The Court of Appeals amended its Rules of Practice effective December 8, 2010 . Former section 500.2 was repealed in its entirety and a new section 500.2 was substituted for it. Sections 500.11, 500.12, 500.14 and 500.23 were amended. The number of paper copies of records, appendices and briefs has been reduced to 20 instead of the current 25 for normal coursed appeals and certified question reviews. In addition, parties are required to file on disk digital versions of each paper filing. Appeals to be considered under section 500.11 of the Rules are subject to a similar digital filing requirement. The companion briefs and record material in digital format must comply with the current "technical specifications" available from the clerk's office. The requirements regarding submission in digital format apply to all appeals for which the preliminary appeal statement is filed on or after the December 8, 2010 effective date. New Rules of Professional Conduct (22 NYCRR Part 1200) Replaced Existing Disciplinary Rules, Effective April 1, 2009. The New Rules of Professional Conduct, which are based on the American Bar Association Model Rules of Professional Conduct, introduce a number of important ethics changes for New York lawyers. They are intended to ease ethical research and guidance by New York lawyers, and are in addition to the Rules in 22 NYCRR Parts 1210, 1215, 1230 and 1400. Some of the rules impose new ethical obligations on New York lawyers. One rule obligates a lawyer to act with reasonable diligence and promptness' in representing a client (22 NYCRR Part 1200, Rule 1.3[a]). Another rule requires a lawyer to keep the client reasonably informed about the status of the matter, and to promptly comply with a client's reasonable requests for information' (22 NYCRR Part 1200, Rule 1.4[a][3], [4]). In some cases, the new rules liberalize a former New York rule. For example one rule sets forth a lawyer's duty and obligation to a "prospective client," including a client with whom the lawyer never enters into an attorney-client relationship. It expressly exempts from the benefit of the rule's protections potential clients who consult with a lawyer merely for the purpose of disqualifying the lawyer from representing an adverse party. Another rule allows attorneys to disclose confidential information to advance the best interests of the client when it is either reasonable under the circumstances or customary in the professional community (22 NYCRR Part 1200, Rule 1.6(a)(2)). An Article entitled Rules of Professional Conduct for Family Law Attorneys, written by Joel R. Brandes, the author discusses the rules that particularly effect New York Matrimonial and Family law attorneys. (Click here to download the Article ) Court of Appeals Revised 22 NYCRR Part 500 (Court of Appeals Rules of Practice) effective November 5, 2008 On October 16, 2008, the Court of Appeals revised 22 NYCRR part 500 (Court of Appeals Rules of Practice) effective November 5, 2008, or as soon thereafter as section 52 of the Judiciary Law is complied with. (Click here for commentary on the revisions to 22 NYCRR part 500 (Court of Appeals Rules of Practice). Rules of the Chief Judge Adopted to Define the Role of the Law Guardian. The rule defines 'Attorney for the child' as 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. [7.2 (a)] 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. [7.2 (b)] 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.[ 7.2 (c)] In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position. In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances. 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. 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 court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position. [7.2 (d)] Counter-Order or Judgment Must be Submitted with Marked-up Copy 22 NYCRR 202.48 (c)(2) of the Uniform Rules For Trial Courts, which deals with the submission of proposed orders and counter-orders, was amended effective September 1, 2007. It now requires that " Any proposed counter-order or judgment shall be submitted with a copy clearly marked to delineate each proposed change to the order or judgment to which objection is made." Attorney Advertising and Certification Rules Effective February 1, 2007 The presiding justices of the Appellate Divisions promulgated rules regarding attorney advertising took effect on February 1 , 2007. 22 NYCRR 130-1.1 (b), the Certification Rule, was amended to provide that by signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, where the paper is an initiating pleading, that (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111]. The rules define 'advertising' as communication aimed primarily at securing business. 22 NYCRR 1200.1 provides in part: (k) "Advertisement" means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers. The definition of 'solicitation' excludes responses to requests for proposals or other communications initiated by a potential client. 