exhaust the retainer
payment is for the Client to contact the Attorney either via phone or email, since each
letter, fax, phone call, voice mail, and email from the Client or to the Client is billed by
the Attorney to the Client at a minimum rate of $10.00 per letter, fax, phone call, voice
mail, and email.
By the Client keeping contact with the Attorney to an absolute minimum, as
necessary, the Client can help to greatly conserve the retainer payment, enabling it to last
longer, and thereby the Client will owe the Attorney less money.
This warning is not in any way meant to dissuade the Client from contact with the
Attorney. This warning is however meant to inform the Client that any and all contact
with the Attorney will be billed to the Client at a rate of $100.00 per hour. Therefore, it
logically follows that the more contact the Client has with the Attorney, the more the
Attorney is going to bill the Client for such contact. If the Client has extensive contact
with the Attorney, the Client should expect a larger bill.
Article 6. THE TERMS OF LEGAL REPRESENTATION
The Client, by the very nature of this retainer agreement, hereby authorizes the
Attorney to take any and all actions, or refrain from acting, which, in the sole discretion
of the Attorney, are/is deemed appropriate, essential, or necessary to protect the Client's
legal interests in this matter.
The Client understands that the Client is retaining the Attorney and the Attorney
alone. The Client understands that the Attorney currently employs no office staff,
associate attorneys, or clerical personnel, and that the Attorney is responsible for
rendering all legal services to the Client.
The Client agrees to fully cooperate with the Attorney in the progress and
administration of the Client's case. In the event that the Client fails or refuses to
cooperate with the Attorney to such a degree as to prevent the Attorney from rendering
effective representation to the Client, then the Attorney may take such actions, or refrain
from acting, as are/is necessary to withdraw the Attorney's representation in accordance
with applicable law.
The Attorney shall keep the Client regularly informed of the status of the Client's
case and agrees to explain the laws pertinent to the Client's case, the various available
courses of action, and the various attendant risks involved with regard to each course of
action.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 7 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The Attorney shall notify the Client promptly of any substantial developments in
the Client's case, including all court appearances, pleadings, petitions, motions, discovery
responses, and orders. The Attorney will be available to the Client for meetings and
telephone conferences at mutually convenient times.
The Attorney insists that the Client shall schedule appointments for all Client
meetings. Unless explicitly agreed to otherwise by the Attorney, all meetings with the
Client shall always occur at the Attorney's office, located at The Chocolate Factory,
Suite 203, Building 1, 20 Prospect Street, Ballston Spa, New York 12020.
Unless explicitly agreed to otherwise by the Attorney, all mail from the Client
shall be addressed and delivered to the Attorney's official address of Law Office of
James B. Lesperance, Jr., Esq., P.O. Box 139, Ballston Spa, New York 12020.
Unless explicitly agreed to otherwise by the Attorney, the Attorney will not reply
to texts from the Client, or any other party or parties, and the Client will not text the
Attorney. Should the Client wish to contact the Attorney, the Client may contact the
Attorney via letter, facsimile (fax), business phone, cell phone, or email.
Copies of all legal papers received or produced by the Attorney, during the course
of the Client's case, shall be supplied to the Client as they are received or prepared by the
Attorney. The copies of all legal papers supplied to the Client by the Attorney shall be
free of charge unless there are substantial copies to be made available to the Client. The
Client agrees to pay the postage for all legal papers supplied to the Client by the
Attorney.
Article 7. THE RETAINER PAYMENT
For the Attorney's legal representation of the Client to begin, the Client agrees to
pay to the Attorney, and the Attorney has agreed to accept, a minimum retainer payment
of $2,500.00. This retainer payment does not necessarily represent the amount of the
total fee which may be incurred by the Client. The amount of the Attorney's fee will be
based upon the Attorney's Schedule of Established Office Charges and the Attorney's
Schedule of Established Travel Charges, both of which are set forth hereinbelow, along
with any out-of-pocket disbursements (such as process server fees, court fees, messenger
services, transcripts of proceedings, long distance telephone calls, mileage, postage, and
deposition and court transcripts, among others) which may be incurred on the Client's
behalf.
Article 8. THE FAILURE OF THE CLIENT TO PAY
TO THE ATTORNEY THE RETAINER
PAYMENT IN FULL
Regardless of when this retainer agreement is executed, it is specifically agreed
and understood by the Attorney and the Client that unless and until such time that the
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 8 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Client tenders the retainer payment to the Attorney in full, that this retainer agreement
may be treated as being a nullity.
Furthermore, the Attorney reserves the right not to commence legal
representation of the Client unless and until the Client tenders to the Attorney the
retainer payment in full on the retainer agreement.
Article 9. THE RETAINER PAYMENT IS REFUNDABLE
The Client understands and is fully aware that the retainer payment of the
Client to the Attorney is the minimum, refundable fee to be paid to the Attorney to
secure his professional legal services. Furthermore, the Client understands that the
retainer payment is fully refundable, at any time, less billable hours, costs, expenses,
and disbursements by the Attorney for efforts expended on the behalf of the Client .
Article 10. THE RETAINER OF THE ATTORNEY
BY THE CLIENT AND THE IOLA ACCOUNT
If the Client decides to retain the Attorney to provide legal representation to and
for the Client, the Client shall secure the legal representation of the Attorney by tendering
to the Attorney a retainer payment. Upon receiving the retainer payment from the Client,
the Attorney will thereafter deposit the retainer payment into a special interest-bearing
bank account for attorneys called an IOLA (escrow) Account. As the Attorney renders
legal services to the Client over time, the Attorney will withdraw funds from the IOLA
(escrow) Account at regular intervals, in payment for those legal services rendered to the
Client.
If at any point, and for whatever reason, the relationship between the Attorney
and the Client is terminated or otherwise ends, the Attorney shall refund the balance of
the retainer payment to the Client, less billable hours, costs, expenses, and
disbursements, and the Client understands and is fully aware that the retainer payment
of the Client to the Attorney is the minimum, refundable fee to be paid to the Attorney
to secure his professional legal services.
Article 11. THE COMMENCEMENT OF
THE ATTORNEY'S SERVICES
The Attorney's services for the Client commence immediately upon the Client's
execution of this retainer agreement together with payment in full of the retainer
payment.
Most commonly, the Attorney will immediately seek to draft the legal documents
necessary for the proper defense of the Client, and the Attorney will ensure that the legal
documents are timely served upon the necessary parties.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
Page 9 of 50
The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
It is also the Attorney's professional obligation to timely inform both the court and
the opposing attorney(s) that the Attorney has been retained by the Client. In fact, the
Attorney is required to file a written Notice of Appearance with the court on or before the
Attorney's first appearance in court or no later than ten (10) days after being retained by
the Client, whichever is sooner [22 N.Y.C.R.R. §205.10].
Article 12. CONFIDENTIALITY
The Attorney cannot reveal any Client confidences under penalty of law. The
Attorney is essentially the keeper of all of the Client's secrets. There are very few
exceptions to the Attorney-Client confidential relationship, the two (2) most important of
which are 1) perjury (which the Attorney has a good faith reason to believe is, in fact,
perjury) and 2) the intent to commit a crime (which the Attorney has a good faith reason
to believe will occur).
Therefore, it is of the utmost importance to the Attorney-Client relationship that
all communications between the Attorney and the Client remain confidential at all times.
Furthermore, any and all communications by and between the Attorney and the Client
must always be ensured of confidentiality, in order to fully protect the interests of the
Client.
The Client needs to understand that any communication made to or received from
the Attorney, wherein the Client is not alone and in private, may very likely not be a
confidential communication.
In other words, the Client will not have a confidential communication with the
Attorney if anyone else is present to observe the communication with any of their five (5)
senses.
If the Client's communication with the Attorney is not confidential, then it may
be revealed to the opposing party and the court!!!
Article 13. THE ATTORNEY'S AVAILABILITY
TO THE CLIENT
The Attorney represents to the Client that the Attorney will endeavor to be
available to the Client, by phone or email, between the hours of 9:00am and 9:00pm,
Monday through Friday, with the exception of holidays that fall on a weekday.
The Attorney represents to the Client that the Attorney will endeavor to be
available to the Client, in person, between the hours of 9:00am and 9:00pm, Monday
through Friday, to the extent that the Attorney is able, and to the extent that the Client has
previously scheduled an appointment to meet with the Attorney, with the exception of
holidays that fall on a weekday.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The Attorney represents to the Client that the Attorney will endeavor to return all
of the Client's telephone call messages and cell phone voice mail messages as soon as the
Attorney is able.
The Attorney represents to the Client that the Attorney will endeavor to reply to
all of the Client's letters, facsimiles (faxes), and emails as soon as the Attorney is able.
The Attorney represents to the Client that the Client may contact the Attorney
twenty-four (24) hours a day, in the event of an emergency, so long as the Client is
discreet with regard to the time and number of such calls.
The Client understands and acknowledges that the Attorney has many other
clients who demand the Attorney's attentions and that the Attorney simply cannot contact
the Client more than one or two times per week, with the exceptions of emergencies.
The Client understands and acknowledges that the Client shall refrain from
unnecessary and unwarranted communications with the Attorney, in order for the Client
to be responsible and for the Client to conserve the retainer payment.
Article 14. THE ATTORNEY'S AND THE CLIENT'S
RECIPROCAL RIGHTS AND RESPONSIBILITIES
The Attorney and the Client have certain reciprocal rights and responsibilities to
one another.
If the Client ever has any questions about these rights, or about the way the
Client's case is being handled, the Client should not hesitate to ask the Attorney. The
Attorney will be readily available to represent the Client's best interests and keep the
Client informed about your case.
The Attorney may not refuse to represent the Client on the basis of race, creed,
color, sex sexual orientation, age, national origin or disability.
The Client is entitled to be represented by an attorney who will be capable of
handling the Client's case; show the Client courtesy and consideration at all times;
represent the Client zealously; and preserve the Client's confidences and secrets that are
revealed in the course of the Attorney-Client relationship.
The Client is entitled to a written retainer agreement, which must set forth, in
plain language, the nature of the relationship and the details of the fee arrangement. At
the Client's request, and before the Client signs the agreement, the Client is entitled to
have the Attorney clarify in writing any of its terms, or include additional provisions.
The Client is entitled to fully understand the proposed rates and retainer fee
before the Client signs the retainer agreement, as in any other contract.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The Client may refuse to enter into any fee arrangement that the Client finds
unsatisfactory.
The Attorney may not request a fee that is contingent on the securing of a divorce
or on the amount of money or property that may be obtained.
The Attorney many not request a retainer fee that is non-refundable. That is,
should the Client discharge the Attorney, or should the Attorney withdraw from
representing the Client, before the retainer is used up, the Attorney is entitled to be paid
by the Client commensurate with the work performed on the Client's case and any
expenses, but the Attorney must return the balance of the retainer to the Client. However,
the Attorney may enter into a minimum fee arrangement with the Client that provides for
the payment of a specific amount below which the fee will not fall based upon the
handling of the case to its conclusion.
The Client is entitled to know the approximate number of attorneys and other
legal staff members who will be working on the Client's case at any given time and what
the Client will be charged for the services of each.
