One of the worst kept secrets in legal practice is the toll that domestic relations work can take on a lawyer's staff, resources and psyche. Even the stiffest of iron constitutions sometimes bend under the strain of such emotionally charged work, and more than a few lawyers have found that initial enthusiasm quickly turns to head-in-the-hands regret.


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

by jennifer j. rose
Ms rose practiced matrimonial law in Iowa and now lives in central Mexico as an eccentric recluse and legal consultant.

One of the worst kept secrets in legal practice is the toll that domestic relations work can take on a lawyer's staff, resources and psyche. Even the stiffest of iron constitutions sometimes bend under the strain of such emotionally charged work, and more than a few lawyers have found that initial enthusiasm quickly turns to head-in-the-hands regret.

But does this mean that you should completely abandon the idea of ever handling domestic relations work or taking on another divorce case? Of course not. What it means is that you should subject each new domestic relations case to some no-holds-barred scrutiny to decide if it's the sort of case you can handle without going nuts. These "Ten Commandments" will help you to make that call.

I. DECIDE WHAT KIND OF PROFIT YOU WANT TO MAKE FROM EACH CLIENT.

A. Financial Profit: The dollars and cents to pay you and your overhead.

1. High potential: You charge a flat fee for services that you are able to render quickly and efficiently, because you have created a system to generate quality work product. For example, flat-fee divorces for $3,000 from petition through trial, adoptions, appellate work, and so on. But be careful: you must be able to quickly evaluate the case and the client to avoid working for an effective hourly rate of $20.

2. Moderate potential: You charge an hourly rate for your services. The case could consume a great deal of time, but your client is ready to pay you for each and every hour expended. For example, $150 per hour for all services, which may take from four to 400 hours to perform.

3. Unknown. Fees are dependent upon an award from a third party, which may or may not be awarded and which may or may not be paid. Your own client may not be able to pay you what's due. Awards of fees from the client's spouse is a good example. Take heed that women in family law cases are frequently under the mis-apprehension that husbands are supposed to pay you. Take time to explain who is the client and who's not. Explain what the attorney's fee award may mean. One easy way is to draw parallels between health insurance reimbursement and payment of counsel fees by opponents.

4. Low potential. You perform services at a discounted rate, although payment may be guaranteed. Volume, coupled with an office system, can be potentially profitable. Examples include prepaid legal plans and court-appointment work.

B. Professional Profit.

1. Practice-building. Your work for this client will develop your practice and client base in a new area. You hope that this case will generate new business. A client within a specific work environment or geographical area which you'd like to penetrate could lead to other business from that client base. But don't expect to service every client in the expectation of new business from that client. The emotional energy expended in divorce practice may ruin the relationship with a long-standing client, who may not want you to remember him as the fellow who buys his own underwear at Victoria's Secret. That client may not return to you, but he may well recommend you to others.

2. Referral debt. Because you value the referral, you want to repay that obligation to its source, impress the referral source, and generate future referrals. For that reason, your relationship with the referral source becomes your profit from the client. Here's a scenario: Bob Wright refers a case to you, which is not highly financially profitable to you. In fact, the case barks. Because you value your relationship with Bob and want him to send you lucrative cases in the future, you'll knock yourself out on this one.

3. Discharge of professional duty to make legal services available. You already know about the Canons of Ethics.

4. Prestige and reputation enhancement. By advancing the rights of some lone client, tackling new areas of the law, or honing the existing law, you can become the local authority in family law. Ever take a case on appeal, knowing full well that you'd never get paid?

5. Publicity. Your client is in the news or has a big mouth.

C. Psychic Profit.
1. The "good feeling thing." You just plain feel sorry for the poor client whose cause seems meritorious but can't pay the freight. The obvious danger is that too many of these cases may destroy your practice.
2. Discharge of professional duty to make legal services available.
3. Pro bono work. This case makes you feel like you've done good for the public or just one guy out there. Be careful to distinguish "pro bono" from "for free." Don't let it become an involuntary pro bono case.

Don't accept a client who's not going to deliver you some kind of profit. If you've no idea what kind of profit this case will yield, you've no business taking on this customer. The client and the case must have some meaning for you. Unless you're real hungry for experience or really like to forgo fees or feedback, you don't need to take on those clients who aren't going deliver you some kind of benefit, financial, professional or psychic, for your labors. Send them elsewhere.

