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Housekeeping

Divorce and Housekeeping

 

MATRIMONIAL LITIGATION

ISSUES OF INTEREST

Submitted by Ronald A. Phillips, Esq.

Co-Chair, Family Law Committee

Fellow, American Academy of Matrimonial Lawyers

Housekeeping

1. Mandatory CLE (for everyone)

2. Counsel Fees

3. Hearing Examiner Objection Procedures

Two potential problem areas require some discussion (and same action on your part) in order to avoid having them blossom into real trouble down the road. The first potential problem area is Mandatory Continuing Education, something that affects everyone's area of practice. First, let us review the new rules, (for those who are pressed for time, skip to Subpart C, section 1500.20). The rules are set forth below.

"1500. MANDATORY CONTINUING LEGAL EDUCATION

PROGRAM FOR ATTORNEYS IN THE STATE OF NEW YORK

SUBPART A STRUCTURE OF PROGRAM

1500.1 Scope

There shall be a mandatory continuing legal education program in the State of New York (hereinafter Program) which shall include a transitional legal education program for newly admitted attorneys, as set forth in Subpart B, and a legal education program for all other admitted attorneys, as set forth in Subpart C. A Continuing Legal Education Board shall accredit and oversee, as set forth in this Subpart, the courses, programs and other educational activities that will satisfy the requirements of the Program.

1500.2 Definitions

(a) Accredited Course or Program is a continuing legal education course or program that has met the standards set forth in 1500.4(b) and has received advance accreditation approval by the Continuing Legal Education Board.

(b) Accredited Provider is a person or entity whose entire continuing legal education program has been accredited by the Continuing Legal Education Board, and who has been certified by the Continuing Legal Education Board as an accredited provider of continuing legal education courses and programs in accordance with 1500.4(c).

(c) Ethics and Professionalism may include, among other things, the following: the norms relating to lawyers' professional obligations to clients (including the obligation to provide legal assistance to those in need, confidentiality, competence, conflicts of interest, the allocation of decision- making, and zealous advocacy and its limits); the norms relating to lawyers' professional relations with prospective clients, courts and other legal institutions, and third parties (including the lawyers' fiduciary, accounting and record-keeping obligations when entrusted with law client and escrow monies, as well as the norms relating to civility); the sources of lawyers' professional obligations (including disciplinary rules, judicial decisions, and relevant constitutional and statutory provisions); recognition and resolution of ethical dilemmas; the mechanisms for enforcing professional norms; and professional values (including professional development, improving the profession, and the promotion of fairness, justice and morality).

(d) Skills may include, among other things, problem solving, legal analysis and reasoning, legal research and writing, drafting documents, factual investigation (as taught in courses on areas of professional practice), communication, counseling, negotiation, organization and trial advocacy.

(e) Practice Management may encompass, among other things, law office control, stress management, management of legal work and avoiding malpractice and litigation.

(f) Areas of Professional Practice may include, among other things, corporations, wills/trusts, elder law, estate planning/administration, real estate, civil litigation, criminal litigation, family law, labor and employment law, administrative law, securities, tort/insurance practice, bankruptcy, taxation, workers' compensation, municipal law, landlord/tenant, environmental law, social security and other government benefits, and alternative dispute resolution procedures.

1500.3 The Continuing Legal Education Board

(a) The Continuing Legal Education Board. The Continuing Legal Education Board (CLE Board) is hereby established.

(b) Board Composition. The CLE Board shall consist of 16 resident members of the bench and bar. Three (3) members shall be chosen by each of the Presiding Justices of the Appellate Divisions, and four (4) members shall be chosen by the Chief Judge of the State of New York. The Chief Judge shall designate the Chair. Board members shall serve at the pleasure of the Administrative Board of the Courts.

(c) Quorum. Nine (9) members shall constitute a quorum of the entire CLE Board.

(d) Term of Service. Appointed Board members shall serve for terms of three (3) years with a maximum of two (2) consecutive three-year terms. The initial term shall be drawn so that five (5) members serve for one-year terms, five (5) serve for two-year terms, and six (6) serve for three-year terms.

(e) Duties and Responsibilities. The CLE Board is authorized to: accredit providers of courses, programs, and other educational activities that will satisfy the requirements of the Program; determine the number of hours for which continuing legal education credit will be given for particular courses or programs; adopt or repeal regulations and forms consistent with these rules; examine course materials and the qualifications of continuing legal education instructors; consult and appoint committees in furtherance of its official duties as necessary; foster and encourage the offering of accredited courses and programs, particularly in geographically isolated regions; and report annually on its activities to the Chief Judge, the Presiding Justices of the Appellate Divisions and the Chief Administrator of the Courts.

(f) Expenses. Members of the CLE Board shall serve without compensation but shall be reimbursed for their reasonable, actual and direct expenses incurred in furtherance of their official duties.

