Document 45468
Law Office of James B. Lesperance, Jr. The Chocolate Factory Suite 203, Building 1 20 Prospect Street Ballston Spa, New York 12020 Office: (518) 885-‐2902 Fax: (518) 885-‐2903 Cell: (518) 257-‐0201 [email protected] Mailing Address: P.O. Box 139 Ballston Spa, New York 12020 Visit the firm at www.upstatenewyorkfamilylaw.com and www.upstatenewyorkfamilylawyerblog.com Business hours: 9:00am to 9:00pm, Monday through Friday; By Appointment Only Date, Year Service via electronic means is not accepted RETAINER AGREEMENT THIS IS A LEGALLY BINDING CONTRACT! PLEASE READ IT CAREFULLY! This retainer agreement is entered into between JAMES B. LESPERANCE, JR., ESQ., referred to in this retainer agreement as the “Attorney", and CLIENT'S FULL NAME, referred to in this retainer agreement as the “Client". "A lawyer's time and advice are his stock in trade." -Abraham Lincoln (famous lawyer) Article 1. TABLE OF CONTENTS Part 1. The Attorney-Client Relationship Part 2. The Expenses of the Litigation Part 3. The Preparation for the Litigation Part 4. The Course of the Litigation Part 5. The Objectives of the Litigation Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 1 of 50 Pages 4-17 Pages 18-26 Pages 27-33 Pages 34-46 Pages 46-50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Part 1. The Attorney-Client Relationship: Article 2. Preface Article 3. The Free Initial Consultation Article 4. The Nature of the Legal Services to be Rendered to the Client by the Attorney Article 5. The Client's Responsibility to Conserve the Retainer Payment Article 6. The Terms of Legal Representation Article 7. The Retainer Payment Article 8. The Failure of the Client to Pay to the Attorney the Retainer Payment in Full Article 9. The Retainer Payment is Refundable Article 10. The Retainer of the Attorney by the Client and the IOLA Account Article 11. The Commencement of the Attorney's Services Article 12. Confidentiality Article 13. The Attorney's Availability to the Client Article 14. The Attorney's and the Client's Reciprocal Rights and Responsibilities Article 15. Termination or Withdrawal of Representation Article 16. Rules of Professional Conduct Regarding an Attorney's Termination of Representation Article 17. Fee Disputes Article 18. The Free Lunch Pages 4-17 Pages 4-6 Page 6 Page 6 Pages 6-7 Pages 7-8 Page 8 Pages 8-9 Page 9 Page 9 Pages 9-10 Page 10 Pages 10-11 Pages 11-13 Pages 13-14 Pages 15-16 Pages 16-17 Page 17 Part 2. The Expenses of the Litigation: Pages 18-26 Article 19. The Client's Understanding of the Attorney's Billable Hours Page 18 Article 20. The Schedule of Established Office Charges Pages 18-19 Article 21. The Schedule of Established Travel Charges in the Capital Region Pages 19-21 Article 22. The Schedule of Established Travel Charges in the Greater Capital Region Pages 21-23 Article 23. Monthly Billing of the Client for Services Rendered by the Attorney Page 23 Article 24. Semi-Monthly Withdrawals from the Retainer Payment by the Attorney Pages 23-24 Article 25. Disbursements Page 24 Article 26. Court Fees Page 24 Article 27. The Replenishment Payment Pages 24-25 Article 28. The Failure of the Client to Pay to the Attorney Any Replenishment Payment in Full Page 25 Article 29. The Final Replenishment Payment is Refundable in Whole or in Part to the Client Page 25 Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 2 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 30. Article 31. Article 32. The Trial Retainer Additional Expenses Other Fee Provisions Pages 25-26 Page 26 Page 26 Part 3. The Preparation for the Litigation: Article 33. Client Meetings Article 34. Client Contact Article 35. Third-Party Contacts Article 36. Review of Documents Article 37. Legal Research Article 38. Contact with the Opposing Party in the Litigation Article 39. Contact with Third-Parties in the Litigation Article 40. Preparing for a Court Appearance Article 41. Preparing for Depositions Article 42. Preparing for Trial Article 43. The Client’s Dress, Appearance, and Conduct Article 44. The Client’s Conduct in the Courthouse Article 45. The Client’s Conduct in the Courtroom Article 46. The Client’s Conduct During the Course of the Litigation Article 47. The Client’s Journal Pages 27-33 Page 27 Pages 27-28 Page 28 Page 28 Pages 28-29 Page 29 Page 29 Page 30 Pages 30-31 Page 31 Page 31 Pages 31-32 Page 32 Page 33 Page 33 Part 4. The Course of the Litigation: Article 48. Getting Started Article 49. The Initial Appearance Article 50. The Financial Disclosure Affidavit and the Statement of Net Worth Article 51. Attorneys for Children Article 52. The Function of the Attorney for the Child Article 53. The Summary of Responsibilities of the Attorney for the Child Article 54. Court Appearances Article 55. Discovery Article 56. Motion Practice Article 57. Depositions Article 58. Experts Article 59. Psychological Examinations and Costs Article 60. Parenting Classes and Costs Article 61. Anger Management Classes and Costs Article 62. Substance Abuse Testing and Costs Article 63. In-Patient and Out-Patient Treatment or Rehabilitation and Costs Article 64. Notorious Counsel Article 65. Difficult Judges Article 66. Court Calendars Pages 34-46 Pages 34-35 Page 35 Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 3 of 50 Page 36 Pages 36-37 Pages 37-38 Page 38 Pages 38-39 Page 39 Pages 39-40 Page 40 Pages 40-41 Page 41 Pages 41-42 Pages 42-43 Page 43 Pages 43-44 Page 44 Page 44 Pages 44-45 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 67. Article 68. The Trial Lincoln Hearings Page 45 Pages 45-46 Part 5. The Objectives of the Litigation: Article 69. Other General Provisions Article 70. Understanding and Acknowledgment Article 71. The Purpose of the Attorney's Services Article 72. The End of the Attorney's Services Article 73. Appeal of Matter Article 74. Notice of Appeal Article 75. Closing Pages 46-50 Pages 46-47 Pages 47-48 Page 48 Page 48 Page 49 Page 49 Pages 49-50 Part 1. THE ATTORNEY-CLIENT RELATIONSHIP: Article 2. PREFACE This is a lengthy (50-page) legal document. As such, the Attorney has taken great care to include as much information as possible in this document so that the Client may become as fully-informed as possible as to all of the prominent aspects of litigation that are most commonly found in family law proceedings and matrimonial law actions, in the various courts of the state of New York. Therefore, this document is very large and should be read very carefully. Nevertheless, this document does not in any way represent to the Client to be so comprehensive as to include all possible matters which one may encounter in the court system of the state of New York. Such a document would be next to impossible to create and be quite voluminous indeed. This retainer agreement carefully explains the five (5) essential aspects of the legal services for which the Client is retaining the Attorney: 1) the attorney-client relationship; 2) the expenses of the litigation; 3) the preparation for the litigation; 4) the course of the litigation; and 5) the objectives of the litigation. Therefore, it is essential that the Client very carefully read the entirety of this retainer agreement. Most importantly of all, if the Client has any questions about any legal topic at any time, it is absolutely necessary, in order for the Attorney to properly represent the Client, for the Client to ask the Attorney such questions, and it is absolutely necessary for the Attorney to provide timely and knowledgeable answers to the Client regarding such questions. This interchange of questions and answers by and between the Client and the Attorney is the crux of the Attorney-Client relationship and should always be kept everpresent in the minds of both the Attorney and the Client. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 4 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The goal of the Attorney in representing the Client is to make sure that the Client is as fully-informed as possible throughout the duration of the litigation, so that the Client may make educated decisions, which the Client may then have to live with for the rest of the Client's life. Commencing a legal action or authorizing a law firm to act on the Client's behalf with respect to the Client's marital or family situation is a very serious matter, with potentially far-reaching consequences for all of the members of the Client's family, and should be undertaken only after serious consideration, substantial soul-searching, and full exploration of all available alternatives by the Client. Professional marriage counseling, family counseling, or simply reopening direct lines of communication with the Client's spouse, through civil and productive discourse, may very well resolve many marital or familial difficulties and result in a desired reconciliation or resolution. On the other hand, premature legal action or the engagement of attorneys can often needlessly impede such conciliatory efforts and polarize the parties substantially. Frankly, retaining the services of an attorney to resolve a marital or family situation should always be a last resort, undertaken only after all other constructive measures to address the problems of the Client have failed. This is so because, ultimately, the Client, by engaging the services of the Attorney, is choosing to delegate, in part, the responsibility of resolving the Client's problems to the Attorney and, more importantly, to a judge, of whom the Client very likely knows nothing about. The Client, by signing this retainer agreement, and engaging the services of the Attorney, represents to the Attorney that all possible alternatives have been considered and that the Client is absolutely certain that the Attorney's legal services are desired at this time. Alternatively, the Client represents to the Attorney that a definite decision to retain the Attorney has been made to protect the Client's legal interests against actual or potential action by the Client's spouse or other party or parties. The Client should not engage the Attorney's services unless the Client is absolutely certain that the Client wishes to pursue legal action or negotiation with respect to the Client's marital or family situation. Lastly, while it is understood that this is a lengthy legal document, there are eight (8) articles of particular importance which have been highlighted in yellow. Those articles are as follows: 1. 2. 3 4. 5. 6. Article 3. Article 5. Article 11. Article 12. Article 18. Article 19. The Free Initial Consultation The Client's Responsibility to Conserve the Retainer Payment The Commencement of the Attorney's Services Confidentiality The Free Lunch The Client’s Understanding of the Attorney’s Billable Hours Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 5 of 50 Pages 5-6 Pages 6-7 Page 9 Pages 9-10 Page 17 Page 18 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 7. 8. Article 71. Article 72. The Purpose of the Attorney's Services The End of the Attorney's Services Page 48 Pages 48-49 It is absolutely essential that the Client be fully familiar with the entirety of these eight (8) articles, in order for the Client to have a full understanding of the crux of the relationship between the Attorney and the Client. Article 3. THE FREE INITIAL CONSULTATION After almost twenty (20) years of practicing law, the Attorney has reached the conclusion that the most conscientious and cost-efficient way to address the Client's legal needs is for the Attorney to provide free to the Client a single hour of the Attorney's time as an initial consultation. Once the free single hour of initial consultation has been provided by the Attorney to the Client, the Attorney's standard rate of $100.00 per hour commences. Furthermore, any and all efforts expended by the Attorney, for the benefit of the Client, if undertaken prior to the Client's initial consultation with the Attorney, will also be considered to be free professional legal services, provided free of charge to the Client by the Attorney. If, at the end of this free single, one (1) hour initial consultation, the Client decides not to retain the Attorney, the Client will owe the Attorney no money for the initial consultation. Article 4. THE NATURE OF THE LEGAL SERVICES TO BE RENDERED TO THE CLIENT BY THE ATTORNEY This retainer agreement hereby confirms that the Client has retained this Attorney to represent the Client with respect to either a matrimonial law action or family law proceedings, including any attempt to resolve or negotiate a settlement of these issues. The Client fully understands that this retainer agreement does not apply to any matter that is not specifically and explicitly mentioned in this retainer agreement. The Client further understands that this retainer agreement does not apply to any appeals or post-judgment actions, proceedings, or applications and that, if such an engagement were to be accepted by the Attorney in the future, the Attorney's representation would have to be secured by execution of another and separate retainer agreement. However, the retainer agreement herein in no way requires nor otherwise obligates the Attorney to accept any such engagement in the future. Article 5. THE CLIENT'S RESPONSIBILITY TO CONSERVE THE RETAINER PAYMENT Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 6 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 It is extremely important for the Client to constantly bear in mind that the retainer payment can be very easily and very quickly exhausted through the Attorney's rendering of legal services to the Client. Therefore, the Client should refrain from expending any more of the retainer payment than is absolutely necessary. One of the easiest ways for the Client to very quickly exhaust the retainer payment is for the Client to contact the Attorney either via phone or email, since each letter, fax, phone call, voice mail, and email from the Client or to the Client is billed by the Attorney to the Client at a minimum rate of $10.00 per letter, fax, phone call, voice mail, and email. By the Client keeping contact with the Attorney to an absolute minimum, as necessary, the Client can help to greatly conserve the retainer payment, enabling it to last longer, and thereby the Client will owe the Attorney less money. This warning is not in any way meant to dissuade the Client from contact with the Attorney. This warning is however meant to inform the Client that any and all contact with the Attorney will be billed to the Client at a rate of $100.00 per hour. Therefore, it logically follows that the more contact the Client has with the Attorney, the more the Attorney is going to bill the Client for such contact. If the Client has extensive contact with the Attorney, the Client should expect a larger bill. Article 6. THE TERMS OF LEGAL REPRESENTATION The Client, by the very nature of this retainer agreement, hereby authorizes the Attorney to take any and all actions, or refrain from acting, which, in the sole discretion of the Attorney, are/is deemed appropriate, essential, or necessary to protect the Client's legal interests in this matter. The Client understands that the Client is retaining the Attorney and the Attorney alone. The Client understands that the Attorney currently employs no office staff, associate attorneys, or clerical personnel, and that the Attorney is responsible for rendering all legal services to the Client. The Client agrees to fully cooperate with the Attorney in the progress and administration of the Client's case. In the event that the Client fails or refuses to cooperate with the Attorney to such a degree as to prevent the Attorney from rendering effective representation to the Client, then the Attorney may take such actions, or refrain from acting, as are/is necessary to withdraw the Attorney's representation in accordance with applicable law. The Attorney shall keep the Client regularly informed of the status of the Client's case and agrees to explain the laws pertinent to the Client's case, the various available courses of action, and the various attendant risks involved with regard to each course of action. