Handling the Initial Meeting in a Divorce Case - ABA YLD 101 Practice Series

By Paul T. Davis

Looking for the Right Client
Many lawyers are plagued by a belief that they need to provide representation to every potential client that walks in the door. This is not the case. Lawyers should spend some time thinking about what type of clients they want to represent. This is especially important in divorce cases because the client is going through an emotional experience and can be difficult to represent at times. Therefore, lawyers and their legal assistants should try to screen clients on the telephone to find out whether this is the type of client you want to represent.

Also understand that family law requires some expertise in a wide array of legal areas (i.e. tax, bankruptcy property, business organizations, etc.). While you may think you know a enough about each of these areas to get by, make sure that you don't take on a client who has complex issues that are outside of your expertise.

Don't be afraid to turn away a client. You may be saving yourself a headache and could be doing the client a favor.

Check for a Conflict
The very first thing that needs to be determined is whether or not a conflict of interest might exist. Be sure to ask who is representing the other spouse and find out the name of the other spouse. It is best to do this immediately when the person contacts you so that you don't give any legal advice until you know whether a conflict exists. Hopefully your law firm has a good conflict check system and you will be able to ascertain an answer fairly quickly.

Preparing for the First Meeting
Try to obtain as much information as possible about the client before the first face-to-face meeting. If a case has already been started, get the case file so you know where things stand. Have your legal assistant telephone the client to get biographical information or other personal data that is needed. Make sure the client fills out an intake form that gives you all the contact information you need about the client.

As mentioned previously, it is very important to screen potential clients beforehand. While it may or may not be possible for a legal assistant to do this, it can save you a great deal of time with clients you decide to represent and can assist you in weeding out clients that you don't want to represent. It is often hard to justify spending ten to fifteen minutes on the telephone discussing a potential client's case, but it will most certainly save you time in the long-run.

Getting Acquainted
It is very important to make sure that a client is at-ease with you during an initial meeting. Keep in mind that the client may need to reveal some very personal information and needs to feel comfortable discussing it with you. I like to remind clients of attorney/client confidence rules and let them know that whatever they tell me just stays between the two of us. I also like to tell new clients that it is very important for them to be candid with me and make sure that I am told all of the relevant information. I frequently tell new clients that I need to know the "good, bad and the ugly" if I'm going to be able to adequately represent them. It is also important to ask the client several times "do you have any questions of me?". You want to make sure that you've addressed every issue they have on their mind.

Define the Scope of Representation
We often assume that clients know exactly what and what not a lawyer will do for them. This cannot be assumed! Many clients have never been to a lawyer before and don't know what exactly we do. Take some time to explain exactly what you can assist them with and what you are not capable of helping with. In the context of an emotional divorce client, I like to preface the representation by pointing out that I am a legal counselor and not a personal counselor. It is often important to let these clients know that we cannot assist them with mental health issues or simple personal counseling and that if they are need of such services, they need to go elsewhere.

Giving Realistic Expectations
I have run across far too many lawyers who like to tell clients what they want to hear. This can be very dangerous in a divorce context. Most clients don't realize that they are probably going to be worse off financially after the divorce. A lawyer needs to be up-front about this. If there are issues related to child custody and you have a client who steadfastly believes they should have custody and you have questions about this, you need to prepare them for the chance that they may not prevail on the custody issue.

Discussing Fees
I've heard many attorneys that agree to represent a client say "we'll talk about fees later". This is a bad practice. There needs to be a blunt discussion about attorney fees at the initial meeting, and preferably beforehand. A client needs to know the realistic assessment of what this will cost and not find this out at the end of the case. I always give the client my hourly rate on the telephone or during our first meeting and then try to give them an estimate of what the total costs could be.

It is especially important in divorce cases to get retainers up front. Many people who are going through a divorce become financially strapped during the divorce and aren't able to pay their lawyers. Additionally, I have found that many divorce clients are not interested in paying a lawyer for something that they don't think they caused or that they believe they aren't at fault for. If you don't get legal fees up-front, be prepared to not get paid frequently.

Also, it is important to have written fee contracts with clients. The ethical rules in most states don't require a written fee contract for a divorce, but it is simply good practice. It puts the client on notice about what fees they are going to be charged and it gives you a tool to use if the attorney/client relationship becomes strained later on because of a fee dispute.

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About the Author

Mr. Davis is the Chair of the ABA YLD Family Law Committee.

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