1500.4 Accreditation

(a) Procedure. Unless a provider has been granted Accredited Provider status pursuant to subdivision (c), accreditation of continuing legal education courses or programs must be sought and granted at least 60 days prior to the occurrence of the course or program, but may be given retroactively up to 90 days after the course or program, in accordance with CLE Board application rules.

(b) Standards. Continuing legal education courses or programs to be accredited must comply with the following guidelines:

(1) One (1) hour of continuing legal education credit shall consist of at least 50 minutes of instruction, exclusive of introductory remarks, meals, breaks, keynote speeches, or other noneducational activities.

(2) The program must have significant intellectual or practical content and its primary objective must be to increase the professional competency of the attorney in ethics and professionalism, skills, practice management and/or areas of professional practice.

(3) The continuing legal education course or program must be offered by a provider that has substantial, recent experience in offering continuing legal education, or that has demonstrated an ability to effectively organize and present continuing legal education.

(4) Thorough, high quality, readable and carefully prepared written materials must be made available to all participants at or before the time the course or program is presented, unless the absence of materials is approved by the CLE Board.

(5) The course or program must be conducted in a physical setting that is comfortable and conducive to learning.

(6) At the conclusion of the course or program, each participant must be given the opportunity to complete an evaluation questionnaire addressing the quality, effectiveness and usefulness of the particular course or program. A summary of the results of the survey(s) must be submitted to the CLE Board at the end of the calendar year in which the course or program was given. Providers must maintain the questionnaires for a period of four (4) years following the course or program.

(7) Providers of continuing legal education courses or programs shall provide a Certificate of Attendance to all persons completing the continuing legal education course or program.

(8) Providers of continuing legal education courses or programs must maintain an official attendance list of participants in the program, and the time, date, location, title, speaker(s) and amount of approved CLE credit for each course or program, for at least four (4) years after the completion date.

(9) Programs that cross academic lines, such as accounting-tax seminars, may be considered for approval by the CLE Board.

(10) The cost of continuing legal education courses or programs to the participating attorney, apart from optional meals, lodging and travel, shall be reasonable.

(c) Accredited Provider Status.

(1) Procedure. Application may be made for Accredited Provider status by submitting the appropriate forms and materials to the CLE Board pursuant to CLE Board regulations and guidelines. Such status must normally be sought at least 90 days prior to the occurrence of the course or program but may be given retroactively up to 90 days after the course or program.

(2) Requirements. Accredited Provider status may be granted at the discretion of the CLE Board to applicants satisfying the following requirements:

(i) The provider has presented, within the past three (3) years, separate programs of continuing legal education that meet the standards set forth in subdivision (b) and the regulations and guidelines of the CLE Board, or

(ii) The provider has demonstrated to the Board that its CLE activities have consistently met the standards set forth in subdivision (b) and the regulations and guidelines of the CLE Board.

(3) Duration of Accredited Provider Status. Once a provider has been granted Accredited Provider status, the continuing legal education courses or programs sponsored by that provider are presumptively approved for credit for a period of three (3) years from the date of the grant of such status.

(4) Accredited Provider Reports. Providers granted Accredited Provider status shall file a written report with the CLE Board each year at a time fixed by describe the continuing legal education activities conducted during the prior 12 months and shall be in such detail and form as required by the Board. The accredited status of a provider may be continued by filing an application for renewal with the Board before the end of the provider's accreditation period.

(5) Renewal of Accredited Provider Status. Renewal of Accredited Provider status shall be for periods of three (3) years. The CLE Board shall determine if there are pending or past breaches of these rules or regulations and guidelines, and the Board, in its discretion, may condition renewal upon the provider meeting additional requirements specified by the Board.

(i) If an application for renewal is timely filed, the accredited status shall continue until the Board acts on the application.

(ii) If an application for renewal is not filed before the end of the provider's accreditation period, the provider's accredited status will terminate at the end of the period. Any application received thereafter shall be considered by the Board as an initial application for Accredited Provider status.

(6) Revocation. Accredited Provider status may be revoked by the Board if the reporting requirements of these rules and regulations and guidelines are not met or, if upon review of the provider's performance, the CLE Board determines that the content of the course materials, the quality of the CLE activities, or the provider's performance does not meet the standards set forth in these rules and regulations and guidelines. In such event, the CLE Board shall send the provider a 60-day notice of revocation by ordinary mail. The provider may request a review of such revocation, and the CLE Board shall determine the request within 30 days. The decision of the CLE Board shall be final after such review.

(d) Individual Course Approval. An attorney seeking approval of a course or program that has not otherwise been approved shall apply to the CLE Board for approval in accordance with Board procedures. Such approval must be sought at least 60 days prior to the occurrence of the course or program, but may be given retroactively up to 90 days after the course or program.

