All attorneys should have a written fee agreement with their client before undertaking any representation in a divorce or family law matter. Sample fee agreements can often be obtained through your local bar. The Missouri Bar has sample fee agreements here: http://members.mobar.org/pdfs/fdr/fdrsamples.pdf. (Sample Form 1 is a good example for divorce litigation.) Fee agreements should include clauses such as Scope of Services, Hourly Rates, Advances Fee Amount (Initial Deposit), Litigation Expenses, Frequency of Billing Statements, Discharge and Withdrawal, how long file will kept after case ends, and a disclaimer against estimates and guarantees.
RULE 4-1.5: Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Rule 4-1.5(d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter the payment or amount of which is contingent upon the securing of a divorce or dissolution of the marriage or upon the amount of maintenance, alimony or support or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the association and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
(f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.
(Emphasis added).
In regards to reasonableness of fees and expenses, Rule 4-1.5(a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in Rule 4-1.5(a)(1) to (8) are not exclusive, nor will each factor be relevant in each instance. Rule 4-1.5(a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer. Comment 1 to Rule 4-1.5.
Be cautious when passing expenses on to client. As the rule and comments indicate, it would not be appropriate to up charge clients on copying costs by any significant amount. The costs to the client should reasonably reflect your own copy costs.
In many states, an attorney can file a lien to pursue attorney fees from clients that do not pay. In many jurisdictions, a common-law retaining lien is available to lawyers whose clients have failed to pay outstanding bills. In Missouri, an attorney does have the ability to file a lien pursuant to RSMo. § 484.130 that states: “The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment.” That statute notwithstanding, this is ordinarily a last resort if payment cannot be secured another way. In some cases, there might not even be any assets in which an attorney could lien upon.
Filing suit against a client to obtain payment can be problematic. Many clients retaliate by filing suit for malpractice, filing a bar complaint or leaving bad online reviews. In light of these dangers, when a law firm is considering filing a suit to recover unpaid fees an internal review encompassing eight steps is suggested. First, assess the amount really at issue by carefully review any engagement letter, as well as the outcome of the matter, and determine what amount the firm can realistically expect to recover. Second, the firm should exhaust all non-litigation options for fee collection by having multiple people speak with the client to discuss the matter, learn what (possibly legitimate) gripes the client has, and attempt to obtain payment without filing suit. Third, discuss the representation in detail with all involved attorneys and staff. Fourth, review the relevant documents. Fifth, assess the file internally and determine whether the lawyers involved could have theoretically done anything that could cause ethical concerns. Sixth, subject the file to independent review by asking that a trusted lawyer conduct an independent review of the file. Seventh, communicate with your professional liability insurer who may have additional insights and suggestions of issues to consider before a claim is filed. Eighth, the firm should still consider whether it would be prudent to wait to file a claim until after the statute of limitations has run as often the claim the firm intends to bring against the client for unpaid fees will have a longer statute of limitations than a legal malpractice claim would have. Ultimately, a suit against a client carries significant risk for the attorney and the firm involved and should only be undertaken where the firm is confident it will be successful.
Of course, a lawyer still has to continue to expedite litigation while the attorney of record pursuant to Missouri Rule of Professional Conduct 4-3.2. At the same time, before running up a big negative balance, an attorney should ultimately follow up with clients about their balances and take proactive measures. This can include having candid conservations with a client. It usually means ensuring that you bill regularly and may mean following-up in writing, if need be. It also might mean setting reasonable deadlines for the client on paying in writing. If the client still does not keep up with an unpaid balance despite your best efforts, a motion to withdraw is a possibility to consider where the court will allow it and the client is not prejudiced pursuant to Missouri Rule of Professional Conduct 4-1.16.
In the end, the best way to avoid having to worry about recouping attorney’s fees is to get paid on the front end. The reality is that many family law clients do not pay after the case concludes. Filing a lawsuit, or an attorney’s lien, can oftentimes be problematic in the ways referenced above. It an also cause an attorney to dig deeper in the hole by spending more time on a case where the client is not going to pay (through a lawsuit or a lien) when the attorney might be better off to cut their losses and spend time on cases the attorney currently has from good paying clients. Thus, think about ways in which you can appropriately get paid on the front-end. This might mean raising your initial deposits/advanced fee thresholds. It also might mean declining certain cases where the client tries to get you to negotiate down from your standard initial deposits/advanced. Finally, it also may mean establishing a standard rate schedule for initial deposits/advanced fees and not negotiating down from it.
