Roadblocks to Representing the Client or Taking the Case

Finances

Inevitably, the availability of sufficient funds to pay for the dissolution action, not only in terms of legal fees, but expert and professional fees, will be an issue. While there may be the occasional case that you may want to champion as a cause on a pro bono basis, you should be the one to make that determination—it should not be forced upon you by a client unwilling to pay your fee. The initial client meeting is the time to discuss in depth your fee arrangements, payment methods, hourly rates, and refresher retainer requirements. Such a discussion is not only good practice, but an ethical obligation. See, Model Rules of Professional Conduct, Rule 1.5(b), Fees. “The … basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client . …”

Clarity and transparency from the outset on fee payment, costs, and refresher retainers may eliminate future fee disputes. At no point in time is a client’s motivation to make sure you get paid greater than in the beginning of the case—after all, they need your services. As the case progresses, when their expectations, realistic or unrealistic, are not met, motivation and willingness to pay your fee diminishes. If you have not set up realistic expectations, don’t be surprised when they push back and contest your fee.

The cost of specific actions to be taken during a divorce case, such as different discovery methods and the retention of experts, is a topic for the initial meeting. Not all cases can be prosecuted in the same manner, especially where financial resources are lacking. You will need to clearly explain to the client what actions he or she may want to take, whether it is to hire an appraiser, a financial expert, or a forensic accountant; the costs associated; and what you hope to gain as a result. Clients must be made a part of the decision-making process regarding whether to incur these expenses; this participation will allow them to make  intelligent decisions about how their resources will be spent. If a client can’t afford it, you should not incur an expense on your own from both a legal and ethical perspective. See, Model Rules of Professional Conduct, Rule 1.8(e), Conflict of Interest: Current Clients: Specific Rules.

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.” While a client may suggest advancing you such costs and compensating you by giving you a percentage of the recovery, such an arrangement would be considered a contingency fee, which is forbidden in matrimonial cases.

Clients without adequate financial resources may use many different methods to avoid or defer payment of fees. Be wary of the client who tries to negotiate your retainer or even your hourly rate at the initial meeting. Those are clients who will nickel and dime you every step of the way. After all, you don’t go to a grocery store, pick up a filet mignon, and when you are paying ask that you only be charged ground beef rates.

One frequent suggestion is that you have the other spouse ordered to pay fees. Do not guarantee that, as a court may not award fees. Your clients must know the ultimate responsibility to pay fees rests with them.

If a client truly does not have funds, he or she may seek familial support. You should discuss the fee arrangements, with your client’s permission, directly with the family member providing payments. You do not want something to get lost in translation when your client relays the fee arrangements to a family benefactor. If you are receiving compensation from one who is not your client, three things must occur: (1) you must obtain informed consent from your client; (2) you must assure yourself that there is no interference with your independent, professional judgment or with your relationship with the client; and (3) you must protect the attorney-client relationship. See Model Rules of Professional Conduct, Rule 1.8(h).

Emotions

Even if finances are not an impediment to representing a client, his or her emotional state, mental health status, and the nature of marital discord may present a serious roadblock to a smooth resolution. In dissolution actions, we typically see good people at a bad time in their lives. There are certain clients who are the product of an abusive relationship or so hurt by a spouse’s actions that they can’t see straight and only want revenge. You can spot these clients at the initial meeting when they assert settlement demands without knowing what a court can or cannot order or when they outright announce that the other spouse must pay for all wrongdoings.

Anger and obsession with revenge are antithetical to good decision-making in resolving a case. A client who is emotionally compromised should be encouraged to attend therapy if he or she is not already in therapy. In addition, see if the client will give you permission to speak with his or her therapist. In that fashion, the therapist can be informed of the status of the divorce to best help the client navigate the system. Without this kind of help and support, your client may flounder, make very bad decisions and choices, and compromise the case.