(e) Provider List. A list of providers whose continuing legal education courses or activities have been presumptively approved for credit shall be compiled and published annually by the New York State Unified Court System.

(f) Announcement. Accredited Providers who have received approval for continuing legal education courses and programs may indicate that their course or program has received CLE Board approval as follows:

"This (transitional) continuing legal education course (or program) has been approved in accordance with the requirements of the Continuing Legal Education Board for a maximum of ____ credit hours, of which ____ hours can be applied toward the ____ requirement, and ____ hours can be applied toward the ____ requirement."

Where a program or segment of a program might reasonably be used to satisfy more than one category of instruction, the provider may so indicate, but must state that duplicate credit for the same hour of instruction is not permitted; an election must be made by the attendee, and each hour may be counted as satisfying only one category of instruction. The following language may be used:

and an aggregate of ____ credit hours can be applied toward the ____ requirement or the ____ requirement.

1500.5 Waivers, Modifications and Exemptions

(a) Waivers and Modifications. The Continuing Legal Education Board may, in individual cases involving undue hardship or extenuating circumstances, grant waivers and modifications of Program requirements to attorneys, upon written request, in accordance with the regulations and guidelines established by the CLE Board and this Part.

(b) Exemptions. The following persons shall be exempt from the requirements of New York's continuing legal education program:

(1) Subject to the requirements in 1500.12(f) and 1500.22(k), attorneys who do not practice law in New York. Attorneys practice law pursuant to this section if, during the reporting period, they give legal advice or counsel to, or provide legal representation for, a particular body or individual in a particular situation in either the public or private sector. The practice of law does not include the performance of judicial or quasi-judicial functions;

(2) Full-time active members of the United States Armed Forces;

(3) Attorneys from other jurisdictions who are temporarily admitted to practice in New York for a case or proceeding;

(4) Attorneys who certify that they are retired from the practice of law pursuant to 468-a of the Judiciary Law. Applications for exemptions must be made in writing in accordance with the regulations and guidelines established by the CLE Board and this Part.

SUBPART B MANDATORY CONTINUING LEGAL EDUCATION FOR NEWLY ADMITTED ATTORNEYS

1500.10 Application

(a) The requirements of this Subpart shall apply to all newly admitted attorneys, who are not exempt from these requirements pursuant to 1500.5(b), within the first two years after their admission to the Bar of the State of New York.

(b) A newly admitted attorney is an attorney who has successfully passed the New York State Bar examination administered by the State Board of Law Examiners and who becomes duly admitted to the practice of law in New York after October 1, 1997.

(c) Attorneys who have been engaged in the practice of law in another state, the District of Columbia, any territory of the United States or any foreign jurisdiction, for the five (5) years preceding admission to the New York Bar, shall not be deemed newly admitted attorneys for the purposes of this Subpart, and shall be required to comply with the requirements of Subpart C to the extent they are applicable.

1500.11 Statement of Purpose

Mandatory Continuing Legal Education for Newly Admitted Attorneys in the State of New York is a transitional continuing legal education program for newly admitted attorneys designed to help recent graduates and newly admitted attorneys become competent to deliver legal services at an acceptable level of quality as they enter practice and assume primary client service responsibilities.

The Program seeks to help the newly admitted attorney establish a foundation in certain practical skills, techniques and procedures,

which are and can be essential to the practice of law, but may not have been adequately addressed in law school. It includes courses targeting ethics and professionalism, skills, practice management and areas of professional practice.

1500.12 Minimum Requirements

(a) Credit Hours. Each newly admitted attorney shall complete a minimum of 32 hours of accredited transitional education within the first two (2) years of admission to the Bar. Sixteen (16) accredited hours shall be

– Three (3) hours of ethics and professionalism;

– Six (6) hours of skills; and

– Seven (7) hours of practice management and areas of professional practice.

Ethics and professionalism, skills, practice management and areas of professional practice are defined in 1500.2. The ethics and professionalism and skills components may be intertwined with other courses.

(b) Carry-Over Credit. A newly admitted attorney who accumulates more than the 16 hours of credit required in the first year of admission to the Bar may carry over to the second year of admission to the Bar a maximum of eight (8) credits. Four (4) credits in excess of the 16-hour requirement in the second year of admission to the Bar may be carried over to the following biennial reporting cycle to fulfill the requirements of Subpart C. Ethics and professionalism credit, however, may not be carried over from one year to the next.

(c) Accredited Courses or Programs Only. Transitional continuing legal education credit will be granted only for courses and programs approved as such by the CLE Board, except where reciprocity is extended as provided in subdivision (d). No transitional continuing legal education course or program consisting of self-study, correspondence work, video, audio or motion picture presentations may be accepted for credit without prior permission from the CLE Board.