II. TELL YOUR CLIENT WHAT IT'S GOING TO COST.

A. Initiate the discussion of fees. You know the feeling that comes over you when the waiter at a plush restaurant hands you one of those menus that describes "poached lamb brain with a smoked mango-kiwi coulis and turnip gratin" but doesn't list the price? You know how inspired you are to buy at one of those antique shops where all the price tags are coded? Would you stay at the Fairmont Hotel if you had no idea until check-out whether your room would cost $120 or $1200 a night? Your prospective client is dying to know what you're going to cost him, too. Midway through the initial interview, bring up the subject of fees. Tell the client about the minimum fee, hourly rate, retainer or engagement fees and costs deposits you require. Better yet, when the first appointment is made, if you're dealing with a "shopper" or someone who "just wants legal advice," quote your consultation fee.

B. Describe how your fee is determined. The family law client is paying you with after-tax dollars, and he should know your position on the food chain. Let your clients know that you work for a living and have an office to run. They tend to forget that. For someone who's making $15 an hour, your $150 hourly rate is incomprehensible.

C. Let the client know that unforeseeable factors may influence the fee and its increase. Inform the client that the client, his opponent, and opposing counsel can color the economics of each case. Even when clients know that "extras" can be bought cheaper elsewhere, often they're still willing to pay for the handholding or busy work.

D. Inform the client that the fee is not refundable, and explain why. Family law is rife with conflicts not seen in personal injury, probate, or criminal work. Your acceptance of this client precludes representation of the opponent, and the family law case may last for what seems like an eternity. Your name on the pleadings may be the single-most important factor in reaching an early settlement. Reconciliation after serving a petition with your name on it may be just the result your client desires. The retainer or engagement fee may be a good investment for your client.

E. Let the client know what services you will perform for that fee. Make your written retainer agreement adequately descriptive.

F. Detail when the fees are to be paid. Make sure the client understands that part of the fee is to be paid upon acceptance of the case, part midway through the proceedings, and the remainder just before trial.

III. ALWAYS USE A WRITTEN RETAINER AGREEMENT.

A. Invest two hours of your time in yourself by creating a master retainer agreement. You've already made the investment in yourself when you took the time to read this article. Now put that knowledge to work.

B. Consider creating a form retainer agreement for specialized situations.

C. Develop a guarantee and joinder agreement to assure payment by a non-client. You already know about the client who has $500 and a willingness to sign the fee agreement. You know that the client doesn't have and isn't going to have the wherewithal to pay you all that you're going to need to charge for this case. And you know that the $500 you're about to accept will be the last money you're likely to see from this client. Ask the client to have a parent, boyfriend, or somebody guarantee payment. When's the last time you bought a new car with $500, a tale of woe, your good looks, and a promise to pay even if it took you 20 years?

D. Before undertaking the steps above, don't reinvent the wheel. Take a look at old copies of The Practical Lawyer and bar publications which have already developed a "McFee Agreement" for you. Make life easier on yourself.

E. Do not proceed with the case until you've solidified the attorney- client relationship. That means a signed written retainer agreement. Client won't sign it? There's an early benchmark of a client who won't pay you later.

F. Consider including provisions in the retainer agreement which transcend payment of fees. The retainer agreement, which identifies the "terms of representation" can address much more:
- The client will obey all court orders;
- The client will tell you the truth at all times;
- The client will abstain from the use of drugs and alcohol;
- The client will remain under the care of a psychiatrist until discharged from treatment; and
- The lawyer will not engage in any action which the lawyer deems morally repugnant.

Obviously, these additional terms will vary from client to client. Serious clients will have no objection to the inclusion of additional terms where appropriate.

IV. DISCUSS COST-EFFECTIVENESS WITH EACH CLIENT.

A. Ferret out pomp and bluster. You've been around long enough to recognize the refrain: "It's not the money, it's the principle." And you know that principles are expensive to litigate.

B. Discourage revenge suits. Recognize the malicious tone of "I want you to make this as difficult, protracted, painful and expensive for her as possible."

C. Use your client as an unpaid associate to gather as much information as the client can. Develop a sense of teamwork with the client, without making the client his own private investigator. You don't need to spend time writing letters to the client's CPA to obtain copies of tax returns if your client can simply walk into the CPA's office and retrieve his own copies. This step can give a client who has been financially ignorant a sense of empowerment. Some clients who've completed their own scavenger hunts have later realized the amount of work you've been spared. There will always be some clients who can't handle simple tasks, of course. Let them gather dust, not information.

V. BILL REGULARLY AND DESCRIPTIVELY.

A. Experiment with alternative forms of billing. Don't get wedded to the hourly rate. A flat fee for the "garden variety" divorce which requires five hours' worth of your time can spare you billing chores while giving the client predictability. People love all-inclusive tours to Europe in which all expenses have been paid.

