1. A description of the legal services to be rendered;
   
   
2. A description of the legal services not encompassed by the agreement. This is not only required by the Rule, it is good practice. For example, since counsel fees in domestic violence cases are compensatory rather than based upon the factors set forth in Williams v. Williams, 59 N.J. 229 (1971), you should be ready to present a separate itemized billing statement as well as a separately executed retainer agreement, in any domestic violence matter you are handling. A carefully drafted statement of legal services not encompassed by the retainer agreement will also give you the authority to decline representation in any matter other than that which is covered by that agreement. If your case includes a marital tort count, the retainer agreement should specifically provide that services related to the tort count are either included or excluded from the agreement. If you have agreed to a contingent fee for the marital tort, the dissolution retainer agreement must specifically exclude the tort related services AND you must have a separate, written and executed fee agreement in accordance with Rule 1:21-7. I suggest that even if the marital tort is to be billed in the same manner as other legal services, separate billing statements for such work is probably required under paragraph (b) of the Rule as explained below. Separate billing statements for services related to the tort is also good practice and may be necessary in proving damages.
   
   
3. The method by which the fee will be computed. Most of us use hourly rates as the standard of measuring our fees. However, I have seen retainer agreements establishing fixed fees or fixed amounts of time for specific services. For example, your agreement may provide for a minimum fee for a court appearance in recognition of the loss of business arising from being away from your office. Your agreement may provide that the minimum phone call will be charged at two-tenths of an hour. I do not read the Rules as requiring any one method of determining how each of us will determine charges. The Rules simply require that they be clearly written and agreed to by the client.
   
   
4. The amount of the initial retainer and how it will be applied. The factors we consider in determining the amount of the initial retainer is not the subject of this article. The phrase "how it will be applied" as found in the Rule derives from the phraseology from the Committee, "how it will be used". I assume this means that the agreement should state that the initial retainer will be used to pay billing statements as services are provided on the client’Äôs behalf. I do not see any requirement that the initial retainer be deposited into your trust account rather than your attorney business account. Paragraph (a)(5) of the Rule also requires the agreement to provide "whether and in what manner the initial retainer is required to be replenished."
   
   
5. When bills shall be rendered. The Rule provides that you must provide your client with a bill "no less frequently than once every ninety days" as long as services were provided during that period. You should be billing monthly notwithstanding the Rule. If you intend to charge interest on unpaid bills, the agreement must so state. You may not charge interest, and interest may not begin to accrue, until 30 days after the bill is tendered. A bill is tendered when placed in the mail or as otherwise set forth in your agreement.
   
   
6. The agreement must identify the name of the attorney having primary responsibility for the client’Äôs representation. The hourly rate of all attorneys who may provide legal services must also be set forth in detail. You are not bound by the hourly rates (or other rates) set forth in the agreement for the duration of the entire matter. If you want to retain the right to increase your rates during the term of your representation, the agreement must provide for "the frequency and notice thereof required to be given to the client." Although the Rule does not specify how much notice is required, clearly, notice is required. I suggest a 30 day notice provision. Of course, the notice must be in writing.
   
   
7. A statement of the expenses (costs) and disbursements for which the client is responsible and how they will be billed. Will they be billed monthly and be incorporated into your monthly billing statement or will they be separately billed and due upon receipt?
   
   
8. The effect of counsel fees awarded by the court pursuant to paragraph (c) of the Rule. Your agreement should provide that only counsel fee awards actually paid to you by the other party will be credited to the client’Äôs account. I believe your retainer agreement should also provide that any legal services rendered to pursue, obtain, and enforce counsel fee awards will be billed in the same manner as all other legal services.
   
   
9. The right of the attorney to withdraw from representation, if the client does not comply with the agreement, pursuant to paragraph (d) of the Rule. In this regard, I have decided to attach a copy of Rule 5:3-5(d) to our retainer agreement and to have the client initial it to signify that he or she has received it, read it, and understood it.
   