The Client is entitled to know in advance how the Client will be asked to pay
legal fees and expenses, and how the retainer, if any, will be spent.
At the Client's request, and after the Attorney has had a reasonable opportunity to
investigate the Client's case, the Client is entitled to be given an estimate of approximate
future costs of the Client's case, which estimate shall be made in good faith but may be
subject to change due to facts and circumstances affecting the case.
The Client is entitled to receive a written, itemized bill on a regular basis, at least
every sixty (60) days.
The Client is expected to review the itemized bills sent by the Attorney, and to
raise any objections with the Attorney or errors in a timely manner. Time spent or
explanation of bills will not be charged to the Client.
The Client is expected to be truthful in all discussions with the Attorney, and to
provide all relevant information and documentation to enable the Attorney to
competently prepare the Client's case.
The Client is entitled to be kept informed of the status of the Client's case, and to
be provided with copies of correspondence and documents prepared on the Client's behalf
or received from the court or the Client's adversary.
The Client has the right to be present in court at the time that conferences are
held.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The Client is entitled to make the ultimate decision on the objectives to be
pursued in the Client's case, and to make the final decision regarding the settlement of the
Client's case.
The Attorney’s written retainer agreement must specify under what circumstances
the Attorney might seek to withdraw as the Attorney for non-payment of legal fees by the
Client. If an action or proceeding is pending, the court may give the Attorney a “charging
lien,” which entitles the Attorney to payment for the services already rendered at the end
of the case of the proceeds of the final order or judgment.
The Client is under no legal obligation to sign a confession of judgment or
promissory note, or to agree to a lien or mortgage on the Client's home to cover legal
fees. The Attorney’s written retainer agreement must specify whether, and under what
circumstances, such security may be requested. In no event may such security interest be
obtained by the Attorney without prior court approval and notice to the Client's
adversary. The Attorney’s security interest in the marital residence cannot be foreclosed
against the Client.
The Client is entitled to have the Attorney’s best efforts on the Client's behalf, but
no particular results can be guaranteed.
If the Client entrusts money with the Attorney for an escrow deposit in the
Client's case, the Attorney must safeguard the escrow in a special bank account. The
Client is entitled to a written escrow agreement, and may request that one or more
interest-bearing accounts be used. The Client is are entitled to a written receipt and a
complete record concerning the escrow from the Attorney. When the terms of the escrow
agreement have been performed, the Attorney must promptly make payment of the
escrow to all persons who are entitled to it.
In the event of a fee dispute, the Client has the right to seek arbitration. The
Attorney will provide the Client with the necessary information regarding arbitration in
the event of a fee dispute, or upon the Client's request.
Article 15. TERMINATION OR WITHDRAWAL
OF REPRESENTATION
Notwithstanding any other aspect or provision of this retainer agreement, if the
Attorney-Client relationship is terminated without the Client's case having been
concluded, by the Client's reconciliation with the Client's spouse, by the Client's
discharge of the Attorney, or by the Attorney withdrawing the Attorney's representation
from the Client, then a fair and reasonable fee would thereafter be determined in
accordance with legally-accepted standards.
Currently, the legally-accepted standards are based upon the legally-recognized
elements of a reasonable fee, as set forth in the Code of Professional Responsibility, as
follows:
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
1.
The time and labor required, the novelty and difficulty of the legal
questions involved, and the skill requisite to perform the legal service properly; and
2.
The likelihood, if apparent or made known to the Client, that the
acceptance of the particular employment will preclude other employment by the
Attorney; and
3.
The fee(s) customarily charged in the locality for similar legal services;
and
4.
Client; and
5.
The amount of time and money involved and the results obtained for the
The time limitations imposed by the Client or the circumstances; and
6.
The nature and the length of the Attorney's professional relationship with
the Client; and
7.
The experience, reputation, and ability of the Attorney performing the
legal services for the Client.
The Client is advised that if, in the judgment of the Attorney, the Attorney decides
that there has been an irretrievable breakdown in the Attorney-Client relationship, or a
material breach of the terms of this retainer agreement, then the Attorney may make
application to the court to be relieved as the Client's Attorney.
If such an event occurs, the Client will be provided with notice from the Attorney
of the application by the Attorney to be relieved as the Client's Attorney, and the Client
will have an opportunity to be heard by the court, if necessary.
In the event that any bill or amount due, submitted to the Client by the Attorney,
remains unpaid beyond one (1) month, the Client understands that the Attorney may, at
the Attorney's option, and subject to applicable law and procedures, including application
for judicial permission where required, seek to withdraw the Attorney's representation of
the Client.
Furthermore, the Client understands that the Client may discharge the Attorney at
any time, for whatever reason, and, in such event, the Client will only be charged by the
Attorney for the billable hours and costs incurred by the Attorney on behalf of the Client,
up to and including the moment of discharge of the Attorney by the Client.
Of course, in the event that, at the time of the Client's discharge of the Attorney,
the Attorney has not earned the full amount of any sum or sums advanced by the Client to
the Attorney, then such unearned sum or sums shall be returned to the Client by the
Attorney.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Article 16. RULES OF PROFESSIONAL CONDUCT REGARDING
AN ATTORNEY'S TERMINATION OF REPRESENTATION
Notwithstanding any other aspect or provision of this retainer agreement, the
Client is advised by the Attorney that the issue of an Attorney terminating the
representation of a Client is governed by the Rules of Professional Conduct, and
particularly by Rule 1.16 [22 N.Y.C.R.R. §1200.15(1.16)], which provides as follows:
"Declining or Terminating Representation"
(a) A lawyer shall not accept employment on behalf of a person if the lawyer
knows or reasonably should know that such person wishes to:
(1) bring a legal action, conduct a defense, or assert a position in a matter, or
otherwise have steps taken for such a person, merely for the purpose of harassing or
maliciously injuring any person; or
(2) present a claim or defense in a matter that is not warranted under existing
law, unless it can be supported by a good faith argument for an extension, modification,
or reversal of existing law,
(b) Except as stated in paragraph (d), a lawyer shall withdraw from the
representation of a client when:
(1) the lawyer knows or reasonably should know that the representation will
result in a violation of these Rules or of law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s
ability to represent the client;
(3) the lawyer is discharged; or
(4) the lawyer knows or reasonably should know that the client is bringing the
legal action, conducting the defense, or asserting a position in the matter, or is otherwise
having steps taken, merely for the purpose of harassing or maliciously injuring any
person.
(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a
client when:
(1) withdrawal can be accomplished without material adverse effect on the
interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the
lawyer reasonably believes is criminal or fraudulent;
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action with which the lawyer has a fundamental
disagreement;
(5) the client deliberately disregards an agreement or obligation to the lawyer as
to expenses or fees;
(6) the client insists upon presenting a claim or defense that is not warranted
under existing law and cannot be supported by good faith argument for an extension,
modification, or reversal of existing law;
(7) the client fails to cooperate in the representation or otherwise renders the
representation unreasonably difficult for the lawyer to carry out employment effectively;
(8) the lawyer’s inability to work with co-counsel indicates that the best interest
of the client likely will be served by withdrawal;
(9) the lawyer’s mental or physical condition renders it difficult for the lawyer to
carry out the representation effectively;
(10) the client knowingly and freely assents to termination of the employment;
(11) withdrawal is permitted under Rule 1.13(c) [Organization as a Client] or
other law
(12) the lawyer believes in good faith, in a matter pending before a tribunal, that
the tribunal will find the existence of other good cause for withdrawal; or
(13) the client insists that the lawyer pursue a course of conduct which is illegal
or prohibited under these Rules.
(d) If permission for withdrawal from employment is required by the rules of a
tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal
without its permission. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(e) Even when withdrawal is otherwise permitted or required, upon termination of
representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid
foreseeable prejudice to the rights of the client, including giving reasonable notice to the
client, allowing time for employment of other counsel, delivering to the client all papers
and property to which the client is entitled, promptly refunding any part of a fee paid in
advance that has not been earned and complying with applicable laws and rules.
Article 17. FEE DISPUTES
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
While the Attorney seeks to avoid any fee disputes with the Client, and rarely
have such disputes arisen in the past with other clients, in the event that such a fee dispute
does arise, the Client is hereby advised by the Attorney that the Client has the right, at the
Client's election, to seek arbitration to resolve the fee dispute.
The Client fully understands that the Attorney will provide to the Client a
Statement of Services on or about the first of each and every month during the pendency
of the litigation. The Attorney will request that the Client review the entirety of the
Statement of Services and return to the Attorney a copy of the Statement of Services
signed by the Client (in a self-addressed stamped envelope for this purpose), indicating
that the Client has reviewed the Statement of Services, that the Client agrees that the
information found within the Statement of Services is correct, and that the Client agrees
that the total amount of the bill, as contained within the Statement of Services, is correct.
In such an event, or at the request of the Client, the Attorney shall advise the
Client in writing, by certified mail, that the Client has thirty (30) days from the receipt of
such notice in which to elect to resolve the dispute by arbitration, and the Attorney shall
enclose a copy of the arbitration rules and a form for requesting arbitration. The
arbitration decision is binding upon both the Client and the Attorney.
Article 18. THE FREE LUNCH
Who says there’s no such thing as a free lunch? There is with this Attorney. The
practice of law should be both civilized and social. Therefore, on occasion, time
permitting, and especially after a court appearance near lunch, or a lunch break between
parts of a deposition or a hearing or trial, this Attorney finds that it is most congenial for
both the Attorney and the Client to be able to relax over a decent lunch and leisurely
discuss the various aspects of the Client’s case.
Over many such lunches, the Attorney has found that sometimes new insights into
the Client’s case come forth in such an informal and unhurried setting, which sometimes
proves to be greatly beneficial to the Client’s case.
One of the reasons this Attorney charges $100.00 per hour is because this
Attorney does not discount the bill to the Client. This Attorney knows that many
attorneys who charge more than this Attorney does often resort to discounting their bills
to their clients to make an otherwise exorbitant bill more palatable to their client. This
Attorney does not believe in discounts just as this Attorney does not believe in high
hourly billing rates.
Therefore, the only discounts on a Client’s bill which this Attorney will consider
are already a part of the retainer agreement: namely, the single, one (1) hour free initial
consultation and the single, one (1) hour free lunch.
Any and all additional free lunches are strictly at the discretion of the Attorney.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
Part 2. THE EXPENSES OF
THE LITIGATION:
Article 19. THE CLIENT'S UNDERSTANDING OF
THE ATTORNEY'S BILLABLE HOURS
The Client further understands that the Attorney's hourly rate of $100.00 per hour
applies to all time expended relative to the Client's case, including but not limited to:
office meetings and conferences (either with the Client or with attorneys); telephone calls
and conferences (either placed by the Client or otherwise made on the Client's behalf or
related to the Client's case); the preparation, review, and revision of email, faxes,
correspondence, petitions, pleadings, motions, affidavits, affirmations, exhibits, discovery
demands, discovery responses, orders, notices, or any other documents, memoranda, or
papers relative to the Client's case; legal research; court appearances; conferences; file
review; preparation time; travel time; and any other time expended on behalf of the Client
or in connection with the Client's case.
