Rule 5:3-5. Attorney Fees and Retainer Agreements in Civil Family Actions; Withdrawal

Rule 5:3-5. Attorney Fees and Retainer Agreements in Civil Family Actions;
Withdrawal

(a) Retainer Agreements. Except where no fee is to be charged, every
agreement for legal services to be rendered in a civil family action shall be in writing
signed by the attorney and the client, and an executed copy of the agreement shall be
delivered to the client. The agreement shall have annexed thereto the Statement of
Client Rights and Responsibilities in Civil Family Actions in the form appearing in
Appendix XVIII of these rules and shall include the following:

(1) a description of legal services anticipated to be rendered;

(2) a description of the legal services not encompassed by the agreement,
such as real estate transactions, municipal court appearances, tort claims, appeals, and
domestic violence proceedings;

(3) the method by which the fee will be computed;

(4) the amount of the initial retainer and how it will be applied;

(5) when bills are to be rendered, which shall be no less frequently than
once every ninety days, provided that services have been rendered during that period;
when payment is to be made; whether interest is to be charged, provided, however, that
the running of interest shall not commence prior to thirty days following the rendering of
the bill; and whether and in what manner the initial retainer is required to be
replenished;

(6) the name of the attorney having primary responsibility for the client's
representation and that attorney's hourly rate; the hourly rates of all other attorneys who
may provide legal services; whether rate increases are agreed to, and, if so, the
frequency and notice thereof required to be given to the client;

(7) a statement of the expenses and disbursements for which the client is
responsible and how they will be billed;

(8) the effect of counsel fees awarded on application to the court pursuant
to paragraph (c) of this rule;

(9) the right of the attorney to withdraw from the representation, pursuant
to paragraph (e) of this rule, if the client does not comply with the agreement; and

(10) the availability of Complementary Dispute Resolution (CDR)
programs including but not limited to mediation and arbitration.

(b) Limitations on Retainer Agreements. During the period of the representation,
an attorney shall not take or hold a security interest, mortgage, or other lien on the
client's property interests to assure payment of the fee. This Rule shall not, however,
prohibit an attorney from taking a security interest in the property of a former client after
the conclusion of the matter for which the attorney was retained, provided the
requirements of R.P.C. 1.8(a) shall have been satisfied. Nor shall the retainer
agreement include a provision for a non-refundable retainer. Contingent fees pursuant
to R. 1:21-7 shall only be permitted as to claims based on the tortious conduct of
another, and if compensation is contingent, in whole or in part, there shall be a separate
contingent fee arrangement complying with R. 1:21-7. No services rendered in
connection with the contingent fee representation shall be billed under the retainer
agreement required by paragraph (a) of this rule, nor shall any such services be eligible
for an award of fees pursuant to paragraph (c) of this rule.

(c) Award of Attorney Fees. Subject to the provisions of R. 4:42-9(b), (c), and (d),
the court in its discretion may make an allowance, both pendente lite and on final
determination, to be paid by any party to the action, including, if deemed to be just, any
party successful in the action, on any claim for divorce, dissolution of civil union,
termination of domestic partnership, nullity, support, alimony, custody, parenting time,
equitable distribution, separate maintenance, enforcement of agreements between
spouses, domestic partners, or civil union partners and claims relating to family type
matters. All applications or motions seeking an award of attorney fees shall include an
affidavit of services at the time of initial filing, as required by paragraph (d) of this rule. A
pendente lite allowance may include a fee based on an evaluation of prospective
services likely to be performed and the respective financial circumstances of the parties.
The court may also, on good cause shown, direct the parties to sell, mortgage, or
otherwise encumber or pledge assets to the extent the court deems necessary to permit
both parties to fund the litigation. In determining the amount of the fee award, the court
should consider, in addition to the information required to be submitted pursuant to R.
4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability
of the parties to pay their own fees or to contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions advanced by the parties both during and
prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously
awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to enforce existing orders or to
compel discovery; and (9) any other factor bearing on the fairness of an award.

(d) Affidavit of Services Provided. All applications for the allowance of fees shall
be supported by an affidavit of services addressing the factors enumerated in RPC
1.5(a). The affidavit shall also include a recitation of other factors pertinent in the
evaluation of the services rendered, the amount of the allowance applied for, and an
itemization of disbursements for which reimbursement is sought. If the court is
requested to consider paraprofessional services in making a fee allowance, the affidavit
shall include a detailed statement of the time spent and services rendered by
paraprofessionals, a summary of the paraprofessionals' qualifications, and the
attorney's billing rate for paraprofessional services to clients generally. No portion of any
fee allowance claimed for attorneys' services shall duplicate in any way the fees claimed
by the attorney for paraprofessional services rendered to the client. For purposes of this
rule, "paraprofessional services" shall mean those services rendered by individuals who
are qualified through education, work experience or training who perform specifically
delegated tasks that are legal in nature under the direction and supervision of attorneys
and which tasks an attorney would otherwise be obliged to perform.

(e) Withdrawal from Representation.

(1) An attorney may withdraw from representation ninety (90) days or
more prior to the scheduled trial date on the client's consent in accordance with R. 1:11-
2(a)(1). If the client does not consent, the attorney may withdraw only on leave of court
as provided in subparagraph (2) of this rule.

(2) Within ninety (90) days of a scheduled trial date, an attorney may
withdraw from a matter only by leave of court, on motion with notice to all parties. The
motion shall be supported by the attorney's affidavit or certification setting forth the
reasons for the application and shall have annexed the written retainer agreement. In
deciding the motion, the court shall consider, among other relevant factors, the terms of
the written retainer agreement and whether either the attorney or the client has
breached the terms of that agreement; the age of the action; the imminence of the
scheduled trial; the complexity of the issues; the ability of the client to timely retain
substituted counsel; the amount of fees already paid by the client to the attorney; the
likelihood that the attorney will receive payment of any balance due under the retainer
agreement if the matter is tried; the burden on the attorney if the withdrawal application
is not granted; and the prejudice to the client or to any other party.

(3) Upon the filing of a motion or cross-motion to be relieved as counsel,
the court, absent good cause, shall sever all other relief sought by the motion or crossmotion from the motion to be relieved as counsel. The court shall first decide the motion
to be relieved and, in the order either granting or denying the motion to be relieved,
shall include a scheduling order for the filing of responsive pleadings and the return date
for all other relief sought in the motion or cross-motion.

Note: Adopted January 21, 1999 to be effective April 5, 1999; paragraph (b) amended July 5, 2000 to be effective September 5, 2000; new paragraph (a)(10) adopted, and paragraphs (d)(1) and (d)(2) amended July 28, 2004 to be effective September 1, 2004; paragraph (c) amended July 16, 2009 to be effective September 1, 2009; paragraph (c) amended and subparagraphs (d)(1) and (d)(2) amended July 21, 2011 to be effective September 1, 2011; subparagraphs (d)(1) and (d)(2) amended July 9, 2013 to be effective September 1, 2013; paragraph (c) amended, new paragraph (d) adopted, former paragraph (d) redesignated as paragraph (e), and new subparagraph (e)(3) adopted July 28, 2017 to be effective September 1, 2017; subparagraph (a)(9) amended July 29, 2019 to be effective September 1, 2019.