(d) Reciprocity. Transitional continuing legal education courses approved by another state, the District of Columbia, any territory of the United States or any foreign jurisdiction with requirements meeting the standards adopted by the CLE Board shall count toward the newly admitted attorney's compliance with New York's transitional CLE Program requirements, to the same extent as the approving jurisdiction. Reciprocity requests must be submitted to the CLE Board in writing in accordance with the regulations and guidelines established by the CLE Board and this Part. courses taken from the date of graduation from law school up through the date of admission to the New York Bar may be applied toward a newly admitted attorney's Program requirements.

(f) Obligations of attorneys exempt from the Program requirements.

(1) An attorney who is exempt from the requirements of this Program and who is required to comply with the continuing legal education requirements of another jurisdiction shall comply with those requirements and shall certify this compliance on the attorney's biennial attorney registration statement.

(2) An attorney who is exempt from the requirements of this Program and who is not required to comply with the continuing legal education requirements of another jurisdiction shall so certify on the attorney's biennial attorney registration statement.

(3) An attorney who is exempt from the requirements of this Program and who thereafter commences the practice of law in New York during the first two years after admission to the Bar shall be required to complete by the end of those two years the full 32 hours of accredited continuing legal education as set forth in section 1500.12(a), except that only 16 hours of such education, in any combination of categories set forth in said section, need be completed if the commencement of practice in New York occurs during the second year of admission to the Bar. The attorney shall receive prorata credit for accredited continuing legal education undertaken during that two-year period in another jurisdiction that has a continuing legal education requirement.

 

1500.13 Reporting Requirements

 

(a) Attorney Obligations. Each newly admitted attorney subject to New York's transitional continuing legal education requirements shall maintain the Certificates of Attendance for each approved transitional education course or program for at least four (4) years from the date from which the newly admitted attorney complied with New York's transitional education requirements.

 

(b) Certification. (1) Except as otherwise authorized by this Part, each newly admitted attorney subject to New York's transitional continuing legal education requirements is required to certify along with the submission of his or her biennial attorney registration statement that the attorney has satisfactorily completed 32 hours of transitional continuing legal education (16 hours in the first year of admission to the Bar, 16 hours in the second year of admission to the Bar) and that the attorney has retained the Certificates of Attendance for the accredited courses and/or programs.

 

(2) A newly admitted attorney who is required to file his or her biennial attorney registration statement prior to completing the second year of admission to the Bar shall certify the actual number of hours of transitional continuing legal education completed. The attorney shall remain responsible for completing the 16 second-year hours of transitional continuing legal education by the end of that second year after admission, but may apply 12 of the 16 hours to fulfilling the requirements of Subpart C as set forth in 1500.22(b)(3).

 

1500.14 Waivers or Modifications.

(a) A newly admitted attorney may apply in writing to the Continuing Legal Education Board for a waiver or modification of Program requirements based upon extenuating circumstances — such as illness, disability, or other undue hardship– preventing the newly admitted attorney from complying with the requirements, in accordance with the regulations and guidelines established by the CLE Board and this Part.

(b) Requests for extensions of time in which to complete Program requirements based upon extenuating circumstances shall not be granted for a period of greater than 90 days absent special circumstances. If an extension is granted, the period of time by which a newly admitted attorney must complete the mandatory continuing legal education requirements applicable to all attorneys as set forth in Subpart C remains the same.

 

1500.15 Noncompliance

The names of newly admitted attorneys who fail to comply with transitional continuing legal education requirements will be submitted to the Appellate Division for appropriate action.

 

1500.16 Effective Date

Mandatory Continuing Legal Education for Newly Admitted Attorneys in the State of New York shall become effective on October 1, 1997.

SUBPART C MANDATORY CONTINUING LEGAL EDUCATION FOR ATTORNEYS OTHER THAN NEWLY ADMITTED ATTORNEYS

 

1500.20 Application

The requirements of this Subpart shall apply to all attorneys who have been duly admitted to the practice of law in New York, are not exempt from these requirements pursuant to 1500.5(b), and are not newly admitted attorneys subject to the requirements of Subpart B of this Part.

 

1500.21 Statement of Purpose

It is of utmost importance to members of the Bar and to the public that attorneys maintain their professional competence by continuing their legal education throughout the period of their active practice of law. This Program establishes the minimum requirements for continuing legal education for attorneys other than newly admitted attorneys in New York State.

 

1500.22 Minimum Requirements

(a) Credit Hours. Each attorney shall complete a minimum of 24 hours of accredited continuing legal education each biennial reporting cycle as follows:

– Four (4) hours of ethics and professionalism;

– Four (4) hours of skills; and

– Sixteen (16) hours of practice management and/or areas of professional practice.

Ethics and professionalism, skills, practice management and areas of professional practice are defined in 1500.2. The ethics and professionalism and skills components may be intertwined with other courses.

(b) Biennial Reporting Cycle.