In short, everything that the Attorney does for the Client is billed to the Client at
an hourly rate of $100.00 per hour.
Article 20. THE SCHEDULE OF ESTABLISHED
OFFICE CHARGES
After almost twenty (20) years of practicing law, the Attorney has reached the
conclusion that the most conscientious and cost-efficient way to bill the Attorney's legal
services to the Client is at the rate of $100.00 per hour in increments of tenths of an hour.
Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6)
minutes of the Attorney's time.
It should be noted by the Client that the standard hourly billing rate for attorneys
in the Capital District amounts to flat fees in some instances but most often falls within a
range of from $100.00 to $300.00 per hour. It is the Attorney's belief that legal services
should be readily available to all people who require them. As such, and because the
local, regional, state, and national economies are largely in recession, the Attorney's rate
of $100.00 per hour is extremely competitive and relatively fair, especially given the
Attorney's expertise in the field and the Attorney's years of experience.
Furthermore, a rate of $100.00 per hour is very easy to comprehend in terms of
multiples of hours and fractions of hours.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
It should also be noted that attorneys working for the counties as public defenders,
or for the state as attorneys for children, are paid $75.00 per hour, plus expenses and
disbursements, by the counties and state for services rendered to the clients to whom they
are assigned by the courts. As such, this Attorney's standard hourly billing rate of
$100.00 per hour is extremely reasonable and cost-effective.
The minimum charges as set forth herein have been arrived at as a result of
determining the average amount of time involved in retrieving the Client's file, examining
documents in the Client's file, drafting documents concerning the Client's case, and
responding to each call, in addition to the amount of time required to consider the
problem arising from or to be dealt with in the call or document.
The Client agrees to pay the Attorney for legal services rendered to the Client by
the Attorney in accordance with a Schedule of Established Office Charges which is set
forth as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Charge for the initial (one (1) hour) consultation...........................................FREE
Hourly rate of the Attorney.......................................................................$100.00
Minimum increments of billing (tenths of an hour; six (6) minutes)............$10.00
Minimum charge for the review of all documents (inclusive of letters,
faxes, and emails) (0.1)...................................................................................$10.00
Minimum charge for all phone calls (0.1)......................................................$10.00
Charge for each answering machine and voice mail message (0.1)...............$10.00
Minimum charge for the drafting of emails (0.1)...........................................$10.00
Minimum charge for the sending of faxes (0.1).............................................$10.00
Minimum charge for the drafting of letters (0.3)...........................................$30.00
Minimum charge for the drafting of pleadings (2.0)....................................$200.00
Minimum charge for the drafting of discovery (0.5)......................................$50.00
Minimum charge for the drafting of motions (2.0)......................................$200.00
Minimum charge for the drafting of orders (1.0).........................................$100.00
Minimum charge for preparing for all court appearances (0.3)……………$30.00
Minimum charge for court appearances [not including travel] (1.0)...........$100.00
The charge for postage (inclusive of certified and overnight mail) is determined at
prevailing rates.
Article 21. THE SCHEDULE OF ESTABLISHED TRAVEL
CHARGES IN THE CAPITAL REGION
After almost twenty (20) years of practicing law, the Attorney has reached the
conclusion that the most conscientious and cost-efficient way to bill the Attorney's cost of
travel to the Client is at the rate of $100.00 per hour in increments of tenths of an hour.
Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6)
minutes of travel time.
Furthermore, the Attorney shall bill the Client for the cost of travel to and from
Court at a rate of $1.00 per mile. While this rate may appear relatively high, it has been
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
established so as to never be changed, regardless of the cost of fuel for motor vehicles.
With fuel for motor vehicles currently at or above $4.00 per gallon, it is the Attorney's
belief that this rate is reasonable. Also, all travel resulting in tenths of a mile will be
rounded up to the next mile.
Furthermore, a rate of $1.00 per mile is very easy to comprehend in terms of
multiples of miles.
Most cases take a minimum of three (3) court appearances to resolve. Some
cases require many more than three (3) court appearances to resolve. In complicated or
extremely litigious cases, it is not uncommon for there to be as many as ten (10) or more
court appearances required to resolve the Client's case.
The Attorney herein defines the Capital Region to be the four (4) county region
encompassing the counties of Albany, Rensselaer, Saratoga, and Schenectady.
As such, the precise amount of the total travel costs for three (3) court
appearances has been determined in the Schedule of Established Travel Charges for each
of the four (4) courts in the Capital Region, encompassing Albany, Rensselaer, Saratoga,
and Schenectady Counties.
Because of the high cost of travel outside the four (4) counties of the Capital
Region, it may be more cost-effective for the Client to retain an Attorney who has offices
closer to the courts in the respective counties outside the Capital Region, especially if the
Client's case is complex and likely to entail many court appearances.
The Client agrees to pay the Attorney for legal services rendered to the Client by
the Attorney in accordance with a Schedule of Established Travel Charges which is set
forth as follows:
1.
Hourly rate of the Attorney.......................................................................$100.00
The Capital Region:
2.
Roundtrip to Ballston Spa, New York (Saratoga County) (6 miles).............$6.00
3.
Roundtrip time to Ballston Spa, New York (Saratoga County) (0.4)...........$40.00
Total travel costs for one (1) court appearance..........................................$46.00
4.
5.
Roundtrip to Schenectady, New York (Schenectady County) (28 miles)....$28.00
Roundtrip time to Schenectady, New York (Schenectady County) (1.0)...$100.00
Total travel costs for one (1) court appearance........................................$128.00
6.
7.
Roundtrip to Troy, New York (Rensselaer County) (50 miles)....................$50.00
Roundtrip time to Troy, New York (Rensselaer County) (1.2)..................$120.00
Total travel costs for one (1) court appearance........................................$170.00
8.
Roundtrip to Albany, New York (Albany County) (60 miles)......................$60.00
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
9.
Roundtrip time to Albany, New York (Albany County) (1.2)....................$120.00
Total travel costs for one (1) court appearance........................................$180.00
The Attorney may be retained by the Client for cases venued outside the Capital
Region. However, this may be inadvisable due to the extraordinary cost that will likely
be incurred by the Client for the Attorney's travel to and from court appearances to these
more distant courts.
All roundtrip distances and roundtrip travel times are approximations of the
quickest routes as ascertained via Mapquest.com and through personal experience.
Furthermore, wherever possible, the Attorney will endeavor to seek out free
parking and travel via non-toll roads. However, where free parking is not available and
where the quickest route to the courthouse is via a toll road, the Attorney shall bill the
Client for such parking and/or tolls.
Obviously, the cost of travel to the courts of the Capital Region is substantially
less than the cost of travel to the courts of the Greater Capital Region.
Article 22. THE SCHEDULE OF ESTABLISHED TRAVEL
CHARGES IN THE GREATER CAPITAL REGION
After almost twenty (20) years of practicing law, the Attorney has reached the
conclusion that the most conscientious and cost-efficient way to bill the Attorney's cost of
travel to the Client is at the rate of $100.00 per hour in increments of tenths of an hour.
Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6)
minutes of travel time.
Furthermore, the Attorney shall bill the Client for the cost of travel to and from
Court at a rate of $1.00 per mile. While this rate may appear relatively high, it has been
established so as to never be changed, regardless of the cost of fuel for motor vehicles.
With fuel for motor vehicles currently at or above $4.00 per gallon, it is the Attorney's
belief that this rate is reasonable. Also, all travel resulting in tenths of a mile will be
rounded up to the next mile.
Furthermore, a rate of $1.00 per mile is very easy to comprehend in terms of
multiples of miles.
Most cases take a minimum of three (3) court appearances to resolve. Some
cases require many more than three (3) court appearances to resolve. In complicated or
extremely litigious cases, it is not uncommon for there to be as many as ten (10) or more
court appearances required to resolve the Client's case.
The Attorney herein defines the Greater Capital Region to be the eleven (11)
region encompassing the counties of Albany, Columbia, Fulton, Greene, Montgomery,
Rensselaer, Saratoga, Schenectady, Schoharie, Warren, and Washington.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
As such, the precise amount of the total travel costs for three (3) court
appearances has been determined in the Schedule of Established Travel Charges for each
of the seven (7) remaining courts in the Greater Capital Region, encompassing Columbia,
Fulton, Greene, Montgomery, Schoharie, Warren, and Washington Counties.
Because of the high cost of travel outside the four (4) counties of the Capital
Region, it may be more cost-effective for the Client to retain an Attorney who has offices
closer to the courts in the respective counties outside the Capital Region, especially if the
Client's case is complex and likely to entail many court appearances.
The Client agrees to pay the Attorney for legal services rendered to the Client by
the Attorney in accordance with a Schedule of Established Travel Charges which is set
forth as follows:
1.
Hourly rate of the Attorney.......................................................................$100.00
The Greater Capital Region:
2.
Roundtrip to Fort Edward, New York (Washington County) (64 miles).....$64.00
3.
Roundtrip time to Fort Edward, New York (Washington County) (1.4)....$140.00
Total travel costs for one (1) court appearance........................................$204.00
4.
5.
Roundtrip to Lake George, New York (Warren County) (66 miles)...........$68.00
Roundtrip time to Lake George, New York (Warren County) (1.4)..........$140.00
Total travel costs for one (1) court appearance........................................$208.00
6.
7.
Roundtrip to Fonda, New York (Montgomery County) (64 miles)..............$64.00
Roundtrip time to Fonda, New York (Montgomery County) (1.6)............$160.00
Total travel costs for one (1) court appearance........................................$224.00
8.
9.
Roundtrip to Johnstown, New York (Fulton County) (72 miles).................$72.00
Roundtrip time to Johnstown, New York (Fulton County) (1.6)................$160.00
Total travel costs for one (1) court appearance........................................$232.00
10.
11.
Roundtrip to Schoharie, New York (Schoharie County) (80 miles).............$80.00
Roundtrip time to Schoharie, New York (Schoharie County) (2.0)...........$200.00
Total travel costs for one (1) court appearance........................................$280.00
12.
13.
Roundtrip to Catskill, New York (Greene County) (126 miles).................$126.00
Roundtrip time to Catskill, New York (Greene County) (2.4)...................$240.00
Total travel costs for one (1) court appearance........................................$366.00
14.
15.
Roundtrip to Hudson, New York (Columbia County) (124 miles)............$124.00
Roundtrip time to Hudson, New York (Columbia County) (2.6)...............$260.00
Total travel costs for one (1) court appearance........................................$384.00
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The Attorney may be retained by the Client for cases venued outside the Greater
Capital Region. However, this may be inadvisable due to the extraordinary cost that will
likely be incurred by the Client for the Attorney's travel to and from court appearances to
these distant courts.
All roundtrip distances and roundtrip travel times are approximations of the
quickest routes as ascertained via Mapquest.com and through personal experience.
Furthermore, wherever possible, the Attorney will endeavor to seek out free
parking and travel via non-toll roads. However, where free parking is not available and
where the quickest route to the courthouse is via a toll road, the Attorney shall bill the
Client for such parking and/or tolls.
Obviously, the cost of travel to the courts of the Capital Region is substantially
less than the cost of travel to the courts of the Greater Capital Region.
