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Is it possible to have a satisfied matrimonial client? Are there ways of keeping ourselves competent, happy matrimonial lawyers? Are there ways to avoid grievance complaints, fee disputes and lawsuits? In this column we will look into some of the most common grievance issues confronting family lawyers and some proposals on how to avoid these problems. While we do not guarantee that these ideas will make every one of your clients happier, it may ease some of the burdens of running a matrimonial practice and make your life (and the life of your staff) a little easier. Unfortunately, family law attorneys are often the subject of grievances or bar association complaints. This may relate to the highly emotional nature of the clients as they seek legal advice. It is advisable to keep in mind that clients who come to attorneys in the throes of matrimonial difficulties may be at a very low stage of their lives. If they have children, they are worried about how much time they will have with the children in the future. Many are concerned that their sometimes inflated lifestyles will leave them in debt or paying off debt, thereby making the running of two households after separation all but impossible. THE OPENING RAPPORT WITH YOUR CLIENT IS CRITICAL Good client relations are absolutely the key to avoiding complaints and malpractice claims. The rapport you set at the beginning of the relationship will go a long way toward maintaining a positive outcome. Listen to clients’ concerns and fears at the first consultation. You might begin a conversation about goals by asking clients how they foresee their future. It would be a good time to also discuss what they perceive will be involved in the divorce process. Unlike many other areas of legal practice, most divorce clients have at least some familiarity with divorce proceedings. Unfortunately, their perceptions are often based on anecdotal evidence from families, friends or acquaintances. The initial consultation is the time to attempt to dissuade them of misconceptions about the divorce process. It is also a time to teach the client some basics about the divorce process. One of the major client complaints about matrimonial lawyers involves the failure to communicate. From the first consultation and in your written retainer, you must discuss how you will be responding to the client and how you will be keeping the client informed. Many retainer agreements indicate that every effort will be made to respond to a client contact within a specified number of hours or within a specified number of business days. Remember, if you indicate that you will do so, you have made a promise, and it is not always the easiest to keep, especially when you are in trial or away from the office for a number of days. It may be preferable to have a provision that indicates that either you or a staff person will return calls within the designated time period. If you have a minimum charge for accepting a telephone call (or for reviewing and responding to an e-mail), this should be discussed with the client and the client should be told that, even if the call or the e-mail does not take the full time for the minimum time charge, it takes you away from your work and that is why there is a minimum charge. E-mail communication may be far easier than telephone calls. Remember to make a hard copy of all e-mails received and all e-mails sent and also to set up electronic client files for e-mails. You should address a minimum charge for e-mails in your retainer or indicate that electronic communication will be treated for billing purposes in the same manner as telephone communications. Explain to clients from the first consultation that you will make a good-faith effort to keep them informed as to all meaningful contacts on the case. Tell the client that if you are trying to reach their spouse’s lawyer and have not made contact that you will not be contacting them until after you confer with the other lawyer. Indicate that your staff will promptly copy clients on all communications and pleadings (scan and send information electronically where possible to the client and ask for a confirmation). It often is effective to send a file memo to the client following an oral conversation with the other attorney summarizing the discussion. The client is kept informed with such a memo, and you don’t have to try to recreate the conversation in any literal way. If there is an oral argument in court, have your client there. It is virtually impossible to recreate who-said-what for the absent client. Of course, if your client is out of town or otherwise unavailable, then you should contact the client as soon as possible following court, when your recollection is the freshest, perhaps aided with outline notes. Control unrealistic expectations and goals on the part of the client. From the first consultation, watch out for the client who says, “I want you to leave my ____ [other spouse] with the clothes on their back,” or the client who says, “My children will never see [the other spouse] once I tell them what that ____ really did.” Do not play into these expectations or into that level of anger. You need to professionally and properly assess the client goals and the likelihood of success. In such a situation, a letter that addresses the goals and specifics, and in which you have made no promises, is a good idea. Another example of this involves the client who comes to you as appellate counsel seeking to reverse every aspect of the trial decision. You would be wise to indicate the specific issues upon which you think reversal is most likely and temper that with good advice that appellate reversals (especially in custody cases) are very difficult to obtain. If the client wishes to pursue numerous issues on appeal, you should indicate the ones that you think are most likely to succeed. If you think that there is very little likelihood of reversal on appeal, you must counsel the client in that manner. If the client still wants to hire you for the appeal, you should reiterate your opinion in the cover letter that accompanies the retainer agreement and perhaps even suggest that the client have a consultation with another lawyer of his or her choice before pursuing the appeal if you feel it has limited merit. Besides allegations of failing to communicate, many lawyer complaints involve fee issues. Fees should be addressed in detail during the first consultation. If the client has a limited source of litigation funding, you must discuss what happens when the direct source is exhausted if litigation so requires. Discuss a guarantor for fees under those circumstances if your jurisdiction permits. If someone else is going to guarantee either the retainer or future fees on a quantum meruit or refresher basis, that guarantee must be in writing and part of the retainer signed by the client and also the guarantor if permitted in your jurisdiction. The guarantor must know what she or he is agreeing to pay for the client. The guarantor must also fully understand that your professional responsibility is only to the client. WHEN IT COMES TO YOUR FEE, WHAT DO LOCAL RULES ALLOW? You must discuss what happens if the client runs out of funds and cannot pay future fees. Are you willing and permitted by local rules to take security against hard assets such as stocks and bonds that will be distributed in the future or realty that will be sold? You must assess what you will do if the client has limited financial resources and the matter escalates to a trial. It is all well and good to have a retainer that provides that you may make an application to withdraw as counsel on notice, but the closer it gets to trial or hearing the less likely it is that a court will approve your application to withdraw as counsel. Under those circumstances, you must do your best work as counsel, and perhaps some fee arrangement can be made with the client after the litigation is concluded. Sometimes a bill had been sent months earlier, and the client has neither paid nor protested the bill. A retainer that provides that the client has the obligation to examine bills in a timely fashion and discuss any charges (without further charge for the discussion) only goes so far. If you have not heard from the client, it probably is a good idea to contact the client by phone or by letter and see if there are unresolved issues. In some jurisdictions, it may be mandatory to provide the client with fee-dispute information if there is a panel that hears disputes preliminarily to litigation over fees. You may also want to consider voluntary arbitration on fees if that is available in your jurisdiction. However, placing a mandatory arbitration clause in retainer agreements must be considered cautiously. Although the American Bar Association, in a 2002 Formal Ethics Opinion (Formal Opinion 02-425), found the practice to be ethical, it also imposed stringent requirements upon the attorney. Beware of minimum fee retainers, especially in jurisdictions that prohibit nonrefundable fees. The minimum fee retainer generally should only be kept if the designated service is completed. For instance, a minimum fee for representing the client at a support hearing should be designated in the retainer agreement as earned when the court renders a decision or a stipulation and order are entered in a court order. If the client discontinues the litigation, then the fee would be based on a quantum merit basis. That should be spelled out in the retainer along with the reasons why there is a minimum fee. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected] .

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