(1) The biennial reporting cycle shall be the two-year period between the dates of submission of the attorney's biennial registration statement.

(2) An attorney shall comply with the requirements of this Subpart commencing from the time of the filing of the attorney's biennial attorney registration statement in the second calendar year following admission to the Bar.

(3) A newly admitted attorney whose transitional two- year post-Bar admission period has not been completed as of the last day the attorney registration statement in paragraph (2) is required to be filed may apply 12 hours of the second-year accredited transitional education credits required in section 1500.12(a) to fulfilling the requirements of this Subpart.

(c) Carry-Over Credit. An attorney who accumulates more than the 24 hours of credit in any one biennial reporting cycle may carry over a maximum of four (4) credits to the next biennial reporting cycle.

(d) Categories of Credit. Continuing legal education courses or programs may consist of lectures, seminars, panel discussions, question-and-answer periods, in-house education, and judging law competitions, mock trials and arguments. Video, audio, and motion picture presentations, interactive video instruction, and activities electronically transmitted from another location may qualify for credit. Self-study, correspondence work and on-line computer courses may qualify for credit upon submission to the CLE Board for verification procedures.

(e) Credit for Speaking and Teaching Activities. Credit may be earned through speaking, teaching or participating in an accredited CLE program. Credit may be granted for preparation time and presentation time, including credit for repeat presentations. Where teaching is done in tandem or by panel, teaching credit shall be given to all participants.

(f) Credit for Teaching Law School Courses. Credit may be earned through teaching in an ABA-accredited law school. Credit for teaching approved law school classes shall be for the number of teaching hours.

(g) Credit for Attending Law School Courses. Credit may be earned for attending courses at an ABA-accredited law school after admission to practice in New York provided (i) the attorney is officially registered for the course with the law school, and (ii) the attendance at law school courses shall be for the number of class hours attended.

(h) Credit for Publications. Credit may be earned for legal research-based writing upon application to the CLE Board, provided the activity (i) produced material published or to be published in the form of an article, chapter or book written, in whole or in part, by the applicant, (ii) contributed substantially to the continuing legal education of the applicant and other attorneys, and (iii) is not done in the ordinary course of the practice of law or the performance of regular employment. Authorship of articles for general circulation, newspapers or magazines directed to a nonlawyer audience does not qualify for CLE credit. Allocation of credit of jointly authored publications should be divided between or among the joint authors to reflect the proportional effort devoted to the research and writing of the publication.

(i) Accredited Courses or Programs Only. Continuing legal education credit will be granted only for courses and programs approved by the CLE Board, except where reciprocity is extended as provided in subdivision.

(j) Reciprocity. Continuing legal education courses approved by another state, the District of Columbia, any territory of the United States or any foreign jurisdiction with requirements meeting the standards adopted by the CLE Board shall count toward the attorney's compliance with New York's CLE Program requirements, to the same extent as the approving jurisdiction. Reciprocity requests must be submitted to the CLE Board in writing in accordance with the regulations and guidelines established by the CLE Board and this Part.

(k) Obligations of attorneys exempt from the Program requirements.

(1) An attorney who is exempt from the requirements of this Program and who is required to comply with the continuing legal education requirements of another jurisdiction shall comply with those requirements and shall certify this compliance on the attorney's biennial attorney registration statement.

(2) An attorney who is exempt from the requirements of this Program and who is not required to comply with the continuing legal education requirements of another jurisdiction shall so certify on the attorney's biennial attorney registration statement.

(3) An attorney who is exempt from the requirements of this Program and who thereafter commences the practice of law in New York during a biennial reporting cycle shall be required to complete by the end of the reporting cycle the full 24 hours of accredited continuing legal education as set forth in section 1500.22(a), except that only 12 hours of such education, in any combination of categories set forth in said section, need be completed if the commencement of practice in New York occurs during the second year of the reporting cycle. The attorney shall receive prorata credit for accredited continuing legal education undertaken during that reporting cycle in another jurisdiction that has a continuing legal education requirement.

 

1500.23 Reporting Requirements

(a) Attorney Obligations. Each attorney subject to New York's continuing legal education requirements shall maintain the Certificates of Attendance for each approved education course or program for at least four (4) years from the date from which the attorney complied with New York's continuing legal education requirements.

(b) Certification. Except as otherwise authorized by this Part, each attorney subject to New York's continuing legal education requirements is required to certify along with the submission of his or her biennial attorney registration statement that the attorney has satisfactorily completed 24 hours of continuing legal education for the current biennial reporting cycle and that the attorney has retained the Certificates of Attendance for the accredited courses and/or programs.

 

1500.24 Waivers or Modifications.

(a) An attorney may apply in writing to the Continuing Legal Education Board for a waiver or modification of Program requirements based upon extenuating circumstances — such as illness, disability, or other undue hardship–preventing the attorney from complying with the requirements, in accordance with the regulations and guidelines established by the CLE Board and this Part.

