Despite the recent heat wave, Fall has arrived. Besides the presumably cooler weather, when the calendar hits September, we can always look forward to a number of things – school starts, rush hour traffic resumes, shorter days, etc. However, for us lawyers September brings with it the annual amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey. Unlike last year, a number of these recent Rule Amendments directly impact upon Family Part Practice. A number were in response to statutory changes that recently went into effect. In light of the number involved, I will summarize and discuss these Amendments over the course of several blog posts.
First, there have been a number of significant changes to Rule 5:3-5, the rule dealing with attorney’s fees, retainer agreements and withdrawal of counsel in Family Actions. Under Rule 4:42-9, an allowance for the awarding of attorneys fees in Family Actions is expressly authorized. Rule 5:3-5 set forth the procedural and substantive prerequisites and requirements for such fee applications, not only referring to the factors enumerated in the Rules of Professional Conduct (RPC 1.5(a)), but the provisions of Rule 4:42-9(b), (c), and (d). Rule 4:42-9 (b) requires that all applications for the allowance of fees be supported by an affidavit of services addressing the factors in the RPC 1.5. Notwithstanding the fact that reference to this Rule was included already, the Supreme Court felt it prudent to repeat the language of Rule 4:42-9 (b) almost verbatim as new subsection Rule 5:3-5(d), and thereby avoid any doubt that all such applications for the allowance of fees be supported by an affidavit of services. As a result, former subsection (d) became subsection(e), dealing with withdrawal from representation.
In actuality, the most significant amendment to Rule\5:3-5 was the addition of subparagraph (e)(3) dealing with the handling of motions to withdraw from a procedural or scheduling basis. Often a breakdown in the attorney/client relationship occurs during the midst of the divorce litigation. Sometimes this occurs when there are other disputed issues that are being brought before the court by way of motion. The problem which often arose was how these substantive disputes would or could be addressed where a breakdown in one party’s attorney/client relationship had also lead to an application to withdraw or to be relieved being filed. The new Rule 5:3-5(e)(3) attempts to address this predicament. This Rule provides that upon the filing of a motion or cross motion to be relieved as counsel, the court, absent good cause, shall sever all other relief sought by the motion or cross motion from the motion to be relieved as counsel, and whereby the court would first decide the motion to be relieved and, in the order either granting or denying the motion to be relieved include a scheduling order for the filing of responsive pleadings and the return date for all other relief sought in the motion or cross motion. This is obviously designed to avoid situations where the party and/or counsel are forced to address substantive matters when there has been a apparent breakdown of relationship and/or conflict between a party and his or her attorney at that juncture.