NJSBA Family Law Section

I terminated representation of a client. Under the Rules I am permitted to
withdraw (45 days post-Order, etc.). She will absolutely not cooperate in
signing a Substitution. May I charge her for my Motion to Be Relieved as
Counsel?





Shelley J. Pedersen, Esq.

PEDERSEN LAW FIRM, LLC

241 Forsgate Drive

Suite 106

Jamesburg, NJ 08831

Office: (732) 641-2069

Cell: (732) 659-0808

Fax: (877) 622-9326

E-mail: [email protected]

Website: www.lawsjp.com <http: www.lawsjp.com/="">



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Shelley -
I don't think a fee arb committee would look kindly on charging a
client for a motion to be relieved and if you're at that stage, it's
unfortunately probable that you're going to wind up there (at least). It's
not really a service you're performing for the client's benefit. The few
times I've had to do it, I reflect the time, but "n/c" it on the bill.
I assume your matter is prejudgment (or postjudgment with a
plenary scheduled) -- otherwise, after 45 days you don't have to file a
motion, get an order, or file a substitution - you are no longer counsel of
record by operation of law (Rule 1:11-3 -
https://www.judiciary.state.nj.us/rules/r1-11.htm ),


>I terminated representation of a client. Under the Rules I am permitted to
>withdraw (45 days post-Order, etc.). She will absolutely not cooperate
>insigning a Substitution. May I charge her for my Motion to Be Relieved
>asCounsel?


Please confirm that you received this email and referenced attachments (if
any).

- Dave

David Perry Davis, Esq.
----------------------------------------------------
www.FamilyLawNJ.pro
----------------------------------------------------
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222


Original Message------

I terminated representation of a client. Under the Rules I am permitted to
withdraw (45 days post-Order, etc.). She will absolutely not cooperate in
signing a Substitution. May I charge her for my Motion to Be Relieved as
Counsel?





Shelley J. Pedersen, Esq.

PEDERSEN LAW FIRM, LLC

241 Forsgate Drive

Suite 106

Jamesburg, NJ 08831

Office: (732) 641-2069

Cell: (732) 659-0808

Fax: (877) 622-9326

E-mail: [email protected]

Website: www.lawsjp.com <http: www.lawsjp.com/="">



Confidentiality Notice: This message contains information intended for the
use of the addressee only, which may be privileged and confidential. If you
are not an addressee, any review, distribution or use of the contents of
this message and/or its attachment(s) is prohibited. If you received this
message in error, please delete the message and any attachment(s) and
contact the sender immediately.



NOTE: ABSENT PRIOR WRITTEN AGREEMENT THIS FIRM DOES NOT ACCEPT SERVICE VIA
ELECTRONIC MEANS (EXCEPT AS REQUIRED BY THE UNITED STATES DISTRICT COURT)</http:>

Once the 45 days pass I thought you did not have to do anything since your no longer attorney if record. If the other side brings post judgement motion can't you simply decline to enter into a new retainer. Then would be up to the client to substitute themselves pro se or a new lawyer. Why would you have to file a motion?

Sent from my iPhone


Original Message------

Shelley -
I don't think a fee arb committee would look kindly on charging a
client for a motion to be relieved and if you're at that stage, it's
unfortunately probable that you're going to wind up there (at least). It's
not really a service you're performing for the client's benefit. The few
times I've had to do it, I reflect the time, but "n/c" it on the bill.
I assume your matter is prejudgment (or postjudgment with a
plenary scheduled) -- otherwise, after 45 days you don't have to file a
motion, get an order, or file a substitution - you are no longer counsel of
record by operation of law (Rule 1:11-3 -
https://www.judiciary.state.nj.us/rules/r1-11.htm ),


>I terminated representation of a client. Under the Rules I am permitted to
>withdraw (45 days post-Order, etc.). She will absolutely not cooperate
>insigning a Substitution. May I charge her for my Motion to Be Relieved
>asCounsel?


Please confirm that you received this email and referenced attachments (if
any).

- Dave

David Perry Davis, Esq.
----------------------------------------------------
www.FamilyLawNJ.pro
----------------------------------------------------
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222

Unless fee agreement permits charging formotion to be relieved, I would not risk it.RBoney


Original Message------

Once the 45 days pass I thought you did not have to do anything since your no longer attorney if record. If the other side brings post judgement motion can't you simply decline to enter into a new retainer. Then would be up to the client to substitute themselves pro se or a new lawyer. Why would you have to file a motion?

Sent from my iPhone

"Once the 45 days pass I thought you did not have to do anything since your
no longer attorney if record. If the other side brings post judgement motion
can't you simply decline to enter into a new retainer. Then would be up to
the client to substitute themselves pro se or a new lawyer. Why would you
have to file a motion?"



It is a post-judgment case. While an Order was entered it was not a final
judgment or final order. (Pursuant to the Order my client has discovery
obligations and she must provide information to the court after discovery.)
Maybe I am interpreting 1:11-3 incorrectly, but I read it as representation
has not expired because it was not a judgment or final order.



I find 5:3-5(d) ambiguous. 5:3-5(d) applies when it is more than 90 days
before trail + there is client consent. Where the client does not consent,
subpart (d)(1) refers you to (d)(2). However, (d)(2) applies to being
within 90 days of trial. Seems to me it leaves out the situation of no
client consent, but you are 90+ days of trial or there is no set trial date.
And, the reference to 1:11-2 - subpart (a)(1) addresses client consent;
subpart (a)(2) addresses the time after a trial date is set.