Paragraph (b) of the Rule prohibits an attorney from taking or holding a security interest, mortgage or other lien on a client’Äôs property to assure payment. Non-refundable retainers are not permitted. Contingent fees pursuant to Rule 1:21-7 are permitted only as to claims based upon the tortious conduct of another and if the fee is contingent, in whole or in part, there must be a separate, written contingent fee arrangement complying with Rule 1:21-7. Services rendered under the separate, contingent fee arrangement shall not be billed under the dissolution retainer agreement and are not eligible for an award of counsel fees pursuant to paragraph (c) of the Rule. Rule 1:21-7 provides that the contingent fee arrangement for tort actions against family members shall not be greater than 33 1/3 of the first $500,000 recovered; 30% on the next $500,000; $25% on the next $500,000; 20% on the next $500,000, and amounts recovered in excess of these figures, upon application to the court in accordance with R. 1:21-7(f).

In many respects, the Rule commemorates the existing law regarding the power of the court to award counsel fees in family law matters. The court has the discretion to make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed just, any successful party, on any claim for divorce, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of interspousal agreements "relating to family type matters" and claims relating to family type matters between unmarried persons. A pendente lite award may include a fee based upon the evaluation of prospective services likely to be performed and the respective financial circumstances of the parties. In this regard, take a moment to review your form of affidavit/certification of services. Does it adequately describe your experience and background so as to substantiate your hourly rate? Does it clearly set forth what services you expect to provide in the future and the cost of such prospective services? Have you adequately made a showing of your client’Äôs financial circumstances to substantiate his or her need for a counsel fee award?

The court now has the power, pendente lite, to order a sale or encumbering of marital assets to fund the litigation. Upon a showing of "good cause", the court may "direct the parties to sell, mortgage, or otherwise encumber or pledge marital assets to the extent the court deems necessary to permit both parties to fund the litigation."

In determining the amount of the counsel fee award, in addition to the information required by Rule 4:42-9, the court is to consider (a) the financial circumstances of the parties; (b) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (c) the reasonableness and good faith of the positions advanced by the parties; (d) the extent of the fees incurred by both parties; (e) any fees previously awarded; (f) the amount of fees previously paid to counsel by each party; (g) the results obtained; (h) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (i) any other factor bearing on the fairness of an award. You must craft your fee applications, particularly your affidavit/certification of services, so as to refer to each of these factors.

You can withdraw from representation prior to the fixing of the trial date or ESP date, whichever is earlier, with the client’Äôs consent and in accordance with Rule 1:11-2(a)(1). If the client does not consent, you may withdraw only upon leave of court as provided for in subparagraph (2).

Rule 1:11-2(a)(1) provides that if an attorney seeks to withdraw with the consent of the client prior to the fixing of the trial or ESP date, a substitution of attorney must be filed naming the substituted attorney or indicating the client will appear pro se. If the client will appear pro se, the withdrawing attorney must file the substitution. An attorney retained by a client who had appeared pro se must file the substitution.

Rule 1:11-2(a)(2) does not apply in a family law action. It permits an attorney to withdraw after a trial date is fixed in a civil action, without leave of court, upon the filing of the client’Äôs written consent, a substitution of attorney executed by both withdrawing and substituted counsel, a written waiver by all parties of notice and the right to be heard, and a certification by both withdrawing and substituting attorneys that the withdrawal/substitution will not cause or result in delay. Again, this provision of the Rule IS NOT applicable in a family law action.

After the trial date or ESP hearing date has been fixed, whichever first occurs, an attorney must file a motion for such relief upon notice to all parties. The motion must be supported by the attorney’Äôs affidavit/certification setting forth the reasons for the request and the written, signed retainer agreement must be annexed. The court shall consider, among other relevant factors, (a) the terms of the written retainer agreement and whether the attorney or the client has breached the terms of the agreement; (b) the age of the action; (b) the "imminence" of the ESP hearing date or the trial date; (c) the complexity of the issues; (d) the ability of the client to timely retain substituted counsel; (e) the amount of fees already paid; (f) the likelihood the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; (g) the burden on the attorney if the request to withdraw was not granted; and (h) the prejudice to the client or to any other party.

Over the past twenty years, notwithstanding Kriegsman v. Kriegsman, 150 N.J. 474 (1977), I have heard numerous anecdotal references to withdrawal applications being denied. While we must await the court’Äôs actual implementation of these new factors in considering withdrawal applications, I suspect that such applications, when made reasonably early in an action, will be more favorably viewed.

Like it or not, differentiated case management has come to the Family Part. You need to be aware of and adapt your office procedures to accommodate the different discovery time limits applicable to each track. Except for summary actions, all family actions will be assigned to "Priority", "Complex", "Expedited", or "Standard" Tracks.