Article 23. MONTHLY BILLING OF THE CLIENT
FOR SERVICES RENDERED BY THE ATTORNEY
The Client will be billed on or about the first day of each and every month for the
duration of the litigation. The Client shall be provided with a monthly Statement of
Services with regard to the services rendered by the Attorney to the Client in any given
month. Included in the Statement of Services will be a detailed statement of the services
rendered, together with the disbursements incurred by the Attorney in connection with
the Client's case. Upon receipt of the Statement of Services from the Attorney, the Client
is expected to carefully review the Statement of Services and promptly bring to the
Attorney's attention any and all objections that the Client may have to the billing by the
Attorney as set forth within the Statement of Services.
While the Attorney aspires and strives to keep perfectly accurate billing records,
the possibility of human error is always present, and the Attorney will discuss with the
Client any and all objections that the Client may have with regard to the billing as set
forth within the Statement of Services. Furthermore, the Client will not be charged for
any and all time expended in discussing with the Attorney any aspect of the Statement of
Services.
Article 24. SEMI-MONTHLY WITHDRAWALS FROM
THE RETAINER PAYMENT BY THE ATTORNEY
Notwithstanding the fact that the Client will be billed on or about the first day of
each and every month for the duration of the litigation, the Attorney will also withdraw
funds from the Client's retainer payment on or about the 15th day of each and every
month for the duration of the litigation. These semi-monthly withdrawals by the
Attorney from the Client's retainer payment will be denoted on the monthly Statement of
Services sent by the Attorney to the Client as a "withdrawal from retainer".
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
The rationale for these semi-monthly withdrawals by the Attorney from the
Client's retainer payment is that they effectively constitute a semi-monthly salary
payment to the Attorney by virtue of the fact that the Attorney is ethically obligated to
secure the Client's retainer payment in an interest-bearing IOLA (escrow) Account which
the Attorney is only allowed to take withdrawals from on a predetermined and regular
basis.
Article 25. DISBURSEMENTS
The Client understands and agrees that the Client shall be solely responsible for
timely payment of any and all bills rendered by the Attorney, whether with respect to the
Attorney's legal services, disbursements, or any other costs and expenses incurred by the
Attorney on the Client's behalf. Such disbursements can potentially be substantial and
may include, but are not limited to the following: investigative services; service of
process; courier service; certified, express, or overnight mail; Federal Express; photocopy
charges; court fees; stenographic services; transcript costs; filing and recording fees;
subpoena fees; the cost of the retention of expert witnesses; appraisal reports; valuation
reports; and such other expenses as may be required for the Attorney to effectively
represent the Client's legal interests.
Article 26. COURT FEES
In Family Court proceedings, there are very rarely any court fees encountered
other than, perhaps, the cost of ordering a transcript.
In Supreme Court actions, there are often many different court fees encountered.
Here is a partial list of the most common court fees encountered in Supreme Court:
1.
2.
3.
4.
5.
6.
Obtaining an Index Number [CPLR §8018(a)(1),(3)]..................................$210.00
Request for Judicial Intervention [CPLR §8020(a)].......................................$95.00
Note of Issue [CPLR §8020(a)]......................................................................$30.00
Motion or Cross-motion [CPLR §8020(a)].....................................................$45.00
Demand for a Jury Trial [CPLR §8020(c)].....................................................$65.00
Stipulation of Settlement or Voluntary Discontinuance [CPLR §8020(d)]....$35.00
The Client fully understands that it is solely the Client's responsibility to pay for
all court fees. The Client fully understands that the Client's payment of all court fees is
separate and apart from the monies paid to the Attorney to retain the Attorney's legal
services.
Article 27. THE REPLENISHMENT PAYMENT
The billable hours and costs expended by the Attorney on the Client's case will be
charged against the Client's retainer payment and, in the event that the Client's retainer
payment is exhausted or comes within $500.00 of becoming exhausted, as a result of the
billable hours and costs expended by the Attorney, the Client hereby agrees to replenish
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
the Client's retainer payment by tendering to the Attorney a replenishment payment in the
amount of $1,000.00.
The Attorney shall notify the Client, in writing, in the event that the Client's
retainer payment has been exhausted to under $500.00. The Client shall not owe the
Attorney any replenishment payment unless and until the Attorney notifies the Client, in
writing, that the retainer payment has been exhausted to under $500.00.
Furthermore, as each replenishment payment may be exhausted by the billable
hours and costs expended by the Attorney on the Client's case, the Client hereby agrees to
replenish the Client's retainer payment with additional replenishment payments to the
Attorney.
Article 28. THE FAILURE OF THE CLIENT TO PAY TO THE
ATTORNEY ANY REPLENISHMENT PAYMENT IN FULL
In the event that the Client fails to pay to the Attorney any replenishment payment
in full, the Attorney reserves the right to hold the Client in breach of the retainer
agreement. Furthermore, in the event that the Client fails to pay to the Attorney any
replenishment payment in full, the Attorney will seek to protect the Attorney's rights to
compensation from the Client for legal services rendered, or to be rendered, to the Client
through whatever legal remedies are available to the Attorney.
In the event that the Client fails to pay to the Attorney any replenishment payment
in full, the Attorney may: seek to terminate or withdraw from the representation of the
Client; seek to have the Client sign a Consent to Change Attorney form or Substitution of
Counsel form, whereby the Attorney is relieved of the Attorney's responsibilities to and
representation of the Client; and seek legal recourse against the Client for the recovery of
any and all monies owed to the Attorney by the Client, inclusive of bringing any liens
against the Client's assets or real property or seeking the assistance of debt collection.
Article 29. THE FINAL REPLENISHMENT PAYMENT IS
REFUNDABLE IN WHOLE OR IN PART TO THE CLIENT
Just as the retainer payment of the Client is the minimum, refundable fee to be
paid to the Attorney to secure his professional legal services, the replenishment payment
is also refundable to the extent that the replenishment payment has not already been
exhausted by the Attorney's billable hours and costs.
For example, if the Client's case is concluded and only 50% of the replenishment
payment has been exhausted by the Attorney's billable hours and costs, then the Attorney
is obligated to refund to the Client the remaining 50% of the last replenishment payment
tendered to the Attorney by the Client, which shall be refunded to the Client once the
Attorney formally and officially closes the Client's file.
Article 30. THE TRIAL RETAINER
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P.O. Box 139, Ballston Spa, New York 12020
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In the event that a negotiated settlement of the Client's case has not been
achieved, and executed, thirty (30) days prior to the date upon which the Client's case is
scheduled for a trial or a hearing, a trial retainer of $1,000.00 will then be due and
payable to the Attorney.
Just as the retainer payment of the Client is the minimum, refundable fee to be
paid to the Attorney to secure his professional legal services, the trial retainer is also
refundable to the extent that the trial retainer has not already been exhausted by the
Attorney's billable hours and costs.
For example, if the Client's case is concluded after a settlement on the first day of
trial, and only 50% of the trial retainer has been exhausted by the Attorney's billable
hours and costs, then the Attorney is obligated to refund to the Client the remaining 50%
of the trial retainer tendered to the Attorney by the Client, which shall be refunded to the
Client once the Attorney formally and officially closes the Client's file.
Article 31. OTHER ADDITIONAL EXPENSES
There should not be any other additional expenses incurred by the Client that
are not encompassed by and enumerated within this retainer agreement.
However, in the event that any additional expenses are anticipated or may occur,
it is the Attorney's duty to bring these additional expenses to the Client's attention as soon
as possible, in writing.
It is understood by the Attorney that neither the Attorney nor the Client shall incur
any additional expenses not already encompassed by and enumerated within this retainer
agreement without the explicit, prior, written approval of the Client.
Article 32. OTHER FEE PROVISIONS
Other important terms relative to fees and compensation pursuant to this retainer
agreement are as follows.
The Client agrees to pay to the Attorney such additional fees, including
replenishment payments and trial retainers, as set forth hereinabove, and to reimburse the
Attorney for any advances made on the Client's behalf not later than fourteen (14) days
from the date stated on the Attorney's letter, enclosing a demand for same.
If the Client does not pay to the Attorney the amount due within one (1) month
after the date on the Attorney's letter, enclosing the demand for same, then interest at the
rate of nine (9%) per cent per annum shall be added to the balance due to the Attorney.
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P.O. Box 139, Ballston Spa, New York 12020
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Part 3. THE PREPARATION FOR
THE LITIGATION:
Article 33. CLIENT MEETINGS
Meetings with the Client are at the very heart of the Attorney-Client relationship.
Cases are won or lost depending upon how prepared the Attorney is for a given case and
Attorney preparation depends almost entirely upon having comprehensive meetings with
the Client.
While the purpose of the free initial consultation is merely to allow the Attorney
to meet with the Client and for the Client to meet with the Attorney, and for the Attorney
to make a determination as to whether the Client has a viable case or not, more in depth
meetings between the Attorney and the Client are essential in order for the Attorney to
become fully aware of all of the Client’s interests.
The primary purpose of client meetings is to acquire as many facts as possible
about the client’s case. Only through the acquisition of extensive factual information
about the Client’s case can the Attorney hope to be able to zealously and aggressively
advocate for the Client.
While much information may be gleaned from the Client by the Attorney at the
free initial consultation, it is much more likely that the Attorney will need to meet with
the Client one or more times, beyond the free initial consultation, to be able to fully
acquire all of the necessary factual information from the Client.
All client meetings will be scheduled at the Attorney’s office, at times and dates
that are mutually convenient to both the Attorney and the Client.
Only in rare circumstances, such as just prior to an important court appearance or
trial, will it be necessary for a client meeting to occur late in the evening, on a holiday, or
on a Saturday or a Sunday. However, the Attorney will make every effort to avoid
having to schedule client meetings in late evenings, on holidays, on Saturdays, and on
Sundays, unless the Attorney deems it to be absolutely necessary to do so.
Article 34. CLIENT CONTACT
The Attorney will initiate contact with the Client only when the Attorney deems it
to be necessary for the proper representation of the Client. Days, or even weeks, may
pass without the Attorney contacting the Client. The primary reason for this lack of
contact between the Attorney and the Client will be that either nothing of importance has
occurred on the Client’s case or that nothing has happened on the case at all. Another
reason for this lack of contact will be the Attorney attempting to conserve the retainer
payment for the Client.
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It will be the rare case where the Attorney does not contact the Client at least once
every two (2) weeks. In any event, the Attorney shall contact the Client no less than
once per month, in all circumstances, if only to keep the client apprised of basic
information and to let the Client know that the Attorney has not forgotten the Client.
In turn, the Client should only contact the Attorney when, in the Client’s
discretion and estimation, something has occurred that is important to the Client’s case.
Otherwise, the Client should seek to conserve the retainer at all times.
Article 35. THIRD-PARTY CONTACTS
The Attorney will very likely engage in substantial contacts with third-parties
throughout the course of the litigation. This is absolutely essential and is an integral part
of the litigation itself. Like client meetings, the primary purpose of third-party contacts is
information gathering.
It is the intention of the Attorney to reveal to the Client all of the contacts that the
Attorney has with third-parties in this litigation, in order to keep the Client fully informed
as to the progress of the litigation.
