YourABA: October 2012
YourABA October 2012 Masthead
 

Divorce lawyers: Avoid a malpractice suit

Family law cases can lead to a litany of complaints against lawyers. Clients might claim that they were charged excessive fees or abandoned by their representation. Those who are extremely dissatisfied might seek to change lawyers, or file disciplinary charges or malpractice suits.

The ABA CLE “Preventing a Legal Malpractice Claim in Family Law Matters” identified the top 10 reasons matrimonial lawyers get sued and how they can avoid it.

Because of the emotionally charged nature of a divorce, clients are not necessarily realistic about the outcome
of the case.

1. Client emotion and the uniquely personal aspect of these disputes. The emotional component of divorce makes this area of practice particularly challenging, says Laura Frankel, lawyers claims consulting director at CNA Insurance, in Chicago. Clients are typically dealing with difficult financial issues, possible custody battles and upheaval in lifestyle. They’re often angry at their spouse and frustrated at the process. “They are not necessarily thinking clearly or rationally,” Frankel says.

As a result, the lawyer’s job is keep people steady and to “keep your head,” says Robert Moses, partner, Moses & Ziegelman LLP, in New York. “Many attorneys get caught up in their clients’ personal issues, and it’s our job to make sure that we stay focused on representing the clients and staying reasonable in our positions,” he says.

2. Unreasonable expectations. “Clients often come to that initial meeting with the lawyer with not only unrealistic expectations about what the outcome will be, but they also have very strong feelings about what is the morally right outcome of the matter, which will be quite different than what is the realistic outcome for the matter under the controlling law,” says Richard Simpson, partner, Wiley Rein LLP, in Washington, D.C. 

Because of the emotionally charged nature of going through a divorce, clients are not necessarily realistic about the outcome of the case, and they often think they’re entitled to something more than they’re likely to receive, Frankel says. “At the outset and throughout the representation, the matrimonial lawyer needs to be very careful about managing the client’s expectations,” she says. “You don’t want to raise expectations or make promises you will not be able to keep.”

3. Incomplete information. Sometimes clients don’t want to pursue discovery, Moses says. They say they just want to settle and don’t want to spend any money. “As lawyers, it’s our job to talk the client out of that, to make sure that all the information they need to assess their case is there,” he says. “If a client tells you, don’t pursue certain aspects of discovery, you want to document that for your files so you can’t be accused later of not doing your job.”

Also, many times clients don’t want to pay a lawyer to sit at a deposition, he says. It can be thousands of dollars to prepare and attend. “Oftentimes we need these depositions,” Moses says. “If the client is telling you, do not go to the deposition, you have to advise them against that and point out the issues — why that is not a good idea — and just always document that you tried otherwise.”

4. Settlement perception. Many malpractice cases against divorce lawyers are a result of the client thinking that he or she did not get enough in the settlement, Frankel says. The perception, though, may have nothing to do with the reality, which is that the settlement was fair and reasonable. “Since the client may not be thinking clearly during the process, it is definitely the attorney’s responsibility to outline the alternatives and what is reasonable, given the facts and the law,” she says. “It’s important to be candid with clients. [It can’t be emphasized] enough, these discussions must be documented, and all decisions with respect to settlement must be confirmed in writing.”

If a claim comes, the law in most jurisdictions gives lawyers wide latitude on giving advice about settlements, Simpson says. “The judgmental immunity doctrine basically says if you give advice to a client on a matter of judgment, you can’t be held liable by second-guessing of that judgment,” he says. “The key is to document exactly what advice was given and why, and as long as that is fully informed, and not outside the realm of what a reasonable lawyer would advise, there should not be a basis for a malpractice claim.”

5. Retaining experts. The issue for many lawyers is when to hire an expert, Moses says. “Do not delay recommending experts to your client right away,” he says. “They typically do cost significant money, but many of them will work with you at different stages, charge you less for the beginning part and see how the case develops, what their role will be and how much they will charge you.”

Also, most states have rules about identifying experts. “As the attorney, you don’t want to blow any of the time periods to identify the experts and disclose the substance of what the expert will testify to,” Moses says. “If you don’t follow the rules, many times the judges will preclude you from calling an expert.”