22 NYCRR 1200.8 (b) provides: For purposes of this section "solicitation" means any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain. It does not include a proposal or other writing prepared and delivered in response to a specific request of a prospective client. Attorneys are required to retain copies of their advertisements for three years, and must keep their e-mail and Web site solicitations for one year. 22 NYCRR 1200.6. (k) provides: All advertisements shall be pre-approved by the lawyer or law firm and a copy shall be retained for a period of not less than three years following its initial dissemination. Any advertisement contained in a computer-accessed communication shall be retained for a period of not less than one year. A copy of the contents of any web site covered by this section shall be preserved upon the initial publication of the web site, any major web site redesign, or a meaningful and extensive content change, but in no event less frequently than once every 90 days. This is only a brief summary of the rules which affect internet advertising and attorney listings on web sites. All of the new advertising rules regarding attorney advertising can be downloaded from the New York Uniform Court System Website. Court Rules For Depositions, Ex Parte Temporary Restraining Orders and Decisions The Chief Administrator of the Courts adopted rules which took effect on October 1, 2006 which are designed to prevent abuses in taking of depositions (22 NYCRR Part 221), limit the circumstances under which attorneys may obtain ex parte temporary restraining orders (22 NYCRR 202.7), and compel judges to comply with the rule which requires them to determine motions within 60 days after final submission. No objections may be made at a deposition unless they are permitted under CPLR 3115 (b) [Errors which might be obviated if made known promptly], CPLR 3115 (c) [Disqualification of person taking deposition] or CPLR 3115 (d) [Competency of witnesses or admissibility of testimony] and would be waived if not interposed. In addition, the objections must be in compliance with CPLR 3115(e). The answer must be given and the deposition must proceed subject to the objections and subject to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR. Every objection made during a deposition must be stated succinctly and framed so as not to suggest an answer to the deponent. In addition, if the questioning attorney requests it, the objection must include a clear statement as to any defect in form or other basis of error or irregularity. A deponent is required to answer all questions at a deposition, except when it is necessary to preserve a privilege or right of confidentiality, (to enforce a limitation set forth in an order of a court, or when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney may not direct a deponent not to answer except under such circumstances or as provided in CPLR 3115. Any refusal to answer or direction not to answer must be accompanied by a succinct and clear statement of the basis therefor. Before interrupting a deposition, an attorney must 'clearly and succinctly' state the reason for intervening. An attorney may not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of the rules and, in such event, the reason for the communication must be stated for the record succinctly and clearly. Another new rule (22 NYCRR 202.7(f)), which was amended in 2007, prevents a party from seeking ex parte temporary injunctive relief or an ex parte restraining order absent a showing of significant prejudice to that party. The rule provides that any application for a temporary injunctive relief, including, but not limited to a motion for a stay or temporary restraining order, must contain an affirmation demonstrating significant prejudice by giving of notice. Under the rule, judges are barred from granting temporary injunctive relief or restraining orders unless a party demonstrates a significant reason why an adversary must not know of the application in advance. Where a party can not demonstrate significant prejudice to justify obtaining an ex parte order, the attorney's must advise their adversaries of the time and place they will be asking for a restraining order. The rule does not specify how much advance notice will be required but provides that it must be 'sufficient' to allow opposition. Section 202.8(h) of the Uniform Civil Rules for the Supreme and County Courts dealing with the Procedures for Pending Motions in the Supreme Court has been repealed and replaced with a new section 202.8(h) which now places the burden on the Court Administrators to notify a judge that 60 days has elapsed after final submission of a motion and there is no record that the motion has been resolved. The former rule placed the burden on the attorney for the movant to notify the judge by letter of this fact. Court Rules For Parent Education & Awareness Program The New York State Parent Education and Awareness Program ("Program") is designed to educate divorcing or separating parents about the impact of their breakup on their children, how children experience family change, and ways in which parents can help their children manage the family reorganization. Program rules were adopted on July 25, 2006 which apply to all actions or proceeding that affect the interests of children under 18 years of age that is brought in Supreme Court or Family Court.