A. Preventing Burnout
Family law attorneys are at a high risk of burnout due to the area of law. Dealing with certain clients can be emotionally taxing. It can also be hard at times dealing with the court system and other legal professionals in contested family law litigation where tensions and emotions can be escalated. Of course, the business aspects of being a family law attorney can also be difficult for many attorneys. Not only do most attorneys have to be good lawyers, they also have to worry about running their law practice. Worrying about all of these items can be overwhelming for many. Below are some tips for helping to avoid burnout:
1. It is important that an attorney be selective about the cases they take. Some potential clients might be highly emotional and hard to deal with if the attorney were to take the case. For this reason, it might be better for an attorney to pass on some cases to avoid burnout.
2. Some potential clients might not be good pays if the attorney takes the case. In these instances, an attorney might be better to pass on the case. It is usually much better for an attorney to have a limited number of high-paying, and manageable clients, than to have a larger number of bad-paying and unmanageable clients in terms of avoiding burnout. In certain circumstances where a bad-paying and highly difficult client is hired by the firm, it might be best to withdraw from so case so long as you are complying with the rules and not prejudicing the client.
3. Make sure you have great paralegals/legal assistants, and other administrative staff, to help you manage your cases and your practice. If an attorney tries to do it all, it can be easy to burn out. It is much better for an attorney to figure out what they are good at, what they are not good and then surround themselves with good employees who can help fill in the gaps.
4. Most attorneys could really benefit from having great practice management software. Practice management software can help keep an attorney organized. It can help ensure that all court dates are docketed, that all client documents are kept on the cloud and that the business aspects of the firm (from budgeting, bank accounts and conflict checking) can easily be managed in one place.
5. While attorneys might not like have to monitor things like accounts receivables and billable hours, to avoid burnout, this can be important. Otherwise, attorneys can spend a lot of time burning the midnight oil on cases where they are not going to be paid. When an attorney is working on cases where they are not being paid, this can prevent them from taking new cases where they would be paid. When an attorney is spending a lot of time on cases where they are not being compensated for their time, this can lead to frustration, financial hardship and burnout.
6. It is also very important to stay very organized. Staying organized can lead to less stress and burnout. The Missouri Bar Client Keeper Packet recommends sending monthly status letters to your clients. If attorneys did this, it would help keep them organized. It would also help keep clients informed about their case status. When clients feel as if they are being updated, clients generally are much more happy.
C. Client Communications and Managing Expectations
Most especially in family law matters, it is critical to constantly maintain a strictly professional relationship with your client. In particular, divorce and child custody matters often bring out the worst in people, creating environments where a client’s anger and frustration can cause a client to react in unpredictable ways. Your job as counsel meeting with a client for the first time is to caution the client to act as if there is a camera on him or her at all times from that point forward. Specifically, clients should be warned to: Not to speak ill of the other parent in front of the parties’ child(ren); Not to unnecessarily withhold contact between the other spouse and the child(ren); Not to move or draw down any bank funds, securities or investment accounts of any kind; Not to harass, cuss at or stalk the other party; and not to dispose of, damage or destroy the personal property of the other party. A client’s behavior during family law litigation can have a significant effect on the outcome of the litigation.
During the first interview with a client, it is important to assess the client’s expectations. Often, many family law clients have unrealistic expectations about the role of their attorney and the legal process. During this initial interview, family law attorneys may need to explain to the client what they expect in terms of communication, cooperation, and an agreement as to how they wish to proceed with the representation, but this can be difficult when the client has just met you and there is no rapport. Attorneys may need to be careful to avoid providing an opinion of the possible outcome of the case at the beginning of the relationship and instead explain the process in terms of IRAC type answers (Issue, Rule, Analysis and Conclusion). By managing clients’ expectations in an appropriate way along the way, however, once you have enough information about what the court may do with the case, an attorney can avoid potential friction,
In many circumstances, a client who fails to follow the advice of counsel on how to act during the pendency of a family law litigation matter should often be immediately cautioned in writing as to the client’s decision not to follow your advice and the potential consequences the client may face as a result of the client’s chosen course of action. A phone call to the client is fine, but is not sufficient. Always follow up in writing to protect yourself. Where the client’s actions escalate, an abusive client should often be dealt with swiftly and firmly and again in writing. The client must be informed that the client’s behavior is unacceptable and that continued representation by you as the client’s attorney will immediately cease should the behavior be repeated. While this can be difficult for many attorneys, do not be afraid to withdraw from a non-compliant or abusive client’s case. Cases involving these types of clients pose malpractice risk (or potential ethical complaints) to you as these clients will likely look to blame you when their behaviors lead to undesirable results in their cases.
