One of the attorneys I am informally mentoring in family court practice came back from a domestic abuse hearing earlier this week having gotten a thorough and humiliating beat-down. The night before the hearing we had discussed the preparation in some detail but he showed up at the hearing to learn that the apparently pro-se petitioner actually had an experienced attorney, and that this attorney had a substantial fee claim which she was awarded in-full from my mentee’s client.
Any good attorney, after suffering such a beat-down, should ask him or herself: How do I prevent this from happening again? Thus mentee and I engaged in a post-mortem autopsy. “Let me review the other attorney’s fee affidavit,” I asked. That affidavit, given my respect for this attorney and her vast family court experience, was somewhat shocking. Neither attorney had complied with the requirements of Family Court Rule 8: In the case of my inexperienced mentee, this non-compliance was somewhat excusable; in the opposing counsel’s case, less so. Yet the strictures of this rule, so easy to comply with, are frequently ignored. All Rule 8, SCRFC requires is:
Upon retention of counsel in a proceeding in family court, counsel shall immediately notify the court and opposing counsel, if any, of his appearance. The notification shall include the attorney’s current address and telephone number.
I draft and file these Rule 8 notices so frequently that I have a special macro for them, which puts “ENTRY OF APPEARANCE” on the right side of the case caption and “Please note that Gregory Forman, Esquire, pursuant to the authority of Rule 8, SCRFC, appears on behalf of the Defendant in the above captioned matter.” underneath the caption (a separate macro creates a signature line with my address and phone number). If I am retained on the weekend or night before a hearing the next business day, I simply e-mail or call the opposing counsel and the hearing judge to let them know I have been retained. The whole process takes mere minutes.
The purpose of this rule is not only to provide notice but to allow opposing attorneys to connect and attempt to resolve disputes by consent before they end up being decided by a judge. In theory there should be, and in practice there sometimes are, consequences for failing to comply with Rule 8. I have seen judges continue hearings upon the other party’s request or deny an appearing-without-notice attorney’s fee request for failure to comply with this rule, especially if the other party can show prejudice.
In my mentee’s case, opposing counsel showed up with a fee request seeking compensation for 15.75 hours of time, all of which was spent prior to the date of the hearing. Of this time, five hours were for her work and the remaining time was for an associate’s and paralegal’s work. She began billing five days before the hearing and was clearly retained three days before the hearing.
Had I been respondent’s counsel in this domestic abuse hearing I would have gone ballistic upon receiving this fee affidavit and objected to the court’s consideration of the fee claim based on the counsel’s failure to comply with Rule 8. However my mentee, because he had failed to file his own entry of appearance, or inform the court and opposing party of his representation, was in no position to complain.
The lesson to be learned: Always comply with Rule 8, SCRFC and complain to the court when prejudiced by opposing counsel’s failure to similarly comply.