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 7 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Attorney shall notify the Client promptly of any substantial developments in the Client's case, including all court appearances, pleadings, petitions, motions, discovery responses, and orders. The Attorney will be available to the Client for meetings and telephone conferences at mutually convenient times. The Attorney insists that the Client shall schedule appointments for all Client meetings. Unless explicitly agreed to otherwise by the Attorney, all meetings with the Client shall always occur at the Attorney's office, located at The Chocolate Factory, Suite 203, Building 1, 20 Prospect Street, Ballston Spa, New York 12020. Unless explicitly agreed to otherwise by the Attorney, all mail from the Client shall be addressed and delivered to the Attorney's official address of Law Office of James B. Lesperance, Jr., Esq., P.O. Box 139, Ballston Spa, New York 12020. Unless explicitly agreed to otherwise by the Attorney, the Attorney will not reply to texts from the Client, or any other party or parties, and the Client will not text the Attorney. Should the Client wish to contact the Attorney, the Client may contact the Attorney via letter, facsimile (fax), business phone, cell phone, or email. Copies of all legal papers received or produced by the Attorney, during the course of the Client's case, shall be supplied to the Client as they are received or prepared by the Attorney. The copies of all legal papers supplied to the Client by the Attorney shall be free of charge unless there are substantial copies to be made available to the Client. The Client agrees to pay the postage for all legal papers supplied to the Client by the Attorney. Article 7. THE RETAINER PAYMENT For the Attorney's legal representation of the Client to begin, the Client agrees to pay to the Attorney, and the Attorney has agreed to accept, a minimum retainer payment of $2,500.00. This retainer payment does not necessarily represent the amount of the total fee which may be incurred by the Client. The amount of the Attorney's fee will be based upon the Attorney's Schedule of Established Office Charges and the Attorney's Schedule of Established Travel Charges, both of which are set forth hereinbelow, along with any out-of-pocket disbursements (such as process server fees, court fees, messenger services, transcripts of proceedings, long distance telephone calls, mileage, postage, and deposition and court transcripts, among others) which may be incurred on the Client's behalf. Article 8. THE FAILURE OF THE CLIENT TO PAY TO THE ATTORNEY THE RETAINER PAYMENT IN FULL Regardless of when this retainer agreement is executed, it is specifically agreed and understood by the Attorney and the Client that unless and until such time that the Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 8 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Client tenders the retainer payment to the Attorney in full, that this retainer agreement may be treated as being a nullity. Furthermore, the Attorney reserves the right not to commence legal representation of the Client unless and until the Client tenders to the Attorney the retainer payment in full on the retainer agreement. Article 9. THE RETAINER PAYMENT IS REFUNDABLE The Client understands and is fully aware that the retainer payment of the Client to the Attorney is the minimum, refundable fee to be paid to the Attorney to secure his professional legal services. Furthermore, the Client understands that the retainer payment is fully refundable, at any time, less billable hours, costs, expenses, and disbursements by the Attorney for efforts expended on the behalf of the Client . Article 10. THE RETAINER OF THE ATTORNEY BY THE CLIENT AND THE IOLA ACCOUNT If the Client decides to retain the Attorney to provide legal representation to and for the Client, the Client shall secure the legal representation of the Attorney by tendering to the Attorney a retainer payment. Upon receiving the retainer payment from the Client, the Attorney will thereafter deposit the retainer payment into a special interest-bearing bank account for attorneys called an IOLA (escrow) Account. As the Attorney renders legal services to the Client over time, the Attorney will withdraw funds from the IOLA (escrow) Account at regular intervals, in payment for those legal services rendered to the Client. If at any point, and for whatever reason, the relationship between the Attorney and the Client is terminated or otherwise ends, the Attorney shall refund the balance of the retainer payment to the Client, less billable hours, costs, expenses, and disbursements, and the Client understands and is fully aware that the retainer payment of the Client to the Attorney is the minimum, refundable fee to be paid to the Attorney to secure his professional legal services. Article 11. THE COMMENCEMENT OF THE ATTORNEY'S SERVICES The Attorney's services for the Client commence immediately upon the Client's execution of this retainer agreement together with payment in full of the retainer payment. Most commonly, the Attorney will immediately seek to draft the legal documents necessary for the proper defense of the Client, and the Attorney will ensure that the legal documents are timely served upon the necessary parties. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 9 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 It is also the Attorney's professional obligation to timely inform both the court and the opposing attorney(s) that the Attorney has been retained by the Client. In fact, the Attorney is required to file a written Notice of Appearance with the court on or before the Attorney's first appearance in court or no later than ten (10) days after being retained by the Client, whichever is sooner [22 N.Y.C.R.R. §205.10]. Article 12. CONFIDENTIALITY The Attorney cannot reveal any Client confidences under penalty of law. The Attorney is essentially the keeper of all of the Client's secrets. There are very few exceptions to the Attorney-Client confidential relationship, the two (2) most important of which are 1) perjury (which the Attorney has a good faith reason to believe is, in fact, perjury) and 2) the intent to commit a crime (which the Attorney has a good faith reason to believe will occur). Therefore, it is of the utmost importance to the Attorney-Client relationship that all communications between the Attorney and the Client remain confidential at all times. Furthermore, any and all communications by and between the Attorney and the Client must always be ensured of confidentiality, in order to fully protect the interests of the Client. The Client needs to understand that any communication made to or received from the Attorney, wherein the Client is not alone and in private, may very likely not be a confidential communication. In other words, the Client will not have a confidential communication with the Attorney if anyone else is present to observe the communication with any of their five (5) senses. If the Client's communication with the Attorney is not confidential, then it may be revealed to the opposing party and the court!!! Article 13. THE ATTORNEY'S AVAILABILITY TO THE CLIENT The Attorney represents to the Client that the Attorney will endeavor to be available to the Client, by phone or email, between the hours of 9:00am and 9:00pm, Monday through Friday, with the exception of holidays that fall on a weekday. The Attorney represents to the Client that the Attorney will endeavor to be available to the Client, in person, between the hours of 9:00am and 9:00pm, Monday through Friday, to the extent that the Attorney is able, and to the extent that the Client has previously scheduled an appointment to meet with the Attorney, with the exception of holidays that fall on a weekday. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 10 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Attorney represents to the Client that the Attorney will endeavor to return all of the Client's telephone call messages and cell phone voice mail messages as soon as the Attorney is able. The Attorney represents to the Client that the Attorney will endeavor to reply to all of the Client's letters, facsimiles (faxes), and emails as soon as the Attorney is able. The Attorney represents to the Client that the Client may contact the Attorney twenty-four (24) hours a day, in the event of an emergency, so long as the Client is discreet with regard to the time and number of such calls. The Client understands and acknowledges that the Attorney has many other clients who demand the Attorney's attentions and that the Attorney simply cannot contact the Client more than one or two times per week, with the exceptions of emergencies. The Client understands and acknowledges that the Client shall refrain from unnecessary and unwarranted communications with the Attorney, in order for the Client to be responsible and for the Client to conserve the retainer payment. Article 14. THE ATTORNEY'S AND THE CLIENT'S RECIPROCAL RIGHTS AND RESPONSIBILITIES The Attorney and the Client have certain reciprocal rights and responsibilities to one another. If the Client ever has any questions about these rights, or about the way the Client's case is being handled, the Client should not hesitate to ask the Attorney. The Attorney will be readily available to represent the Client's best interests and keep the Client informed about your case. The Attorney may not refuse to represent the Client on the basis of race, creed, color, sex sexual orientation, age, national origin or disability. The Client is entitled to be represented by an attorney who will be capable of handling the Client's case; show the Client courtesy and consideration at all times; represent the Client zealously; and preserve the Client's confidences and secrets that are revealed in the course of the Attorney-Client relationship. The Client is entitled to a written retainer agreement, which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. At the Client's request, and before the Client signs the agreement, the Client is entitled to have the Attorney clarify in writing any of its terms, or include additional provisions. The Client is entitled to fully understand the proposed rates and retainer fee before the Client signs the retainer agreement, as in any other contract. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 11 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Client may refuse to enter into any fee arrangement that the Client finds unsatisfactory. The Attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained. The Attorney many not request a retainer fee that is non-refundable. That is, should the Client discharge the Attorney, or should the Attorney withdraw from representing the Client, before the retainer is used up, the Attorney is entitled to be paid by the Client commensurate with the work performed on the Client's case and any expenses, but the Attorney must return the balance of the retainer to the Client. However, the Attorney may enter into a minimum fee arrangement with the Client that provides for the payment of a specific amount below which the fee will not fall based upon the handling of the case to its conclusion. The Client is entitled to know the approximate number of attorneys and other legal staff members who will be working on the Client's case at any given time and what the Client will be charged for the services of each. The Client is entitled to know in advance how the Client will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent. At the Client's request, and after the Attorney has had a reasonable opportunity to investigate the Client's case, the Client is entitled to be given an estimate of approximate future costs of the Client's case, which estimate shall be made in good faith but may be subject to change due to facts and circumstances affecting the case. The Client is entitled to receive a written, itemized bill on a regular basis, at least every sixty (60) days. The Client is expected to review the itemized bills sent by the Attorney, and to raise any objections with the Attorney or errors in a timely manner. Time spent or explanation of bills will not be charged to the Client. The Client is expected to be truthful in all discussions with the Attorney, and to provide all relevant information and documentation to enable the Attorney to competently prepare the Client's case. The Client is entitled to be kept informed of the status of the Client's case, and to be provided with copies of correspondence and documents prepared on the Client's behalf or received from the court or the Client's adversary. The Client has the right to be present in court at the time that conferences are held. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 12 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Client is entitled to make the ultimate decision on the objectives to be pursued in the Client's case, and to make the final decision regarding the settlement of the Client's case. The Attorney’s written retainer agreement must specify under what circumstances the Attorney might seek to withdraw as the Attorney for non-payment of legal fees by the Client. If an action or proceeding is pending, the court may give the Attorney a “charging lien,” which entitles the Attorney to payment for the services already rendered at the end of the case of the proceeds of the final order or judgment. The Client is under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on the Client's home to cover legal fees. The Attorney’s written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by the Attorney without prior court approval and notice to the Client's adversary. The Attorney’s security interest in the marital residence cannot be foreclosed against the Client. The Client is entitled to have the Attorney’s best efforts on the Client's behalf, but no particular results can be guaranteed. If the Client entrusts money with the Attorney for an escrow deposit in the Client's case, the Attorney must safeguard the escrow in a special bank account. The Client is entitled to a written escrow agreement, and may request that one or more interest-bearing accounts be used. The Client is are entitled to a written receipt and a complete record concerning the escrow from the Attorney. When the terms of the escrow agreement have been performed, the Attorney must promptly make payment of the escrow to all persons who are entitled to it. In the event of a fee dispute, the Client has the right to seek arbitration. The Attorney will provide the Client with the necessary information regarding arbitration in the event of a fee dispute, or upon the Client's request. Article 15. TERMINATION OR WITHDRAWAL OF REPRESENTATION Notwithstanding any other aspect or provision of this retainer agreement, if the Attorney-Client relationship is terminated without the Client's case having been concluded, by the Client's reconciliation with the Client's spouse, by the Client's discharge of the Attorney, or by the Attorney withdrawing the Attorney's representation from the Client, then a fair and reasonable fee would thereafter be determined in accordance with legally-accepted standards. Currently, the legally-accepted