Again, the Attorney will only engage in contacts with third-parties to the extent
that the Attorney deems that such contacts are necessary for the proper representation of
the Client.
Article 36. REVIEW OF DOCUMENTS
The Attorney will very likely review a voluminous number of documents
throughout the course of this litigation. This is absolutely essential and is an integral part
of the litigation itself. Like client meetings and third-party contacts, the primary purpose
of reviewing documents is information gathering.
It is the intention of the Attorney to reveal to the Client all of the documents that
the Attorney has reviewed in this litigation, making sure to provide the Client with copies
of the documents, where necessary, in order to keep the Client fully informed as to the
progress of the litigation.
Article 37. LEGAL RESEARCH
Because no case is exactly like another, and because litigation is very factspecific, it may sometimes be necessary for the Attorney to engage in legal research for
the Attorney to be able to zealously and aggressively advocate for the Client.
The Client needs to understand that the law is dynamic and changing all the time.
Caselaw in the Third Department is published weekly, usually every Thursday, and may
be reviewed at or downloaded from the Third Department’s official website at
http://www.courts.state.ny.us/ad3/. Any given case may have a direct impact on the
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Client’s case. Furthermore, the New York State Legislature creates new statutes or
modifications to old statutes on an irregular basis such that the law itself tends to change
from year to year. Sometimes these changes in the law are minor. However, sometimes
these changes in the law can be so radical as to completely change the outcome of a given
case.
In order to conserve the retainer payment of the Client, any and all legal research
undertaken by the Attorney will only occur after the Attorney deems that legal research is
absolutely necessary for the proper representation of the Client.
Article 38. CONTACT WITH THE OPPOSING PARTY
IN THE LITIGATION
In order for the Attorney to zealously and aggressively advocate for the Client’s
interests, the Attorney will obviously be required to be in regular contact with the
attorney for the opposing party. Much of such contact will be via phone or, perhaps,
email and only rarely will it entail actual meetings, apart from informal meetings at court
appearances.
For the most part, and unless substantive issues are raised, the Attorney will not
contact the Client after the Attorney has any contact with the attorney for the opposing
party. Most of the contact that the Attorney will have with the attorney for the opposing
party will be in focusing on specific issues and narrowing the scope of the litigation, in
hopes of bringing the litigation to a successful conclusion via a settlement.
In instances where the attorney for the opposing party is or becomes
uncooperative, the Attorney will resort to communicating with the attorney for the
opposing party strictly via letters, faxes, and emails, taking care to ensure that the Client
is copied on all such communications.
Article 39. CONTACT WITH THIRD-PARTIES IN
THE LITIGATION
In order for the Attorney to zealously and aggressively advocate for the Client’s
interests, the Attorney will obviously be required to be in regular contact with any thirdparties in the litigation, most especially attorneys for the child or children. Another
common third-party, at least in litigation in Family Court, is the Department of Social
Services (DSS). Again, much of such contact will be via phone or, perhaps, email and
only rarely will it entail actual meetings, apart from informal meetings at court
appearances.
Again, for the most part, and unless substantive issues are raised, the Attorney
will not contact the Client after the Attorney has any contact with the attorney for the
third-party. As with written communications to the attorney for the opposing party, the
Attorney will take care to ensure that the Client is copied on all such communications.
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Article 40. PREPARING FOR A COURT APPEARANCE
Both the Attorney and the Client should appear at each and every court
appearance with an easy and ready command of all of the pertinent facts in the litigation.
The most important thing the Attorney and the Client can do to prepare for a court
appearance is to appear early. Both the Attorney and the Client should try to appear for
each and every court appearance at least fifteen (15) minutes early if no other time has
been agreed upon. The reasoning for this should be obvious: the court’s calendar is never
consistent and there will be times when the court is running on time, late, and early.
Furthermore, judges appreciate the fact that clients and attorneys are respectful of the
court’s time and are not wasting it.
Of course, during the winter months and times of inclement weather, it is even
more important to be diligent in arriving at court early. With this in mind, the Client
should have the Attorney’s and the court’s telephone numbers on the Client at all times in
the event that the Client needs to call the Attorney or the court due to an impending
lateness or an emergency.
Furthermore, being early to a court appearance will almost always allow the
Attorney to have an impromptu meeting with the client on the cusp of the court
appearance, allowing the Attorney to be conversant and up-to-date on all matters in the
litigation. Furthermore, being early to a court appearance ensures that the Attorney and
the Client will not be late.
Being late to court appearances is potentially dangerous insofar as the Family
Court judge could dismiss the Client’s petition or the Supreme Court judge could
sanction the Client by ordering the Client to pay attorney’s fees to the attorney for the
opposing party, for wasting that attorney’s time.
Lastly, the Client (and the Attorney) should appear at all court appearances with
the Client’s calendar, work schedule, and vacation schedule, so that the Client is able to
accommodate any and all court dates, thereby avoiding the difficulty (or impossibility) of
having to adjourn a court appearance at the last minute or with little notice.
Article 41. PREPARING FOR DEPOSITIONS
In the event that depositions are scheduled in the litigation, the Attorney will need
to meet with the Client at length prior to the deposition to thoroughly prepare the Client
for both the substance and the procedure of the deposition.
Depositions are often quite time-consuming and tend to consume whole days or
series of days. The Client needs to remember four (4) key rules if the Client is subject to
a deposition: 1) tell the truth at all times; 2) do not volunteer anything; 3) listen carefully
to the question being asked; and 4) do not lose self-control.
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Furthermore, depositions commonly pertain to the Client and the opposing party
and no one else.
Article 42. PREPARING FOR TRIAL
In the event that the litigation cannot be settled to the advantage of the Client, and
a trial is scheduled, the Attorney will need to meet with the Client at length, well before
the trial date, to thoroughly prepare the Client for both the substance and the procedure of
the trial.
The rules for depositions apply to trials as well, if not more so. Where deposition
testimony is most often recorded in the form of a written transcript, devoid of the nonverbal communication and the visceral and emotional content of an audio or a video
recording, trial testimony is different in four (4) distinct ways: 1) it is before a judge; 2) it
may also be before a jury; 3) it is subject to audio recording; and 4) it often occurs in a
very large courtroom (which can be quite daunting).
Furthermore, the Attorney and the Client need to consider the various documents
that may need to be entered into evidence at the trial, together with the testimony of
witnesses and, perhaps, experts.
Article 43. THE CLIENT’S DRESS, APPEARANCE,
AND CONDUCT
Probably the most important aspect of the Client’s case – at least initially – is the
actual person of the Client. Therefore, it is absolutely essential that the Client dress in a
professional manner at all times, that the Client be groomed in a businesslike fashion at
all times, and that the Client act in a civilized and respectful manner toward others at all
times.
The whole point of a person’s dress, appearance, and conduct is to convey to the
world how the person wishes others to perceive them. If the Client is dressed
professionally, the presumption will be that the Client is a professional and is selfconfident. If the Client is groomed in a businesslike fashion, the presumption will be that
the Client is fastidious and has self-respect. If the Client behaves in a civilized and
respectful manner, the presumption will be that the Client is a law-abiding, trustworthy,
and honest person.
Judges are just as human as anyone else and they have the same biases and
prejudices as anyone else. Therefore, the Client must recognize these traits and utilize
them to the advantage of the Client. As such, it simply cannot be emphasized enough
how extremely important it is that the Client keep and maintain professional,
businesslike, civilized, and respectful dress, appearance, and conduct throughout the
course of the litigation.
Article 44. THE CLIENT’S CONDUCT IN THE COURTHOUSE
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The Client needs to be aware that the Client will be under a microscope as soon as
the Client walks through the courthouse doors. In the modern courthouse, technology
reigns supreme. However, Clients should be aware that the greatest concern will be
courthouse officers, staff, and other attorneys, who are trained to be ever watchful of the
people who come through the door.
The Client should never let the Client’s guard down in the courthouse or presume
that any conversation is confidential while inside the courthouse.
As paranoid as it may seem, the Client should remember that at virtually every
point in space and time – while the Client is in the courthouse – the Client is both being
watched and recorded through the official use of various technologies.
Lastly, if the Client has any issues about the presence or conduct of other persons
in the courthouse, then the Client must immediately bring this to the attention of the
Attorney.
Article 45. THE CLIENT’S CONDUCT IN THE COURTROOM
The Client needs to be aware that there are audio recording devices within every
courtroom. While these devices are most often “timed” (meaning governed by a clock,
which almost always appears on or near the judge’s bench) so that a Client will know
when the devices are on and when they are off, the Client should always presume that the
audio recording devices are always on. As such, the Client must remember that all
responses in the courtroom have to be verbal and loud enough for the audio recording
devices to perceive.
Furthermore, the Client needs to be aware that there are now video recording
devices in every courtroom as well. These devices are ostensibly for the safety of all
persons in a given courtroom but the video recordings could potentially be utilized by
police agencies against the Client in future proceedings.
Lastly, and most importantly, the Client needs to be very aware of the presence of
the judge, court personnel, and court officers. The Client should only speak in the
courtroom when spoken to by the judge or the Attorney, and only the judge or the
Attorney.
When speaking to a judge, the Client should always be respectful, using the
honorific, “judge” or “your honor”, or simply using the respectful terms of “sir” or
“ma’am”.
The Client should have total self-control at all times in the courtroom.
The Client should avoid emotional outbursts at all times in the courtroom.
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Article 46. THE CLIENT’S CONDUCT DURING THE COURSE
OF THE LITIGATION
Consistency and stability is the best policy in litigation as in life itself. If the
Client suspects that there are upcoming events in either the Client’s life or in the lives of
those involved in the litigation, then the Client should immediately bring this to the
attention of the Attorney so that the Attorney can ascertain how this may affect the
litigation and the Client’s case.
Also, it is presumed by the court that the Client will be relatively available
throughout the course of the litigation. Therefore, the Client should know the Client’s
work schedule and vacation schedule in advance in order to be able to determine the
Client’s availability for court appearances.
The Client should obviously refrain from any and all actions or inactions that
might cause the Client to become arrested, convicted, and/or incarcerated for any period
of time. The Client should also refrain from relocating from the Client’s current address
unless doing so simply cannot be avoided. In any event, the Client should not relocate
without first informing the Attorney of the Client’s intent to do so. The Client should
refrain from leaving the county for any extended period of time without first informing
the Attorney. The Client should not leave the state or country, for any period of time,
without first informing the Attorney.
If the Client is arrested or jailed, or changes jobs or addresses often, then this is a
sure sign of instability and it will only serve to hurt the Client’s case.
Article 47. THE CLIENT’S JOURNAL
Litigation is essentially the collecting of substantial factual information and the
filtering of it through legal rules, with the attorneys arguing over both the quality of the
facts and the application of the law. Therefore, facts and law are obviously important to
the outcome of a case. If the Client is able to record facts contemporaneously with events
that occur in the Client’s life – which are relevant to the litigation – then the Client has
the advantage of having a factual record that is probably both helpful to the Client and
harmful to the Client’s adversary. This is why a Client’s journal is so incredibly
important.
