10 THINGS TO CONSIDER WHEN HIRING A FAMILY LAW (Divorce) ATTORNEY

Written by on April 11, 2012 in Attorneys

1. The “We do EVERYTHING” Law Firms:

Although an attorney may practice most areas of the law upon passing the Bar Exam, I always caution clients to stay away from the attorneys who “limit” their practice to: “general civil litigation (plaintiff and defense), criminal defense, family law, personal injury, workers compensation….”  (you get the picture).

Each area of the law has many nuances that are specific to that area of the law.  And, unless you practice that area of the law (i.e., live it day in and day out), it is virtually impossible to keep up to date with recent developments, new case law, new procedural requirements, new trends, etc., that are specific to that area of the law.  It is my humble belief that unless an attorney is immersed in one or two areas of the law, they do their clients a disservice by representing them.   Think about it, would you trust a general practitioner to perform your heart surgery or would you prefer to go to a heart surgeon? Unless you are a huge risk taker, the answer (I hope) would be the latter.

DON’T retain an attorney that does it all.
DO retain an attorney that limits their practice to one or two areas of the law.

2. Bigger is not always Better:

The size of the firm you retain should depend on the size of your estate and the complexity of your issues.  If the size of your estate is reasonable (i.e., NOT Frank McCourt), I would recommend a smaller firm to cut down costs.

Indeed, MOST associates at firms have billable hour requirements.  The billable hour requirements vary in each firm but it is usually between 150 and 180 per month.  This means that each associate has to bill out (not work) 150 to 180 hours of time per month. Solo practitioners generally don’t have billable hour requirements.  This means that they can be more flexible with your bill  i.e., that 2 minute telephone call to schedule a meeting will usually not get billed at a solo, but an associate will bill you at the 6 minute increment because they are REQUIRED to meet their billable quota.

At the end of the day, you can either choose to spend your money on attorney’s fees or keep it for yourself.   If you choose a big firm over a small firm/solo practitioner, you are likely going to incur more attorney’s fees which really only makes sense if you have a LOT at stake.

DON’T feel compelled to go to a large firm if the size of your estate is reasonable.
DO keep your options open and interview several solo practitioners.  Go with the Attorneys that have your best interest at heart – not those that need to make a bottom line.

3. High Turnover of Attorneys:

One of the biggest complaints I get from clients that were previously represented by large firms is the high turnover of attorneys.  I hate to destroy the illusion, but being an attorney at a large law office is not as glamorous or happy as it appears on TV.  Rather, it is usually pretty cut throat and competitive.  As such, some firms have a lot of turnover in attorneys – obviously some more than others.

This affects the client because the client is repeatedly shifted from one attorney to the next causing the client to explain and re-explain their case over and over (and over) again to the new attorneys.  If you are satisfied with your representation at your firm with the high turnover then, by all means, stay there.  But, make sure you explain in writing (then check your bill) that you will NOT be billed for having to re-explain yourself to the new attorney (or having the attorney play catch up on your case).

DON’T assume that high turnovers are just the way it is.
DO consider switching firms if you are frustrated with your representation and DO some due diligence before retaining a firm to see if this is a problem.

4. Attorney’s Disciplinary Record with the State Bar:

Despite all those jokes out there – attorneys are (usually) ethical and moral creatures.  More importantly, the State Bar is pretty good at disciplining attorneys who are not so ethical or who have violated our strict rules of Professional Conduct.  Indeed, an attorney’s record with the State Bar is public information!  In California, for example, the attorney’s basic information and state bar disciplinary record can be viewed here: www.calbar.org.  Whether you choose to retain an attorney that has been disciplined before is completely up to you; but you should know about this before your retain them.

DON’T retain an attorney without doing some due diligence beforehand.
DO check their disciplinary history before retaining an attorney.

5. Refundable Retainers:

In California, Family Law attorneys are not permitted to take your case on a contingency agreement (i.e., take a portion of the assets that they obtain for you).  Most family law attorneys accept a retainer funds: this means that you will pay the attorney a sum of money (typically between $2,500 – 5,000).  This will go into a client trust account – it is YOUR money that is being held in trust.  At the end of each billing cycle the attorney will send you an invoice and will withdraw that amount from the client trust account.  They will then request that you replenish the client trust account for the amount that was billed.