standards are based upon the legally-recognized elements of a reasonable fee, as set forth in the Code of Professional Responsibility, as follows: Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 13 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 1. The time and labor required, the novelty and difficulty of the legal questions involved, and the skill requisite to perform the legal service properly; and 2. The likelihood, if apparent or made known to the Client, that the acceptance of the particular employment will preclude other employment by the Attorney; and 3. The fee(s) customarily charged in the locality for similar legal services; and 4. Client; and 5. The amount of time and money involved and the results obtained for the The time limitations imposed by the Client or the circumstances; and 6. The nature and the length of the Attorney's professional relationship with the Client; and 7. The experience, reputation, and ability of the Attorney performing the legal services for the Client. The Client is advised that if, in the judgment of the Attorney, the Attorney decides that there has been an irretrievable breakdown in the Attorney-Client relationship, or a material breach of the terms of this retainer agreement, then the Attorney may make application to the court to be relieved as the Client's Attorney. If such an event occurs, the Client will be provided with notice from the Attorney of the application by the Attorney to be relieved as the Client's Attorney, and the Client will have an opportunity to be heard by the court, if necessary. In the event that any bill or amount due, submitted to the Client by the Attorney, remains unpaid beyond one (1) month, the Client understands that the Attorney may, at the Attorney's option, and subject to applicable law and procedures, including application for judicial permission where required, seek to withdraw the Attorney's representation of the Client. Furthermore, the Client understands that the Client may discharge the Attorney at any time, for whatever reason, and, in such event, the Client will only be charged by the Attorney for the billable hours and costs incurred by the Attorney on behalf of the Client, up to and including the moment of discharge of the Attorney by the Client. Of course, in the event that, at the time of the Client's discharge of the Attorney, the Attorney has not earned the full amount of any sum or sums advanced by the Client to the Attorney, then such unearned sum or sums shall be returned to the Client by the Attorney. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 14 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 16. RULES OF PROFESSIONAL CONDUCT REGARDING AN ATTORNEY'S TERMINATION OF REPRESENTATION Notwithstanding any other aspect or provision of this retainer agreement, the Client is advised by the Attorney that the issue of an Attorney terminating the representation of a Client is governed by the Rules of Professional Conduct, and particularly by Rule 1.16 [22 N.Y.C.R.R. §1200.15(1.16)], which provides as follows: "Declining or Terminating Representation" (a) A lawyer shall not accept employment on behalf of a person if the lawyer knows or reasonably should know that such person wishes to: (1) bring a legal action, conduct a defense, or assert a position in a matter, or otherwise have steps taken for such a person, merely for the purpose of harassing or maliciously injuring any person; or (2) present a claim or defense in a matter that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of existing law, (b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when: (1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; (3) the lawyer is discharged; or (4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person. (c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 15 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action with which the lawyer has a fundamental disagreement; (5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees; (6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; (7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively; (8) the lawyer’s inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal; (9) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively; (10) the client knowingly and freely assents to termination of the employment; (11) withdrawal is permitted under Rule 1.13(c) [Organization as a Client] or other law (12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or (13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules. (d) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal without its permission. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (e) Even when withdrawal is otherwise permitted or required, upon termination of representation, a lawyer shall take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable laws and rules. Article 17. FEE DISPUTES Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 16 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 While the Attorney seeks to avoid any fee disputes with the Client, and rarely have such disputes arisen in the past with other clients, in the event that such a fee dispute does arise, the Client is hereby advised by the Attorney that the Client has the right, at the Client's election, to seek arbitration to resolve the fee dispute. The Client fully understands that the Attorney will provide to the Client a Statement of Services on or about the first of each and every month during the pendency of the litigation. The Attorney will request that the Client review the entirety of the Statement of Services and return to the Attorney a copy of the Statement of Services signed by the Client (in a self-addressed stamped envelope for this purpose), indicating that the Client has reviewed the Statement of Services, that the Client agrees that the information found within the Statement of Services is correct, and that the Client agrees that the total amount of the bill, as contained within the Statement of Services, is correct. In such an event, or at the request of the Client, the Attorney shall advise the Client in writing, by certified mail, that the Client has thirty (30) days from the receipt of such notice in which to elect to resolve the dispute by arbitration, and the Attorney shall enclose a copy of the arbitration rules and a form for requesting arbitration. The arbitration decision is binding upon both the Client and the Attorney. Article 18. THE FREE LUNCH Who says there’s no such thing as a free lunch? There is with this Attorney. The practice of law should be both civilized and social. Therefore, on occasion, time permitting, and especially after a court appearance near lunch, or a lunch break between parts of a deposition or a hearing or trial, this Attorney finds that it is most congenial for both the Attorney and the Client to be able to relax over a decent lunch and leisurely discuss the various aspects of the Client’s case. Over many such lunches, the Attorney has found that sometimes new insights into the Client’s case come forth in such an informal and unhurried setting, which sometimes proves to be greatly beneficial to the Client’s case. One of the reasons this Attorney charges $100.00 per hour is because this Attorney does not discount the bill to the Client. This Attorney knows that many attorneys who charge more than this Attorney does often resort to discounting their bills to their clients to make an otherwise exorbitant bill more palatable to their client. This Attorney does not believe in discounts just as this Attorney does not believe in high hourly billing rates. Therefore, the only discounts on a Client’s bill which this Attorney will consider are already a part of the retainer agreement: namely, the single, one (1) hour free initial consultation and the single, one (1) hour free lunch. Any and all additional free lunches are strictly at the discretion of the Attorney. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 17 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Part 2. THE EXPENSES OF THE LITIGATION: Article 19. THE CLIENT'S UNDERSTANDING OF THE ATTORNEY'S BILLABLE HOURS The Client further understands that the Attorney's hourly rate of $100.00 per hour applies to all time expended relative to the Client's case, including but not limited to: office meetings and conferences (either with the Client or with attorneys); telephone calls and conferences (either placed by the Client or otherwise made on the Client's behalf or related to the Client's case); the preparation, review, and revision of email, faxes, correspondence, petitions, pleadings, motions, affidavits, affirmations, exhibits, discovery demands, discovery responses, orders, notices, or any other documents, memoranda, or papers relative to the Client's case; legal research; court appearances; conferences; file review; preparation time; travel time; and any other time expended on behalf of the Client or in connection with the Client's case. In short, everything that the Attorney does for the Client is billed to the Client at an hourly rate of $100.00 per hour. Article 20. THE SCHEDULE OF ESTABLISHED OFFICE CHARGES After almost twenty (20) years of practicing law, the Attorney has reached the conclusion that the most conscientious and cost-efficient way to bill the Attorney's legal services to the Client is at the rate of $100.00 per hour in increments of tenths of an hour. Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6) minutes of the Attorney's time. It should be noted by the Client that the standard hourly billing rate for attorneys in the Capital District amounts to flat fees in some instances but most often falls within a range of from $100.00 to $300.00 per hour. It is the Attorney's belief that legal services should be readily available to all people who require them. As such, and because the local, regional, state, and national economies are largely in recession, the Attorney's rate of $100.00 per hour is extremely competitive and relatively fair, especially given the Attorney's expertise in the field and the Attorney's years of experience. Furthermore, a rate of $100.00 per hour is very easy to comprehend in terms of multiples of hours and fractions of hours. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 18 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 It should also be noted that attorneys working for the counties as public defenders, or for the state as attorneys for children, are paid $75.00 per hour, plus expenses and disbursements, by the counties and state for services rendered to the clients to whom they are assigned by the courts. As such, this Attorney's standard hourly billing rate of $100.00 per hour is extremely reasonable and cost-effective. The minimum charges as set forth herein have been arrived at as a result of determining the average amount of time involved in retrieving the Client's file, examining documents in the Client's file, drafting documents concerning the Client's case, and responding to each call, in addition to the amount of time required to consider the problem arising from or to be dealt with in the call or document. The Client agrees to pay the Attorney for legal services rendered to the Client by the Attorney in accordance with a Schedule of Established Office Charges which is set forth as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Charge for the initial (one (1) hour) consultation...........................................FREE Hourly rate of the Attorney.......................................................................$100.00 Minimum increments of billing (tenths of an hour; six (6) minutes)............$10.00 Minimum charge for the review of all documents (inclusive of letters, faxes, and emails) (0.1)...................................................................................$10.00 Minimum charge for all phone calls (0.1)......................................................$10.00 Charge for each answering machine and voice mail message (0.1)...............$10.00 Minimum charge for the drafting of emails (0.1)...........................................$10.00 Minimum charge for the sending of faxes (0.1).............................................$10.00 Minimum charge for the drafting of letters (0.3)...........................................$30.00 Minimum charge for the drafting of pleadings (2.0)....................................$200.00 Minimum charge for the drafting of discovery (0.5)......................................$50.00 Minimum charge for the drafting of motions (2.0)......................................$200.00 Minimum charge for the drafting of orders (1.0).........................................$100.00 Minimum charge for preparing for all court appearances (0.3)……………$30.00 Minimum charge for court appearances [not including travel] (1.0)...........$100.00 The charge for postage (inclusive of certified and overnight mail) is determined at prevailing rates. Article 21. THE SCHEDULE OF ESTABLISHED TRAVEL CHARGES IN THE CAPITAL REGION After almost twenty (20) years of practicing law, the Attorney has reached the conclusion that the most conscientious and cost-efficient way to bill the Attorney's cost of travel to the Client is at the rate of $100.00 per hour in increments of tenths of an hour. Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6) minutes of travel time. Furthermore, the Attorney shall bill the Client for the cost of travel to and from Court at a rate of $1.00 per mile. While this rate may appear relatively high, it has been Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 19 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 established so as to never be changed, regardless of the cost of fuel for motor vehicles. With fuel for motor vehicles currently at or above $4.00 per gallon, it is the Attorney's belief that this rate is reasonable. Also, all travel resulting in tenths of a mile will be rounded up to the next mile. Furthermore, a rate of $1.00 per mile is very easy to comprehend in terms of multiples of miles. Most cases take a minimum of three (3) court appearances to resolve. Some cases require many more than three (3) court appearances to resolve. In complicated or extremely litigious cases, it is not uncommon for there to be as many as ten (10) or more court appearances required to resolve the Client's case. The Attorney herein defines the Capital Region to be the four (4) county region encompassing the counties of Albany, Rensselaer, Saratoga, and Schenectady. As such, the precise amount of the total travel costs for three (3) court appearances has been determined in the Schedule of Established Travel Charges for each of the four (4) courts in the Capital Region, encompassing Albany, Rensselaer, Saratoga, and Schenectady Counties. Because of the high cost of travel outside the four (4) counties of the Capital Region, it may be more cost-effective for the Client to retain an Attorney who has offices closer to the courts in the respective counties outside the Capital Region, especially if the Client's case is complex and likely to entail many court appearances. The Client agrees to pay the Attorney for legal services rendered to the Client by the Attorney in accordance with a Schedule of Established Travel Charges which is set forth as follows: 1. Hourly rate of the Attorney.......................................................................$100.00 The Capital Region: 2. Roundtrip to Ballston Spa, New York (Saratoga County) (6 miles).............$6.00 3. Roundtrip time to Ballston Spa, New York (Saratoga County) (0.4)...........$40.00 Total travel costs for one (1) court appearance..........................................$46.00 4. 