A Lawyers’ duty of confidentiality is one of the profession’s “core values.” The ethics duty of confidentiality extends far beyond the evidentiary attorney-client privilege. The duty generally covers any information learned during the attorney-client relationship (not just communications to or from a client). Even information in the public record can be subject to this ethical duty of confidentiality. Lawyers must assure that paralegals under their supervision comply with this ethics duty of confidentiality.
ABA Model Rule 5.3(a)(b) – “With respect to a nonlawyer employed or retained by or associated with a lawyer: a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable effort to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
Most paralegals’ ethics guidelines contain a parallel duty of confidentiality.
In addition to the ethics rules, lawyers and paralegals might be subject to confidentiality duties from other sources:
· Explicit or implicit retainer agreements with clients
· Common-law fiduciary duty — this is the highest duty known in the law
· Tort principles
· Employment agreements between lawyers (or paralegals) and their law firms, law departments, the government, etc.
· Court orders — the confidentiality duty in court orders often outlasts the litigation
· Confidentiality agreements entered into by parties in litigation, companies involved in business transactions, etc.
· Miscellaneous laws (such as the securities laws)
Unfortunately, the opportunity for disclosing confidential information exists at all times and in many places. Lawyers and paralegals must avoid inadvertently revealing confidential information at work. Inadvertent disclosure can come from sending a fax to the wrong number, accidentally including privileged documents in a production, etc. Confidential information can sometimes be revealed through sloppy document handling (leaving confidential information in conference rooms, etc.) or careless talk in elevators, rest rooms, etc. To avoid the risk of others deliberately or inadvertently revealing confidential information, lawyers and paralegals should share information within their law firms or law departments only with those who have a “need to know.” Outside work, the risks are even higher because there is no justification for ever sharing confidential information. Lawyers and paralegals should avoid sharing work-related information with anyone (even their spouses).
Revealing confidential information at work can cause termination. Paralegals who violate their supervising lawyer’s duty of confidentiality can subject the supervisors to ethics charges (up to disbarment), malpractice actions, etc. Lawyers and paralegals might even be subjected to criminal penalties for revealing confidential information.
B. Representing the Couple: Ethics of Joint Representation
Before, during, and after a joint representation, treat all joint clients equally in all respects, including loyalty, confidentiality, communication, and decision making. Although simple to state, the principle is often hard to execute. It’s hard when one of several clients is a long-time client or sends the lawyer’s firm much work or is the one paying the freight on this joint representation. The principle is equally difficult to implement when one client is the articulate spokesperson for the client group or the most knowledgeable about the facts. It’s often easy to forget there are multiple clients who must be honored equally. Try not only to treat joint clients equally but to make special efforts to show it. Think about how your communications and conduct will look in retrospect. For example, even if one of five clients is the designated spokesperson for the group, consider finding a diplomatic way to direct regular (maybe all) communications to all the clients, perhaps in a way visible to all-for example, a letter or email with all the clients as equal addressees.
Any lawyer’s first conversation about a possible joint representation should trigger a simple question: “Can I ethically do this?” Assuming that taking on the proposed joint clients would not place the lawyer directly adverse to an existing client or materially adverse to a former client in a matter substantially related to the lawyer’s prior work for the former client, the key ethics rule for assessing multiple representation is ABA Model Rule of Professional Conduct 1.7. Section (a)(2) of the rule says that a conflict exists if “there is a significant risk that the representation of one client”-here, each client in a joint representation- “will be materially limited by the lawyer’s responsibilities to another client.”
Model Rule 1.7(b) says that, even if a lawyer does have a “material limitation” conflict the two clients may still consent to the joint representation if each client is fully informed about the risk and benefits of joint representation, if they each give informed consent, if the two clients are not asking the same lawyer to assert claims against each other in litigation, and if the lawyer “reasonably believes” that he or she “will be able to provide competent and diligent representation to each affected client.” If a lawyer’s joint representation of two parties in litigation would force one or both to give up the opportunity to pursue some particular claim or defense so essential to that client that it would be less than competent and diligent representation not to raise it, then that client is not permitted to consent to the joint representation, and the lawyer cannot ethically ask for consent.
No lawyer needs an ethics expert to tell him or her that many joint representations that are perfectly ethical to undertake are, in practice, unwise. No matter the care taken up front to evaluate a prospective multiple representation and to expose all relevant facts, they almost always change over the life of a case. Just as significantly, the feelings, attitudes, and business positions of clients can also change unexpectedly and in a joint representation, the lawyer can be left holding the bag.