(b) Requests for extensions of time in which to complete Program requirements based upon extenuating circumstances shall not be granted for a period of greater than 90 days absent special circumstances. If an extension is granted, the period of time by which the attorney must complete the mandatory continuing legal education requirements of the next biennial reporting cycle remains the same.

 

1500.25 Noncompliance

The names of attorneys who fail to comply with continuing legal education requirements will be submitted to the Appellate Division for appropriate action.

 

1500.26 Effective Date and Transition

The requirements of this Subpart shall become effective on December 31, 1998. Compliance with the certification requirement shall commence with biennial attorney registration statements filed on or after January 1, 2000, as follows:

(1) Attorneys who file their biennial registration statement in calendar year 2000 shall complete 12 hours of accredited continuing legal education as of the date of the filing in any combination of the categories set forth in 1500.22(a);

(2) Attorneys who file their biennial registration statement in calendar year 2001 must complete the full 24 hours of accredited continuing legal education as set forth in 1500.22(a).

Approved CLE courses taken from January 1, 1998, may be applied toward fulfilling the requirements for the initial biennial reporting cycle."

In the event there is someone out there who hasn't heard, all attorneys must complete 24 hours of legal education every two (2) years. Why don't the rules require twelve hours of continuing legal education per year? The main reason is that you must certify that you have completed same on your biennial registration with the Appellate Division.

The potential problem arising from this is actually two-fold. The first potential problem will arise when some attorneys who have not fully familiarized themselves with the new rules keep putting off the education until they receive their biennial registration, and will then find that they must certify that they have completed the required educational credits. This assumes that the notice of the educational requirements attached to the biennial registration is large enough to get the attorney's attention in the first place. Otherwise, he/she might just sign it where there has been "no change" since the previous year. (The attorneys who have practiced for many years have tendency to simply sign it and return it.) If the notice attached to the next biennial registration makes it clear that one must complete twenty-four credits of continuing legal education, the attorney who has not yet completed same will be scrambling to sign up for every course available in order to comply. Since you must certify you have met the educational requirements, start signing up for educational courses now! Don't put it off until you have to take courses you really don't wish to sit through. Section 1500.24 on "Waivers and Modifications" only provides for a 90 day extension and than only "based upon extenuating circumstances — such as illness, disability, or other undue hardship–preventing the attorney from complying with the requirements, in accordance with the regulations and guidelines established by the CLE Board and this Part". This section does not permit the excuse that you hadn't read the rules and didn't know about the requirement. The new unofficial rule to govern your conduct should be:

 

1. START ATTENDING LECTURES IMMEDIATELY.

 

2. MAKE SURE YOU TAKE AT LEAST THE REQUIRED NUMBER OF HOURS OF CREDIT IN EACH MANDATORY AREA (see section 1500.22 above) You have to insure that the courses/lectures you take provide hours in the proper areas. The requirement is

a. (4) hours of ethics and professionalism;

b. (4) hours of skills; and

c. (16) hours of practice management and/or areas of professional practice.

These three (3) areas, Ethics and Professionalism, Skills, Practice Management and areas of Professional Practice are defined in Part 1500.2. While some courses will offer hourly credits which may be applicable to more than one area at the same time, you must designate which area you want the credits to be applied to for the particular course. You can't claim that 1 hour meets the requirement in all 3 areas. The "accredited provider" must indicate what area or areas the hours may be applied to at each lecture/course/seminar. You are required to elect whether the hour is to be applied to ethics, skills, or practice management. You may ultimately be required to take more than 24 credit hours in order to have 4 hours of ethics and professionalism, 4 hours of skills, and 16 hours of practice management and/or areas of professional practice. This is especially true if you don't plan your personal program over the two year period.

 

3. RETAIN YOUR "CERTIFICATES OF ATTENDANCE" FOR AT LEAST FOUR (4) YEARS [keep them for five (5) years if you are using "carry-over" credits).

Unfortunately, the chances of you only being required to take 24 credits is slim if you don't plan carefully. Since the credits must be in three (3) separate areas. In order to have sufficient credits, you will probably have to sign up for 28 credits or more. Only four (4) can be carried over. If you were to take four full day courses (9:00 a.m. to 5:00 p.m. – 7 credit hours and a lunch hour) and each course provided 1 hour, "ethics & professionalism", 1 hour of skills and 5 hours of practice management/professional practice, you would still have 28 credits. Any other "credit hour" mix and you'll wind up with credits you can't "carry over". Plan ahead – sign up for the proper credit mix. If you were to take four (4) seven (7( hour courses (9:00 a.m. to 5:00 p.m.) you would have 28 credits (24 plus 4 "carry-over" credits). However, unless the course mix for each course was 5 credits of Practice Management/Professional Practice, 1 credit of skills, and 1 credit of ethics, you'll probably wind up taking more courses for the required credit mix. Hopefully, all of the all-day courses will include this particular mix.