5. Roundtrip to Schenectady, New York (Schenectady County) (28 miles)....$28.00 Roundtrip time to Schenectady, New York (Schenectady County) (1.0)...$100.00 Total travel costs for one (1) court appearance........................................$128.00 6. 7. Roundtrip to Troy, New York (Rensselaer County) (50 miles)....................$50.00 Roundtrip time to Troy, New York (Rensselaer County) (1.2)..................$120.00 Total travel costs for one (1) court appearance........................................$170.00 8. Roundtrip to Albany, New York (Albany County) (60 miles)......................$60.00 Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 20 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 9. Roundtrip time to Albany, New York (Albany County) (1.2)....................$120.00 Total travel costs for one (1) court appearance........................................$180.00 The Attorney may be retained by the Client for cases venued outside the Capital Region. However, this may be inadvisable due to the extraordinary cost that will likely be incurred by the Client for the Attorney's travel to and from court appearances to these more distant courts. All roundtrip distances and roundtrip travel times are approximations of the quickest routes as ascertained via Mapquest.com and through personal experience. Furthermore, wherever possible, the Attorney will endeavor to seek out free parking and travel via non-toll roads. However, where free parking is not available and where the quickest route to the courthouse is via a toll road, the Attorney shall bill the Client for such parking and/or tolls. Obviously, the cost of travel to the courts of the Capital Region is substantially less than the cost of travel to the courts of the Greater Capital Region. Article 22. THE SCHEDULE OF ESTABLISHED TRAVEL CHARGES IN THE GREATER CAPITAL REGION After almost twenty (20) years of practicing law, the Attorney has reached the conclusion that the most conscientious and cost-efficient way to bill the Attorney's cost of travel to the Client is at the rate of $100.00 per hour in increments of tenths of an hour. Therefore, the Attorney will bill the Client at a minimum rate of $10.00 for every six (6) minutes of travel time. Furthermore, the Attorney shall bill the Client for the cost of travel to and from Court at a rate of $1.00 per mile. While this rate may appear relatively high, it has been established so as to never be changed, regardless of the cost of fuel for motor vehicles. With fuel for motor vehicles currently at or above $4.00 per gallon, it is the Attorney's belief that this rate is reasonable. Also, all travel resulting in tenths of a mile will be rounded up to the next mile. Furthermore, a rate of $1.00 per mile is very easy to comprehend in terms of multiples of miles. Most cases take a minimum of three (3) court appearances to resolve. Some cases require many more than three (3) court appearances to resolve. In complicated or extremely litigious cases, it is not uncommon for there to be as many as ten (10) or more court appearances required to resolve the Client's case. The Attorney herein defines the Greater Capital Region to be the eleven (11) region encompassing the counties of Albany, Columbia, Fulton, Greene, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie, Warren, and Washington. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 21 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 As such, the precise amount of the total travel costs for three (3) court appearances has been determined in the Schedule of Established Travel Charges for each of the seven (7) remaining courts in the Greater Capital Region, encompassing Columbia, Fulton, Greene, Montgomery, Schoharie, Warren, and Washington Counties. Because of the high cost of travel outside the four (4) counties of the Capital Region, it may be more cost-effective for the Client to retain an Attorney who has offices closer to the courts in the respective counties outside the Capital Region, especially if the Client's case is complex and likely to entail many court appearances. The Client agrees to pay the Attorney for legal services rendered to the Client by the Attorney in accordance with a Schedule of Established Travel Charges which is set forth as follows: 1. Hourly rate of the Attorney.......................................................................$100.00 The Greater Capital Region: 2. Roundtrip to Fort Edward, New York (Washington County) (64 miles).....$64.00 3. Roundtrip time to Fort Edward, New York (Washington County) (1.4)....$140.00 Total travel costs for one (1) court appearance........................................$204.00 4. 5. Roundtrip to Lake George, New York (Warren County) (66 miles)...........$68.00 Roundtrip time to Lake George, New York (Warren County) (1.4)..........$140.00 Total travel costs for one (1) court appearance........................................$208.00 6. 7. Roundtrip to Fonda, New York (Montgomery County) (64 miles)..............$64.00 Roundtrip time to Fonda, New York (Montgomery County) (1.6)............$160.00 Total travel costs for one (1) court appearance........................................$224.00 8. 9. Roundtrip to Johnstown, New York (Fulton County) (72 miles).................$72.00 Roundtrip time to Johnstown, New York (Fulton County) (1.6)................$160.00 Total travel costs for one (1) court appearance........................................$232.00 10. 11. Roundtrip to Schoharie, New York (Schoharie County) (80 miles).............$80.00 Roundtrip time to Schoharie, New York (Schoharie County) (2.0)...........$200.00 Total travel costs for one (1) court appearance........................................$280.00 12. 13. Roundtrip to Catskill, New York (Greene County) (126 miles).................$126.00 Roundtrip time to Catskill, New York (Greene County) (2.4)...................$240.00 Total travel costs for one (1) court appearance........................................$366.00 14. 15. Roundtrip to Hudson, New York (Columbia County) (124 miles)............$124.00 Roundtrip time to Hudson, New York (Columbia County) (2.6)...............$260.00 Total travel costs for one (1) court appearance........................................$384.00 Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 22 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Attorney may be retained by the Client for cases venued outside the Greater Capital Region. However, this may be inadvisable due to the extraordinary cost that will likely be incurred by the Client for the Attorney's travel to and from court appearances to these distant courts. All roundtrip distances and roundtrip travel times are approximations of the quickest routes as ascertained via Mapquest.com and through personal experience. Furthermore, wherever possible, the Attorney will endeavor to seek out free parking and travel via non-toll roads. However, where free parking is not available and where the quickest route to the courthouse is via a toll road, the Attorney shall bill the Client for such parking and/or tolls. Obviously, the cost of travel to the courts of the Capital Region is substantially less than the cost of travel to the courts of the Greater Capital Region. Article 23. MONTHLY BILLING OF THE CLIENT FOR SERVICES RENDERED BY THE ATTORNEY The Client will be billed on or about the first day of each and every month for the duration of the litigation. The Client shall be provided with a monthly Statement of Services with regard to the services rendered by the Attorney to the Client in any given month. Included in the Statement of Services will be a detailed statement of the services rendered, together with the disbursements incurred by the Attorney in connection with the Client's case. Upon receipt of the Statement of Services from the Attorney, the Client is expected to carefully review the Statement of Services and promptly bring to the Attorney's attention any and all objections that the Client may have to the billing by the Attorney as set forth within the Statement of Services. While the Attorney aspires and strives to keep perfectly accurate billing records, the possibility of human error is always present, and the Attorney will discuss with the Client any and all objections that the Client may have with regard to the billing as set forth within the Statement of Services. Furthermore, the Client will not be charged for any and all time expended in discussing with the Attorney any aspect of the Statement of Services. Article 24. SEMI-MONTHLY WITHDRAWALS FROM THE RETAINER PAYMENT BY THE ATTORNEY Notwithstanding the fact that the Client will be billed on or about the first day of each and every month for the duration of the litigation, the Attorney will also withdraw funds from the Client's retainer payment on or about the 15th day of each and every month for the duration of the litigation. These semi-monthly withdrawals by the Attorney from the Client's retainer payment will be denoted on the monthly Statement of Services sent by the Attorney to the Client as a "withdrawal from retainer". Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 23 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The rationale for these semi-monthly withdrawals by the Attorney from the Client's retainer payment is that they effectively constitute a semi-monthly salary payment to the Attorney by virtue of the fact that the Attorney is ethically obligated to secure the Client's retainer payment in an interest-bearing IOLA (escrow) Account which the Attorney is only allowed to take withdrawals from on a predetermined and regular basis. Article 25. DISBURSEMENTS The Client understands and agrees that the Client shall be solely responsible for timely payment of any and all bills rendered by the Attorney, whether with respect to the Attorney's legal services, disbursements, or any other costs and expenses incurred by the Attorney on the Client's behalf. Such disbursements can potentially be substantial and may include, but are not limited to the following: investigative services; service of process; courier service; certified, express, or overnight mail; Federal Express; photocopy charges; court fees; stenographic services; transcript costs; filing and recording fees; subpoena fees; the cost of the retention of expert witnesses; appraisal reports; valuation reports; and such other expenses as may be required for the Attorney to effectively represent the Client's legal interests. Article 26. COURT FEES In Family Court proceedings, there are very rarely any court fees encountered other than, perhaps, the cost of ordering a transcript. In Supreme Court actions, there are often many different court fees encountered. Here is a partial list of the most common court fees encountered in Supreme Court: 1. 2. 3. 4. 5. 6. Obtaining an Index Number [CPLR §8018(a)(1),(3)]..................................$210.00 Request for Judicial Intervention [CPLR §8020(a)].......................................$95.00 Note of Issue [CPLR §8020(a)]......................................................................$30.00 Motion or Cross-motion [CPLR §8020(a)].....................................................$45.00 Demand for a Jury Trial [CPLR §8020(c)].....................................................$65.00 Stipulation of Settlement or Voluntary Discontinuance [CPLR §8020(d)]....$35.00 The Client fully understands that it is solely the Client's responsibility to pay for all court fees. The Client fully understands that the Client's payment of all court fees is separate and apart from the monies paid to the Attorney to retain the Attorney's legal services. Article 27. THE REPLENISHMENT PAYMENT The billable hours and costs expended by the Attorney on the Client's case will be charged against the Client's retainer payment and, in the event that the Client's retainer payment is exhausted or comes within $500.00 of becoming exhausted, as a result of the billable hours and costs expended by the Attorney, the Client hereby agrees to replenish Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 24 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 the Client's retainer payment by tendering to the Attorney a replenishment payment in the amount of $1,000.00. The Attorney shall notify the Client, in writing, in the event that the Client's retainer payment has been exhausted to under $500.00. The Client shall not owe the Attorney any replenishment payment unless and until the Attorney notifies the Client, in writing, that the retainer payment has been exhausted to under $500.00. Furthermore, as each replenishment payment may be exhausted by the billable hours and costs expended by the Attorney on the Client's case, the Client hereby agrees to replenish the Client's retainer payment with additional replenishment payments to the Attorney. Article 28. THE FAILURE OF THE CLIENT TO PAY TO THE ATTORNEY ANY REPLENISHMENT PAYMENT IN FULL In the event that the Client fails to pay to the Attorney any replenishment payment in full, the Attorney reserves the right to hold the Client in breach of the retainer agreement. Furthermore, in the event that the Client fails to pay to the Attorney any replenishment payment in full, the Attorney will seek to protect the Attorney's rights to compensation from the Client for legal services rendered, or to be rendered, to the Client through whatever legal remedies are available to the Attorney. In the event that the Client fails to pay to the Attorney any replenishment payment in full, the Attorney may: seek to terminate or withdraw from the representation of the Client; seek to have the Client sign a Consent to Change Attorney form or Substitution of Counsel form, whereby the Attorney is relieved of the Attorney's responsibilities to and representation of the Client; and seek legal recourse against the Client for the recovery of any and all monies owed to the Attorney by the Client, inclusive of bringing any liens against the Client's assets or real property or seeking the assistance of debt collection. Article 29. THE FINAL REPLENISHMENT PAYMENT IS REFUNDABLE IN WHOLE OR IN PART TO THE CLIENT Just as the retainer payment of the Client is the minimum, refundable fee to be paid to the Attorney to secure his professional legal services, the replenishment payment is also refundable to the extent that the replenishment payment has not already been exhausted by the Attorney's billable hours and costs. For example, if the Client's case is concluded and only 50% of the replenishment payment has been exhausted by the Attorney's billable hours and costs, then the Attorney is obligated to refund to the Client the remaining 50% of the last replenishment payment tendered to the Attorney by the Client, which shall be refunded to the Client once the Attorney formally and officially closes the Client's file. Article 30. THE TRIAL RETAINER Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 25 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 In the event that a negotiated settlement of the Client's case has not been achieved, and executed, thirty (30) days prior to the date upon which the Client's case is scheduled for a trial or a hearing, a trial retainer of $1,000.00 will then be due and payable to the Attorney. Just as the retainer payment of the Client is the minimum, refundable fee to be paid to the Attorney to secure his professional legal services, the trial retainer is also refundable to the extent that the trial retainer has not already been exhausted by the Attorney's billable hours and costs. For example, if the Client's case is concluded after a settlement on the first day of trial, and only 50% of the trial retainer has been exhausted by the Attorney's billable hours and costs, then the Attorney is obligated to refund to the Client the remaining 50% of the trial retainer tendered to the Attorney by the Client, which shall be refunded to the Client once the Attorney formally and officially closes the Client's file. Article 31. OTHER ADDITIONAL EXPENSES There should not be any other additional expenses incurred by the Client that are not encompassed by and enumerated within this retainer agreement. However, in the event that any additional expenses are anticipated or may occur, it is the Attorney's duty to bring these additional expenses to the Client's attention as soon as possible, in writing. It is understood by the Attorney that neither the Attorney nor the Client shall incur any additional expenses not already encompassed by and enumerated within this retainer agreement without the explicit, prior, written approval of the Client. Article 32. OTHER FEE PROVISIONS Other important terms relative to fees and compensation pursuant to this retainer agreement are as follows. The Client agrees to pay to the Attorney such additional fees, including replenishment payments and trial retainers, as set forth hereinabove, and to reimburse the Attorney for any advances made on the Client's behalf not later than fourteen (14) days from the date stated on the Attorney's letter, enclosing a demand for same. If the Client does not pay to the Attorney the amount due within one (1) month after the date on the Attorney's letter, enclosing the demand for same, then interest at the rate of nine (9%) per cent per annum shall be added to the balance due to the Attorney. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 26 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Part 3. THE PREPARATION FOR THE LITIGATION: Article 33. CLIENT MEETINGS Meetings with the Client are at the very heart of the Attorney-Client relationship. Cases are won or lost depending upon how prepared the Attorney is for a given case and Attorney preparation depends almost entirely upon having comprehensive meetings with the Client. While the purpose of the free initial consultation is merely to allow the Attorney to meet with the Client and for the Client to meet with the Attorney, and for the Attorney to make a determination as to whether the Client has a viable case or not, more in depth meetings between the Attorney and the Client are essential in order for the Attorney to become fully aware of all of the Client’s interests. The primary purpose of client meetings is to acquire as many facts as possible about the client’s case. Only through the acquisition of extensive factual information about the Client’s case can the Attorney hope to be able to zealously and aggressively advocate for the Client. While much information may be gleaned from the Client by the Attorney at the free initial consultation, it is much more likely that the Attorney will need to meet with the Client one or more times, beyond the free initial consultation, to be able to fully acquire all of the necessary factual information from the Client. All client meetings will be scheduled at the Attorney’s office, at times and dates that are mutually convenient to both the Attorney and the Client. Only in rare circumstances, such as just prior to an important court appearance or trial, will it be necessary for a client meeting to occur late in the evening, on a holiday, or on a Saturday or a Sunday. However, the Attorney will make every effort to avoid having to schedule client meetings in late evenings, on holidays, on Saturdays, and on Sundays, unless the Attorney deems it to be absolutely necessary to do so. Article 34. CLIENT CONTACT The Attorney will initiate contact with the Client only when the Attorney deems it to be necessary for the proper representation of the Client. Days, or even weeks, may pass without the Attorney contacting the Client. The primary reason for this lack of contact between the Attorney and the Client will be that either nothing of importance has occurred on the Client’s case or that nothing has happened on the case at all. Another reason for this lack of contact will be the Attorney attempting to conserve the retainer payment for the Client. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 27 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 It will be the rare case where the Attorney does not contact the Client at least once every two (2) weeks. In any event, the Attorney shall contact the Client no less than once per month, in all circumstances, if only to keep the client apprised of basic information and to let the Client know that the Attorney has not forgotten the Client. In turn, the Client should only contact the Attorney when, in the Client’s discretion and estimation, something has occurred that is important to the Client’s case. Otherwise, the Client should seek to conserve the retainer at all times. Article 35. THIRD-PARTY CONTACTS The Attorney will very likely engage in substantial contacts with third-parties throughout the course of the litigation. This is absolutely essential and is an integral part of the litigation itself. Like client meetings, the primary purpose of third-party contacts is information gathering. It is the intention of the Attorney to reveal to the Client all of the contacts that the Attorney has with third-parties in this litigation, in order to keep the Client fully informed as to the progress of the litigation. Again, the Attorney will only engage in contacts with third-parties to the extent that the Attorney deems that such contacts are necessary for the proper representation of the Client. Article 36. REVIEW OF DOCUMENTS The Attorney will very likely review a voluminous number of documents throughout the course of this litigation. This is absolutely essential and is an integral part of the litigation itself. Like client meetings and third-party contacts, the primary purpose of reviewing documents is information gathering. It is the intention of the Attorney to reveal to the Client all of the documents that the Attorney has reviewed in this litigation, making sure to provide the Client with copies of the documents, where necessary, in order to keep the Client fully informed as to the progress of the litigation. Article 37. LEGAL RESEARCH Because no case is exactly like another, and because litigation is very factspecific, it may sometimes be necessary for the Attorney to engage in legal research for the Attorney to be able to zealously and aggressively advocate for the Client. The Client needs to understand that the law is dynamic and changing all the time. Caselaw in the Third Department is published weekly, usually every Thursday, and may be reviewed at or downloaded from the Third Department’s official website at http://www.courts.state.ny.us/ad3/. Any given case may have a direct impact on the Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 28 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Client’s case. Furthermore, the New York State Legislature creates new statutes or modifications to old statutes on an irregular basis such that the law itself tends to change from year to year. Sometimes these changes in the law are minor. However, sometimes these changes in the law can be so radical as to completely change the outcome of a given case. In order to conserve the retainer payment of the Client, any and all legal research undertaken by the Attorney will only occur after the Attorney deems that legal research is absolutely necessary for the proper representation of the Client. Article 38. CONTACT WITH THE OPPOSING PARTY IN THE LITIGATION In order for the Attorney to zealously and aggressively advocate for the Client’s interests, the Attorney will obviously be required to be in regular contact with the attorney for the opposing party. Much of such contact will be via phone or, perhaps, email and only rarely will it entail actual meetings, apart from informal meetings at court appearances. For the most part, and unless substantive issues are raised, the Attorney will not contact the Client after the Attorney has any contact with the attorney for the opposing party. Most of the contact that the Attorney will have with the attorney for the opposing party will be in focusing on specific issues and narrowing the scope of the litigation, in hopes of bringing the litigation to a successful conclusion via a settlement. In instances where the attorney for the opposing party is or becomes uncooperative, the Attorney will resort to communicating with the attorney for the opposing party strictly via letters, faxes, and emails, taking care to ensure that the Client is copied on all such communications. Article 39. CONTACT WITH THIRD-PARTIES IN THE LITIGATION In order for the Attorney to zealously and aggressively advocate for the Client’s interests, the Attorney will obviously be required to be in regular contact with any thirdparties in the litigation, most especially attorneys for the child or children. Another common third-party, at least in litigation in Family Court, is the Department of Social Services (DSS). Again, much of such contact will be via phone or, perhaps, email and only rarely will it entail actual meetings, apart from informal meetings at court appearances. Again, for the most part, and unless substantive issues are raised, the Attorney will not contact the Client after the Attorney has any contact with the attorney for the third-party. As with written communications to the attorney for the opposing party, the Attorney will take care to ensure that the Client is copied on all such communications. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 29 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 40. PREPARING FOR A COURT APPEARANCE Both the Attorney and the Client should appear at each and every court appearance with an easy and ready command of all of the pertinent facts in the litigation. The most important thing the Attorney and the Client can do to prepare for a court appearance is to appear early. Both the Attorney and the Client should try to appear for each and every court appearance at least fifteen (15) minutes early if no other time has been agreed upon. The reasoning for this should be obvious: the court’s calendar is never consistent and there will be times when the court is running on time, late, and early. Furthermore, judges appreciate the fact that clients and attorneys are respectful of the court’s time and are not wasting it. Of course, during the winter months and times of inclement weather, it is even more important to be diligent in arriving at court early. With this in mind, the Client should have the Attorney’s and the court’s telephone numbers on the Client at all times in the event that the Client needs to call the Attorney or the court due to an impending lateness or an emergency. Furthermore, being early to a court appearance will almost always allow the Attorney to have an impromptu meeting with the client on the cusp of the court appearance, allowing the Attorney to be conversant and up-to-date on all matters in the litigation. Furthermore, being early to a court appearance ensures that the Attorney and the Client will not be late. Being late to court appearances is potentially dangerous insofar as the Family Court judge could dismiss the Client’s petition or the Supreme Court judge could sanction the Client by ordering the Client to pay attorney’s fees to the attorney for the opposing party, for wasting that attorney’s time. Lastly, the Client (and the Attorney) should appear at all court appearances with the Client’s calendar, work schedule, and vacation schedule, so that the Client is able to accommodate any and all court dates, thereby avoiding the difficulty (or impossibility) of having to adjourn a court appearance at the last minute or with little notice. Article 41. PREPARING FOR DEPOSITIONS In the event that depositions are scheduled in the litigation, the Attorney will need to meet with the Client at length prior to the deposition to thoroughly prepare the Client for both the substance and the procedure of the deposition. Depositions are often quite time-consuming and tend to consume whole days or series of days. The Client needs to remember four (4) key rules if the Client is subject to a deposition: 1) tell the truth at all times; 2) do not volunteer anything; 3) listen carefully to the question being asked; and 4) do not lose self-control. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 30 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Furthermore, depositions commonly pertain to the Client and the opposing party and no one else. Article 42. PREPARING FOR TRIAL In the event that the litigation cannot be settled to the advantage of the Client, and a trial is scheduled, the Attorney will need to meet with the Client at length, well before the trial date, to thoroughly prepare the Client for both the substance and the procedure of the trial. The rules for depositions apply to trials as well, if not more so. Where deposition testimony is most often recorded in the form of a written transcript, devoid of the nonverbal communication and the visceral and emotional content of an audio or a video recording, trial testimony is different in four (4) distinct ways: 1) it is before a judge; 2) it may also be before a jury; 3) it is subject to audio recording; and 4) it often occurs in a very large courtroom (which can be quite daunting). Furthermore, the Attorney and the Client need to consider the various documents that may need to be entered into evidence at the trial, together with the testimony of witnesses and, perhaps, experts. Article 43. THE CLIENT’S DRESS, APPEARANCE, AND CONDUCT Probably the most important aspect of the Client’s case – at least initially – is the actual person of the Client. Therefore, it is absolutely essential that the Client dress in a professional manner at all times, that the Client be groomed in a businesslike fashion at all times, and that the Client act in a civilized and respectful manner toward others at all times. The whole point of a person’s dress, appearance, and conduct is to convey to the world how the person wishes others to perceive them. If the Client is dressed professionally, the presumption will be that the Client is a professional and is selfconfident. If the Client is groomed in a businesslike fashion, the presumption will be that the Client is fastidious and has self-respect. If the Client behaves in a civilized and respectful manner, the presumption will be that the Client is a law-abiding, trustworthy, and honest person. Judges are just as human as anyone else and they have the same biases and prejudices as anyone else. Therefore, the Client must recognize these traits and utilize them to the advantage of the Client. As such, it simply cannot be emphasized enough how extremely important it is that the Client keep and maintain professional, businesslike, civilized, and respectful dress, appearance, and conduct throughout the course of the litigation. Article 44. THE CLIENT’S CONDUCT IN THE COURTHOUSE Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 31 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Client needs to be aware that the Client will be under a microscope as soon as the Client walks through the courthouse doors. In the modern courthouse, technology reigns supreme. However, Clients should be aware that the greatest concern will be courthouse officers, staff, and other attorneys, who are trained to be ever watchful of the people who come through the door. The Client should never let the Client’s guard down in the courthouse or presume that any conversation is confidential while inside the courthouse. As paranoid as it may seem, the Client should remember that at virtually every point in space and time – while the Client is in the courthouse – the Client is both being watched and recorded through the official use of various technologies. Lastly, if the Client has any issues about the presence or conduct of other persons in the courthouse, then the Client must immediately bring this to the attention of the Attorney. Article 45. THE CLIENT’S CONDUCT IN THE COURTROOM The Client needs to be aware that there are audio recording devices within every courtroom. While these devices are most often “timed” (meaning governed by a clock, which almost always appears on or near the judge’s bench) so that a Client will know when the devices are on and when they are off, the Client should always presume that the audio recording devices are always on. As such, the Client must remember that all responses in the courtroom have to be verbal and loud enough for the audio recording devices to perceive. Furthermore, the Client needs to be aware that there are now video recording devices in every courtroom as well. These devices are ostensibly for the safety of all persons in a given courtroom but the video recordings could potentially be utilized by police agencies against the Client in future proceedings. Lastly, and most importantly, the Client needs to be very aware of the presence of the judge, court personnel, and court officers. The Client should only speak in the courtroom when spoken to by the judge or the Attorney, and only the judge or the Attorney. When speaking to a judge, the Client should always be respectful, using the honorific, “judge” or “your honor”, or simply using the respectful terms of “sir” or “ma’am”. The Client should have total self-control at all times in the courtroom. The Client should avoid emotional outbursts at all times in the courtroom. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 32 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 46. THE CLIENT’S CONDUCT DURING THE COURSE OF THE LITIGATION Consistency and stability is the best policy in litigation as in life itself. If the Client suspects that there are upcoming events in either the Client’s life or in the lives of those involved in the litigation, then the Client should immediately bring this to the attention of the Attorney so that the Attorney can ascertain how this may affect the litigation and the Client’s case. Also, it is presumed by the court that the Client will be relatively available throughout the course of the litigation. Therefore, the Client should know the Client’s work schedule and vacation schedule in advance in order to be able to determine the Client’s availability for court appearances. The Client should obviously refrain from any and all actions or inactions that might cause the Client to become arrested, convicted, and/or incarcerated for any period of time. The Client should also refrain from relocating from the Client’s current address unless doing so simply cannot be avoided. In any event, the Client should not relocate without first informing the Attorney of the Client’s intent to do so. The Client should refrain from leaving the county for any extended period of time without first informing the Attorney. The Client should not leave the state or country, for any period of time, without first informing the Attorney. If the Client is arrested or jailed, or changes jobs or addresses often, then this is a sure sign of instability and it will only serve to hurt the Client’s case. Article 47. THE CLIENT’S JOURNAL Litigation is essentially the collecting of substantial factual information and the filtering of it through legal rules, with the attorneys arguing over both the quality of the facts and the application of the law. Therefore, facts and law are obviously important to the outcome of a case. If the Client is able to record facts contemporaneously with events that occur in the Client’s life – which are relevant to the litigation – then the Client has the advantage of having a factual record that is probably both helpful to the Client and harmful to the Client’s adversary. This is why a Client’s journal is so incredibly important. A Client’s journal should be devoid of any emotional content and devoid of all obscenities and vulgarities if only because the Client’s journal could very likely be used in court. A Client’s journal should be full of facts which pertain to events in the litigation. A Client’s journal should contain narrative with as few abbreviations and symbols as possible, so that it can be read clearly by an independent party. The Client is hereby advised that the existence of any such Client’s journal is not a confidential communication and that the Client’s journal may be demanded by the court or the opposing party at any time and that the Client’s journal will have to be produced. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 33 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Part 4. THE COURSE OF THE LITIGATION: Article 48. GETTING STARTED In Family Court, the ultimate objective is to convince the judge to grant to the Client the specific relief requested in the petition(s) filed with the court. Thus, the most important documents in Family Court proceedings are very often the initial petitions filed with the court. Therefore, the Attorney needs to meet with the Client to carefully gather the factual information necessary to properly draft the petition(s). Thus, the first step in a Family Court proceeding is often the filing of one or more petitions with the court. Once this occurs, the Family Court assigns a judge to preside over the matter, schedules a date for the initial appearance, and assigns an attorney for the child or children, if children are the subject of the petition(s). Ideally, as of six (6) months from the filing of the first petition in a Family Court proceeding, the matter should either be settled and concluded, or scheduled for trial. Therefore, many Family Court matters are concluded within six (6) months of the filing of the first petition. In Supreme Court, the ultimate objective is to convince the judge to grant to the Client the specific relief requested in the pleadings filed with the court. However, the initial pleadings in Supreme Court are usually but the beginning of a long line of documents that will lead to the ultimate disposition of the legal case. Thus, the first step in a Supreme Court action is often the filing of a summons and verified complaint, or a verified answer, in an action for divorce. Once this occurs, a Supreme Court judge is not assigned to preside over the matter until one of the parties specifically requests one, through the filing of a Request for Judicial Intervention. Once this occurs, a preliminary conference is scheduled and an attorney for the child or children is assigned, if there are children of the marriage. Thereafter, the Supreme Court judge may issue a Scheduling Order, setting forth deadlines directing when certain aspects of the litigation are to be completed. Furthermore, there is no way to ascertain how long an action for divorce could take. Uncontested divorces could conceivably take as little as a month or two to complete. Contested divorces run the gamut from taking months to years to complete, depending upon a variety of factors. Where Family Court matters are often very issue-specific, pertaining to discrete matters in time, Supreme Court matters are necessarily marriage-specific. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 34 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Where a marriage is of short duration, with no children, with no real property, and with few or no assets, then the litigation will likely have the appearance and feel of a Family Court proceeding. However, where the marriage is of long duration, with children, with real property, and with substantial assets, then the litigation can be quite convoluted and lengthy, looking nothing at all like a proceeding in the Family Court. While actions for divorce can seem quite complicated they are essentially about four (4) essential things: child custody, child support, equitable distribution of property, and maintenance. Thus, if the marriage has produced no children, the action for divorce would only concern two (2) essential things: equitable distribution of property and maintenance. If the marriage was of short duration, maintenance likely will not be an issue, leaving only the equitable distribution of property, if any. Some Family Court matters can often be resolved via retainers of $2,500.00 or less. However, most Supreme Court matters can rarely be resolved with $2,500.00 retainers and very often incur legal expenses well beyond this amount, unless the actions for divorce are uncontested. Article 49. THE INITIAL APPEARANCE The initial appearance is effectively the first time when the judge, the parties, and the attorneys all get to meet one another in one place. While many attorneys will treat the initial appearance as a waste of time insofar as very little often gets accomplished at an initial appearance, the Client should understand that this is the first time that the judge is meeting the Client. As such, first impressions mean a very great deal. The Client should be well aware that as soon as the judge perceives the Client, the judge will inevitably begin forming opinions about the Client. This is why it is absolutely essential for the Client to treat every court appearance with extreme seriousness, gravity, and respect. If the Client appears to be professional, businesslike, civilized, and respectful – especially towards the judge and the opposing party – then the judge is much more likely to form a positive first impression of the Client. It cannot be underestimated how important the initial appearance is on a psychological basis. All of us want people to like us as this is a natural human urge. However, the Client would do well to cultivate a positive first impression with the individual who may very well be determining the Client’s fate over the course of many years. It would be extremely foolish to do otherwise. Therefore, it is important for the Client to remain calm and to maintain eye contact with the judge throughout court appearances, but especially the initial appearance. Such behavior normally conveys rapt attention and, at the very least, respect. It is also important for the Client to remain silent unless and until spoken to by the judge. When responding to the judge’s questions, the Client should give simple and direct answers, if at all possible. Any questions requiring a yes or no answer should also be followed by the honorific of “judge”, “your honor”, or “sir” or “ma’am.” Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 35 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 50. THE FINANCIAL DISCLOSURE AFFIDAVIT AND THE STATEMENT OF NET WORTH Unless the Family Court proceeding is one for child support (under Article 4 of the Family Court Act) or spousal support (under Article 5-B of the Family Court Act), the Client need not worry about encountering this item. The Statement of Net Worth is the analog of the Financial Disclosure Affidavit, and is encountered in Supreme Court. The Financial Disclosure Affidavit and the Statement of Net Worth are precisely what they state that they are. The Client is required, under oath, to disclose to the court the status of the Client’s current finances, with particular emphasis on the sources of the Client’s income, the Client’s monthly expenses, and the Client’s various liabilities, loans, and debts. The Client should very carefully take the time to fully and comprehensively complete this document, making sure that it is as accurate as possible. Great care should be taken in the drafting of this document because the financial information found within it will serve as the basis for the awarding of such things as child support, spousal support, maintenance, and equitable distribution. Article 51. ATTORNEYS FOR CHILDREN Attorneys for children are attorneys who are appointed by the judge presiding over the proceeding or action to represent the children involved in the legal proceedings. These attorneys represent only the children they have been specifically appointed to represent. Attorneys for children are expected to exercise independent judgment and many very well take positions that are adverse to the Client's positions. Under no circumstances are attorneys for children allowed to communicate with the parents of their clients if those parents are represented by attorneys. Therefore, an attorney for the child will need the Attorney’s explicit permission to communicate with the Client before they are allowed to do so. The Client is not to communicate with the attorney for the child, and the attorney for the child is not to communicate with the Client, unless and until the Attorney reviews the matter and deems that such communications are acceptable. The danger of communicating with an attorney for the child is that the Client might make an admission to the attorney for the child that is adverse to the Client's interests, and which the attorney for the child may later use against the Client, in furtherance of the attorney for the child's legal representation of the child. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 36 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Lastly, the Client must understand that it is often very difficult to have the court remove the attorney for the child from the case. In order for this to happen, the Attorney would have to engage in motion practice and the Attorney would have to make a showing of incompetence, gross neglect/negligence, unprofessionalism, and/or a conflict of interest on the part of the attorney for the child. Article 52. THE FUNCTION OF THE ATTORNEY FOR THE CHILD Please be advised that, pursuant to 22 NYCRR 7.2, the attorney for the child (formerly “law guardian”) has certain specific obligations as set forth below: (a) As used in this part, “attorney for the child” means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate’s court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto. (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation. (c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child’s position. (1) In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in the manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances. (2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests. (3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 37 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position. Article 53. THE SUMMARY OF RESPONSIBILITIES OF THE ATTORNEY FOR THE CHILD Please be advised that, pursuant to the Statewide Law Guardian Advisory Committee, as approved by the Administrative Board of Courts, on October 4, 2007: While the activities of the attorney for the child will vary with the circumstances of each client and proceeding, in general those activities will include, but not be limited to, the following: (1) Commence representation of the child promptly upon being notified of the appointment; (2) Contact, interview and provide initial services to the child at the earliest practical opportunity, and prior to the first court appearance when feasible; (3) Consult with and advise the child regularly concerning the course of the proceeding, maintain contact with the child so as to be aware of and respond to the child’s concerns and significant changes in the child’s circumstances, and remain accessible to the child; (4) Conduct a full factual investigation and become familiar with all information and documents relevant to representation of