Does a matrimonial lawyer have to get a signed retainer agreement and give the client-rights statement before charging for an initial consultation?

Plain-English summary

The committee was asked whether DR 2-106(C)(2)(b), one of the late-1993 rules governing domestic relations matters, requires a matrimonial practitioner to obtain a signed retainer agreement and provide the client-rights statement before charging for a consultation. That rule bars a fee in a domestic relations matter governed by Part 1400 of the Appellate Divisions' joint rules unless a written retainer agreement, signed by lawyer and client, sets out the relationship and fee details. DR 2-105-a separately requires the lawyer to provide the prospective client with the Statement of Client's Rights and Responsibilities (text fixed by 22 NYCRR 1400.2) at the initial conference and before any retainer is signed.

On the retainer question, the committee concluded none is required just to charge for a consultation. Section 1400.3 requires a retainer agreement only where an attorney "undertakes to represent a party and enters into an arrangement for, charges or collects any fee." Charging a consultation fee alone, without an agreement to undertake the representation, does not trigger it. The committee added that since a central purpose of a consultation is to ascertain the nature and scope of the work and whether the parties will proceed, requiring a signed retainer first would be at odds with the consultation's purpose. A lawyer may therefore charge a consultation fee so long as it is not excessive under DR 2-106(B) and the prospective client is told of it in advance. Drawing on EC 2-19, the committee said the prospective client should have a clear understanding of the cost and how it is calculated, and warned that the lawyer must enter a retainer agreement once the relationship moves from consultation to representation and may not evade DR 2-106(C)(2)(b) by calling continuing representation a "consultation."

On the statement of rights, the committee concluded the opposite: providing it is consistent with and furthers the purposes of a consultation, and DR 2-105-a and Section 1400.2 expressly require it at the initial conference and before any retainer is signed. So the statement must be given at consultations. The committee also noted, without altering the duty, that a consultation generally imposes on the lawyer a duty to preserve the prospective client's confidences and secrets even if the lawyer is never engaged (citing N.Y. State 628, ABA 90-358, and EC 4-1).

Currency note

This opinion was issued in 1997, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a matrimonial lawyer charge for an initial consultation?

A: The opinion concluded yes, as long as the fee is not excessive under DR 2-106(B) and the prospective client is told of the fee and how it is calculated before the consultation.

Q: Is a signed retainer agreement required before charging for the consultation?

A: The opinion concluded no. Part 1400 requires a retainer only when the lawyer undertakes the representation; charging for a consultation alone does not trigger it.

Q: Must the client-rights statement be given at the consultation?

A: The opinion concluded yes. DR 2-105-a and 22 NYCRR 1400.2 require the Statement of Client's Rights and Responsibilities at the initial conference and before any retainer is signed.

Q: What happens once the consultation turns into representation?

A: The opinion concluded the lawyer must then enter a written retainer agreement and may not avoid DR 2-106(C)(2)(b) by treating ongoing representation as a continuing consultation.

Background and rules framework

The opinion interpreted DR 2-106(C)(2)(b) (written retainer requirement in Part 1400 domestic relations matters), DR 2-105-a (client's statement of rights and responsibilities), DR 2-106(B) (excessive fees), EC 2-19, and EC 4-1 of New York's former Code, together with 22 NYCRR Part 1400. The Model Rule analogues are Rule 1.5 (fees and matrimonial fee rules) and Rule 1.18 (duties to a prospective client). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees)
• MR 1.18 (duties to a prospective client)
• NY DR 2-106(C)(2)(b); DR 2-105-a; DR 2-106(B); EC 2-19; EC 4-1

Regulations:

• 22 NYCRR Part 1400 (Procedure for Attorneys in Domestic Relations Matters); sections 1400.2, 1400.3

Cases:

• Leisman v. Leisman, 208 A.D.2d 688 (2d Dep't 1994), confidentiality of preliminary consultations
• Seeley v. Seeley, 129 A.D.2d 625 (2d Dep't 1987), fiduciary duty to a prospective client

Other opinions cited:

• N.Y. State 628 (1992); ABA Formal Op. 90-358 (1990): confidentiality owed to a prospective client

See also

• NY State Bar Op. 690: Contingent fee in a matrimonial tort against the spouse
• NY State Bar Op. 739: Lawyer referral service fees in domestic relations
• NY State Bar Op. 1067: Duties to a prospective client adverse to an existing client

Source

• Landing page: https://nysba.org/opinion-685/