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NJ-AFCC
The New Jersey Chapter of the Association of Family and Conciliation Courts

Rules of Court

Rules Amended in Response to the Recommendations of the New Jersey Supreme Court Special Committee on Matrimonial Litigation to be Effective April 5, 1999 

Compiled by the Editors, The Children's Advocate

New rules were approved on January 21 by the New Jersey Supreme Court, based on the recommendations of the Special Committeee on Matrimonial Litigation which was co-chaired by Assignment Judge Linda R. Feinberg and Lew M. Hymerling, Esquire.  We have printed the text of the changes.

The following listed Rules Governing the Courts of the State of New Jersey are adopted by the Supreme Court of New Jersey to be effective April 5, 1999:

1:6-1. Applicability of Rule
1:6-2. Form of Motion; Hearing
1:10-3. Relief to Litigant
1:11-2. Withdrawal or Substitution
1:21-7. Contingent Fees; Retainer Agreements
1:21-7A. [deleted] Retainer Agreements in Family Actions
1:40-5. Mediation of Custody and Visitation Actions
4:24-1. Completion Within 150 Days; Exceptions
4:42-9. Counsel Fees
5:1-4. Differentiated Case Management in Civil Family Actions
5:3-3. Appointment of Experts
5:3-5.Attorney Fees and Retainer Agreements in Civil Family Actions; Withdrawal
5:3-6. Continuous Trials
5:3-7.Additional Remedies on Violation of Orders Relating to Parenting Time, Alimony, or Support
5:4-2. Complaint
5:5-1. Discovery
5:5-2. Case Information Statement
5:5-4. Motions in Family Actions
5:5-6. Case Management Conferences in Civil Family Actions
5:7-8. Bifurcation
5:8-5. Custody and Visitation Plans, Recital in Judgment or Order

STATEMENT OF CLIENT RIGHTS AND RESPONSIBILITIES IN CIVIL FAMILY ACTIONS 

APPENDIX XVIII

1:6-1. Applicability of Rule
Rule 1:6 shall apply to all trial courts, except the municipal courts and except as otherwise provided by [R. 6:3 3 with respect to motion practice in the Special Civil Part and R. 3:26-2(d) with respect to bail reductions] R. 3:26-2(d) (motions for bail reductions), R. 5:5-4 (motions in civil family actions), and R. 6:3-3 (motions in the Special Civil Part). 

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1:6-2. Form of Motion; Hearing
(a) Generally. An application to the court for an order shall be by motion, or in special cases, by order to show cause. A motion, other than for bail pursuant to R. 3:26-2(d) or one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally. Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought and [other than motions in family actions pursuant to R. 5:5-4 in which oral argument is sought,] shall be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed. If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6. The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought. (f) Order; Record Notation. If the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall so note indicating whether the findings and conclusions were written or oral and the date on which they were rendered. If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. If the order directs a plenary or other evidential hearing, it shall specifically describe the issues to be so tried. A written order or record notation shall be entered by the court memorializing the disposition made on a telephone motion. 

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1:10-3. Relief to Litigant
Notwithstanding that an act or omission may also constitute a contempt of court, a litigant in any action may seek relief by application in the action. A judge shall not be disqualified because he or she signed the order sought to be enforced. If an order entered on such an application provides for commitment, it shall specify the terms of release provided, however, that no order for commitment shall be entered to enforce a judgment or order exclusively for the payment of money, except for orders and judgments based on a claim for equitable relief including orders and judgments of the Family Part and except if a judgment creditor demonstrates to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. The court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule. In family actions, the court may also grant additional remedies as provided by R. 5:3-7. An application by a litigant may be tried with a proceeding under R. 1:10-2(a) only with the consent of all parties and subject to the provisions of R. 1:10-2(c). 