the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation of the child; (5) Evaluate the legal remedies and services available to the child and pursue appropriate strategies for achieving case objectives; (6) Appear at and participate actively in proceedings pertaining to the child; (7) Remain accessible to the child and other appropriate individuals and agencies to monitor implementation of the dispositional and permanency orders, and seek intervention of the court to assure compliance with those orders or otherwise protect the interests of the child, while those orders are in effect; and (8) Evaluate and pursue appellate remedies available to the child, including the expedited relief provided by statute, and participate actively in any appellate litigation pertaining to the child that is initiated by another party, unless the Appellate Division grants the application of the attorney for the child for appointment of a different attorney to represent the child on appeal. Article 54. COURT APPEARANCES Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 38 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Supreme Court and the Family Court commonly track the litigation before it through a series of court appearances. There are usually at least three (3) court appearances in most litigation in Family Court: 1) the initial appearance; 2) further proceedings; and 3) the pre-trial conference. Of course, some courts provide for two (2) initial appearances: one without counsel and one with counsel. There may also be numerous further appearances depending upon the complexity of the litigation. There could also be more than one pretrial conference. There could also be court appearances scheduled as a result of a motion brought by one of the attorneys, or by the court itself. In Supreme Court, the first court appearance is often the preliminary conference. Further court appearances often take the form of appearances on motions and pre-trial conferences. In any event, there is the potential in all litigation to generate the need for multiple court appearances. The Attorney will endeavor to limit the number of court appearances, to the extent that the Attorney is able to do so, in order to conserve the Client’s retainer payment. Article 55. DISCOVERY Discovery is the term attorneys use for eliciting factual and legal information from the opposing party in the prosecution or defense of a legal matter. Discovery entails the drafting of legal documents and mailing them to the necessary parties. Discovery almost always entails the need for at least one (1) additional meeting with the client to ascertain the information that the opposing party is demanding. It is extremely important for the Client to reveal to the Attorney all of the factual and legal information that the Attorney needs in order to draft discovery demands or to respond to the discovery demands of the opposing party. Should either party refuse to divulge necessary discovery, this may result in motion practice or the need for depositions. Article 56. MOTION PRACTICE There may be an occasion during, or several occasions throughout, the litigation where important factual or legal matters are required to be brought to the court's attention for immediate resolution by the judge. This is called motion practice and it entails the drafting of documents for the submission to the court. Sometimes, motion practice will require its own court appearance for what is called oral arguments. In rare instances, Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 39 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 motion practice will result in a hearing before the court, requiring the testimony of witnesses. The Client needs to be mindful that the Attorney may have to engage in motion practice to effectively protect the legal interests of the Client. Although motion practice would constitute an additional expense to be incurred by the Client, there are times in litigation where motion practice simply cannot be avoided. The Attorney will engage in motion practice on the Client's behalf only when and where the Attorney deems it absolutely necessary to protect the Client's legal interests. Article 57. DEPOSITIONS Depositions (or examinations before trial (also known as "EBTs")), may be required in this litigation, depending upon the complexity of the facts and legal issues in the litigation. Rarely are depositions required in family court matters. However, depositions occur quite commonly in matrimonial actions. A deposition is testimony given under oath before a court reporter or transcriptionist pursuant to the questions asked by the opposing attorney (or attorneys). The purpose of a deposition is to elicit sworn testimony from the Client as to specific facts in the litigation, which may later be used at trial, either in support of the Client's positions or in opposition to the Client's positions. Another useful aspect of depositions is that they sometimes elicit information that may ultimately result in the settlement of the litigation. The cost of depositions is borne by the Client and may range from several hundred dollars (normally) to several thousand dollars (in rare cases), depending upon the length and number of depositions involved. Depositions will only be initiated by the Attorney, on behalf of the Client, only with the Client's explicit, prior, written approval. However, the Client needs to be mindful of the fact that the opposing attorney may be the one to initiate depositions and the Client may be compelled by the Court to attend such depositions. Article 58. EXPERTS The Client is hereby advised that for the Attorney to properly protect the Client's legal interests, it may become necessary to retain experts such as appraisers, actuaries, accountants, medical professionals, or other various kinds of experts. The Client is solely responsible for all of the costs incurred by the Attorney for the retention of any such expert. The Client understands that some or all of these costs may have to be paid to the Attorney or the expert in advance, depending upon the specific requirements of the particular expert. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 40 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 In any event, under no circumstances will any expert be retained by the Attorney, on the Client's behalf, without the Client's explicit, prior, written approval. In a matrimonial action, if necessary and advisable, in the strategic judgment of the Attorney, an application may be made to the Court to have the client's spouse pay all or part of the fees for any and all experts. Article 59. PSYCHOLOGICAL EXAMINATIONS AND COSTS Where the mental health of the Client, the opposing party, or the children is brought into question, a judge may order the parties to submit to psychological examinations through the auspices of a certified psychologist. Normally, the attorneys will consent to a specific agency or entity for the conducting of all of the psychological examinations. Psychological examinations often prove to be extremely useful in precipitating a settlement, especially if the psychological examination results for one party are poor while those of the other party are good. Unfortunately, psychological examinations can be expensive and the cost is borne by the Client for the Client’s psychological examination and, possibly, for a portion of the psychological examinations of the children as well. The court will often ask the Attorney for the Child Program, of New York State, to bear all or part of the costs for the psychological examinations of the children. If and when ordered to do so, the Client should immediately schedule a psychological examination and attempt to have it completed as soon as possible. If the Client encounters any problems in the scheduling of a psychological examination, the Client must immediately bring the matter to the attention of the Attorney. The Client must understand that a failure to attend a psychological examination can be punishable as a contempt of court and that the court would very likely take a negative inference from the Client’s refusal to submit to a psychological examination. Such a determination by the court could completely change the outcome of the litigation. Article 60. PARENTING CLASSES AND COSTS Where the parenting skills of the Client or the opposing party is brought into question, especially with regard to the care and safety of newborns, infants, toddlers, and developmentally disabled children, a judge may order one or both of the parties to register for, attend, and successfully complete (submitting proof of completion to the court) parenting classes through the auspices of a local not-for-profit agency or a Social Services agency or entity. The Attorney may request that the Client register for and attend parenting classes before the commencement of the litigation so as to achieve the moral high ground and to avoid having the Client be ordered to take such classes by the court later in the litigation, Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 41 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 when it may be difficult to register and attend such classes. As with psychological examinations, the cost of parenting classes is borne by the Client. The Client needs to be fully aware that parenting classes may not be offered regularly in a given county. Sometimes parenting classes are offered only two or three times a year in a given county, by a specific agency or entity. Therefore, if and when ordered to attend and complete parenting classes, the Client should immediately register for and attend the parenting classes as soon as possible. If the Client encounters any problems in registering for and/or attending parenting classes, the Client must immediately bring the matter to the attention of the Attorney. The Client must understand that a failure to attend and successfully complete parenting classes can be punishable as a contempt of court and that the court would very likely take a negative inference from the Client’s refusal to attend and successfully complete parenting classes. The court may also suspend the Client’s parenting time with the Client’s children, or direct that it be supervised by another party, unless and until the Client attends and successfully completes the parenting classes. Article 61. ANGER MANAGEMENT CLASSES AND COSTS Where there is the likelihood that the petitions, pleadings or testimony in the litigation will tend to show that the Client, or the opposing party, has an explosive temper, is unable to control emotional impulses, has threatened another person with a violent act, or has actually committed a violent act against another person, a judge may order the Client, or the opposing party, to register for, attend, and successfully complete (submitting proof of completion to the court) an anger management class. The Attorney may request that the Client register for and attend anger management classes before the commencement of the litigation so as to achieve the moral high ground and to avoid having the Client be ordered to take such classes by the court later in the litigation, when it may be difficult to register and attend such classes. As with psychological examinations and parenting classes, the cost of anger management classes is borne by the Client. If and when ordered to attend and complete parenting classes, the Client should immediately register for and attend the anger management classes as soon as possible. If the Client encounters any problems in registering for and/or attending anger management classes, the Client must immediately bring the matter to the attention of the Attorney. The Client must understand that a failure to attend and successfully complete anger management classes can be punishable as a contempt of court and that the court would very likely take a negative inference from the Client’s refusal to attend and successfully complete anger management classes. The court may also issue an order of protection against the Client for failure to address the Client’s anger management problem, and/or suspend the Client’s parenting time with the Client’s children, or direct Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 42 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 that it be supervised by another party, unless and until the Client attends and successfully completes the anger management classes. Article 62. SUBSTANCE ABUSE TESTING AND COSTS Where there are allegations of substance abuse by the Client, or by the opposing party, a judge may order one or both of the parties to submit to a variety of substance abuse testing, the most common of which is a hair follicle exam, through the auspices of a certified technician at a certified testing facility. Normally, the attorneys will consent to a specific testing facility for the conducting of all substance abuse testing. If the Client has consumed any illegal substances or non-prescription drugs, then the Attorney herein demands that the Client cease such consumption immediately. If the Client has abused any legal substances or prescription drugs, then the Attorney herein demands that the Client cease such abuse immediately. If and when ordered to attend and complete substance abuse testing, the Client should immediately schedule and attend the substance abuse testing as soon as possible. If the Client encounters any problems in scheduling and/or attending substance abuse testing, the Client must immediately bring the matter to the attention of the Attorney. The Client must understand that a failure to schedule and complete substance abuse testing can be punishable as a contempt of court and that the court would very likely take a negative inference from the Client’s refusal to schedule and complete substance abuse testing. The court may also issue an order of protection against the Client for failure to address the Client’s possible substance abuse problem, and/or suspend the Client’s parenting time with the Client’s children, or direct that it be supervised by another party, unless and until the Client schedules and completes the substance abuse testing. Article 63. IN-PATIENT AND OUT-PATIENT TREATMENT OR REHABILITATION AND COSTS In the event that the Client, or the opposing party, is deemed by the Court to have a substance abuse problem, the judge may order the Client, or the opposing party, into substance abuse treatment on either an in-patient or an out-patient basis. The cost of such substance abuse treatment could be borne by the party’s health care insurance or it could be borne fully or partially by the party. The Client must understand that a failure to attend and successfully complete substance abuse treatment can be punishable as a contempt of court and that the court would very likely take a negative inference from the Client’s refusal to attend and successfully complete substance abuse treatment. The court may also issue an order of protection against the Client for failure to address the Client’s possible substance abuse problem, and/or suspend the Client’s parenting time with the Client’s children, or direct Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 43 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 that it be supervised by another party, unless and until the Client schedules and completes the substance abuse treatment. Article 64. NOTORIOUS COUNSEL There are some attorneys who are notorious for being difficult in the legal community. These attorneys expend great efforts in litigating a case, often without the possibility of a settlement short of a trial. The result is that these notorious attorneys make litigation difficult for all concerned. Notorious counsel will