In the same fashion, a client who is angry and just wants to get back at a spouse likewise is a detriment and makes representing him or her difficult. Anger is a very natural part of the grieving process that all people go through in a dissolution, some to a bigger extent than others. Some lawyers encourage and feed off a client’s anger, which ultimately is not in the client’s best interest; after all, your client, and his or her ex-spouse if children are involved, must still deal with each other, which may be more difficult depending upon how the dissolution has proceeded. Keeping anger in check will work to your client’s benefit. If a client’s anger is unabated, he or she can irreparably harm the case, especially if custody is at issue.

E-Communication

Counseling clients as to the pitfalls of email and text communication is essential at the outset of any case. Many times, clients will communicate by text message or email because it is very easy to spout off on anything behind the screen of the computer or phone. However, such communication is in writing and may become evidence in the case. Clients should be told not to put anything in writing that they wouldn’t want their grandmothers to see.

Opposing Counsel

Cases can become either a pleasure or a nightmare depending upon opposing counsel. Given the choice between a seasoned, experienced attorney and a lawyer who has no idea what he or she is doing, most attorneys will choose the experienced lawyer, who will likely be beneficial to the process. That lawyer will know how to evaluate a case and counsel his or her client. Typically, the experienced lawyer creates a much more professional atmosphere without unnecessarily ratcheting up tensions. However, we also know there are experienced lawyers who ratchet tensions up for no apparent reason. Try to steer clear of them.

Your Strengths and Limitations

When representing any client, you must be mindful of your strengths and limitations. If you are not familiar with an issue in a case, you have an ethical obligation to educate yourself regarding that issue or to bring someone in to help you. See Model Rules of Professional Conduct, rule 1.1, Competency. This equally applies if you are brought in to co-counsel a case with a less-experienced attorney. Do not let the less- experienced attorney make decisions outside the realm of his or her expertise. A matrimonial lawyer is often asked to be a jack-of- all-trades, given the complexity of different financial issues we face in our cases, from complex compensation structures to trusts and estates. However, the danger of being a jack-of-all-trades is that we may miss a nuance that a professional, trained in that area, would be familiar with. That nuance could be very costly to your client. Do not hesitate to recommend and consult with additional professionals should they be needed.

Client Expectations

Many clients come into your office with preset expectations of the dissolution process and the expected outcome of their cases. Educating your clients about the process and a reasonable range of outcomes is imperative in managing their expectations. This should be done proactively, starting with the very first meeting. Allowing clients to articulate their expectations prior to educating them results in clients questioning what you are saying and putting you in a defensive posture instead of being an authority on the subject.

Clients need to be given the good, the bad, and the ugly. Don’t sugarcoat anything. Many lawyers try to soft pedal the bad news at an initial conference for fear of losing the client. You may, however, be setting yourself up for later problems when you do have to deliver the bad news. Your client will have more respect for you and listen to your advice if he or she feels you are being honest.

While some of the expectations a client develops are self-generated, more often than not, they come from some well- or not-so-well-meaning friends, family, and acquaintances. How many times have you had a case where a  client has come in and told you about what she heard from a friend who just went through a divorce or what she just read on the Internet? These outside influences are the bane of a lawyer’s existence. Often it seems we spend more time dispelling clients of crazy notions they have garnered from other people or read on the Internet. Educating the client about the process from the start will help dispel a lot of these notions right away. Giving your client  the information will obviate the need for him or her to seek it from other sources. Clients need to be informed that divorce cases are not a matter of one size fits all. While a client’s best friend may have been able to keep the marital residence, the friend’s assets may be very different from your client’s assets in terms of asset structure and value. The initial conference should be spent educating these clients about what the law of your state provides, as well as the divorce process.

Sometimes Just Say No

It is wise to remember that not every client should be represented by you. There may be times when you and the client don’t mesh or the client is asking you to do something that you find abhorrent. You have no obligation to represent such clients and should discourage them from hiring you. Do not tell them that you are not taking new cases at this time, as that is something that is likely to get out in the public and could prevent you from getting cases in the future. Be honest. Tell them that not all attorneys and clients mesh. Above all, trust your gut instinct with people. If your gut is telling you not to do it, then don’t.

The key to representing your clients well is transparency. Over-inform your clients. Talk to them. Don’t hide behind email. fa