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1:11-2. Withdrawal or Substitution
(a) Generally.Except as otherwise provided by R. 5:3-5(d) (withdrawal in a civil family action), (1) an attorney may withdraw without leave of court prior to the entry of a plea in a criminal action or after the pretrial conference or the fixing of a trial date, whichever is earlier, in a civil action upon the client's consent provided a substitution of attorney is filed naming the substituted attorney or indicating that the client will appear pro se.   If the client will appear pro se, the withdrawing attorney shall file a substitution. An attorney retained by a client who had appeared pro se shall file a substitution, and  (2) after the entry of a plea in a criminal action or the earlier of the pretrial conference or fixing of a trial date in a civil action, a attorney may withdraw without leave of court only upon the filing of the client's written consent, a substitution of attorney executed by both the withdrawing attorney and the substituted attorney, a written waiver by all other parties of notice and the right to be heard, and a certification by both the withdrawing attorney and the substituted attorney that the withdrawal and substitution will not cause or result in delay. (b) Professional Associations. If [In the event that] a partnership or attorney assumes the status of a professional corporation, or limited liability entity, pursuant to Rules 1:21- 1A, 1:21-1B or 1:21-1C, respectively, or if [in the event that] a professional corporation or a limited liability entity for the practice of law dissolves and reverts to an unincorporated status, it shall not be necessary for the firm to file substitutions of attorney in its pending matters provided that the firm name, [(]except for the addition or deletion of the entity designation[)], is not changed as a result of the change in status.

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1:21-7. Contingent Fees; Retainer Agreements
(c) In any matter where a client's claim for damages is based upon the alleged tortious conduct of another, including products liability claims and, subject to R. 5:3-5(b), claims among family members, and the client is not a subrogee, an attorney shall not contract for, charge, or collect a contingent fee in excess of the following limits: 
(1) 33 1/3 % on the first $500,000 recovered; 
(2) 30% on the next $500,000 recovered; 
(3) 25% on the next $500,000 recovered; 
(4) 20% on the next $500,000 recovered; and 
(5) on all amounts recovered in excess of the above by application for reasonable fee in accordance with the provisions of paragraph (f) hereof; and
(6) where the amount recovered is for the benefit of a client who was a minor or incompetent when the contingent fee arrangement was made, the foregoing limits shall apply, except that the fee on any amount recovered by settlement without trial shall not exceed 25%.

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1:21-7A. Retainer Agreements in Family Actions
All agreements for legal services by an attorney or attorneys in connection with family actions shall be in writing signed by the attorney and client. A signed duplicate copy of the agreement shall be delivered to the client. This rule shall not apply in those cases where no fee is charged for services rendered. 

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1:40-5. Mediation of Custody and Visitation Actions 
(c) Mediator Not to Act as Evaluator. The mediator may not subsequently act as an evaluator for any court-ordered report nor make any recommendation to the court respecting custody and parenting time. 

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4:24-1. Completion Within 150 Days; Exceptions
Except as otherwise provided by R. 5:5-1(e) (civil family actions), all proceedings referred to in R. 4:10-1 to R. 4:23-4 inclusive, except proceedings under R. 4:11 (depositions before action or pending appeal), R: 4:20 (impartial medical examinations), R. 4:21 (professional liability claims), and R. 4:22 (request for admissions), shall be completed as to each defendant within 150 days of the date of service of the original complaint on the defendant, unless on motion and notice, and for good cause shown, an order is entered before the expiration of said period enlarging the time for such proceedings to a date specified in said order.

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4:42-9. Counsel Fees
(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except   (1) In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5(c). [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, nullity, support, alimony, custody, visitation, equitable distribution, separate maintenance, enforcement of interspousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons. Any pendente lite allowance may include a fee based upon an analysis of prospective services to be performed.]

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5:1-4. Differentiated Case Management in Civil Family Actions 
(a). Case Management Tracks; Standards for Assignment.   Except for summary actions, every civil family action shall be assigned, subject to reassignment as provided by paragraph (c ) of this rule, to one of the following tracks as follows:  (1) Priority Track. The action shall be assigned to the priority track if it involves contested custody or parenting time issues.  (2) Complex Track. The action shall be assigned to the complex track for judicial management if it appears likely that it will require a disproportionate expenditure of court and litigant resources in preparation for trial and at trial because of the number of parties involved, the number of claims and defenses raised, the legal difficulty of the issues presented, the factual difficulty of the subject matter, the length and complexity of discovery, or a combination of these or other factors.  (3) Expedited Track. The action shall be assigned to the expedited track if it appears that it can be promptly tried with minimal pretrial proceedings, including discovery. Subject to re- assignment as provided by paragraph (c) of this rule, a dissolution action shall be assigned to the expedited track if (A) there is no dispute as to either the income of the parties or the identifiable value of the marital assets and no issue of custody or parenting time has been raised; (B) the parties have been married less than five years and have no children; (A) the parties have entered into a property settlement agreement; or (D) the action is uncontested.   (4) Standard Track. Any action not qualifying for assignment to the priority complex track or expedited track shall be assigned to the standard track.  (b) Procedure for Track Assignment. The Family Presiding Judge or a judge designated by the Family Presiding Judge shall make the track assignment as soon as practicable after all parties have filed Case Information Statements required by R. 5:5-2 or after the case management conference required by R. 5:5-6, whichever is earlier. The track assignment shall not, however, precede the filing of the first responsive pleading in the action. In making the track assignment, due consideration shall be given to an attorney's request for track assignment. If all the attorneys agree on a track assignment, the case shall not be assigned to a different track except for good cause shown and after giving all attorneys the opportunity to be heard, in writing or orally. If it is not clear from an examination of the information provided by the parties which track assignment is most appropriate, the case shall be assigned to the track that affords the greatest degree of management. The parties shall be promptly advised by the court of the track assignment.  (c) Track Reassignment. An action may be reassigned to a track other than that specified in the original notice to the parties either on the court's own motion or on application of a party. Unless the court otherwise directs, such application may be made informally to the Family Presiding Judge or to a judge designated by the Family Presiding Judge and shall state with specificity the reasons therefor.