often engage in numerous phone calls, faxes, emails, and/or letters, as well as multiple motions and demands for discovery and/or depositions, and will generally prolong the litigation unnecessarily. The inevitable result is that the notorious attorney will force the Attorney to engage in activities that the Attorney might not otherwise choose to engage in, thereby causing the Attorney's bill to the Client to increase. Please be advised that notorious counsel alone can be responsible for doubling or tripling the cost of litigation to the Client. Article 65. DIFFICULT JUDGES Just as there are some local attorneys who are notorious for being difficult in the legal community, there are some local judges who are notorious for being difficult as well. This judicial difficulty may include, but not be limited to, such things as: very quick court calendars (which is why one must always be early to court appearances), very slow court calendars (wherein everyone is stuck waiting impatiently until the case is called), short tempers (when in court, it's best for the Client to speak only when spoken to by a judge), long delays in the scheduling of future court appearances, multiple court appearances, multiple days of short trials, judicial motions, refusals to grant temporary relief, delays in the signing of orders, and general unavailability. As with notorious counsel, difficult judges can re responsible for significantly increasing the cost of litigation to the Client. The single most expensive cost to the Client is usually the court appearance itself. As such, multiple court appearances are to be avoided wherever and whenever possible. Article 66. COURT CALENDARS The Client must understand that the Attorney has no control whatsoever over the scheduling of any court appearance before any court. Judges are quite protective of their court calendars and are the ones who ultimately control when or if a case comes before them. While the Attorney may try to schedule a court appearance as expeditiously as possible, through an order to show cause, the judge is the one who will ultimately decide when to schedule the matter to appear before the court. Many local courts are quite busy, especially those of the counties of Albany, Rensselaer, Saratoga, and Schenectady. And while there are at least two (2) family court Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 44 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 judges in each of these four (4) counties, the caseload of each of these respective courts is such that thousands of matters come before each court each year. Also, please be advised that, as in every walk of life, there are instances where emergencies occur and court calendars have to immediately accommodate these emergencies. This may entail a court appearance suddenly being rescheduled days, weeks, or even months away from its original date. Article 67. TRIAL The trial is obviously the culmination of the litigation where a settlement is not possible. If the litigation proceeds to trial, the Client should be thoroughly prepared to testify as the key witness for the Client’s case at trial. There may be other witnesses, as well as experts, called to testify for the Client, together with various documents that will need to be entered into evidence. The Client needs to understand that the attorneys in the litigation may be able to resolve some of the issues short of trial, thereby causing a need to bring only the remaining issues to trial. Trials can be bench trials (before a judge only) or jury trials, depending upon the circumstances and the facts involved in the litigation. While trials may be onerous, they may also be unavoidable. Furthermore, the Client needs to understand that the scheduling of the trial is largely within the discretion of the judge and that the judge could determine that the trial continues day after day or is broken up into parts and scattered over several weeks or months, depending upon the availability of the judge and the court’s calendar. Article 68. LINCOLN HEARINGS Lincoln hearings are confidential, in camera meetings (in the judge’s chambers) between the child or children and the judge, accompanied by the child or children’s attorney and a court reporter. The purpose of the Lincoln hearing is to enable the judge to have a direct audience with the child or children and attempt to directly ascertain the desires of the child or children relative to the litigation. Too often, the children are the unseen parties in litigation, despite the fact that they often bear most of the burden of the outcome of the litigation. Thus, Lincoln hearings afford the judge the opportunity to acquire some insights as to how this litigation may ultimately affect and impact the lives of the children, through direct contact with the children themselves. While Lincoln hearings can be quite effective in determining the outcome of a given case, the Client needs to understand that Lincoln hearings are strictly within the judge’s discretion. As such, some judges find Lincoln hearings to be most helpful and engage in them regularly, while other judges find Lincoln hearings not to be useful or useful only in specific circumstances. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 45 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Also, while Lincoln hearings normally occur after the trial has been concluded, some judges conduct Lincoln hearings before trials or even in the midst of trials. Again, like the Lincoln hearing itself, the scheduling of the Lincoln hearing is at the discretion of the judge. Part 5. THE OBJECTIVES OF THE LITIGATION: Article 69. OTHER GENERAL PROVISIONS The Client understands and acknowledges that there are many factors outside of the control of the Attorney which can affect the course and outcome of the Client's case, as well as the amount of time and effort required to deal with the various issues involved. The Client understands and acknowledges that the Attorney is unable to predict how long it will take to conclude the Client's case and the Client acknowledges that the Attorney has not predicted how long it will take to conclude the Client's case. The Client understands and acknowledges that the Attorney has not and cannot predict or estimate how many hours of legal services will be required to conclude the Client's case. Accordingly, the Attorney cannot predict or estimate the total cost of services, or how much the disbursements, costs, and expenses might be, beyond the terms and descriptions set forth within this retainer agreement. The Client understands and acknowledges the hazards of litigation and the Client acknowledges that the Attorney has made no guarantees or promises to the Client of any kind with regard to the ultimate outcome of the Client's case. The client understands and acknowledges that the Attorney has made no representations, express or implied, to the Client, of any kind, with regard to the ultimate outcome of the Client's case. The client understands and acknowledges that the Attorney cannot ethically guarantee the success of the Client's case. The client understands and acknowledges that if the Attorney thought that the Client's case had little or no chance of success, then the Attorney would refuse to agree to represent the Client in the Client's case. However, the Client does understand and acknowledge that the Attorney, in agreeing to represent the Client in the Client's case, has represented to the Client that the Client has a reasonable chance of success in the Client's case. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 46 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Furthermore, the client understands and acknowledges that the Attorney is required to certify all papers submitted to the court in the Client's case. The Client therefore agrees to provide the Attorney with complete and accurate information to review, sign, and certify, in writing, the accuracy of all submissions prepared by the Attorney on behalf of the Client. Article 70. UNDERSTANDING AND ACKNOWLEDGMENT The Client, by signing this retainer agreement, hereby acknowledges that the Client has read this retainer agreement in its entirety, has had a full and complete opportunity to consider the terms of the retainer agreement, and has had the opportunity for a full and satisfactory explanation of all of the terms of the retainer agreement. As such, the Client, by signing this retainer agreement, hereby acknowledges and states that the Client fully understands the terms and substance of the retainer agreement and that, by the Client's signature upon the retainer agreement, the Client agrees with all of those terms contained within the retainer agreement, and the Client agrees to be bound by all of those terms contained within the retainer agreement. The Client and the Attorney fully and completely understand and acknowledge that there are no additional or different terms, provisions, or agreements other than those terms, provisions, and agreements that are expressly set forth within this retainer agreement. The Client and the Attorney fully understand and acknowledge that all of the terms and provisions found within this retainer agreement shall be construed and governed in accordance with the laws of the state of New York. The Client and the Attorney understand and acknowledge that, pursuant to court rule, a copy of this retainer agreement is required to be filed with the court in which the Client's matrimonial action is pending. The Client understands and acknowledges that the Client has the absolute right to cancel this retainer agreement at any time, for any reason. Should the Client decide to exercise the Client's right to cancel this retainer agreement, the Client will only be charged by the Attorney for the billable hours, costs, fees, and disbursements incurred by the Attorney on the Client's behalf, up to and including the moment of cancellation. Furthermore, the Client understands and acknowledges that should the Client cancel the retainer agreement, then the Attorney is thereby entitled to a fair and reasonable fee, determined in accordance with legally-accepted standards, with the unearned balance of the retainer payment, if any, being promptly refunded to the Client. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 47 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 The Client further acknowledges that the Client has been provided with a copy of, and read, the Attorney’s and the Client’s Reciprocal Rights and Responsibilities, which is herein made a part of this retainer agreement under Article 14, on pages 11 through 13 hereinabove. Article 71. THE PURPOSE OF THE ATTORNEY'S SERVICES The Client has hereby retained the services of the Attorney explicitly for the purpose of the following: [To be mutually agreed upon between the Attorney and the Client] x x x x x x x x x x Article 72. THE END OF ATTORNEY'S SERVICES The Attorney's legal services to the Client are concluded when 1) the Attorney mails to the Client a final decision, judgment, or order with a Notice of Entry, or 2) the legal matter is discontinued, or 3) the Client otherwise discharges the Attorney, or 4) the Attorney otherwise discharges the Client. While the Attorney's legal services to the Client may have concluded, this, obviously, does not relieve the Client from payment to the Attorney for all legal services provided by the Attorney to the Client. Article 73. APPEAL OF MATTER The Client fully understands that the Attorney is not currently being retained by the Client for purposes of appealing any aspect of these legal matters. The Client fully understands that any appeal from any aspect of any portion of these legal matters is outside the scope of the Attorney's retainer. The Client fully understands that should the Client wish to appeal any aspect of any portion of these legal matters, the Client must immediately bring this to the attention of the Attorney. Furthermore, the Client fully understands should the Client want the Attorney to appeal any aspect of any portion of these legal matters, this would require a separate retainer agreement dedicated solely to the appeal itself. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 48 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 Article 74. NOTICE OF APPEAL A Notice of Appeal protects the Client's interests by notifying the courts and the respective parties of the Client's intent to appeal the decision, judgment, or order of a court. However, a Notice of Appeal must be filed with a court very quickly. Failure to timely file a Notice of Appeal with a court will cause the Client to forever lose the right to appeal the matter. Therefore, the decision as to whether or not a Client will appeal an adverse decision, judgment, or order of a court is an extremely important one. The Client fully understands that the Attorney will not file a Notice of Appeal after the legal matter has been settled without a trial, unless the Client expressly requests, in writing, that the Attorney do so. The Client fully understands that the Attorney may file a Notice of Appeal after the legal matter has been settled after a trial, but that doing so is solely within the discretion of the Attorney, unless the Client expressly requests, in writing, that the Attorney do so. The Client fully understands that in the event of a final decision, judgment, or order of a court, after a trial, that is adverse to the Client's interests, the Attorney shall file a Notice of Appeal, but that the Attorney shall not otherwise be obligated to perfect the appeal for the Client. The Client fully understands that there is a cost involved with filing a Notice of Appeal, as well as with the appeal itself, should it ever be perfected. Here is a partial list of the most common court fees encountered in appeals: 1. 2. 3. Notice of Appeal [CPLR §8022(a)]................................................................$65.00 Filing of the Record on Appeal [CPLR §8022(b)].......................................$315.00 Motion or cross-motion [CPLR §8022(b)].....................................................$45.00 Article 75. CLOSING This retainer agreement constitutes the entire agreement by and between the Attorney and the Client in this matter. This retainer agreement shall not be modified orally or in writing in any way, shape, or form. In the event that the Attorney and the Client agree to otherwise modify this retainer agreement, the Attorney and the Client agree that this retainer agreement shall only be modified by becoming superceded by a new, written retainer agreement which shall be construed and governed in accordance with the laws of the state of New York. Sincerely, ______________________________ James B. Lesperance, Jr., Esq. Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 49 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020 I HEREBY STATE THAT: 1. 2. 3. 4. I HAVE READ THE ABOVE RETAINER AGREEMENT; I UNDERSTAND ALL OF THE TERMS OF THE ABOVE RETAINER AGREEMENT; I HAVE RECEIVED A COPY OF THE RETAINER AGREEMENT; AND I AGREE WITH AND ACCEPT ALL OF THE TERMS OF THE RETAINER AGREEMENT. ________________________________________ THE CLIENT DATED: _______________ RECEIPT ACKNOWLEDGED: _________________________________ James B. Lesperance, Jr., Esq. ___________________________________ THE CLIENT DATED: _________________________ DATED: ___________________________ THE REMAINDER OF THIS DOCUMENT IS INTENTIONALLY LEFT BLANK Law Office of James B. Lesperance, Jr. P.O. Box 139, Ballston Spa, New York 12020 Page 50 of 50 The Chocolate Factory, Suite 203, Building 1 20 Prospect Street, Ballston Spa, New York 12020
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