The goal under Rule 1.7(a)(2) is “informed consent.” Model Rule 1.0(e) defines the “informed consent” needed as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Comments [6] and [7] to Model Rule 1.0 explain that the information and explanation needed vary dramatically, based on the decision to be made, the information the client already had, and the client’s understanding, experience, and sophistication.
Comments [18] and [19] to Rule 1.7 make it clear that the lawyer must discuss with the potential joint clients such matters as “the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.” Of course, the lawyer should also discuss the alternative-separate representation-and its costs and benefits.
Comment [29] to Rule 1.7 points to the single greatest risk of joint representation-the possibility that joint representation will fail and the clients will have to obtain new lawyers: “The result can be additional cost, embarrassment and recrimination.” Clients clearly need to hear and consider this. A candid discussion about confidentiality is absolutely critical to any client discussion about a joint representation, especially where a conflict waiver is needed.
Under the prevailing interpretation of the attorney-client privilege in most U.S. jurisdictions, without some different agreement between two joint clients, a lawyer may share with either client information provided to the lawyer confidentially by the other client. Put another way, there are no secrets between joint clients-at least none to which their lawyer is privy-but the privilege remains intact as to the rest of the world.
Model Rule 1.4 on communications with clients requires a lawyer to keep a client informed about all material aspects of the representation, but what if one of two joint clients instructs a lawyer not to share some particular information with a joint client? Under Rule 1.6, that instruction seals the lawyer’s lips. What to do? Comments [30] and [31] to Model Rule 1.7 strongly and wisely caution the lawyer to obtain agreement in advance from joint clients to share all confidential information concerning the representation with the other joint client.
Some clients simply don’t understand that everything they tell their lawyer may be shared with their co-client. Some clients think they can share some private thought or fact with their lawyer without their lawyer sharing it with the other joint client. There is no substitute for clear education by the lawyer and understanding by clients of this point before the representation begins or for a short, clear paragraph in a confirming letter that lays out the rules of the road on confidentiality. Despite clear discussion and agreement on this point, a client may still insist that a lawyer withhold information from another client. Even so, the early identification, discussion, and agreement in writing on this issue reduces the likelihood of this happening. If that uncomfortable situation does arise, the fact of the earlier discussion and a confirming writing can be powerful tools to convince a recalcitrant client to do the right thing. One further word about the consent process, listen. Many lawyers are wonderful listeners, and this talent is justly prized by clients. All lawyers need to listen to and watch their potential joint clients very closely during the process of obtaining consent to a joint representation. When one potential joint client says yes to the representation but in a hesitant tone that reveals unspoken concerns, the careful lawyer explores those concerns. Indeed, one of the most powerful arguments for an in-person conversation about joint representation is that the lawyer may not only listen to the client’s words and tone but may also see each client’s body language, including the clients’ personal interaction with one another.
C. Ethics in Drafting Agreements
A lawyer acts as an advisor, advocate, counselor, negotiator, intermediary and evaluator. An attorney who serves in this capacity must conform to the rules of professional conduct and must understand her specific role in the case. In drafting and negotiating a pre-marital or post-marital agreement, an attorney must understand and account for the various issues which may be encountered – confidentiality, conflicts of interest, and how to deal with a party not represented by counsel.
One of the most common requests for a high profile client is that the marital agreement remains confidential. Oftentimes, the desire may stem from the stigma which still attaches to such agreements. The duty to maintain a client’s confidence applies not only to the attorney, but extends to the attorney’s staff as well. To protect a client’s confidentiality and avoid inadvertent disclosure by the attorney’s staff, some attorneys elect to meet their higher-profile clients outside the attorney’s office, at least initially. In addition, the attorney may limit the client’s file and delegation of tasks to certain long-time, trusted employees, rather than allowing the case to progress through the firm’s traditional channels.
Parties to a marital agreement may decide in advance to keep certain civil proceedings confidential. For example, parties to a premarital agreement may decide to keep any subsequent litigation regarding the existence or terms of the parties’ premarital agreement or regarding the dissolution of the parties’ marriage private. To accomplish this task an attorney may include a provision in the agreement providing that upon filing for divorce, the parties will agree to enter into an Agreed Confidentiality Order and Order Sealing the File. Including this provision in the agreement may avoid further legal entanglements during the divorce process.