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5:3-3. Appointment of Experts 
(a) Medical, Psychological and Social Experts. Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person's family. The court may also direct who shall pay the cost of such examination.  The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.    

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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 that 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 © of this rule; and 
(9) the right of the attorney to withdraw from the representation, pursuant to paragraph (d) of this rule, if the client does not comply with the agreement.  (b) Limitations on Retainer Agreements. 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. 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, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of interspousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons. 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 marital 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; (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) Withdrawal from Representation.  (1) An attorney may withdraw from the representation prior to the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, upon the client's consent and 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) After the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, an attorney may withdraw from the action only by leave of court on motion on 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 Matrimonial Early Settlement Panel hearing date or the trial date, as appropriate; the complexity of the issues; the ability of the client timely to 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.

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5:3-6. Continuous Trials
Insofar as practicable, civil family actions should be tried continuously to conclusion and, in the absence of exigent circumstances, shall be so tried in counties in which four or more judges are assigned to the Family Part on a full-time basis. 

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5:3-7.Additional Remedies on Violation of Orders Relating to Parenting Time, Alimony, or Support
(a) Custody or Parenting Time Orders. On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3, any of the following remedies, either singly or in combination: (1) compensatory time with the children; (2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled visitation such as child care expenses incurred by the other parent; (3) modification of transportation arrangements; (4) pick-up and return of the children in a public place; (5) counseling for the children or parents or any of them at the expense of the parent in violation of the order; (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children; (7) participation by the parent in violation of the order in an approved community service program; (9) incarceration, with or without work release; (9) issuance of a warrant to be executed upon the further violation of the judgment or order; and   (10) any other appropriate equitable remedy.  (b) Alimony or Child Support Orders. On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver's license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further violation of the judgment or order; and (8) any other appropriate equitable remedy.

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5:4-2. Complaint
(f) Affidavit of Insurance Coverage. The first pleading of each party shall have annexed thereto an affidavit listing all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowners insurance. The affidavit shall specify the name of the insurance company, the policy number, the named insured and, if applicable, other persons covered by the policy; a description of the coverage including the policy term, if applicable; and in the case of life insurance, an identification of the named beneficiaries. The affidavit shall also specify whether any insurance coverage was canceled or modified within the ninety days preceding its date and, if so, a description of the canceled insurance coverage. Insurance coverage identified in the affidavit shall be maintained pending further order of the court.

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5:5-1.Discovery 
Except for summary actions and except as otherwise provided by law or rule, discovery in civil family actions shall be permitted as follows:    (e) Discovery shall be completed within 90 days from the date of service of the original complaint in actions assigned to the expedited track and within 120 days from said date in actions assigned to the standard track. In actions assigned to the priority or complex track, time for completion of discovery shall be prescribed by case management order.

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5:5-2. Case Information Statement 
(b) Time and Filing. Except as otherwise provided in R. 5:7-2, a case information statement or certification that no such statement is required under subparagraph (a) shall be filed by each party with the clerk in the county of venue within 20 days after the filing of an answer or appearance. The case information statement shall be filed in the form set forth in Appendix V of these rules. The court on either its own or a party's motion may, on notice to all parties, dismiss a party's pleadings for failure to have filed a Case Information Statement. If dismissed, said pleadings shall be subject to reinstatement upon such conditions as the court may deem just.