See 22 NYCRR 144.1 et seq New Court of Appeals Rules - 22 NYCRR Part 500
The Court of Appeals has rescinded in its entirety 22 NYCRR part 500 and approved a new Part 500, entitled The Rules of Practice of the Court of Appeals. The new 22 NYCRR Part 500 were effective September 1, 2005. Changes of note include; substitution of a Court-promulgated preliminary appeal statement for the jurisdictional statement previously required for appeals (see Rule 500.9); use of scheduling letters to set due dates for appeal papers (see Rule 500.12[a]) and elimination of the automatic 20-day extension for filing dates for appeals; reduction of the time period from 80 days to 60 days for perfecting appeals, unless an extension is granted (see Rule 500.16[a]); and set filing dates for all applications for amicus curiae relief (see Rule 500.23). The number of copies to be filed on appeals and motions for leave to appeal in civil cases also has been changed. Reminder: Court Filing Fees were increased in 2003! You must now pay the clerk $45 to file a motion and cross motion in the Supreme Court and in the Appellate Courts. The defendant is required to file a stipulation of settlement or notice of discontinuance and pay a filing fee of $35. The Index Number fee is $190 and the fee for filing an RJI is $90. Limits on Law Guardian Appointments - New Part 36 of the Rules of the Chief Judge (22 NYCRR), effective June 1, 2003, governs appointments of guardians ad litem and privately paid law guardians who are appointed in domestic relations matters. Section 36.2(d)(1) prohibits appointees from receiving more than one appointment in the same calendar year for which compensation in excess of $15,000 is awarded in that calendar year or anticipated to be awarded in any calendar year. Section 36.2(d)(2) provides that if compensation is awarded in an aggregate amount of more than $50,000 during any calendar year the appointee will be ineligible for any compensated appointments during the next calendar year. The rule is a limitation on appointments, and not on compensation. Part 36 appointees must complete and file with the fiduciary clerk within 30 days of appointment a two-part form containing a notice of appointment and certification of compliance (§ 36.4(a)(1)). If the appointee cannot certify qualification for appointment in the certification of compliance section of the combined form, or cannot accept appointment for any other reason, the appointee must immediately notify the court (§ 36.4(a)(4)). Judges who approve compensation of more than $500 are required to file a statement of approval of compensation with the Office of Court Administration pursuant to Judiciary Law 35-a(1)(a) and 22 NYCRR Part 26. No judge may approve compensation of more than $500 without this statement and the signed confirmation of the fiduciary clerk (§ 36.4(b)(2)). Additionally, every approval of compensation in excess of $5000 must contain the judge’s written statement of the reasons for such approval (§ 36.4(b)(3)).
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for an Explaination of Part 36 of the Rules of the Chief Judge) Effective January 1, 2003 the Appellate Division, Second Department established the Active Management Program to expedite appeals from orders of the Family court as well as Supreme Court custody and visitation orders and judgments. Section 670.4 of the rules of the court were amended to provide for the clerk of the court to issue scheduling orders. Case managers will be assigned to these cases to monitor their progress. Rule 670.8 was also amended to allow the parties to stipulate to an enlargement of time to perfect an appeal or to file a brief, and to allow them to request an enlargement of time upon application by letter addressed to the clerk of the court. Effective November 7, 2002 the Chief Administrative Judge of the Courts promulgated new forms for temporary orders of protection and orders of protection to be used in Supreme Court (SC-1 & SC-2) as well as in Family Court and Criminal Court.
Letter of Engagement Rule (Text)- Effective March 4, 2002, an attorney who undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client must provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter. Instead of providing the client with a written letter of engagement, an attorney may comply with the provisions of the rule by entering into a signed written retainer agreement with the client, before or within a reasonable time after commencing the representation. The rule does not apply to representation of a client where the fee to be charged is expected to be less than $3000, (2) representation where the attorney's services are of the same general kind as previously rendered to and paid for by the client, or (3) representation in domestic relations matters subject to Part 1400 of the Joint Rules of the Appellate Division (22 NYCRR).
Mandatory Fee Arbitration
(Text) - As of January 1, 2002, all attorneys in New York are required to participate in a fee dispute resolution program, which differs from the arbitration program that has been in existence since 1995 governing matrimonial fee disputes. Unlike the matrimonial fee dispute program, promulgated as Part 136 of the Rules of the Chief Administrator, the new Fee Dispute Program permits a de novo trial after the fee dispute is resolved by arbitration, and was not accompanied by the enactment of corresponding Disciplinary Rules. Part 137 of the Rules of the Chief Administrator was established as a mechanism for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation. It applies where representation has commenced on or after January 1, 2002, to all attorneys admitted to the bar of the State of New York who undertake to represent a client in any civil matter. However, it does not apply to representation in criminal matters; amounts in dispute involving a sum of less than $1,000 or more than $50,000, except that an arbitral body may hear disputes involving other amounts if the parties have consented; claims involving substantial legal questions, including professional malpractice or misconduct; claims against an attorney for damages or affirmative relief other than adjustment of the fee; disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court; or where the fee has been determined pursuant to a court order; disputes where no attorney's services have been rendered for more than two years; disputes where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York, or where no material portion of the services was rendered in New York; and disputes where the request for arbitration is made by a person who is not the client of the attorney or the legal representative of the client. The "uniform child custody jurisdiction and enforcement act" was enacted on October 30, 2001 by Laws of 2001, Ch 386. It takes effect six months from the date of its enactment. It replaces the UCCJA and provides for the exercise of exclusive, continuing jurisdiction by the forum in the home state; provides indicia for determining which court`s order is controlling and which court should exercise, or refrain from exercising, jurisdiction to issue, modify and/or enforce child custody orders; and provides for an expedited procedure for enforcement of orders. See Bill Summary
