Ethics in Family Law Matters

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Ethics in Family Law Matters

A) Client/Lawyer Relationship

A relationship between lawyer and client is formed when:

  1. a person manifests to a lawyer the person’s intent that the lawyer provide legal service for the person; and either
    1. the lawyer manifests to the person consent to do so; or
    2. the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
  2. a tribunal with power to do so appoints the lawyer to provide the services.

Be wary of creating inadvertent lawyer-client relationships. Everyone is a potential client. Thus, if someone asks an attorney a legal question and the attorney responds with an answer or says she will look into it, then a lawyer-client relationship may result.

Illinois has created a standard very similar to the general rule as outlined by the Restatement (Third) of the Law Governing Lawyers. Illinois courts have stated:

“The attorney-client relationship is consensual and arises only when both the attorney and the client have consented to its formation. The client must manifest his authorization that attorney act on his behalf [in legal matters], and the attorney must indicate his acceptance of the power to act on the client’s account. The relationship cannot be created by a third party with no power to act.”

As noted, it is very easy to establish an attorney-client relationship. Illinois courts have noted that privilege exists (and thus an attorney-client relationship) by a client seeking advice from an attorney in their capacity as such and the attorney offering advice pertaining to such, so long as the client disclosed confidential information.

Missouri courts have adopted a very similar approach to the establishment of attorney-client relationships noting that the intent of the attorney to give legal assistance and advice is sufficient. The Missouri Supreme Court also noted that the relationship may not be created unilaterally by a client. Therefore, so long as legal advice or services are not rendered or an intent to render legal advice or services is not manifested, attorney-client relationships can be avoided by the attorney from whom the legal advice is sought.

One rule of thumb is when talking informally with an individual who may have a legal problem, a safe course to follow is to talk in general terms about the area of law, without honing in on the specifics of the individual’s problems. If the discussion becomes too focused, the individual may form a reasonable belief that a lawyer-client relationship has been established. See, e.g., Attorney Grievance Com’n of Maryland v. Shoup, 979 A.2d 120 Md.,2009; Bangs v. Schroth 201 P.3d 442, 2009 WY 20, Wyo., 2009. (By talking too much about a friend’s legal problems and making specific statements about what should be done, a lawyer can give the impression that he is giving legal advice, thereby creating a lawyer-client relationship.)

To avoid an unintended attorney-client relationship, the following is a list of useful tips:

1. The Engagement Letter. This document, delivered at the outset of the relationship, should define who the attorney represents, and, when necessary, who the attorney does not represent. In the case of the entity representation, Rule 1.13(f) of the Model Rules of Professional Conduct requires the attorney to make clear that he or she represents the organization rather than its agents or employees when their interests diverge. While such a letter probably will not be shared with non-clients, it provides contemporaneous documentation of who the lawyer intended and understood his or her client to be.

2. The Declination Letter. When an attorney turns down a representation, or the potential client decides not to hire the attorney, the attorney should send a letter confirming that the attorney has not accepted any responsibility for the matter. Nonetheless, the attorney may need to advise the non-client of any pending deadlines or limitations issues in that same letter.

3. The Disengagement Letter. At the end of an attorney-client relationship, the attorney should send a letter confirming that the matter has been concluded and the attorney no longer has responsibility for protecting the client’s interests in future matters.

4. The “I Am Not Your Lawyer” Letter. If at any time a non-client says something or takes action that suggests he or she may believe that he or she has an attorney-client relationship, the attorney should immediately advise the non-client in writing that the non-client is mistaken. Contemporaneous written communications are the best policy, and can head off future disputes and uncertainties. Attorneys should take extra caution when communicating with unrepresented non-clients, and send “I Am Not Your Lawyer” letters whenever there is any chance that the non-represented party may have some misunderstanding concerning the attorneys’ duties and obligations.