A Client’s journal should be devoid of any emotional content and devoid of all
obscenities and vulgarities if only because the Client’s journal could very likely be used
in court. A Client’s journal should be full of facts which pertain to events in the
litigation. A Client’s journal should contain narrative with as few abbreviations and
symbols as possible, so that it can be read clearly by an independent party.
The Client is hereby advised that the existence of any such Client’s journal is not
a confidential communication and that the Client’s journal may be demanded by the court
or the opposing party at any time and that the Client’s journal will have to be produced.
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Part 4. THE COURSE OF
THE LITIGATION:
Article 48. GETTING STARTED
In Family Court, the ultimate objective is to convince the judge to grant to the
Client the specific relief requested in the petition(s) filed with the court. Thus, the most
important documents in Family Court proceedings are very often the initial petitions filed
with the court. Therefore, the Attorney needs to meet with the Client to carefully gather
the factual information necessary to properly draft the petition(s).
Thus, the first step in a Family Court proceeding is often the filing of one or more
petitions with the court. Once this occurs, the Family Court assigns a judge to preside
over the matter, schedules a date for the initial appearance, and assigns an attorney for the
child or children, if children are the subject of the petition(s). Ideally, as of six (6)
months from the filing of the first petition in a Family Court proceeding, the matter
should either be settled and concluded, or scheduled for trial. Therefore, many Family
Court matters are concluded within six (6) months of the filing of the first petition.
In Supreme Court, the ultimate objective is to convince the judge to grant to the
Client the specific relief requested in the pleadings filed with the court. However, the
initial pleadings in Supreme Court are usually but the beginning of a long line of
documents that will lead to the ultimate disposition of the legal case.
Thus, the first step in a Supreme Court action is often the filing of a summons and
verified complaint, or a verified answer, in an action for divorce. Once this occurs, a
Supreme Court judge is not assigned to preside over the matter until one of the parties
specifically requests one, through the filing of a Request for Judicial Intervention. Once
this occurs, a preliminary conference is scheduled and an attorney for the child or
children is assigned, if there are children of the marriage. Thereafter, the Supreme Court
judge may issue a Scheduling Order, setting forth deadlines directing when certain
aspects of the litigation are to be completed.
Furthermore, there is no way to ascertain how long an action for divorce could
take. Uncontested divorces could conceivably take as little as a month or two to
complete. Contested divorces run the gamut from taking months to years to complete,
depending upon a variety of factors.
Where Family Court matters are often very issue-specific, pertaining to discrete
matters in time, Supreme Court matters are necessarily marriage-specific.
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Where a marriage is of short duration, with no children, with no real property, and
with few or no assets, then the litigation will likely have the appearance and feel of a
Family Court proceeding. However, where the marriage is of long duration, with
children, with real property, and with substantial assets, then the litigation can be quite
convoluted and lengthy, looking nothing at all like a proceeding in the Family Court.
While actions for divorce can seem quite complicated they are essentially about
four (4) essential things: child custody, child support, equitable distribution of property,
and maintenance. Thus, if the marriage has produced no children, the action for divorce
would only concern two (2) essential things: equitable distribution of property and
maintenance. If the marriage was of short duration, maintenance likely will not be an
issue, leaving only the equitable distribution of property, if any.
Some Family Court matters can often be resolved via retainers of $2,500.00 or
less. However, most Supreme Court matters can rarely be resolved with $2,500.00
retainers and very often incur legal expenses well beyond this amount, unless the actions
for divorce are uncontested.
Article 49. THE INITIAL APPEARANCE
The initial appearance is effectively the first time when the judge, the parties, and
the attorneys all get to meet one another in one place. While many attorneys will treat the
initial appearance as a waste of time insofar as very little often gets accomplished at an
initial appearance, the Client should understand that this is the first time that the judge is
meeting the Client. As such, first impressions mean a very great deal.
The Client should be well aware that as soon as the judge perceives the Client, the
judge will inevitably begin forming opinions about the Client. This is why it is
absolutely essential for the Client to treat every court appearance with extreme
seriousness, gravity, and respect. If the Client appears to be professional, businesslike,
civilized, and respectful – especially towards the judge and the opposing party – then the
judge is much more likely to form a positive first impression of the Client.
It cannot be underestimated how important the initial appearance is on a
psychological basis. All of us want people to like us as this is a natural human urge.
However, the Client would do well to cultivate a positive first impression with the
individual who may very well be determining the Client’s fate over the course of many
years. It would be extremely foolish to do otherwise.
Therefore, it is important for the Client to remain calm and to maintain eye
contact with the judge throughout court appearances, but especially the initial
appearance. Such behavior normally conveys rapt attention and, at the very least,
respect. It is also important for the Client to remain silent unless and until spoken to by
the judge. When responding to the judge’s questions, the Client should give simple and
direct answers, if at all possible. Any questions requiring a yes or no answer should also
be followed by the honorific of “judge”, “your honor”, or “sir” or “ma’am.”
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Article 50. THE FINANCIAL DISCLOSURE AFFIDAVIT AND
THE STATEMENT OF NET WORTH
Unless the Family Court proceeding is one for child support (under Article 4 of
the Family Court Act) or spousal support (under Article 5-B of the Family Court Act), the
Client need not worry about encountering this item.
The Statement of Net Worth is the analog of the Financial Disclosure Affidavit,
and is encountered in Supreme Court.
The Financial Disclosure Affidavit and the Statement of Net Worth are precisely
what they state that they are. The Client is required, under oath, to disclose to the court
the status of the Client’s current finances, with particular emphasis on the sources of the
Client’s income, the Client’s monthly expenses, and the Client’s various liabilities, loans,
and debts.
The Client should very carefully take the time to fully and comprehensively
complete this document, making sure that it is as accurate as possible. Great care should
be taken in the drafting of this document because the financial information found within
it will serve as the basis for the awarding of such things as child support, spousal support,
maintenance, and equitable distribution.
Article 51. ATTORNEYS FOR CHILDREN
Attorneys for children are attorneys who are appointed by the judge presiding
over the proceeding or action to represent the children involved in the legal proceedings.
These attorneys represent only the children they have been specifically appointed to
represent. Attorneys for children are expected to exercise independent judgment and
many very well take positions that are adverse to the Client's positions.
Under no circumstances are attorneys for children allowed to communicate
with the parents of their clients if those parents are represented by attorneys.
Therefore, an attorney for the child will need the Attorney’s explicit permission to
communicate with the Client before they are allowed to do so.
The Client is not to communicate with the attorney for the child, and the
attorney for the child is not to communicate with the Client, unless and until the
Attorney reviews the matter and deems that such communications are acceptable.
The danger of communicating with an attorney for the child is that the Client
might make an admission to the attorney for the child that is adverse to the Client's
interests, and which the attorney for the child may later use against the Client, in
furtherance of the attorney for the child's legal representation of the child.
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Lastly, the Client must understand that it is often very difficult to have the court
remove the attorney for the child from the case. In order for this to happen, the Attorney
would have to engage in motion practice and the Attorney would have to make a showing
of incompetence, gross neglect/negligence, unprofessionalism, and/or a conflict of
interest on the part of the attorney for the child.
Article 52. THE FUNCTION OF THE
ATTORNEY FOR THE CHILD
Please be advised that, pursuant to 22 NYCRR 7.2, the attorney for the child
(formerly “law guardian”) has certain specific obligations as set forth below:
(a)
As used in this part, “attorney for the child” means a law guardian
appointed by the family court pursuant to section 249 of the Family Court Act, or by the
supreme court or a surrogate’s court in a proceeding over which the family court might
have exercised jurisdiction had such action or proceeding been commenced in family
court or referred thereto.
(b)
The attorney for the child is subject to the ethical requirements applicable
to all lawyers, including but not limited to constraints on: ex parte communication;
disclosure of client confidences and attorney work product; conflicts of interest; and
becoming a witness in the litigation.
(c)
In juvenile delinquency and person in need of supervision proceedings,
where the child is the respondent, the attorney for the child must zealously defend the
child.
(d)
In other types of proceedings, where the child is the subject, the attorney
for the child must zealously advocate the child’s position.
(1)
In ascertaining the child’s position, the attorney for the child must
consult with and advise the child to the extent of and in the manner consistent with the
child’s capacities, and have a thorough knowledge of the child’s circumstances.
(2)
If the child is capable of knowing, voluntary and considered
judgment, the attorney for the child should be directed by the wishes of the child, even if
the attorney for the child believes that what the child wants is not in the child’s best
interests. The attorney should explain fully the options available to the child, and may
recommend to the child a course of action that in the attorney’s view would best promote
the child’s interests.
(3)
When the attorney for the child is convinced either that the child
lacks the capacity for knowing, voluntary and considered judgment, or that following the
child’s wishes is likely to result in a substantial risk of imminent, serious harm to the
child, the attorney for the child would be justified in advocating a position that is contrary
to the child’s wishes. In these circumstances, the attorney for the child must inform the
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court of the child’s articulated wishes if the child wants the attorney to do so,
notwithstanding the attorney’s position.
Article 53. THE SUMMARY OF RESPONSIBILITIES OF THE
ATTORNEY FOR THE CHILD
Please be advised that, pursuant to the Statewide Law Guardian Advisory
Committee, as approved by the Administrative Board of Courts, on October 4, 2007:
While the activities of the attorney for the child will vary with the circumstances
of each client and proceeding, in general those activities will include, but not be limited
to, the following:
(1)
Commence representation of the child promptly upon being notified of the
appointment;
(2)
Contact, interview and provide initial services to the child at the earliest
practical opportunity, and prior to the first court appearance when feasible;
(3)
Consult with and advise the child regularly concerning the course of the
proceeding, maintain contact with the child so as to be aware of and respond to the
child’s concerns and significant changes in the child’s circumstances, and remain
accessible to the child;
(4)
Conduct a full factual investigation and become familiar with all
information and documents relevant to representation of the child. To that end, the
lawyer for the child shall retain and consult with all experts necessary to assist in the
representation of the child;
(5)
Evaluate the legal remedies and services available to the child and pursue
appropriate strategies for achieving case objectives;
(6)
Appear at and participate actively in proceedings pertaining to the child;
(7)
Remain accessible to the child and other appropriate individuals and
agencies to monitor implementation of the dispositional and permanency orders, and seek
intervention of the court to assure compliance with those orders or otherwise protect the
interests of the child, while those orders are in effect; and
(8)
Evaluate and pursue appellate remedies available to the child, including
the expedited relief provided by statute, and participate actively in any appellate litigation
pertaining to the child that is initiated by another party, unless the Appellate Division
grants the application of the attorney for the child for appointment of a different attorney
to represent the child on appeal.
Article 54. COURT APPEARANCES
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The Supreme Court and the Family Court commonly track the litigation before it
through a series of court appearances.
There are usually at least three (3) court appearances in most litigation in Family
Court: 1) the initial appearance; 2) further proceedings; and 3) the pre-trial conference.
Of course, some courts provide for two (2) initial appearances: one without
counsel and one with counsel. There may also be numerous further appearances
depending upon the complexity of the litigation. There could also be more than one pretrial conference. There could also be court appearances scheduled as a result of a motion
brought by one of the attorneys, or by the court itself.
In Supreme Court, the first court appearance is often the preliminary conference.