For example, if you pay the attorney $2,500 for a retainer, the attorney will place that entire amount into his/her client trust account.  If, at the end of the month, you incur $1,000 the attorney will send you an invoice for that amount and then withdraw $1,000 from the client trust account leaving a balance of $1,500 in the client trust account.   The attorney will then ask you to replenish the client trust account with $1,000 so that there is always a $2,500 credit balance in that account.

You need to make sure that the retainer amount is refundable.  This means that if at the end of your case there is a $2,000 credit balance in the client trust account, that the attorney will write you a check for that amount; not keep it for themselves.  You would be surprised how many attorneys have a “non-refundable” retainer policy.

DON’T assume that all retainers are refundable.
DO request that the retainer amount is refundable during your consultation – and make sure it is spelled out – in the retainer agreement.

6. Fresh Out of Law School:

I’m always a bit skeptical when an attorney opens up their own firm right after graduating from law school.  Although this is permitted, there is invaluable experience you gain from working at a firm – under the supervision of an experienced attorney – for a few years. There are certain local rules and procedural rules that you don’t learn in law school. Also, you learn strategy techniques and timeline lessons that are beneficial.  Although you can, clearly, learn this yourself it becomes ingrained in your psyche when you have to do it enough at a firm.

DON’T assume that all things are taught in law school.
DO consider an attorneys experience before retaining them.

7. Attorneys that are Angrier than You Are!

As an attorney, there are certain attorneys (who shall, of course, remain nameless) that I will not work with.  Once you have been around the system certain people develop a reputation and, if you have worked with them in the past, you know what they are like.  Those are the attorneys that are unable to separate their own personal feelings from their clients – which is ultimately a disservice to the client.

Indeed, there is a fine line between zealous advocacy and blinding anger which prevents the attorney from remaining objective enough to recommend strategy that is in the best interest of the client.  If the attorney is emotionally involved in the client’s strife, then they cannot recommend the best strategy for the client.  In many cases it may be better for the client to settle an issue than to “fight till the death” but if an attorney can’t remain objective they won’t be able to recommend that the client settle.

DON’T assume that if the attorney doesn’t want to take “everything and his heart on a silver platter” that they won’t fight for you.
DO make sure that your attorney will be able to give you the best advice even if it’s not what you want to hear.

8. Online Reputation:

I always recommend that clients do some due diligence before retaining an attorney.  If you don’t know anyone that has used your attorney in the past, go online and do some research.  Have they been disciplined by the State Bar? Do they have a website? Are they on Avvo?  YELP? Are they active in the community? Are there any client reviews about them?

Although you need to take all reviews with a grain of salt, you should consider what is written about your attorney before you engage them.

DON’T blindly retain an attorney.
DO some due diligence before retaining them.

9. “Bait and Switch”

Often times (especially if you go to a large family law firm) the attorney you meet with during your consultation will not be the attorney handling your case.  Rather, your case is transferred to another attorney at that firm.
This is not uncommon; and it’s not necessarily a bad thing.  That is, the attorney working with you often has a much lower billable rate than the partner you met with.  But, you need to make sure and ask the consulting attorney who will be directly handling your case (i.e., writing letters, going to court, etc.)  and ask that you meet with them to make sure you approve.
DON’T assume that the attorney you meet with will be the one handling your case.
DO ask to meet the attorney who will be directly responsible for your case and voice your opinion if you don’t approve!  This is YOUR case afterall!

10. Your Preparation:
When you first meet with your family law attorney, you should be active in the consultation.   Ask them the questions, take down notes, etc.  You should walk in your consultation with your questions written out so that you don’t forget to ask them.  Some of those questions should be:

  1. What is your strategy with my case (unless your case involves Domestic Violence or other abuse, be wary of the attorney that seeks litigation as the first and only option).
  2. Will there be a settlement offer presented?  If so, when?
  3. How complex is my case?
  4. Are there any issues that I should be concerned with?
  5. What documents do you need from me?
  6. What will be the likely outcome of my child custody/visitation?
  7. What will my child/spousal support payments/obligation be?
  8. What will be the ultimate outcome for my assets and debts?

DON’T assume that any question is a “stupid” question.  The attorney is there to educate you on the process and to guide you in your case.  Make sure you understand each step.
DO make sure to write down all of the questions you have before going to your consultation.  Also ask the attorney if you can contact them if you remember more questions later.

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