In terms of webpages, blogs and social media pages, it is critical to include a

disclaimer like the one below to avoid any confusion:

The information you here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

B) Attendance at Client Conferences by Friends or Family of Client

The presence of a third party, such as a friend, or family member, who is not an agent of the client, may destroy the confidentiality of the communication. The Missouri Rules of Professional Conduct Rule 4-1.6 provides that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Therefore, if a client insists on a third party being present during their conference, they need to waive confidentiality with informed consent. If confidentiality is waived due to the presence of a third party, the third party, the client or even the lawyer may be required to disclose the details of the conversation. Before beginning the meeting, the attorney should advise the client of the potential ramification of having a third party present.

Both Illinois and Missouri courts have noted that the presence of a third party will destroy privilege for the matters disclosed in the presence of such third parties unless the third party is an agent of either the attorney or the client. However, when a third party is acting as the agent of the client, any matters disclosed to the attorney enjoy the same level of privilege as matters disclosed directly by the client.

Apart from the concerns about confidentiality, some friends or family members may be helpful in terms of providing moral support to a client going through a divorce. Many parties need moral support. However, some friends or family members can fan the flames and make the situation more difficult. As a whole, it is always better to have important conversations alone with your client. To the extent the client insists on the friend or family member being there, it is vital that you inform the client of the risks. Advising the client of the dangers should almost always take place verbally and in writing.

In some instances, a lawyer might think about having their client sign a waiver where the client explicitly understands that they understand the risks if they insist on bringing friends or family members to conferences. Many forget that alliances can change during a divorce. Somebody who was a friend could end up becoming sympathetic to the other party and relay back everything that was said. The friend or family member could also end up being subpoenaed at a trial or evidentiary hearing. It is possible they could be asked what was said at these client conferences. For these reasons, it is always better to meet the client alone.

In other instances, the lawyer might even opt to disengage or withdraw where these friends or family members make the representation impractical.

C) Attorneys’ Fees

Both the Missouri and Illinois Supreme Courts have established a set of rules regarding fees that, while similar in nature to the model rules of professional conduct, are more specific and tailored to Missouri. Rule 4-1.5 makes it very clear that Missouri’s prime interest in regulating attorney fees is reasonableness, stating that lawyers shall not charge or collect unreasonable amounts of fees for work or expenses. In determining what is reasonable and fair, the following guidelines have been given to take into consideration when assessing fees.

  1. 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.

The rate or basis of the fee must be communicated to the client as well as any expenses for which the client is accountable either before or within a reasonable time after the representation begins. The communication should, if possible, be in writing, and it is beneficial to have the client sign the writing. Communication on the rate or basis of the fee is not required if the attorney is charging a routinely represented client “on the same basis or rate.” Contingent fees are not permissible in a domestic relations matter when the “payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” The comments to Rule 1.5(d)(1) state that contingent fees may be permissible when the client is seeking “post-judgment balances due under support, alimony, or other financial orders.”

Fee disputes are also a fairly common event in divorce and family law matters. For example, a client may argue that the fees charged were excessive or unreasonable in comparison with the assets at stake and/or the result obtained. An attorney may attempt to predict the range of fees that the client can expect and communicate that expectation in writing to the client as early as possible, but in divorce and family law, fees can vary significantly based on the time spent in the matter. The attorney should also communicate with the client any unknown variables that may affect the fees. Some of the most significant factors effecting the total cost involve whether the case settles or has to go to trial. Some cases may even end up on appeal. The level of communication and cooperation the client wants can also impact the fees significantly. Additionally, the client should be informed throughout the process if the rates change.

The Illinois Supreme Court has adopted the same rules of professional conduct as Missouri, but added an additional comment note regarding disputes over attorney fees. Even when it is voluntary, the lawyer should conscientiously consider submitting to it. The Missouri Rule of Professional Conduct also indicates that a lawyer shall “conscientiously consider” participating in a fee dispute. However, what “conscientiously consider” means is not explicitly defined and is subject to some level of interpretation.

As a practical matter, all attorneys should have a written fee agreement with their client before undertaking any representation in a divorce matter. Sample fee agreements can be obtained through the Missouri Bar: 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:

  1. Scope of Services;
  2. Hourly Rates;
  3. Advance Fee Amount (Initial Deposit);
  4. Litigation Expenses;
  5. Frequency of Billing Statements;
  6. Discharge and Withdrawal;
  7. How long file will be kept after case ends; and
  8. Disclaimer against estimates and guarantees.