Further court appearances often take the form of appearances on motions and pre-trial
conferences.
In any event, there is the potential in all litigation to generate the need for multiple
court appearances. The Attorney will endeavor to limit the number of court appearances,
to the extent that the Attorney is able to do so, in order to conserve the Client’s retainer
payment.
Article 55. DISCOVERY
Discovery is the term attorneys use for eliciting factual and legal information
from the opposing party in the prosecution or defense of a legal matter. Discovery entails
the drafting of legal documents and mailing them to the necessary parties.
Discovery almost always entails the need for at least one (1) additional meeting
with the client to ascertain the information that the opposing party is demanding.
It is extremely important for the Client to reveal to the Attorney all of the factual
and legal information that the Attorney needs in order to draft discovery demands or to
respond to the discovery demands of the opposing party.
Should either party refuse to divulge necessary discovery, this may result in
motion practice or the need for depositions.
Article 56. MOTION PRACTICE
There may be an occasion during, or several occasions throughout, the litigation
where important factual or legal matters are required to be brought to the court's attention
for immediate resolution by the judge. This is called motion practice and it entails the
drafting of documents for the submission to the court. Sometimes, motion practice will
require its own court appearance for what is called oral arguments. In rare instances,
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motion practice will result in a hearing before the court, requiring the testimony of
witnesses.
The Client needs to be mindful that the Attorney may have to engage in motion
practice to effectively protect the legal interests of the Client. Although motion practice
would constitute an additional expense to be incurred by the Client, there are times in
litigation where motion practice simply cannot be avoided. The Attorney will engage in
motion practice on the Client's behalf only when and where the Attorney deems it
absolutely necessary to protect the Client's legal interests.
Article 57. DEPOSITIONS
Depositions (or examinations before trial (also known as "EBTs")), may be
required in this litigation, depending upon the complexity of the facts and legal issues in
the litigation. Rarely are depositions required in family court matters. However,
depositions occur quite commonly in matrimonial actions. A deposition is testimony
given under oath before a court reporter or transcriptionist pursuant to the questions
asked by the opposing attorney (or attorneys). The purpose of a deposition is to elicit
sworn testimony from the Client as to specific facts in the litigation, which may later be
used at trial, either in support of the Client's positions or in opposition to the Client's
positions.
Another useful aspect of depositions is that they sometimes elicit information that
may ultimately result in the settlement of the litigation.
The cost of depositions is borne by the Client and may range from several
hundred dollars (normally) to several thousand dollars (in rare cases), depending upon the
length and number of depositions involved.
Depositions will only be initiated by the Attorney, on behalf of the Client, only
with the Client's explicit, prior, written approval.
However, the Client needs to be mindful of the fact that the opposing attorney
may be the one to initiate depositions and the Client may be compelled by the Court to
attend such depositions.
Article 58. EXPERTS
The Client is hereby advised that for the Attorney to properly protect the Client's
legal interests, it may become necessary to retain experts such as appraisers, actuaries,
accountants, medical professionals, or other various kinds of experts. The Client is solely
responsible for all of the costs incurred by the Attorney for the retention of any such
expert. The Client understands that some or all of these costs may have to be paid to the
Attorney or the expert in advance, depending upon the specific requirements of the
particular expert.
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In any event, under no circumstances will any expert be retained by the
Attorney, on the Client's behalf, without the Client's explicit, prior, written approval.
In a matrimonial action, if necessary and advisable, in the strategic judgment of the
Attorney, an application may be made to the Court to have the client's spouse pay all or
part of the fees for any and all experts.
Article 59. PSYCHOLOGICAL EXAMINATIONS AND COSTS
Where the mental health of the Client, the opposing party, or the children is
brought into question, a judge may order the parties to submit to psychological
examinations through the auspices of a certified psychologist. Normally, the attorneys
will consent to a specific agency or entity for the conducting of all of the psychological
examinations.
Psychological examinations often prove to be extremely useful in precipitating a
settlement, especially if the psychological examination results for one party are poor
while those of the other party are good.
Unfortunately, psychological examinations can be expensive and the cost is borne
by the Client for the Client’s psychological examination and, possibly, for a portion of
the psychological examinations of the children as well. The court will often ask the
Attorney for the Child Program, of New York State, to bear all or part of the costs for the
psychological examinations of the children.
If and when ordered to do so, the Client should immediately schedule a
psychological examination and attempt to have it completed as soon as possible. If the
Client encounters any problems in the scheduling of a psychological examination, the
Client must immediately bring the matter to the attention of the Attorney.
The Client must understand that a failure to attend a psychological examination
can be punishable as a contempt of court and that the court would very likely take a
negative inference from the Client’s refusal to submit to a psychological examination.
Such a determination by the court could completely change the outcome of the litigation.
Article 60. PARENTING CLASSES AND COSTS
Where the parenting skills of the Client or the opposing party is brought into
question, especially with regard to the care and safety of newborns, infants, toddlers, and
developmentally disabled children, a judge may order one or both of the parties to
register for, attend, and successfully complete (submitting proof of completion to the
court) parenting classes through the auspices of a local not-for-profit agency or a Social
Services agency or entity.
The Attorney may request that the Client register for and attend parenting classes
before the commencement of the litigation so as to achieve the moral high ground and to
avoid having the Client be ordered to take such classes by the court later in the litigation,
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when it may be difficult to register and attend such classes. As with psychological
examinations, the cost of parenting classes is borne by the Client.
The Client needs to be fully aware that parenting classes may not be offered
regularly in a given county. Sometimes parenting classes are offered only two or three
times a year in a given county, by a specific agency or entity. Therefore, if and when
ordered to attend and complete parenting classes, the Client should immediately register
for and attend the parenting classes as soon as possible. If the Client encounters any
problems in registering for and/or attending parenting classes, the Client must
immediately bring the matter to the attention of the Attorney.
The Client must understand that a failure to attend and successfully complete
parenting classes can be punishable as a contempt of court and that the court would very
likely take a negative inference from the Client’s refusal to attend and successfully
complete parenting classes. The court may also suspend the Client’s parenting time with
the Client’s children, or direct that it be supervised by another party, unless and until the
Client attends and successfully completes the parenting classes.
Article 61. ANGER MANAGEMENT CLASSES AND COSTS
Where there is the likelihood that the petitions, pleadings or testimony in the
litigation will tend to show that the Client, or the opposing party, has an explosive
temper, is unable to control emotional impulses, has threatened another person with a
violent act, or has actually committed a violent act against another person, a judge may
order the Client, or the opposing party, to register for, attend, and successfully complete
(submitting proof of completion to the court) an anger management class.
The Attorney may request that the Client register for and attend anger
management classes before the commencement of the litigation so as to achieve the
moral high ground and to avoid having the Client be ordered to take such classes by the
court later in the litigation, when it may be difficult to register and attend such classes.
As with psychological examinations and parenting classes, the cost of anger management
classes is borne by the Client.
If and when ordered to attend and complete parenting classes, the Client should
immediately register for and attend the anger management classes as soon as possible. If
the Client encounters any problems in registering for and/or attending anger management
classes, the Client must immediately bring the matter to the attention of the Attorney.
The Client must understand that a failure to attend and successfully complete
anger management classes can be punishable as a contempt of court and that the court
would very likely take a negative inference from the Client’s refusal to attend and
successfully complete anger management classes. The court may also issue an order of
protection against the Client for failure to address the Client’s anger management
problem, and/or suspend the Client’s parenting time with the Client’s children, or direct
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that it be supervised by another party, unless and until the Client attends and successfully
completes the anger management classes.
Article 62. SUBSTANCE ABUSE TESTING AND COSTS
Where there are allegations of substance abuse by the Client, or by the opposing
party, a judge may order one or both of the parties to submit to a variety of substance
abuse testing, the most common of which is a hair follicle exam, through the auspices of
a certified technician at a certified testing facility. Normally, the attorneys will consent to
a specific testing facility for the conducting of all substance abuse testing.
If the Client has consumed any illegal substances or non-prescription drugs, then
the Attorney herein demands that the Client cease such consumption immediately. If the
Client has abused any legal substances or prescription drugs, then the Attorney herein
demands that the Client cease such abuse immediately.
If and when ordered to attend and complete substance abuse testing, the Client
should immediately schedule and attend the substance abuse testing as soon as possible.
If the Client encounters any problems in scheduling and/or attending substance abuse
testing, the Client must immediately bring the matter to the attention of the Attorney.
The Client must understand that a failure to schedule and complete substance
abuse testing can be punishable as a contempt of court and that the court would very
likely take a negative inference from the Client’s refusal to schedule and complete
substance abuse testing. The court may also issue an order of protection against the
Client for failure to address the Client’s possible substance abuse problem, and/or
suspend the Client’s parenting time with the Client’s children, or direct that it be
supervised by another party, unless and until the Client schedules and completes the
substance abuse testing.
Article 63. IN-PATIENT AND OUT-PATIENT TREATMENT
OR REHABILITATION AND COSTS
In the event that the Client, or the opposing party, is deemed by the Court to have
a substance abuse problem, the judge may order the Client, or the opposing party, into
substance abuse treatment on either an in-patient or an out-patient basis. The cost of such
substance abuse treatment could be borne by the party’s health care insurance or it could
be borne fully or partially by the party.
The Client must understand that a failure to attend and successfully complete
substance abuse treatment can be punishable as a contempt of court and that the court
would very likely take a negative inference from the Client’s refusal to attend and
successfully complete substance abuse treatment. The court may also issue an order of
protection against the Client for failure to address the Client’s possible substance abuse
problem, and/or suspend the Client’s parenting time with the Client’s children, or direct
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that it be supervised by another party, unless and until the Client schedules and completes
the substance abuse treatment.
Article 64. NOTORIOUS COUNSEL
There are some attorneys who are notorious for being difficult in the legal
community. These attorneys expend great efforts in litigating a case, often without the
possibility of a settlement short of a trial. The result is that these notorious attorneys
make litigation difficult for all concerned. Notorious counsel will often engage in
numerous phone calls, faxes, emails, and/or letters, as well as multiple motions and
demands for discovery and/or depositions, and will generally prolong the litigation
unnecessarily. The inevitable result is that the notorious attorney will force the Attorney
to engage in activities that the Attorney might not otherwise choose to engage in, thereby
causing the Attorney's bill to the Client to increase.
Please be advised that notorious counsel alone can be responsible for doubling
or tripling the cost of litigation to the Client.
Article 65. DIFFICULT JUDGES
Just as there are some local attorneys who are notorious for being difficult in the
legal community, there are some local judges who are notorious for being difficult as
well. This judicial difficulty may include, but not be limited to, such things as: very
quick court calendars (which is why one must always be early to court appearances), very
slow court calendars (wherein everyone is stuck waiting impatiently until the case is
called), short tempers (when in court, it's best for the Client to speak only when spoken to
by a judge), long delays in the scheduling of future court appearances, multiple court
appearances, multiple days of short trials, judicial motions, refusals to grant temporary
relief, delays in the signing of orders, and general unavailability.
As with notorious counsel, difficult judges can re responsible for significantly
increasing the cost of litigation to the Client. The single most expensive cost to the
Client is usually the court appearance itself. As such, multiple court appearances are
to be avoided wherever and whenever possible.