At the present time the Rockland County Bar Association does not have "Accredited Provider" status. There are two (2) reasons for this; there are literally hundreds of applications pending for "accredited provider status" and because the Rockland County Bar Association has one of the better continuing legal education programs. In order to get approval, the curriculum vitae of all of the speakers must be submitted and the Bar Association must demonstrate that it has provided legal education programs in the past that meet the requirements set forth in Part 1500. The Bar Association has gotten all the necessary materials to document that they have provided a continuing legal education program to "The Continuing Legal Education Board", and has submitted the necessary application. With the current backlog, it may take longer than was initially anticipated.

This is an area where some attorneys will run into problems. Someone will be unfortunate enough to serve as an example to insure compliance by everyone else.

Back to matrimonial law.

Counsel Fees

On October 30, 1998, a decision appeared in the New York Law Journal that indicated that the rules with respect to counsel fees in matrimonial cases will be strictly construed and strictly enforced. While the decision is out of the City Court of White Plains, and you might not think it will be widely followed, it is "right on the money" and will probably be widely cited. In MUELLER v PACICCA, NYLJ, P. 36, Col. 4, (Friia, J), the court directed that an attorney return the fee she had previously been paid, and that her action for the balance due be dismissed.

The attorney representing the husband in the matrimonial made two errors. One error was that the attorney had failed to get a written retainer as required by 22 NYCRR 1400.3. The court in deciding that the attorney had to refund all counsel fees that had previously been paid to the attorney by the client went on to state:

"The law is clear that where an attorney fails to strictly comply with the mandates of 22 NYCRR 1400.3, that attorney is barred from collecting fees in a domestic relations matters. See Flanagan v Flanagan, 175 Misc. 2d 160 (Sup. Ct. N.Y. Co. 1997); Forbes v. Forbes, N.Y.L.J. 2/26/97, P. 26, COL. 1 (Sup. Ct. N.Y. Co. 1997); McMahon v Evans, 169 Misc. 2d 509 (Sup. Ct. Broome Co. 1996); Philips v Philips, N.Y.L.J. 9/1/98, P. 25, col. 2 (Sup Ct. Nassau Co. 1998). Simply put, since the defendant here did not sign a retainer agreement, plaintiff is not entitled to recover attorney's fees for any work performed in the matrimonial matter and must refund any fees previously collected. See, McMahon, supra."

The other area involving counsel fees that the court discussed was the requirement that an attorney suing for fees in a Domestic Relations Matter is required to allege in the pleadings that a "Notice to Arbitrate" was served and thirty days have passed without a response. The court stated:

"Specifically, the moving papers show that defendant was duly served with a Summons and Complaint on September 10, 1997, but no notice to arbitrate was served upon defendant until September 18, 1997, some eight (8) days after the commencement of the action. Since the notice pursuant to 22 NYCRR 136.5 (a) is a condition precedent to suit the Court finds the instant action was commenced in contravention of Part 136 of the Rules of Chief Administrator. See, L.H. v V.W., 171 Misc 2d 120 (Civ Ct. N.Y.C. 1996). Moreover, the complaint is itself jurisdictionally defective in that it fails to allege the requisite notice requirement (22 NYCRR 136.5 [c])."

Basically, this means that the attorney must reserve the defendant and start all over again. The foregoing case makes it clear that in suing a client in a matrimonial action, you have to do it by the numbers or you won't get paid.

Of course, paying back the fee is not the only penalty where a party fails to get a "Statement of Client's Rights and Responsibilities" executed and fails to get a written retainer agreement. Disbarment is not out of the question where it happens more than once (See Matter of Hantman, 236 AD2d 75; Matter of Eriksen, 231 AD2d 71, 659 NYS2d 71).

Simply as a reminder, give new client's a "Statement of Rights and Responsibilities" form on their first visit. Don't wait until they have decided to execute a retainer. When a client asks what it is, indicate it is a "Consumer Disclosure Statement", and it doesn't obligate them in any way. They all seem to know what a consumer disclosure statement is in this day and age. Two (2) copies must be executed, and you are required to keep one for your records.

Some attorneys seem to be providing the statement when a client is ready to execute the retainer statement. Eventually, some attorney will receive a grievance for this procedure in that a client will claim that they were unaware of its contents, had already felt that the lawyer/client relationship existed when they agreed to sign the retainer, and never read either the retainer or the "Statement of Client's Rights and Responsibilities". It is better to read about this scenario in the Law Journal than to be the subject of the grievance; let someone else see if it will eventually be considered part of a proper procedure.