Priority Track. The action will be assigned to this track if it involves "contested custody or parenting time issues".

Complex Track. If "it appears likely" that the case will require a disproportionate expenditure of court and litigant resources in preparation for trial and at trial because of the number of parties involved, the number of claims/defenses raises, the legal difficulty of the issues presented, the factual difficulty of the subject matter, the length and complexity of discovery, or a combination of these or other factors, it will receive the Complex Track designation.

Expedited Track. If it appears that the case can be promptly tried with minimal pretrial proceedings, including discovery, it will be assigned to the Expedited Track. Subject to reassignment under paragraph (c) of the rule, dissolution cases will be assigned to this track if (A) there is no dispute as to either the income of the parties or the identifiable value of the marital assets and not issue of custody of parenting time has been raised, (B) the parties have been married less than five years and have no children, (C) the parties have entered into a written property settlement agreement, or (D) the action is uncontested.

Standard Track. Any action not qualifying for assignment to the other tracks shall be assigned to the Standard Track.

The Family Presiding Judge or his/her designee shall make the track assignment as soon as practicable after all parties have filed their CIS or after the case management conference, whichever first occurs. The assignment may not precede the filing of the first responsive pleading. In making the track assignment, "due consideration" shall be given to an attorney’Äôs request for a specific track. If all counsel agree on the track assignment the case shall not be assigned to a different track, except for good cause and after giving all counsel the opportunity to be heard in writing or orally. If the most appropriate track assignment is not clear, the case shall be assigned the track that affords "the greatest degree of management".

Either on the court’Äôs own motion or on application of any party, a case may be reassigned to a different track. Unless the court otherwise directs, this application may be made informally to the Family Presiding Judge or his/her designee and shall state with specificity the reasons therefor.

Except for summary actions, discovery shall be completed within 90 days from the date of service of the original complaint in actions assigned to the expedited track and within 120 days if assigned to the standard track. In actions assigned to the priority or complex track, the case management order shall prescribe the time for completion of discovery. Each of us must develop new "form" letters and time "tickler" systems to send out interrogatories, demands for admissions, demands for production, and other discovery, as well as follow-up for each of these discovery techniques.

In cases receiving Priority or Complex Track assignments, an initial case management conference (hereafter CMC), shall be held within 30 days after the expiration of the time for the last permissible responsive pleading or as soon thereafter as is practicable considering the number of parties if any added or impleaded, "among other factors". The conference may be by telephone. Following the CMC, the court shall enter an initial case management order fixing a schedule for "initial" discovery, requiring other parties to be joined, if necessary, narrowing the issues in dispute, if possible, and scheduling a second CMC to be held after the close of the initial discovery period. The second case management order shall, among other determinations, fix a "firm trial date".

In cases receiving Standard or Expedited Track assignments, the CMC shall be held within 30 days after the expiration of the time for the last permissible responsive pleading. The attorneys "actually responsible for the prosecution and defense of the case shall participate in the CMC and the parties shall be available in person or by telephone". The conference may be by telephone. After the CMC, the court shall enter a case management order fixing a discovery schedule and a firm trial date. Additional CMCs may be held in the court’Äôs discretion and for good cause shown on its own motion or a party’Äôs request. You may recall that pursuant to Rule 5:3-5, the name of the attorney having primary responsibility for the file must be identified in the retainer agreement. Rule 5:5-6 now requires that attorney to actually appear and participate in the CMC. It appears that you may not send an associate or another attorney in your office to a CMC in a case assigned to the Standard or Expedited Track. However, paragraph (a) of the Rule pertaining to Priority and Complex Track case assignments does not mandate the appearance of the "attorney actually responsible for the prosecution and defense" of the case.

Motion Practice. Rule 5:5-4. We can no longer prepare and file novelettes in support of or in opposition to motions. Unless the court otherwise permits for good cause shown and except for affidavit of services, a certification in support of a motion "shall not" exceed 15 pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed 25 pages. A reply certification to opposing pleading shall not exceed 10 pages. Please note that the Rules do not permit sur-replys or replies to replies, regardless of nomenclature.

Bifurcation of trial of the marital dissolution or custody dispute from trial of disputes over support and equitable distribution shall be permitted only with the approval of the Family Presiding Judge; that approval shall only be granted in extraordinary circumstances and for good cause shown.