B. Consider unit billing. Charge a flat fee per service. $________ for petition, $_______ for temporary orders, $________ for interrogatories, $________ for a deposition, $________ per half day of trial. "Per service" charges may be more understandable to your client and not as threatening as the hourly rate. When's the last time you paid your dermatologist by the hour?

C. What is your cash flow? Is it regular, or is it "feast or famine?" Family law cases should provide a regular stream of income. You're not as likely to come upon a streak when you "hit the big time" as you might in probate or personal injury.

D. Since you're working on a flat-fee or hourly rate basis, you're really not much different from the employee who builds cars at the General Motors plant. She counts on a regular paycheck at the end of each pay period. You're putting in all those hours, meeting your overhead, and you're not seeing a regular paycheck? What's wrong with this picture? You're paying for the privilege of punching in the time clock, but you're not turning in your time card to the boss, who in this case is your client. If you want to get paid, you've got to hand in your time card. There's no bill that's too small to send out. Which bills get paid first when you're broke: the manageable ones or the huge one?

E. Encourage payment of your bill.
1. Get rid of the glassine-windowed envelopes. Send your bills in a regular envelope, accompanied by a copy of a recent pleading or correspondence.
2. Bill right after a successful result. Get the client motivated to pay you right away, not after your efforts have glided down the black hole of "I could've done it myself."
3. Bill descriptively. As The Divorce Lawyers' Handbook author Larry Rice aptly put it: "Bill Old Testament style." Instead of billing "temporary order, 2 hours," try "argument of your application to remove Timmy from father's home due to inherently evil nature of father, direct examination of our truthful witnesses, cross- examination of lying hostile witnesses, closing argument to Judge Bean, draft of proposed order awarding temporary custody to you, travel from Paducah to Pisgah and return."

F. Protect yourself from getting stiffed.
1. Write a personal letter to the client. Ask for payment. Explain
what you've done for the client.
2. Follow-up with a telephone contact.
3. Regularly let the client know the age of the account.
4. Elicit the client's reason for nonpayment. Find out when the
client intends to pay you.
5. Consistent with your ethical obligations, quit working on the case.
You're not getting paid, so why should you continue to work for
nothing? Work on fee-generating cases. Read a magazine. Spend time
with your family. Go to the beach. But be sure to point out the
withdrawal provisions of your retainer agreement. Don't simply go
on strike.
6. As a last resort, and only when you're sure that you're safe from
a malpractice or ethical complaint, sue the client.

VI. DISCUSS PAYMENT OPTIONS.

A. Take it as it comes. In the ideal world where all's fair, you'll get a check for the full amount as soon as you render the bill. You know that doesn't always happen. Could you afford to sit down and write out a check for some of the fees you charge?

B. You already know your client's income and asset picture.
1. If you don't by this time, notify your malpractice carrier at once.
2. Determine your position among the client's other creditors.

C. Work out a payment plan with the client.
1. Gear the due date for payment of your fees to coincide with the
date on which the property settlement is due.
2. Figure out monthly payments. Print up a series of coupons similar
to those you already use to make your own installment payments.
Make the bill easy to pay with pre-addressed return envelopes.
3. Take an assignment or impose an attorney's lien against the
property settlement. File it with the clerk, and serve a copy on
the adverse party. But do not take an assignment of child support
or alimony, which may create a dischargeable debt in bankruptcy.
4. Ask the client to give you a mortgage on the real estate. Ask the
client to give you a security interest in personal property.
5. Offer a discount for payment in full within 20 days.
6. Charge interest. You'll feel better if you're earning 18%
annually on your receivables, and your client will have an interest
in paying you.
7. Accept credit cards.

One sure way to ensure that you're not likely to get paid is to have sex with your client. Grievance commissions really missed the boat in decrying attorney-client sexual relations. Lawyers would quickly comply if they'd just learn that sexual activity with clients is a sure-fire way not to get paid.

VII. ASSESS THE LEVEL OF CLIENT SATISFACTION.

A. Explain what just went on. Tell them what the decree or last step in the legal process really meant.

B. Identify what "cleanup" or closing work remains to be done.

C. Get the client to agree you're the best lawyer in the world.

D. Find out when you're going to get paid.

E. Return all of the unnecessary junk in the file, keeping copies of what you need to defend yourself later.

F. Give a lagniappe. When the client hired you, you probably gave him your business card, a firm brochure, a book about divorce, and a special folder. At termination, throw in some extras: a visitation schedule, pre-addressed envelopes to pay child support, a book on post-divorce adjustment, a bottle of champagne, flowers. Throw in a complimentary service: completed 8332 for next year, an immediate income withholding order.