Don’t be afraid to call in the right people to help you along with a case, Moses adds. “Many times as lawyers we think we can handle anything and everything,” he says. “But I would say, don’t be a jack of all trades. Don’t be afraid to get colleagues involved as well. Oftentimes my office will discuss cases and try to get viewpoints to make sure we’re looking at the case correctly.”

6. Fee disputes. The fee agreement must be clearly outlined in the retainer, Frankel says. “If there are any modifications to the fee agreement, make sure it’s documented in writing and communicated to the client,” she says. “This may be important if there are expenses that are unanticipated or if the case becomes more contentious than you expected. All of this must be communicated in an ongoing basis to the client.”

If the client is not paying the bills, then the lawyer may need to consider withdrawing from the case, Frankel says. Matrimonial lawyers are often in a situation in which they have to file suit to recover their fees at the end of a case, which may often trigger a counterclaim of malpractice. “Even if there is no legitimacy to the malpractice allegations, it will be pursued,” Frankel says, and pressure will be put “on the attorney to compromise or walk away from the fee. In order to avoid that scenario, you need to be very diligent about your billing arrangement. It must be documented and conveyed very clearly to the client, and if there are any changes, that also needs to be discussed, communicated and documented.”

7. Client selection. A red flag: when, on the first call, the client reveals that he or she has been through three or four different lawyers, Moses says. “You say to yourself, Well, what’s wrong with this picture?” he says. “You bring in the client and then you realize the client either starts ripping apart the prior counsel that he or she had or saying irrational things. From the beginning, if that’s the case, you know not to take on that client.”

Another red flag: clients who have predetermined what they want done. “I see that often,” Simpson says, “especially with everyone having a computer and getting on the Internet and thinking they know the law before they come in. You just have to set their expectations and point out that you’re the expert. When you start explaining the law to them, they might pick up that perhaps they didn’t understand it fully.”

In addition to clients who are doing their own research, Frankel adds, “we’ve seen situations where there should have been a red flag because there were family members or friends who attended all the meetings or were on the phone with them. So clearly the client was receiving a lot of direction and advice from people other than the attorney. And this often turns out very badly, and divorce counsel needs to be paying attention to that.”

8. Drafting documents. “Drafting documents is all about staying current on the law, issue spotting and making sure the agreement addresses all the points and terms that you and your client had agreed to,” Moses says. “I usually will draft up an agreement and show it to my partner, or show it to a colleague who you trust who can ensure that the terms are actually really set forth in the agreement as you want them.”

“Many attorneys get caught up in their clients’ personal issues, and it’s our job to make sure
that we stay focused
on representing the clients,” Moses says.

After you’ve reviewed the agreement with the client, “you have the judge, if possible, state to the client on record that they were fully informed of the terms of the agreement, that they read the agreement, that all the questions about the agreement were answered,” he says. “You have a record then as an attorney that you did your best to make sure your client understood what he or she was signing.”

9. Multijurisdictional issues. When more than one jurisdiction is involved, make sure that you as the lawyer know about both jurisdictions’ laws, Simpson says. If you don’t, then consultant with a lawyer in the other jurisdiction who does. “If the client is not willing to pay for that consultation, you need to make sure you’ve documented that you’ve recommended the consultation and that the client has chosen not to do it, so later on you’re protected if they’re second-guessing about how the result would have been better if only you had filed suit right away in jurisdiction X instead of letting her file in jurisdiction Y,” he says.  

10. Poor client relations. Lawyers have hectic, demanding schedules, and divorce clients are often demanding of their counsel’s time, which may create a situation in which the lawyer does not return calls or respond to emails, Frankel says. “When an attorney is not responsive and communication is poor, this opens the door to problems down the road,” she says. “It’s very important that the client feels that you are engaging with them and responsive, but clearly the level of communication needs to be balanced. The attorney does not want to be in the role of therapist, but they do want to create a relationship where the client trusts their judgment and advice.”

This is also a two-way street, she adds. “If the client is unresponsive or uncooperative, this also must be addressed and documented in the file in case the client pursues a claim down the road,” she says. “The client has to understand, and it needs to be explained to them, that their cooperation is important to accomplishing a good result.”

This CLE was sponsored by the ABA Standing Committee on Lawyers’ Professional Liability, Center for Professional Responsibility, Section of Family Law and Young Lawyers Division.

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