When preparing premarital and post-marital agreements, the lawyer must determine whether the matter is beyond their expertise and/or experience. Marital agreements can be very complex and often require consulting with accountants, appraisers, or financial advisors. Normally numerous revisions are made before a final agreement is complete. Due to potential malpractice concerns, the practitioner should not represent a client with a complex financial background unless the practitioner is confident that he or she can adequately advise the client of any consequences – both intended and unintended – and prepare a marital agreement which effects the intent of the client.
Once the attorney agrees to prepare the marital agreement the lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. In many instances, a client seeking a premarital agreement presents a narrow time frame to negotiate and prepare the agreement. The attorney determines whether he or she can adequately prepare an agreement under the time constraints provided. Due to the
numerous revisions and amendments that are often encountered, the practitioner should be prepared to refer the case or decline representation if the client’s expectation regarding the time necessary to negotiate, draft, and execute the agreement is unobtainable and unreasonable. If the attorney, after a candid discussion with the client regarding the practical concerns presented by the abbreviated timeframe, elects to represent the client, the attorney should prepare an employment contract (if not already executed) or other written agreement detailing any limitation regarding the scope, objectives, and methods of representation, and obtain the client’s signature before proceeding.
D. Ethics of Negotiation
Achieving a settlement agreement can be particularly difficult in family law cases. Often, the parties’ emotions will provide a barrier to an otherwise acceptable property and custody agreement. You can, however, increase the chances of settlement by doing your homework. This means gathering adequate information from the beginning. Your first source of information will be your client. Be sure to listen to them carefully to identify what issues are most important to him or her. Then, as your case begins to take shape, probe for additional pieces of legally relevant information. Once you have exhausted the information your client can provide, consider the opposing party and perhaps third parties.
On this note, two Rules of Professional Conduct to bear in mind are as follows:
(a) A lawyer shall:
1. Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
2. Reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
3. Keep the client reasonably informed about the status of the matter;
4. Promptly comply with all reasonable requests for information; and
5. Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
A lawyer shall act with reasonable diligence and promptness in representing a client.
While sometimes your client may already know what is important to the other side, use traditional discovery mechanisms to help determine what the major issues are for the opposing party. It can be impossible to reach a settlement agreement if you do not know what the issues are, the sticking points and what is at stake.
The conventional ways to obtain information in divorce proceedings are well known: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. Typically, interrogatories are aimed at gathering initial information and facts that the opposing party could not recall without reference to particular documents. Interrogatories in conjunction with Requests for Production then serve to produce the traditional sources of information for a divorce attorney. Staples include:
(1) Bank Statements;
(2) Individual Tax Returns;
(3) Corporate or Partnership Tax Returns;
(4) Mortgage Statements;
(5) Rental or Lease Agreements; and
(6) Telephone Records.
Now, however, we have a broader array of materials with which we can target these traditional discovery tools. These new materials can be used for the same purposes. They include, but are not limited to:
(1) Home and Work Computers;
(2) Cell Phones and Tablets;
(3) Flash Drives and External Hard Drives; and
(4) Cloud Storage/Vendor’s Servers.
Keep in mind discovering all of the information in the world is no guarantee that your case will settle. However, solid preparation will only increase your chances of success at settlement or at trial later. It also allows you to better advise your client in terms of what are reasonable settlement parameters.
In many jurisdictions, pretrial or settlement conferences (or similar court dates) may be scheduled by the judge as a matter of routine, or a particular judge may only schedule them at the request of the parties. In either event, they provide for a meeting of the parties prior to trial. The pretrial conference may flush out procedural, evidentiary, or substantive issues. The realization of these issues and the looming cost of trial may help encourage both parties to settle. Indeed, the judge usually requires the parties to be present at the pretrial or settlement conference. If this is the case, the judge may be able to nudge the parties toward settlement. Even if the meeting does not result in a complete settlement, it may help narrow the issues moving forward. Consult your local rules because each jurisdiction may have their own local rules governing pretrial conferences. These rules may relate to the scheduling of the conference, prior communications, or possible orders granted by the court.