In terms of rates and billable hour requirements, according to a recent Missouri Lawyer’s Weekly Article, the average billable hour rate for a Missouri Lawyer is $370 per hour up from $318 in 2018. Outside of Kansas City and St. Louis, the average rate is $250 per hour. In terms of annual billable hour requirement goals, Yale Law School indicates that the average billable hour requirement nationwide is between 1,700 and 2,300.

Keep in mind as well that an Advisory Committee of the Missouri Supreme Court in Formal Opinion 128 found the following: “In many instances, attorneys receive payment before the attorney has completed the services for which the payment is made. In some instances, attorneys refer to these payments as ‘nonrefundable.’ These ‘nonrefundable’ fees are often the subject of disciplinary complaints and fee disputes.” In Formal Opinion 128, the use of the word “retainer” is also discouraged. Instead, the terms “advanced fee deposit” or “initial deposit” are preferred.

Be cautious when passing expenses on to the client. As the rule and comments indicate, it would not be appropriate to upcharge clients on copying costs by any significant amount. The costs to the client should reasonably reflect your copy costs, for example. The same would apply to other costs like postage.

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 a lawsuit 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 reviewing 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 a 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 significant negative balance, an attorney should ultimately follow up with clients about their balances and take proactive measures. Following up often means 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 attorneys’ 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 often be problematic in the ways referenced above. It can 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. Getting paid 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 fees. Finally, it also may involve establishing a standard rate schedule for initial deposits/advanced fees and not negotiating down from it.

D) Communication with Adverse Party

In Missouri, an attorney is not permitted to speak about the representation to an adverse party that the attorney knows is represented by another lawyer. To speak with a represented party, the attorney would need the consent of the adverse party’s attorney, or if the attorney is authorized by law to do so or a court order may permit the communication. A lawyer still needs the consent or a court order to speak to the adverse party even when the represented party initiates contact with the attorney. However, consent or a court order is not necessary when communication with a represented person is concerning matters outside of the representation. Additionally, for these rules to apply, a lawyer must have actual knowledge of the fact of the representation or infer it from the circumstances. The Missouri rules do not prohibit the opposing parties from initiating contact directly with one another. Enforcing rules to regulate speaking with adverse parties helps the legal system function by “protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter.” When communicating with people about a case, there are things to be careful about in doing so. When you are talking to someone that is not currently represented by counsel, it is important not to give them any legal advice other than to tell them that they should seek counsel. There is also a duty to make sure that the person who is unrepresented is not misunderstanding what your role in the matter is if you know, or reasonably should know, that they are, in fact, misunderstanding you.

In Illinois, these rules are somewhat similar in execution. This rule is more forward about the context of the conversation that can occur with opposing counsel’s client in the sense that discussions in which the subject is not the matter of the case are permissible. One additional rule that Illinois follows is one in which a lawyer is representing a client on a limited basis. When a lawyer is representing a client on a limited basis, he or she is only deemed to know that the adverse client is represented by another lawyer upon receipt of proper notice, or written notice advising the client is being represented by a specified counsel with respect to an identified subject matter and time frame. A lawyer is permitted to communicate with a person represented outside the subject matter or time frame of the limited scope representation.

Overall, one of the most important rules for lawyers is that an attorney acts with honesty and candor. Whether speaking to an adverse party, a third party, or opposing counsel, be sure that you are not intentionally making false statements of fact or law. Do your best to be honest and candid as much as possible.

One interesting development on this note is whether friending an adverse party on social media is equivalent to communicating with an adverse party. The San Diego County Bar Association’s Legal Ethics Committee dealt with this issue. In this instance, the lawyer sought to friend two employees of the defendant’s company in hopes that they would let their guard down over social media. The committee rejected both arguments put forward. It determined that “friend-ing” a represented party is different than accessing an opposing party’s public website, and it found that “friend-ing” is within “the subject of representation.”