I have an FD case where, after a final order, I hadn't represented the
client in over one year. I then began getting court notices because she had
filed a pro se Application.



Shelley J. Pedersen, Esq.

PEDERSEN LAW FIRM, LLC

241 Forsgate Drive

Suite 106

Jamesburg, NJ 08831

Office: (732) 641-2069

Cell: (732) 659-0808

Fax: (877) 622-9326

E-mail: <mailto:[email protected]> [email protected]

Website: <http: www.lawsjp.com/=""> www.lawsjp.com



Confidentiality Notice: This message contains information intended for the
use of the addressee only, which may be privileged and confidential. If you
are not an addressee, any review, distribution or use of the contents of
this message and/or its attachment(s) is prohibited. If you received this
message in error, please delete the message and any attachment(s) and
contact the sender immediately.



NOTE: ABSENT PRIOR WRITTEN AGREEMENT THIS FIRM DOES NOT ACCEPT SERVICE VIA
ELECTRONIC MEANS (EXCEPT AS REQUIRED BY THE UNITED STATES DISTRICT COURT)


Original Message------

Unless fee agreement permits charging formotion to be relieved, I would not risk it.RBoney

</http:></mailto:[email protected]>

You should check out DYFS v. V.K., 236 N.J. Super. 243 (App. Div. 1989), where the Appellate Division held that the filing of an appeal pro se terminated representation after expiration of the time period under Rule 1:11-3: "Defendants filed an appeal pro se, thus the responsibility of the trial attorney with respect to further conduct of the proceedings was terminated after expiration of the time for appeal. R. 1:11-3." Id. at 256. Might be helpful.

I read Rule 5:3-5(c) to allow withdrawal via substitution of attorney if it's 90 days or more before trial and the client consents. If the client does not consent, we're referred to subparagraph (d)(2). In (d)(2), withdrawal is permitted only on leave of court if it's within 90 days of trial regardless of consent. So there are three options, in my opinion:


1. If 90 days or more & consent, then substitution of attorney;

2. If 90 days or more & no consent, then file a motion; and

3. If within 90 days & regardless of consent, then file a motion.

---
Andrew M. Shaw
Associate Attorney

DeTommaso Law Group, LLC
73 Grove Street
Somerville, NJ 08876

Phone: (908) 595-0340
Fax: (908) 595-0343

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Original Message------

"Once the 45 days pass I thought you did not have to do anything since your
no longer attorney if record. If the other side brings post judgement motion
can't you simply decline to enter into a new retainer. Then would be up to
the client to substitute themselves pro se or a new lawyer. Why would you
have to file a motion?"



It is a post-judgment case. While an Order was entered it was not a final
judgment or final order. (Pursuant to the Order my client has discovery
obligations and she must provide information to the court after discovery.)
Maybe I am interpreting 1:11-3 incorrectly, but I read it as representation
has not expired because it was not a judgment or final order.



I find 5:3-5(d) ambiguous. 5:3-5(d) applies when it is more than 90 days
before trail + there is client consent. Where the client does not consent,
subpart (d)(1) refers you to (d)(2). However, (d)(2) applies to being
within 90 days of trial. Seems to me it leaves out the situation of no
client consent, but you are 90+ days of trial or there is no set trial date.
And, the reference to 1:11-2 - subpart (a)(1) addresses client consent;
subpart (a)(2) addresses the time after a trial date is set.



I have an FD case where, after a final order, I hadn't represented the
client in over one year. I then began getting court notices because she had
filed a pro se Application.



Shelley J. Pedersen, Esq.

PEDERSEN LAW FIRM, LLC

241 Forsgate Drive

Suite 106

Jamesburg, NJ 08831

Office: (732) 641-2069

Cell: (732) 659-0808

Fax: (877) 622-9326

E-mail: <mailto:[email protected]> [email protected]

Website: <http: www.lawsjp.com/=""> www.lawsjp.com



Confidentiality Notice: This message contains information intended for the
use of the addressee only, which may be privileged and confidential. If you
are not an addressee, any review, distribution or use of the contents of
this message and/or its attachment(s) is prohibited. If you received this
message in error, please delete the message and any attachment(s) and
contact the sender immediately.



NOTE: ABSENT PRIOR WRITTEN AGREEMENT THIS FIRM DOES NOT ACCEPT SERVICE VIA
ELECTRONIC MEANS (EXCEPT AS REQUIRED BY THE UNITED STATES DISTRICT COURT)

</http:></mailto:[email protected]>

If there's a postjudgment plenary pending, then you do need to file a motion to be relieved. There's a case in the commentary of the rules on it.

One point to keep in mind -- attorney-client privilege still applies unless / until waived by the client. The (fortunately few) times I have had to file a motion, I give a general statement that "there has been a fundamental breakdown in the attorney-client relationship such that I cannot continue to represent Mrs. Robinson." I wouldn't say "client is being difficult and unreasonable and ignoring my advice and not giving me discovery documents I know she has and called me and my staff names (etc)." If client opposes the motion and have thus waives privilege to the extent necessary to provide details -- only then would I go into specifics. Especially since the relationship with the client obviously isn't good, you don't want to give ammo for an ethics grievance.

On FD matters, this was just discussed at Mercer Bench-Bar (attorneys getting notices years after FD case over). You're not on the hook if it's 45+ days since final order was entered.  Also, it was pointed out that you're not on the hook to respond even in an FM if it's 45+ days postjudgment, you're only required to accept service under the Rule.


------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
------------------------------