or Bill Text Attorney's agree that the appointment of a law guardian is appropriate to safeguard the best interests of children in many custody cases. A competent and thorough law guardian may offset the adversarial character of custody disputes and focus attention upon the child's best interests, which is often lost in the midst of emotionally charged domestic litigation. The conflict between parental interests and the child's best interests often is conspicuous, and if the two coincide it may be merely coincidental. A law guardian may be appointed by the court to protect the interests of children, or the child may choose independent counsel. Although Section 241 of the Family Court Act defines the role of the law guardian by providing that the law "...establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court...", there appears to be confusion regarding the role of the law guardian in custody/visitation cases. Justice Silberman, the Statewide Administrative Judge for Matrimonial Matters has brought light to this area of confusion by promulgating Law Guardian definitions and standards, which are reproduced below. Unfortunately, we have been advised by her office that they are effective only in the First Department. Law Guardian Definition and Standards Definition LAW GUARDIAN. A law guardian is an attorney representing a child in a custody or visitation proceeding and in any appeals therefrom. It is the responsibility of the law guardian to act as an advisor to the child, and to advocate for the child's position in the litigation. The law guardian shall assess whether the child is impaired or unimpaired. Impairment is a child's inability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney. Standards Assessment of impairments by the law guardian shall include consideration of the child's age, level of maturity, developmental ability, emotional status, ability to articulate his/her desires, and any other facts that impact upon the child's ability to make knowledgeable, voluntary and considered judgments or to work effectively with his/her attorney. Assessment of a child's impairment may also take into account factors external to the child including a parent's mental illness, substance abuse or domestic violence. The law guardian shall advise the Court of his/her conclusion of impairment and, if the child expresses a position, report to the Court the child's stated position. Thereafter, the law guardian shall assist the Court in making an informed decision in the best interests of the child by ensuring that relevant evidence is obtained and presented to the Court, including evidence that otherwise might not be presented to the Court, and by otherwise fully participating in the adjudicative process. A law guardian shall not act as an advocate for any party other than the child. A law guardian shall advocate for the child's stated position if the law guardian, on his/her own or with the assistance of a mental health professional and after investigation and assessment of the situation, determines that the child is unimpaired. A law guardian shall ask the Court to assign additional counsel if the law guardian discovers a potential or actual conflict in his/her representation of multiple children in the same family. A law guardian shall act in a manner consistent with the Lawyers Code of Professional Responsibility. A law guardian shall not assume the role of social worker or mental health professional, but shall seek the assistance of such professionals on behalf of the child when appropriate. A law guardian shall not engage in ex parte communications with the Court absent waiver by all parties. A law guardian shall not communicate with the parties in the absence of their counsel or without counsel's written permission. A law guardian so long as she/he is the legal representative, advisor and advocate for a child in a custody and/or visitation matter, shall not act as a witness or submit any written reports to the court at any point during the proceedings or in any subsequent proceedings. A lawyer who has met the necessary training and certification requirements established by the Committee to Certify Law Guardians for Appointment in Domestic Relations Matters may apply for and be accepted as law guardians in the First Judicial Department. Agencies or private law firms may not be qualified as a whole to represent children in the First Judicial Department, but individual attorneys employed by such agencies or private law firms may do so if they meet the necessary training and certification requirements. A law guardian shall not participate in contested monetary issues raised in a Matrimonial proceeding such as equitable distribution, maintenance and child support , except where relevant to custody and visitation determinations.
Section 202.16 of the Uniform Rules for the Supreme and County Courts, was amended effective October 1, 2000(Text).
Subdivision (d) was amended to correct a technical error which had described the summons with notice as the summons and notice. Subdivision (f)(1) entitled Preliminary Conference was amended to require that the following papers must be exchanged and filed no later than 10 days prior to the preliminary conference, unless the court directs otherwise: (i) statements of net worth; (ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year; (iii) all filed state and federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder; (iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file state and federal income tax returns; (v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held; (vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to: (A) any policy of life insurance having a cash or dividend surrender value; and (B) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit-sharing plans, Keogh plans, 401(k) plans and other retirement plans. subdivision (g) (1) entitledAExpert Witnesses" was amended to require that responses to demands for expert information pursuant to CPLR 3101(d) must be served within 20 days following service of such demands. Subdivision L was amended to require that hearings or trials pertaining to temporary or permanent custody or visitation must proceed from day to day to conclusion, and that with respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion. Section 136.3 of the Rules of the Chief Administrator of the Courts, subdivisions [c] and [d], relating to fee arbitration in domestic relations matters, was amended, effective October 1, 2000 to require that disputes involving a sum less than $6000 must be submitted to one attorney arbitrator. |
