A potential client contacts you regarding an appeal from an unfavorable decision in his divorce case. After you provide him with a statement of client's rights and have a consultation with him, you advise him of your retainer and usual hourly rate. The consultation ends with him telling you he has to think about it and will get back to you. A week later he calls you and asks you to quote him a flat fee for handling the appeal. Business has been slow due to the pandemic and you agree, giving him a flat fee quote for handling his matter to conclusion. You modify your usual retainer agreement to reflect it is a flat fee, but before sending him the retainer agreement you have second thoughts. Can I do this without violating the Rules of Professional Conduct (RPC) (22 NYCRR Part 1200) or the Procedures for Attorneys in Domestic Relations Matters (22 NYCRR Part 1400)? You research both sets of Rules, and run a google search for "flat fee matrimonial retainer agreements in New York." Your initial review leaves you concerned that flat fee retainers may not be allowed in matrimonial matters, yet many lawyers are offering flat fees for uncontested divorces and other family law services. Are they violating the Rules?

The Rules

The Procedures for Attorneys in Domestic Relations Matters apply to all attorneys who undertake to represent a client in a claim, action or proceeding, or preliminary to the filing of a claim, action or proceeding, in either Supreme Court or Family Court, or in any court of appellate jurisdiction, for divorce, separation, annulment, custody, visitation, maintenance, child support, or alimony, or to enforce or modify a judgment or order in connection with any such claims, actions or proceedings. 22 NYCRR 1400.1. These rules are in addition to the RPC. 22 NYCRR Part 1200.

Part 1400 requires that an attorney who undertakes to represent a party in a matrimonial matter and enters into an arrangement for, charges or collects any fee from a client must execute a written agreement with the client. It must set forth in plain language the terms of compensation and the nature of services to be rendered. The agreement must include, pertinent to our discussion, the following information: "Hourly rate of each person whose time may be charged to the client." 22 NYCRR 1400.3, par. 7; and "Frequency of itemized billing, which shall be at least every 60 days." 22 NYCRR 1400.3, par. 9.