E) Malpractice Concerns

The frequency of malpractice claims that come out of family law tends to be significantly higher than any other field of law. There are many reasons why such malpractice claims arise out of this field.

The first is looking at client emotions and perception of an inadequate resolution. Unlike many other areas of law, this involves a stressful, unpleasant, and personal period of the client’s life. Neither party for the most part will ever feel satisfied with the outcome. However, the dissatisfaction of the client usually has nothing to do with what a client’s lawyer did or did not do, but the client will look to place blame because of an inadequate outcome for themselves or other words the attorney. To help avoid malpractice claims stemming from this problem, the attorney should look to build a strong personal client relationship. The building of this relationship will, in fact, curb the client’s expectations and emotions. Actively listening to a client’s perspective, including what the client values most will help with this strategy. Managing a client’s emotions will always have to involve showing them what is realistic. In other words, telling them what the law is and how it will likely affect them. This strong emotion component will only work if the lawyer maintains strong communication with the client. Strong communication includes clear documentation of what happened at every encounter with the client to make sure that later on the client cannot come back and claim something did or did not happen.

The next malpractice issue is the failure to obtain adequate financial information. Obtaining and identifying the couple’s financial assets and agreeing on the assets’ proper distribution is another area of malpractice. In particular, what is separate property and what is not separate property? Additionally, there may be hidden assets that the other spouse is hiding from the client. Malpractice claims arise when a client is dissatisfied with the ultimate resolution because the attorney did not secure sufficient financial information from the opposing party, and the distribution of assets are equitable. Therefore, it is essential to once again communicate with the client about the financial assets that have been received from the opposing party and that the lawyer adequately receives all financial information.

As an example, in Baldridge v. Lacks, 883 S.W.2d 947, 949 (Mo. App. E.D. 1994), an oral settlement agreement was dictated into the record. The wife was bound by an agreement that potentially gave her far less than what her share of the marital estate purportedly was worth. This case ultimately resulted in a legal malpractice suit with the trial court entering judgment on a jury verdict for the plaintiff in the amount of $6,834,926 based on the theory that the lawyer lacked the necessary information to advise his client as to the advantages and disadvantages to settlement. The trial court subsequently entered an amended judgment in the remitted amount of $2,424,966. While the judgment was reversed due to the verdict instruction being prejudicially erroneous, this case shows the dangers in practicing in divorce law — where the lawyer does not have the necessary information to advise the client about the pros and cons of settlement.

Another malpractice issue that comes up is the attorney’s failure to retain the necessary experts or fails to get proper consultation. It may be necessary to retain experts in business or other types of law, including but not limited to: business valuation experts, tax experts, and/or trusts and estate experts. A lawyer’s failure to consult with experts could have a detrimental effect later on in the divorce proceeding with the client claiming that it was unfavorable or unfair. See, e.g., Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118 (Wis. 1985) (holding that there was substantial evidence to support jury’s finding of malpractice where divorce attorney had failed to obtain independent financial appraisals for the marital home, the spouse’s dental practice, and three trusts). When experts are retained, the lawyer should make sure that the expert is competent, qualified, and has the necessary resources to handle the assignment successfully. Clear documentation regarding the attorney’s advice on retaining experts is key to both preventing and, if necessary, defending a legal malpractice claim based on an attorney’s alleged failures to secure the necessary outside assistance. Additionally, just because an agreement is oral does not mean they will not be bound by it.

Failure to properly draft key legal documents is another malpractice issue that commonly occurs. Claims may arise on alleged drafting errors in connection with documents such as prenuptial agreements, legal separation, and divorce settlement agreements or that the client did not agree to the terms reflected in the agreement. Kop v. McGill, 528 N.W.2d 609 (Iowa 1995) (alleging attorney committed malpractice by failing to include in ante nuptial agreement provisions addressing the situation whereby the marriage ended by divorce); Brust v. Newton, 852 P.2d 1092 (Wash. Ct. App. 1993) (involving allegations of malpractice in drafting prenuptial agreement where the client ultimately had to concede that the agreement was unenforceable because, at the time the agreement was entered into, there was no full disclosure of the couple’s assets, the assets were grossly disproportionate, the opposing spouse did not have independent advice of counsel, and the agreement did not make fair and reasonable provision for the opposing spouse).