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5:5-4. Motions in Family Actions
(b) Page Limits. Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), a certification in support of a motion shall not exceed fifteen pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed twenty-five pages. A reply certification to opposing pleadings shall not exceed ten pages.

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5:5-6. Case Management Conferences in Civil Family Actions
[Case Management Conferences may be held in all actions in the Chancery Division, Family Part, in the discretion of the court, either on its own motion or upon a party's written request. The request of a party for a case management conference shall include a statement of the facts and reasons supporting the request. In any action in which a case management conference has been held, a case management order shall be entered in the form set forth in Appendix X of these rules or in such other form as the court may direct.]   (a) Priority and Complex Actions. In civil family actions assigned to the priority or complex track, an initial case management conference, which may be by telephone, shall be held within 30 days after the expiration of the time for the last permissible responsive pleading or as soon thereafter as is practicable considering, among other factors, the number of parties, if any, added or impleaded. Following the conference, the court shall enter an initial case management order fixing a schedule for initial discovery; requiring other parties to be joined, if necessary; narrowing the issues in dispute, if possible; and scheduling a second case management conference to be held after the close of the initial discovery period. The second case management order shall, among its other determinations, fix a firm trial date.   (b) Standard and Expedited Cases. In civil family actions assigned to the standard or expedited track, a case management conference, which may be by telephone, shall be held within 30 days after the expiration of the time for the last permissible responsive pleading. The attorneys actually responsible for the prosecution and defense of the case shall participate in the case management conference and the parties shall be available in person or by telephone. Following the conference, the court shall enter a case management order fixing a discovery schedule and a firm trial date. Additional case management conferences may be held in the court's discretion and for good cause shown on its motion or a party's request.

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5:7-8. Bifurcation
Bifurcation of trial of the marital dissolution or custody dispute from trial of disputes over support and equitable distribution shall be permitted only with the approval of the Family Presiding Judge, which approval shall be granted only in extraordinary circumstances and for good cause shown. 

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5:8-5. Custody and Visitation Plans, Recital in Judgment or Order 
 (c) Failure to comply with the provisions of the Custody/Visitation Plan may result in the dismissal of the non-complying party's pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.

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APPENDIX XVIII
STATEMENT OF CLIENT RIGHTS AND RESPONSIBILITIES IN CIVIL FAMILY ACTIONS 

A. Client Rights 
1.Clients have the right to have their attorneys diligently advocate their interests within the bounds of the law and legal ethics. 2.Clients have the right to have the fee arrangement fully and completely explained prior to entering into any agreement for services. 3.Clients have the right to have a written retainer agreement describing the financial terms of the relationship between the client and the attorney.  4.Clients have the right to refuse to enter into any unacceptable fee arrangement or modification of a fee arrangement. 5.Clients have the right to be provided information as to the attorney(s) who will be primarily responsible for their matter and all other legal staff who will be working on the matter as well as information as to the costs for those individuals. 6.Clients have the right to be provided bills on a regular basis, itemized as to the charges and time spent on each activity. 7.Clients have the right to be informed of and be present at any court proceeding involving their case unless otherwise directed by the court. 8.Clients have the right to be provided copies of all documents presented to the court by any party in their matter unless otherwise ordered by the court. 9.Clients have the right to be afforded reasonable access to their attorneys. 10.Clients have the right to make the final decision as to whether, when, and how to settle their cases and as to economic and other positions to be taken with respect to issues in the case.

B. Client Responsibilities 
1.Clients shall provide full and accurate information to their attorneys regarding their matter. 2.Clients shall be available to participate in a timely fashion regarding their matter and to respond reasonably to requests from their counsel. 3.Clients shall advise their attorneys promptly of any change in their lives that might reasonably be expected to affect the handling of their matter. 4.Clients shall pay for the legal services rendered on their behalf within the time period set forth in the retainer agreement. 5.Clients shall be required to review diligently all bills submitted by their attorneys and within a reasonable time to raise any objections regarding billing. 6.Clients shall not take any position in their matter for any improper purpose, such as to delay the proceeding or intentionally to increase the cost to other litigants. 7.Clients shall not seek to use their attorneys for any improper means. 8.Clients must recognize and be responsible for the costs associated with any action initiated or requested by the client. 9.Clients shall provide sufficient time for their attorneys to explain to them the financial costs and other ramifications of a potential action in their matter and reasonably to consider the advice of their attorneys. 

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