Article 66. COURT CALENDARS
The Client must understand that the Attorney has no control whatsoever over the
scheduling of any court appearance before any court. Judges are quite protective of their
court calendars and are the ones who ultimately control when or if a case comes before
them. While the Attorney may try to schedule a court appearance as expeditiously as
possible, through an order to show cause, the judge is the one who will ultimately decide
when to schedule the matter to appear before the court.
Many local courts are quite busy, especially those of the counties of Albany,
Rensselaer, Saratoga, and Schenectady. And while there are at least two (2) family court
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judges in each of these four (4) counties, the caseload of each of these respective courts is
such that thousands of matters come before each court each year.
Also, please be advised that, as in every walk of life, there are instances where
emergencies occur and court calendars have to immediately accommodate these
emergencies. This may entail a court appearance suddenly being rescheduled days,
weeks, or even months away from its original date.
Article 67. TRIAL
The trial is obviously the culmination of the litigation where a settlement is not
possible. If the litigation proceeds to trial, the Client should be thoroughly prepared to
testify as the key witness for the Client’s case at trial. There may be other witnesses, as
well as experts, called to testify for the Client, together with various documents that will
need to be entered into evidence.
The Client needs to understand that the attorneys in the litigation may be able to
resolve some of the issues short of trial, thereby causing a need to bring only the
remaining issues to trial. Trials can be bench trials (before a judge only) or jury trials,
depending upon the circumstances and the facts involved in the litigation.
While trials may be onerous, they may also be unavoidable. Furthermore, the
Client needs to understand that the scheduling of the trial is largely within the discretion
of the judge and that the judge could determine that the trial continues day after day or is
broken up into parts and scattered over several weeks or months, depending upon the
availability of the judge and the court’s calendar.
Article 68. LINCOLN HEARINGS
Lincoln hearings are confidential, in camera meetings (in the judge’s chambers)
between the child or children and the judge, accompanied by the child or children’s
attorney and a court reporter. The purpose of the Lincoln hearing is to enable the judge
to have a direct audience with the child or children and attempt to directly ascertain the
desires of the child or children relative to the litigation.
Too often, the children are the unseen parties in litigation, despite the fact that
they often bear most of the burden of the outcome of the litigation. Thus, Lincoln
hearings afford the judge the opportunity to acquire some insights as to how this litigation
may ultimately affect and impact the lives of the children, through direct contact with the
children themselves.
While Lincoln hearings can be quite effective in determining the outcome of a
given case, the Client needs to understand that Lincoln hearings are strictly within the
judge’s discretion. As such, some judges find Lincoln hearings to be most helpful and
engage in them regularly, while other judges find Lincoln hearings not to be useful or
useful only in specific circumstances.
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Also, while Lincoln hearings normally occur after the trial has been concluded,
some judges conduct Lincoln hearings before trials or even in the midst of trials. Again,
like the Lincoln hearing itself, the scheduling of the Lincoln hearing is at the discretion of
the judge.
Part 5. THE OBJECTIVES OF
THE LITIGATION:
Article 69. OTHER GENERAL PROVISIONS
The Client understands and acknowledges that there are many factors outside of
the control of the Attorney which can affect the course and outcome of the Client's case,
as well as the amount of time and effort required to deal with the various issues involved.
The Client understands and acknowledges that the Attorney is unable to predict
how long it will take to conclude the Client's case and the Client acknowledges that the
Attorney has not predicted how long it will take to conclude the Client's case.
The Client understands and acknowledges that the Attorney has not and cannot
predict or estimate how many hours of legal services will be required to conclude the
Client's case. Accordingly, the Attorney cannot predict or estimate the total cost of
services, or how much the disbursements, costs, and expenses might be, beyond the terms
and descriptions set forth within this retainer agreement.
The Client understands and acknowledges the hazards of litigation and the Client
acknowledges that the Attorney has made no guarantees or promises to the Client of any
kind with regard to the ultimate outcome of the Client's case.
The client understands and acknowledges that the Attorney has made no
representations, express or implied, to the Client, of any kind, with regard to the ultimate
outcome of the Client's case.
The client understands and acknowledges that the Attorney cannot ethically
guarantee the success of the Client's case.
The client understands and acknowledges that if the Attorney thought that the
Client's case had little or no chance of success, then the Attorney would refuse to agree to
represent the Client in the Client's case.
However, the Client does understand and acknowledge that the Attorney, in
agreeing to represent the Client in the Client's case, has represented to the Client that the
Client has a reasonable chance of success in the Client's case.
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Furthermore, the client understands and acknowledges that the Attorney is
required to certify all papers submitted to the court in the Client's case. The Client
therefore agrees to provide the Attorney with complete and accurate information to
review, sign, and certify, in writing, the accuracy of all submissions prepared by the
Attorney on behalf of the Client.
Article 70. UNDERSTANDING AND ACKNOWLEDGMENT
The Client, by signing this retainer agreement, hereby acknowledges that the
Client has read this retainer agreement in its entirety, has had a full and complete
opportunity to consider the terms of the retainer agreement, and has had the opportunity
for a full and satisfactory explanation of all of the terms of the retainer agreement.
As such, the Client, by signing this retainer agreement, hereby acknowledges and
states that the Client fully understands the terms and substance of the retainer agreement
and that, by the Client's signature upon the retainer agreement, the Client agrees with all
of those terms contained within the retainer agreement, and the Client agrees to be bound
by all of those terms contained within the retainer agreement.
The Client and the Attorney fully and completely understand and acknowledge
that there are no additional or different terms, provisions, or agreements other than those
terms, provisions, and agreements that are expressly set forth within this retainer
agreement.
The Client and the Attorney fully understand and acknowledge that all of the
terms and provisions found within this retainer agreement shall be construed and
governed in accordance with the laws of the state of New York.
The Client and the Attorney understand and acknowledge that, pursuant to court
rule, a copy of this retainer agreement is required to be filed with the court in which the
Client's matrimonial action is pending.
The Client understands and acknowledges that the Client has the absolute right to
cancel this retainer agreement at any time, for any reason.
Should the Client decide to exercise the Client's right to cancel this retainer
agreement, the Client will only be charged by the Attorney for the billable hours, costs,
fees, and disbursements incurred by the Attorney on the Client's behalf, up to and
including the moment of cancellation.
Furthermore, the Client understands and acknowledges that should the Client
cancel the retainer agreement, then the Attorney is thereby entitled to a fair and
reasonable fee, determined in accordance with legally-accepted standards, with the
unearned balance of the retainer payment, if any, being promptly refunded to the Client.
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The Client further acknowledges that the Client has been provided with a copy of,
and read, the Attorney’s and the Client’s Reciprocal Rights and Responsibilities, which is
herein made a part of this retainer agreement under Article 14, on pages 11 through 13
hereinabove.
Article 71. THE PURPOSE OF THE ATTORNEY'S SERVICES
The Client has hereby retained the services of the Attorney explicitly for the
purpose of the following:
[To be mutually agreed upon between the Attorney and the Client]
x
x
x
x
x
x
x
x
x
x
Article 72. THE END OF ATTORNEY'S SERVICES
The Attorney's legal services to the Client are concluded when 1) the Attorney
mails to the Client a final decision, judgment, or order with a Notice of Entry, or 2) the
legal matter is discontinued, or 3) the Client otherwise discharges the Attorney, or 4) the
Attorney otherwise discharges the Client.
While the Attorney's legal services to the Client may have concluded, this,
obviously, does not relieve the Client from payment to the Attorney for all legal services
provided by the Attorney to the Client.
Article 73. APPEAL OF MATTER
The Client fully understands that the Attorney is not currently being retained by
the Client for purposes of appealing any aspect of these legal matters. The Client fully
understands that any appeal from any aspect of any portion of these legal matters is
outside the scope of the Attorney's retainer.
The Client fully understands that should the Client wish to appeal any aspect of
any portion of these legal matters, the Client must immediately bring this to the attention
of the Attorney. Furthermore, the Client fully understands should the Client want the
Attorney to appeal any aspect of any portion of these legal matters, this would require a
separate retainer agreement dedicated solely to the appeal itself.
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Article 74. NOTICE OF APPEAL
A Notice of Appeal protects the Client's interests by notifying the courts and the
respective parties of the Client's intent to appeal the decision, judgment, or order of a
court. However, a Notice of Appeal must be filed with a court very quickly. Failure to
timely file a Notice of Appeal with a court will cause the Client to forever lose the right
to appeal the matter. Therefore, the decision as to whether or not a Client will appeal an
adverse decision, judgment, or order of a court is an extremely important one.
The Client fully understands that the Attorney will not file a Notice of Appeal
after the legal matter has been settled without a trial, unless the Client expressly requests,
in writing, that the Attorney do so.
The Client fully understands that the Attorney may file a Notice of Appeal after
the legal matter has been settled after a trial, but that doing so is solely within the
discretion of the Attorney, unless the Client expressly requests, in writing, that the
Attorney do so.
The Client fully understands that in the event of a final decision, judgment, or
order of a court, after a trial, that is adverse to the Client's interests, the Attorney shall
file a Notice of Appeal, but that the Attorney shall not otherwise be obligated to perfect
the appeal for the Client.
The Client fully understands that there is a cost involved with filing a Notice of
Appeal, as well as with the appeal itself, should it ever be perfected.
Here is a partial list of the most common court fees encountered in appeals:
1.
2.
3.
Notice of Appeal [CPLR §8022(a)]................................................................$65.00
Filing of the Record on Appeal [CPLR §8022(b)].......................................$315.00
Motion or cross-motion [CPLR §8022(b)].....................................................$45.00
Article 75. CLOSING
This retainer agreement constitutes the entire agreement by and between the
Attorney and the Client in this matter. This retainer agreement shall not be modified
orally or in writing in any way, shape, or form. In the event that the Attorney and the
Client agree to otherwise modify this retainer agreement, the Attorney and the Client
agree that this retainer agreement shall only be modified by becoming superceded by a
new, written retainer agreement which shall be construed and governed in accordance
with the laws of the state of New York.
Sincerely,
______________________________
James B. Lesperance, Jr., Esq.
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020
I HEREBY STATE THAT:
1.
2.
3.
4.
I HAVE READ THE ABOVE RETAINER AGREEMENT;
I UNDERSTAND ALL OF THE TERMS OF THE ABOVE RETAINER
AGREEMENT;
I HAVE RECEIVED A COPY OF THE RETAINER AGREEMENT; AND
I AGREE WITH AND ACCEPT ALL OF THE TERMS OF THE
RETAINER AGREEMENT.
________________________________________
THE CLIENT
DATED: _______________
RECEIPT ACKNOWLEDGED:
_________________________________
James B. Lesperance, Jr., Esq.
___________________________________
THE CLIENT
DATED: _________________________
DATED: ___________________________
THE REMAINDER OF THIS DOCUMENT IS INTENTIONALLY LEFT BLANK
Law Office of James B. Lesperance, Jr.
P.O. Box 139, Ballston Spa, New York 12020
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The Chocolate Factory, Suite 203, Building 1
20 Prospect Street, Ballston Spa, New York 12020