Reading Your Divorce Attorney’s Contract
If the lawyer you’re considering hiring didn’t provide you with a copy of his or her standard contract at your interview, you should ask for one now. This document, commonly referred to as a "fee agreement" or "retainer agreement," will spell out the terms of your relationship with your lawyer. It should describe how you will be charged, what you will be charged for, what the billing rates will be, what the lawyer proposes to do, and what the lawyer expects you to do. If the lawyer anticipates billing you for things other than his or her time-such as postage, photocopying, computerized legal research, expert witnesses, detectives, word processing, travel expenses, and so on-these should be spelled out in the fee agreement. Some lawyers’ fee agreements are much more detailed than others, and the level of detail in a lawyer’s fee agreement does not necessarily correlate with how well a lawyer will handle a case.
If a lawyer has no fee agreement to show you, a red flag should go up. Many jurisdictions require lawyers to have written fee agreements with clients, but even if your jurisdiction does not, it is still necessary for you to understand your and your lawyer’s rights and obligations. These should be spelled out in writing at the beginning of your relationship so neither client nor lawyer can claim a misunderstanding later.
Take Jerome’s situation, for example. He located Lawyer X after a lengthy search and hired him primarily because he felt comfortable with him. Jerome trusted Lawyer X and, unlike most of the other lawyers he had interviewed, he had no trouble talking to him or understanding him. Lawyer X told Jerome that he charged an hourly rate of $150 but said no written fee agreement was necessary. The lawyer sent Jerome a letter thanking him for retaining him to represent Jerome in his "domestic-relations matter" and requesting a retainer of $7,500. Feeling they understood each other, Jerome gave Lawyer X the retainer.
As the case progressed, Jerome continued to feel that his initial impression had been correct. His attorney appeared to be a warm, caring, down-to-earth man who always found time to answer Jerome’s questions and keep him fully informed of all developments in the case. Whenever Jerome was faced with choices that were difficult, whenever he wasn’t sure what to do, he felt comfortable relying on his lawyer’s recommendations.
Unfortunately, Jerome’s divorce did not go as smoothly as his relationship with his lawyer seemed to. Three years later and the retainer long gone, Lawyer X was still hard at work on Jerome’s behalf Lawyer X explained that Jerome’s wife had hired a snake-in-the -grass lawyer who made the entire divorce process take much longer than necessary. After Jerome’s retainer was used up, his lawyer began sending detailed monthly bills, which Jerome reviewed carefully and then juggled his budget to pay. One month, Jerome noticed that he was being billed at $200 per hour instead of the usual $150. Assuming a clerical error, Jerome contacted his attorney, who informed him that he had raised his rates.
Jerome was flabbergasted. Could a lawyer just all of a sudden do that? What could Jerome do? Start over with a new lawyer? Even though Jerome understood the concept of inflation, having his already-costly legal fees increase so much with no notice left a bad taste in his mouth. He couldn’t help but wonder whose best interest Lawyer X had in mind. He started wondering whether his case had dragged on so long because of his wife’s snake-in-the-grass lawyer or because his own attorney wanted to continue billing him. The trust he had once felt for his lawyer started slipping away, and Jerome began to second-guess almost all of the recommendations his lawyer had made so far. His sense of security was replaced with paranoia, and Jerome was left wondering if there was anyone he could trust.
It is not improper or unusual for a lawyer to periodically raise his or her rates (unless the lawyer has specifically agreed not to). If Jerome had obtained a written contract from Lawyer X, it most likely would have provided either that the hourly rate would last for the duration of the representation or that it would not. Either way, Jerome would have known what was coming and could have dealt with the issue when he signed the fee agreement. Any price hikes could have been anticipated and taken in stride instead of coming as an unwelcome shock.
An attorney should routinely supply a written fee agreement at the initial interview. If a lawyer does not provide one, you should insist on it. Not putting the fee agreement in writing is almost certain to create misunderstandings that will eventually erode what could have been a good lawyer client relationship.
Once you review the fee agreement, you may wonder whether you can find a lawyer who will charge you a flat fee or a contingent fee instead of billing you by the hour. A lawyer will not usually quote a flat fee for a contested divorce because there is no way to anticipate how complicated such a case will become. If your divorce is not contested, you and your spouse may be able to find lawyers to handle it for a flat fee. If a lawyer quotes you a flat fee and you think your spouse will contest the divorce, make sure you have a clear understanding-in writing-about what is and is not covered by the flat fee.
A contingent fee arrangement provides that the lawyer does not get paid unless the client recovers money, in which case the lawyer gets a portion of it. Contingent fees are common in cases where an injured client is unable to pay a lawyer but a relatively large recovery is anticipated. Generally speaking, contingent fee arrangements are prohibited in divorce cases because lawyers working on a contingent fee basis would not be paid if their clients reconciled. Such lawyers might therefore be tempted to discourage a reconciliation even if it was in their clients’ best interests. As a result, courts and legislatures generally do not allow lawyers to provide services to divorce clients on a contingent fee basis.
If you have any questions about what the contract means, ask the lawyer. Do not sign an agreement you do not understand. If you have a problem with specific provisions in the contract, ask the lawyer if they can be changed. Many times they can be. If, however, a lawyer says that something must be in the contract but he or she won’t hold you to it, beware. Such an attorney may not be ethical. Aside from treating clients poorly, a lawyer who is known to be unethical may also have a difficult time gaining trust or cooperation from adversaries, which could result in your case being more complicated and expensive.
Take Sandy’s case. A hearing was scheduled to determine where the children would spend Thanksgiving. Sandy and her ex were able to reach agreement before the hearing, however, so Sandy told her lawyer to call off the hearing. Her lawyer wanted to, but the lawyer representing Sandy’s ex was known for going back on his agreements. Sandy’s lawyer told her, correctly, that in order to fully protect her rights, he would have to get a written stipulation from the other side before he could call off the hearing. Unfortunately, the stipulation could not be drafted quickly enough, and both attorneys had to go to court on the day of the hearing. If Sandy’s lawyer had been able to trust the opposing lawyer, an extra expense to both sides could have been avoided. Doubts about the credibility of the other lawyer prevented Sandy’s lawyer from taking any shortcuts. When a "bad apple" is representing one of the litigants, distrust leads to extra expense for everyone involved.
Your first opportunity to find out if a lawyer you are considering hiring might be unethical will be in the initial interview, when you discuss the terms of the fee agreement and representation. If a lawyer seems shifty, inconsistent, glib, unwilling to answer your questions directly, or otherwise untrustworthy, it is a safe bet that other attorneys will perceive him or her that way, too. You are probably better off hiring someone else.
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PROVING MALPRACTICE -- To prove malpractice, the plaintiff must prove that a lawyer failed to exercise reasonable skill and that such failure was the proximate cause to the damage or loss. This means proving 1) that his or her counsel’s performance fell below a standard of reasonableness; 2) that "this deficient performance did not involve the exercise of judgment, discretion of strategy, or trial tactics"; and 3) that the performance so compromised the action that without these professional errors, the client would have prevailed.
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