Further, at the very beginning of representation of a client, you must thoroughly explain the importance of the client being one hundred percent open and honest with you. However, in saying that, you always have to realize that many clients still will not do so unless or until rapport has been established with them. When the situation calls for it, and the timing is right, an attorney may need to press clients on difficult to discuss issues such as drug abuse, affairs, physical abuse or other activities at the initial client meeting or as the case progresses. The client should be advised that your ability to represent them to the best of your ability will be compromised if they are not open and honest with you at all times. Clients often believe they are in control of all the facts and circumstances of their lives.
When a client brings allegations forward about the other party, you should think about immediately requesting documentation or evidence from the client to corroborate the allegation. You will need the information anyway in order to fully prepare your case. A client that is consistently making allegations that the client cannot in any way corroborate with documentation and evidence should be reminded and counseled on the critical importance of honesty, its effect on your attorney/client relationship moving forward and its effect on the credibility of the client’s case position overall. As with the non-compliant or abusive client, do not be afraid to fire withdraw from a consistently dishonest client’s case.
An article by attorney Nancy Zalusky Berg from Minnesota provides many good tips on how to deal with difficult clients. In the article, Ms. Berg talks about two traits divorce lawyers need to have, empathy and clear boundaries. In regards to empathy, you must become psychologically minded. The first step is to become aware of the human being before you. You must become skilled in empathy. To be skilled in empathy, you must be a good listener who mirrors back to the client to really hear the concern of the clients versus what you want to hear. Id. Establishing boundaries involves setting limits by marking out the place where the client cannot go and you will not be found. Limit-setting is perhaps the most important skill of the family lawyer. Id.
When dealing with withdrawal from the non-compliant, abusive or dishonest client’s case, Rule 4-1.16 permits a lawyer to withdraw when a client persists in taking a course of action that the lawyer has advised against. This of course would apply to the non-compliant, abusive or dishonest client who has failed to adjust his / her actions. When a client is not paying his / her bill, a lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation. Comment 8 to Rule 4-1.16.
RULE 4-1.16: Declining or Terminating Representation
(a) Except as stated in Rule 4-1.16(c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) The representation will result in violation of the rules of professional conduct or other law;
(2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or(3) The lawyer is discharged.
(b) Except as stated in Rule 4-1.16(c), a lawyer may withdraw from representing a client if:
(1) Withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) The client has used the lawyer’s services to perpetrate a crime or fraud;
(4) The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) Other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation unless the lawyer has filed a notice of termination of limited appearance. Except when such notice is filed, a lawyer shall continue representation when ordered to do so by a tribunal notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
D. Client’s Best Interests vs. the Child’s Best Interests
Your job as a family law attorney is to best represent your client’s interests in the case. Your job is to zealously represent your client in court. The court and the guardian ad litem (if this is one), however, will look at what is in the best interest of the child(ren). This means, your client’s arguments should center around why your client believes their position is in the best interests of the child(ren). Good things to focus on for the child’s best interest include education, living environment and relationship to the community.
The gold standard of any custody decision is what custody arrangements best serve the interests of the child(ren). The requirements in Missouri are specifically delineated in RSMo. § 452.375(2):
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.
These factors are not exclusive and are not given the same weight in each case. A parent seeking custody cannot just look at all the factors, put a check mark in each column where it weighs more in favor of one than the other and then total up the scores. Judges give different weight to each factor in each case. While it is hard for many clients to see this, what is in the best interests of the child will more than likely win out over what may be in the best interests of the parents .
John Martin & Kathryn Heinrichs, Ethically Pursuing Fees from Former Clients Short of Litigation (American Bar Association) (2014).
Anthony Davis & Michael Downey, Exercise Care When Suing for Unpaid Fees (Paragon Brokers 1) (2010).
See www.mobar.org/uploadedFiles/Home/Member_Services/…a…/clientkeeper.doc (last visited February 15, 2017).
Dealing With Difficult Clients, Difficult Lawyers, and Difficult Judges, Wallen Berg and Deeble, P.C. http://www.wbdlaw.com/CM/Articles/DealingwithDifficultClients.pdf (last visited, March 25, 2012).
Edmison ex rel. Edmison v. Clarke, 988 S.W.2d 604, 608-9 (Mo. App. W.D. 1999).