G. Formalize the end of your relationship with a "disengagement letter." You've heard time and again about beginning the relationship with the client; now it's time for closure. Clearly and unequivocally, let the client know that the attorney-client relationship, at least for this case, has come to an end. Family law cases can drag on and on long after entry of the decree, while the client begins to think of you as his servant for life. You begin to dread each contact with the client. Let him know that you're done, but you're still willing to be his or her lawyer later on. You'll just need to renew that relationship with a new fee and a new fee agreement.

H. The disengagement letter can also establish the date from which the statute of limitations on your malpractice claim begins to run. And it can be a vehicle for assessing the client's satisfaction for you. A sample disengagement letter appears at the end of this article.

I. Help the client defend you. Include a questionnaire with the disengagement letter that seeks the client's opinion of your services. When the client returns the questionnaire or sends you a letter of thanks, be sure to save it in the client's file. You may need it to defend yourself later.

VIII. CROSS-MARKET YOUR SERVICES.

A. Let the client know your availability for other legal work.
1. Revision of the estate plan after divorce;
2. Purchase or sale of real estate;
3. Business affairs;
4. Defense of drunk driving charges levied against your client when
he celebrated his divorce;
5. The paternity action brought by your client's former paramour;
6. The paramour's divorce;
7. Prenuptial agreements;
8. The stepparent adoption;
9. Bankruptcy;
10. Collection or evasion of judgments.

B. Referral. Even if you don't handle the kind of work your client needs, let her know that you know other lawyers to whom she can be referred.

C. Keep your client on a mailing list for future contacts. 1. Client newsletters such as Client Update and Your Law; 2. Christmas cards; and 3. Updates and changes in the law which may affect the work you just performed for the client.

IX. THANK YOUR REFERRAL SOURCE.

A. During the first five minutes of each new client contact, you asked "How did you find out about me?" And being the mannerly lawyer that you are, you promptly dictated a thank-you note to the referral source right after the client left your office. Use the termination of the case as another opportunity to thank the referral again.

B. Send back the empties. If the referral came from the client's "regular" lawyer, use that opportunity to let the referring lawyer know that you've finished the work and that you're "returning" the client back to him. A sample thank-you letter appears at the end of this article.

X. RE-EVALUATE YOUR PROFIT MARGIN AT THE END OF EACH CASE.

A. Take a quick look back. Spend five minutes on yourself at the end of each case, when you're cleaning up the file for dormant storage.

B. What was it about his case that made you feel positive?
1. Cash flow;
2. Good fee;
3. Genuine benefit to client;
4. Business generated from this case or client;
5. Professional enhancement and psychic needs;
6. Experience gained.

C. What was it about this case that made you feel negative?
1. Economic disaster to you;
2. Client from hell;
3. Lack of control over case or client;
4. The "wish I'd done it this way instead" syndrome;
5. Likelihood of complaint to grievance commission or malpractice claim.

D. What would you do differently? Determine what you've learned from this case and how you'd handle the same case, given the benefit of hindsight. Look for:
1. Forms, pleadings, correspondence for your private form bank.
2. Case and client management techniques that should've been undertaken;
3. Effective tactics that you should apply to future clients and cases;
4. Clients to avoid; and finally
5. Avenues for new market penetration.

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SAMPLE DISENGAGEMENT LETTER

Dear Client:

I am honored and pleased to have served you in connection with your divorce. The case is now closed.

Keep all copies of documents in a file where you can easily retrieve them. I am closing my own file in this case and removing the case from the active files, because I have completed the legal work in this case.

I am always personally concerned that I met the expectations of my clients in each individual matter. Since this case is now closed and the work finished, please take a few moments to complete and return the enclosed short questionnaire.

Please feel free to call with any questions or comments.

Sincerely, -----

SAMPLE SECOND THANK-YOU LETTER

Dear Referral Source:

Thank you once again for referring Desperate Client to me for representation in his custody modification case. You will pleased to know that we were successful on obtaining custody of Favorite Child and significantly reducing Desperate's child support obligation to the remaining twelve children.

I have urged that Desperate return to your firm for services which he may need in the ongoing operation of "A-1 Body & Fender, Inc." as well as his estate planning needs.

I appreciate the confidence you have placed in me, and I trust that I will be able to return the favor to you.

Sincerely,
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Adapted from a Similar Article by jennifer j. rose in
39 Practical Lawyer (January 1993).
Copyright 1994 by jennifer j. rose

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