 

HEARING EXAMINER OBJECTION PROCEDURES

In October of 1998, the Family Court changed the procedure on objections to determinations by the Hearing Examiners. It would appear that the purpose was to expedite determinations upon an objection being filed, but it may make it more difficult to properly respond to the objection.

Under the new procedure, you must file specific written objections to the Hearing Examiner's order within thirty (30) days of service of same. "The court will no longer permit more specific objections to be filed after the thirty (30) day period has expired. In addition, in those cases where a transcript of the Hearing Examiner's proceeding are deemed necessary by the Judge, only one (1) copy of the transcript will be produced. This copy will be furnished to the court. The requirement that a copy be served on the non-objecting party has been eliminated. The purpose of the transcript is to allow the judge to determine what happened during the hearing. The parties will no longer be allowed to submit additional papers referring to that portion of the transcript which supports his or her argument since the transcript will not have been ordered and received until after objections and the rebuttal will have been filed."

The new procedure presents problems. Neither party will be able to point to the testimony supporting their position. When you receive the decision, you may believe that it is against the weight of the evidence. However, if the decision is delayed for a substantial period of time, you may find yourself paraphrasing testimony incorrectly or simply not recalling whether the testimony supports reasoning in the decision.

In short, if you think you are going to appeal, you're going to have to order the testimony as soon as you leave the courtroom. If you think the decision is going to be favorable, you may have to order the transcript to insure that you receive it quickly in the event that the other side files objections. If the issue in question turns on the law as opposed to the facts and credibility of the witnesses, you should request time to submit a brief (and still order the transcript immediately). The problem with this is that clients will be loathe to allow you to order a transcript (spend money) prior to a decision. Some records may be so large that you may have to order the transcript on an "expedited" basis in order to obtain it prior to the expiration of the time to object or respond to objections. You will have to specifically order a second copy since it will no longer be prepared automatically. To summarize the problem, you are going to have to file your objections or respond to objections based solely upon your memory or notes.

 

The new procedure is as follows:

Procedure for Filing Objections

1.The objections must be in writing, signed and contain the name and docket number of the case.

2.The reasons for your objections and the parts of the order objected to must be clearly stated.

3.The opposing party must be served with a copy of the objections, either in person or by mail, and an affidavit of service must be filled out. The clerk of the court will make a sample objection and affidavit form available.

4.The original of the objections and the affidavit of service must be filed with the clerk of the court within (30) days of the date the order was served in court or personally served or if the order was served by mail, within thirty-five (35) days of the mailing of the order.

5.A transcript will not be necessary unless the Judge requires one. If so, the clerk of the court will provide information on how to obtain a transcript. The person filing objections must pay the cost for the transcript.

6.If the Judge does not require a transcript, either party may request a transcript, and the requesting party must pay the fee. However, requesting a transcript will not necessarily require the court to await receipt of the transcript before declining the objections.

7.If an objecting party cannot afford to pay for a transcript, when required by a Judge, the clerk of the court will provide information about the procedure for obtaining the transcript without charge.

8.The party served with objections has a right to file a rebuttal. A rebuttal is an answer to the objections.

Procedure for filing a rebuttal

1.A rebuttal to objections must be in writing, signed and contain the name and docket number of the case.

2.It must state the date the objections were received, the specific objections being answered and the reasons for the rebuttal.

3.The rebuttal together with the affidavit of service upon the opposing party must be filed with the Clerk of the Court within 13 days after service of the objections, or, if service by mail, within 18 days after service of the objections. The opposing party must be served with a copy of the rebuttal, either in person or by mail. The Clerk of the Court will make a sample affidavit of service available.

Those parties with money will probably file a notice of appeal on the judges decision on the objections, obtain copies of the transcript, and in addition to filing an appeal based upon the law and/or the facts, claim that the procedure is flawed in that they are required to respond without the record being available. In cases where the decision was quick and the trial short, this objection will probably go nowhere. Where the trial lasted a long time, perhaps over a period of weeks or months, the appellate court may determine the objection procedure itself is flawed. For example, how can you hire an "appeals" attorney to handle the objections? Both parties will be required to use the same attorney as they had when before the hearing examiner, as a new attorney won't have time to get the record and review it.

A possible method to avoid the problem would be to offer copies of the actual tapes to the attorneys. While you may not have a written transcript, the claim that you cannot be expected to properly frame objections would evaporate. The judge would get a hard copy of the record, and the attorneys would have the tape of the proceedings available to them. So long as the court mandates that the official hard copies be prepared by the transcribers, there should be no problem. The attorneys will not be able to claim that they didn't have the transcript available, and the transcriber will not be losing income since only one copy will be required anyway. However, a new potential problem might arise; accuracy of the hard copies of the transcripts).

In short, the new procedure will shorten the objections process, another necessary and admirable goal. However, the new procedure may be a bit too abbreviated; only time will tell.