Many domestic cases will settle without having to go to trial. There can be many reasons for this: one party is not ready for trial, one party does not want to go through a trial, or the parties, apart from emotional discord, may actually agree or be willing to compromise. It is not a sign of weakness to discuss settlement. Each litigant may simply have their own timeline. They may need to cool down before they can honestly approach the topic of settlement. Or, they may need to be confronted with the less appealing prospects of depositions and trial. Remember, settlement has tangible benefits. It can certainly reduce legal fees, but also and perhaps, more importantly, it can allow the parties to reach their own agreement. Parties are more likely to be happy with, and correspondingly be more likely to honor an agreement that reflects their own free will. Therefore, it may reduce the need for future litigation. A judicial solution, while equitable, may not be ideal for either party. Many of the benefits of settlement particularly apply if there are children involved. Again, reaching a voluntary agreement allows the parties to tailor custody schedules to their own needs. Also, it can aid in the emotional healing of children by providing a resolution and a more ordinary schedule moving forward. Further, check your jurisdiction’s local rules pertaining to settlement conferences for timing, the possibility of mandatory discovery and attendance policies. The judge may also issue a trial date before or at the conclusion of the settlement conference. Many states have adopted or modeled the federal rules of civil procedure which direct pretrial conferences and scheduling management under Rule 16.
Case management conferences (as they are called in some jurisdictions) can also serve as a settlement opportunity. They provide an early opportunity for the parties to meet together before the judge. If nothing else they help keep the case organized and moving forward to either settlement or trial.
In preparing for settlement, it is very important to create a checklist of possible concerns. Further, as a major common issue in settlement is the disposition of debts and assets, it can be a good idea to create an excel spreadsheet with all assets and liabilities listed. This can enable you to quickly realize financial impact of a proposed agreement.
Of course, though, there can be consequences to these decisions that reach far beyond the dollars and cents immediately presented on a worksheet. That is one reason to be particularly cautious with courthouse settlements. True, you want to reach an agreement when a deal can be struck, but be wary of hidden agendas and the long term consequences brought about by a heat of the moment deal. Additionally, you do not want your client to feel as if they were pressured into a deal. This will lead to later dissatisfaction and make litigation more likely in the future.
Additionally, just because an agreement is oral does not mean they will not be bound by it. In Baldridge v. Lacks, 883 S.W.2d 947 (Mo. App. E.D. 1994), an oral settlement agreement was dictated into the record. While the case was later overruled on other grounds, the wife was bound by an agreement that potentially gave her far less than what her share of the marital estate purportedly was worth.
On that note, it is always wise to follow up with a written agreement. Keeping an oral agreement tentative leaves open the possibility that a key issue accidentally left out can be subsequently addressed. While it is always possible the opposing party may later refuse to sign the agreement, if you are prepared for trial, you will not be afraid of litigating the issue.
Much like any pre-nuptial or post-nuptial agreement there should be a full disclosure of the assets in making a settlement agreement. On its face, partial disclosure by one spouse does not necessarily invalidate an agreement; however, it does prohibit your client from making an informed decision. To that effect, be wary of concealment by the other party and protect yourself from any claim of malpractice through due diligence.
Additionally, be sure your client has an understanding of basic concepts like marital property. The need for full disclosure operates both ways. Do not count on the ability to open up a judgment because you missed something. While agreements concerning custody, visitation, and child support are not binding on a court, other financial arrangements will only be disturbed if unconscionable. An unintentional misunderstanding about the character of a large asset could damage the value of your client’s settlement.
The following are merely suggestions for how to improve chances of a settlement that is good for both parties and leads to a better resolution for everyone involved, including minor children, there are ultimately many ways and different strategies that can be used for an effective negotiation strategy.
· Focus on the future: Divorce can be an emotionally traumatizing time in a person’s life and dredging up the past will not help the client move forward to a resolution for all remaining issues in a divorce action. Directing discussions to what needs to be done in the future and what solutions can help resolve current problems is an effective way to keep the client moving forward towards settlement. Clients will often want to focus on past harms and past issues in the relationship which can lead to roadblocks on the way to settlement.
· Avoid sensitive issues: When tension and emotions are running high it is important for the attorney to direct their client away from discussions of sensitive issues. This is connected to avoiding discussions of the past but can also include discussion of which parent minor children would prefer to be with, whether one spouse moved out or was kicked out, and who is at fault for the divorce. Discussion of these topics can be counterproductive to establishing a settlement agreement that is satisfactory for the client and can extend the length of time until settlement.
· Focus on interests, not positions: One way to easily use this strategy is by asking your client what their concerns are. This can take the discussion away from who is right or wrong and towards what their specific concerns are that could be resolved through negotiation. For instance, your client is in a gridlock on settlement negotiation with his spouse because he does not want to move out but by asking him what his concerns are he voices that he does not want to lose contact with his children. Discussion of this concern can help direct the conversation in a meaningful way to determine if there is a compromise to be made where your client can move out of the marital home while still maintaining a close relationship with his children that is satisfactory to both parties.