Additionally, an attorney will sometimes have to navigate choice of law issues where more than one jurisdiction could plausibly hear the case. Some laws in one jurisdiction may be more or less favorable to a client. Depending on a client’s particular circumstances, the differences in the laws of the jurisdictions can have significant consequences. Legal malpractice claims may arise based on a lawyer’s alleged failure to understand or take into account multi-jurisdictional issues. A lawyer should ensure that his or her initial discussions with a client address all possible geographic connections that the divorcing couple may have to assess properly whether there are multiple jurisdictions in which a divorce proceeding could be maintained. The attorney must consider how the relevant law in those jurisdictions could impact the client, including but not limited to any timing requirements for when a divorce action may be initiated, property distribution rules, and rules pertaining to the applicable grounds for divorce. Any issue that relates to the choice of law issues should be documented properly to avoid any possible conflicts.

Finally, an attorney should pay careful attention to deadlines including but not limited to the time to file appeals, post-trial motions, answers, responses to discovery, requests for admissions and the deadlines for objecting to a relocation notice pursuant to Section 452.377. It is also vital to have a docketing system in a law firm to ensure that court dates are not missed. Deadlines and court dates, if missed, can sometimes result in a clear-cut case of malpractice that cannot always be mitigated. Ensuring conflict checks are run through conflict software is also vital.

In terms of limiting malpractice claims, Illinois agreements limiting malpractice claims prospectively are prohibited unless the client is independently represented in making the agreement by another attorney. This limitation is because clients are unable to evaluate the desirability of making such an agreement, particularly if they are currently being represented by the lawyer seeking the agreement. Clients put their trust in their attorneys. Seeking an agreement to limit malpractice could create an unjust situation for the client and establish a precedent of poor legal work if limiting malpractice agreements were easy to enforce. This rule, however, does not limit any agreements from being entered into (even if the client is represented by the lawyer seeking the agreement) regarding the client being forced to arbitrate legal malpractice claims. This oversight in the rule allows for a middle ground for lawyers to still come to a reasonable and desirable resolution that can still hold the liable attorney to their mistakes as well as satisfy the client’s needs. Missouri takes a very similar approach as well in prohibiting agreements of limiting a client’s rights to prohibit malpractice claims unless an independent lawyer is currently representing the client on the specific issue.

Missouri Rule of Professional Conduct 1.8(h) states:

(h) A lawyer shall note:

  1. make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
  2. settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

The Illinois Rule has the same language. Thus, it is okay to settle a malpractice claim after the fact so long the former client is advised in writing of the desirability to seek independent legal counsel in writing and is given a reasonable opportunity to do so.

To avoid claims, it is critical that the lawyer be aware of the applicable jurisdiction’s legal requirements regarding the form and content of legal documents. The lawyer should have a strong attention to detail when drafting these documents to ensure that the resulting writing clearly and unambiguously reflects the parties’ agreement on all terms. The attorney should sit down and carefully review all documents with their client and explain the implications of each provision in clear terms that the client can understand.

Below are some additional tips for helping to avoid malpractice claims:

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-paying if the attorney takes their 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 — who may try to blame the lawyer unjustifiably. In certain circumstances where there is a bad-paying and highly difficult client, 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 easier to miss something or make a mistake. An attorney should figure out what they are good at, what they are not reasonable and then surround themselves with competent employees who can help fill in the gaps.

4. Most attorneys could benefit from having excellent 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 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 matters where they are not being paid, this can prevent them from taking new cases where they would be paid. It can also result in a lawyer taking on more cases than they can effectively oversee. When an attorney is spending a lot of time on a large number of cases where they are not fairly being compensated for their time, this can lead to frustration, financial hardship and mistakes being made.

6. It is also crucial 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 less likely to complain.

An article by attorney Nancy Zalusky Berg, from Minnesota, provides many useful tips on how to deal with difficult clients, which can have the net effect of helping prevent malpractice claims through more effective communication. In the article, Ms. Berg talks about two traits divorce lawyers need to have: empathy and clear boundaries. Regarding 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. 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.