The Rule requiring mandatory mediation of custody and visitation actions has not changed substantively. The only change is a provision that prohibits the individual serving as the mediator from subsequently acting as an evaluator for any court-ordered report and from making any recommendation to the court respecting custody or parenting time.

If the court determines that disposition of an issue will be assisted by expert opinion, whether or not the parties propose to offer or have offered their own experts’Äô opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist, or other health or mental health professional it designates. No such appointment shall be made of an expert who is providing or has provided therapy to any member of that person’Äôs family.

We all have been frustrated in dealing with a litigant who has interfered with visitation/parenting time. We have all heard Family Part judges assert that there is no such thing as "compensatory" or "make-up" visitation. How often have we told clients that the court can’Äôt "force" a litigant to exercise visitation? How often have we complained that enforcement orders must have "teeth"? As of April 5, 1999, the court has broad powers to add "teeth" to their orders. As of April 5, 1999, compensatory parenting time may be used by the court in formulating relief for violation of its parenting time orders; a litigant who fails to appear for a scheduled visitation may be required to pay the other party for the actual cost of providing substituted child care and the like. We should all modify our motions for enforcement to incorporate each of the possible items of relief provided for in Rule 5:3-7. A litigant who has interfered with custody or parenting time may be incarcerated. A litigant who has failed to pay support may lose his or her occupational license and driver’Äôs license.

Upon a finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided in R. 1:10-3, (Relief to Litigant), any of the following remedies, either singly or in combination: (A) compensatory time with the children; (B) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’Äôs failure to appear for scheduled visitation such as child care expenses incurred by the other parent; (C) modification of transportation arrangements; (D) pick-up and return of the children in a public place (presumably for verification purposes); (E) counseling for the children, parent or parents at the expense of the parent in violation of the order; (F) temporary or permanent modification of the custodial arrangement provided that such relief is in the best interests of the children; (G) participation by the violating parent in an approved community service program; (H) incarceration, with or without work release; (I) issuance of a warrant to be executed upon the further violation of the judgment or order; and (J) any other appropriate equitable remedy.

Upon a finding that a party has violated an alimony or child support order, in addition to the Rule 1:10-3 remedies, the court may grant any of the following remedies, singly or in combination: (A) fixing the amount of arrears and entering judgment upon which interest accrues; (B) requiring payment of arrears on a periodic basis; (C) suspension of an occupational license or driver’Äôs license consistent with law; (D) economic sanctions; (E) participation by the violating party in an approved community service program; (F) incarceration, with or without work release; (G) issuance of a warrant to be executed upon the further violation of the judgment or order; and (H) any other appropriate equitable remedy.

You must now prepare and attach to the complaint or your first responsive pleading, an Affidavit of Insurance Coverage. This affidavit must list all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowners’Äô insurance. The affidavit shall specify the name of the carrier, policy number, named insured, and if applicable, other persons covered by the policy, a description of the coverage including policy term, if applicable, and in the case of life insurance, identification of the named beneficiaries. The affidavit must also specify whether any insurance coverage has been canceled or modified within the 90 days preceding its date and, if so, a description of the canceled insurance coverage. The Rule specifically mandates that all insurance coverage identified in the affidavit shall be maintained pending further order of the court.

Each party must file the C.I.S. with the clerk in the county of venue within 20 days after the filing of an answer or appearance. The court on either its own or a party’Äôs motion may, dismiss a party’Äôs pleading for failure to file a C.I.S. If dismissed, the pleadings will be subject to reinstatement upon such conditions as the court may deem just.

The Committee and the Supreme Court have heard our complaints about interrupted trials. "Insofar as practicable", family actions should be tried continuously to conclusion and, in the absence of exigent circumstances, shall be so tried in counties having four or more, full-time, Family Part judges. The Supreme Court concurred in the clarification of this Rule by the Special Committee that "[f]or a day to count as a qualified court day [for purposes of determining whether a trial is continuous], the trial must be conducted for at least a three-hour block of time (allowing for a lunch break) on that day".

April 5, 1999 is fast approaching. The new rules will substantially affect the practice of family law. Please read the Rules. Prepare and amend your retainer agreement. Draft a form of Affidavit of Insurance Coverage. Be aware of the new discovery time limitations, the limits upon the length of certifications. Assume that your adversary will know the new rules and how to apply them.