In cases that cannot be successfully resolved or mediated from the beginning, there are diverging views. But generally speaking, in contentious cases where parties do not view the situation similarly, my view is that “peace through strength” is usually the best way to get a client to their goal of a reasonable settlement in a family law matter.
This means that the client allows the attorney to issue discovery such as interrogatories or requests for production. Where other documents or evidence are needed to put forth the best case, this also means allowing an attorney to subpoena necessary documents and witnesses. Where expert testimony is needed to make the best case, (like an appraiser, forensic accountant, psychologist, etc.), then these individuals need to be retained early in the process.
By doing this, the opposing party to a case often realizes that settling is the best bet because you are prepared for a trial. While it might cost some money for a client on the front end, this can often grease the wheels in the settlement process – and get the other side to come off unreasonable positions – because they will worry that you are prepared. Getting information through discovery is also part of the “due diligence” that is required and can actually help the settlement process in many cases.
E. Working to Avoid Litigation
All attorneys should have a written fee agreement with their client before undertaking any representation in a divorce 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.
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. The attorney asserts a retaining lien simply by retaining possession of the former client’s file or other property until payment is made or other security is given. While the rules recognize that a lawyer “may” retain client papers by use of a retaining lien, the ability to actually assert such a lien is limited by a lawyer’s other ethical obligations to the former client. Retaining liens can be powerful tools but must be used with caution with attention to both the client’s needs and your state’s applicable law. Be sure to check your local statutes for specific guidelines and rules.
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. This also opens yourself and your firm up to being scrutinized and investigated for the work that you have done on that client’s case. 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 violated any ethical rules or internal policies of the firm. 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. Note, however, waiting for the malpractice statute of limitations to run should not be seen as giving the firm immunity from a counterclaim.
In the end, better overall practice is to get paid on the front-end and have a client maintain a trust balance. 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.
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 the pendency of any 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 of the litigation. 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 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. Attorneys need to be careful to avoid providing an opinion of the possible outcome of the case at the beginning of the relationship. By managing clients’ expectations, an attorney can avoid potential friction, as well as the risk of attorney discipline.
A client who fails to follow the advice of counsel on how to act during the pendency of a family law litigation matter should 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. An abusive client must 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. Do not be afraid to withdraw from a non-compliant or abusive client’s case. Cases involving these types of clients pose malpractice risk to you as these clients will likely look to blame you when their behaviors lead to undesirable results in their cases.
At the very beginning of representation of a client, you must thoroughly explain the importance of the client being 100% open and honest with you. You should always press clients on difficult to discuss issues such as drug abuse, affairs, physical abuse or other activities at the initial client meeting. 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. However, clients will inevitably make accidental disclosures by e-mail, text-messaging or other social networking forums about actions they have taken that they believe have been kept secret. Disclosures about actions clients have taken inevitably occur by the opposing party’s counsel in chambers in front of the judge during status conferences. If a client has been truthful with you from day one, you can anticipate these disclosures ahead of time and develop a strategy for minimizing the effect of the information when it comes to light.
Dishonest clients can be identified immediately by adhering to stringent file management guidelines in all cases. When a client brings allegations forward about the other party, you must immediately request documentation 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 should be immediately 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.
Thomas E. Spahn, A Basic Guide for Paralegals: Ethics, Confidentiality and Privilege 12-13 (1 ed. 2006), http://www.cfpainc.org/images/Paralegal_Guide-Ethics.pdf (last visited Oct 16, 2015).
Lucian T. Pera, The Ethics of Joint Representation, 40 American Bar Association Journal of Litigation 1-8 (2013), http://www.americanbar.org/content/dam/aba/publications/litigation_journal/fall2013/ethics-joint-representation.authcheckdam.pdf.
Diana S. Friedman, PREMARITAL AND POST-MARITAL AGREEMENTS WITH ETHICAL CONSIDERATIONS 1-4 (2010).
Model Rules of Professional Conduct Rule 1.4
Model Rules of Professional Conduct Rule 1.3
VALUATION AND SETTLEMENT OF DIVORCE CASES, WTS MA-CLE 8-1
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).
Stephn R. Cochell, Thirteen Survival Skills for the Family Law Practitioner, Utah B.J., JUNE 1997, at 24.
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).