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 taking. Withdrawal, of course, would apply to the non-compliant, abusive or dishonest client who has failed to adjust his or her actions. When a client is not paying his or her bill, a lawyer may also withdraw if the client refuses to abide by the terms of an agreement relating to the representation.

Restatement (Third) of the Law Governing Lawyers, § 14 (2000).



Stephanie Francis Ward, Top 10 Ethics Traps, ABA Journal, Nov. 2007, https://www.abajournal.com/magazine/article/top_10_ethics_traps.

Torres v. Divis, 144 Ill.App.3d 958, 963 (1986).

See generally People v. Radojcic, 998 N.E.2d 1212 (2013).

See Donahue v. Shugart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626 (Mo. 1995) (en banc).


Some advice … on what’s legal advice, ABA Center for Professional Responsibility, available at:

https://abaforlawstudents.com/2016/06/17/some-advice-on-whats-legal-advice/ (last accessed June 8, 2020)


Casey L. Menasco, Bet Practices for Avoiding Attorney Liability to Non-Clients, American Bar Association (March 31, 2016), available at:



Mo. Sup. Ct. R. 4-1.6.

See Adler v. Greenfield, 990 N.E.2d 1219, 1231 (2013); see also State v. Fingers, 564 S.W.2d 579, 582 (1978). The courts note that if the third parties

presence is reasonably necessary privilege is not vitiated.


Mo. Sup. Ct. R. 4-1.5.


Id. at R. 4-1.5(b).



Mo. Sup. Ct. R. 4-1.5.

Mo. Sup. Ct. R. 4-1.5, Comment 2.

Richard A. Simpson, Mary E. Borja, and Kimberly A. Ashmore, Navigating the Matrimonial Malpractice Minefield: Strategies for avoiding Legal

Malpractice Claims, https://www.wiley.law/alert-2383 (Jun 21 2012).


Ill. S. Cit. R. 1.5, (9) (eff. Jan 1, 2010).

Mo. Rule of Prof. Conduct 4-1.5 (2009).

See, Scott Lauck, Jessica Shumaker & Nicholas Phillips, Welcome to Billing Rates 2019, Missouri Lawyer’s Weekly,

available at: https://molawyersmedia.com/2019/08/05/welcome-to-billing-rates-2019/

See, The Truth About the Billable Hour, Yale Law School Career Development Office, available at:


Formal Opinion 128, available at https://www.courts.mo.gov/file.jsp?id=44619 (last visited March 14, 2017).



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).









Mo. Sup. Ct. R. 4-4.2


Mo. Sup. Ct. R. 4-4.2, Comment 3.

Mo. Sup. Ct. R. 4-4.2, Comment 5.

Mo. Sup. Ct. R. 4-4.2, Comment 8.

Mo. Sup. Ct. R. 4-4.2, Comment 4.

Mo. Sup. Ct. R. 4-4.2, Comment 1.

Mo. Sup. Ct. R. 4-4.3.


Ill. S. Cit. R. 4.2 (eff. Jan 1, 2010)

Ill. S. Cit. R. 4.2, comment 8(A) (eff. Jan 1, 2010).


Mo. Sup. Ct. R. 4-4.1.

San Diego Bar Ass’n on Legal Ethics, Op. 2011-2 (2011).



Richard A. Simpson, Mary E. Borja, and Kimberly A. Ashmore, Navigating the Matrimonial Malpractice Minefield: Strategies for avoiding Legal

Malpractice Claims, https://www.wiley.law/alert-2383 (Jun 21 2012).








Id. at 950.

Id. at 949-950.

Id. At 949.

Id. at 957.









Ill. S. Cit. R. 1.8, comment 14 (eff. Jan 1, 2010).



Mo. Sup. Ct. R. 4-1.8, (h).

Simpson, supra, note 55.

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.


walling-berg-debele-p-a.html (last visited, June 5, 2020).



Mo. Sup. Ct. R. 4-1.16, Comment 8.


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