When Lawyers Like Each Other (Part 2)

Hello readers! It has been awhile (!) since I posted on my blog, for which I apologize.

Back in 2008, I wrote a post called "When Lawyers Like Each Other" where I talked about the importance of working with lawyers "who like each other" in a family law negotiation. My point was that clients are smarter to work with lawyers who know and regard each other highly in order for negotiations to proceed efficiently. I wanted to reiterate that point, and I wanted to add a point to that.

Here's what I've learned through my years of practice: The "dream" file for a family lawyer and a client is where the lawyers like and respect each other and the clients like and respect each other as well (but happen to be separating). In these files, the negotiation can proceed very quickly and efficiently. These are the kinds of files where the lawyers might even spend less than five billable hours of time in order to complete a case. For me, there is a high level of satisfaction working on these types of files.

The "second best" file scenario is where the lawyers like and respect each other, but the clients don't, OR vice versa (the clients like and respect each other but the lawyers don't). These will be challenging files, but they are manageable. These files may still take a fair amount of time to complete. I would go so far as to say that it is more important for clients to like each other than lawyers to like each other in this context because the clients are the ones calling the shots. Whenever I am having a problem with another lawyer on a file, I always "employ" my own client to speak to his or her spouse to see if they can make some headway in the negotiations. Sometimes clients can surprise the lawyers by working out the problem in the negotiation on their own while the lawyers are bickering!

The worst file scenario is -- you guessed it -- the lawyers don't like or respect each other and the clients don't like or respect each other. These are incredibly difficult files. In these files, you will find clients who may expect their lawyers to take on their anger, and for lawyers to wholeheartedly accept that request. For me, these are the least satisfying files to work on. These are the files that end up in court.

So, what I tell my clients is this: Either the lawyers have to like each other or the clients have to like each other (or both). But a file where the lawyers do not like each other and where the clients don't like each other is doomed. There is mistrust all around.

My advice for clients who want an efficient and practical negotiation is -- when you are retaining a lawyer, ask your lawyer who they enjoy and respect working with, and see if you can get your spouse to coordinate their lawyer with yours.

Collaborative family lawyers must meet the same standard of practice as family law litigators

I felt it was important to comment on the recent decision of Webb v. Birkett, [2011] A.J. No. 54.

In this decision by the Alberta Court of Appeal, the court ruled that collaborative family law practitioners must meet the same standard of care as family law litigators. Have a look at the article by Cristin Schmitz in Lawyers Weekly here: http://www.lawyersweekly-digital.com/lawyersweekly/3038?pg=14#pg14
You can also read the full decision here: http://www.canlii.org/en/ab/abca/doc/2011/2011abca13/2011abca13.html

This was a case where a client sued her collaborative family lawyer for failing to provide her with proper and complete legal advice during the collaborative family law process which the client and her ex-husband were participating in. In particular, when the client instructed the lawyer that she wanted to waive receiving financial disclosure from her ex-husband regarding the value of his dry cleaning company, her lawyer did not explain the risks and losses attendant upon her waiving receipt of full information from the other side. Accordingly, the client later claimed that she made an uninformed decision regarding some of her rights when she entered into a binding separation agreement with her ex-husband.

The court ruled that the lawyer had indeed fallen below the standard of care owed to her client. The lawyer should have tried to obtain all relevant disclosure from the other side and provided a "legal model" analysis of the client's entitlements by law (in property division, spousal support and/or child support). Where a client insists that he/she does not want to obtain full disclosure from the other side and feels satisfied with "not knowing" certain information, a lawyer needs to tell the client that they cannot give proper legal advice based on the lack of information and to also advise the client that they may be accepting less or paying more in a settlement than what would be required by law. It is preferable that the lawyer communicate this in writing to the client.

I must say that this decision, albeit necessary, is nothing "earth shattering" to me or my fellow collaborative family law practitioners. We are fully aware that our primary role is to protect our clients the same way that a traditional family lawyer (ie. litigator) must. We must keep abreast of the changing law and we need to advise our clients about how the law affects them. People, including the lawyer who was sued, may have the misperception that in a collaborative family law process, the lawyers do not need to "cross their t's and dot their i's" in the process simply because the clients who have entered into the agreement seem happy with the deal they are reaching. The only difference between a settlement reached through collaborative family law process versus traditional negotiation or litigation is the tone of the process itself -- the collaborative process is premised on the parties and lawyers working collaboratively, whereas the traditional negotiation/litigation process is not. However, both processes require that clients receive thorough and well reasoned legal advice before they enter into binding agreements. The standards of that legal advice are definitely no different between the processes. (In fact, many of today's collaborative practitioners were once traditional family lawyers practicing in the court system.)

Legal Fees, legal fees, legal fees

I wanted to write in today about what we lawyers are known for -- charging legal fees(!). As you might be aware, clients are sometimes not very happy with the fees their lawyers charge. In the area of family law, I find that clients experience a "double whammy" in that they are (often)dealing with one of the most disappointing aspects of life (ie. separating from a spouse) and, at the same time, are needing to pay quite a bit of money to a lawyer to help them resolve the legal aspects of their case. I wholeheartedly agree that lawyers need to charge reasonable rates to their family law clients -- family law clients are not corporations with potentially deep pockets, they are individual members of society. I also think that clients need to be reasonable in their expectations of their lawyers and how fees are charged.

In general, lawyers charge on an hourly basis for all work they do on a case for a client. This means that if a lawyer spends a few minutes confirming something on the telephone with you, that lawyer will usually charge you for that time on the phone. (Of course, I know alot of lawyers, including myself, who don't charge for every last thing they do for a client.) It is important for clients to be aware of how much time they are spending on the phone with their lawyer and how much work they are allocating to the lawyer to do. If you want to keep your lawyer's fees down, here are a few tips:

1. Try and "batch" the ideas and issues that you want to speak to your lawyer about and then call your lawyer. In other words, minimizing the number of phone calls and e-mails with your lawyer will save you alot in legal fees. Ask questions and discuss issues in one sitting. Write down the legal advice that your lawyer provided you so that you are not discussing the same issues over and over again.

2. Some lawyers charge to simply play "telephone tag" with their clients or to listen to voice messages left by their clients. It is a good idea to set up dates and times to speak to your lawyer to avoid the "telephone tag" and the corresponding fees charged.

3. Understand that the more work the lawyer is in charge of doing, the more time the lawyer will take and bill you for. If you can volunteer to obtain some documents by yourself or do some non-legal work yourself, you will minimize the fees. Now, the lawyer cannot delegate "legal work" to you or assume that you will research the legal issues by yourself, but there are often items that you can help with.

4. Try and be organized regarding your documents. Ask your lawyer for a list of documents they need for their case, write this list down, and gather the information, and provide it to your lawyer in one batch. Your lawyer will be so impressed! If your lawyer has to nag you for documents, they will charge you for it.

5. Also understand that the more conflictual a case is, the longer it takes to resolve, and the higher the legal fees. If you are able to take some of the work off your lawyer's plate by discussing some issues with your ex-spouse, you will greatly streamline the fees. In a recent case I had, the other lawyer and I were mired in lengthy negotiations regarding how to resolve a particular legal issue. Our clients quickly discussed the issue together, determined how best to resolve it, and instructed us how they wanted it resolved. It was a brilliant example of clients taking the reins of the case and it saved them quite a bit of fees (and it put us lawyers in our places too!).

6. Review your lawyer's account carefully. Yes, sometimes lawyers (and their staff) make mistakes in their billing and it might cost the client.

A final note: Many clients initially ask me how much it will cost them and how long it will take to complete their case. Although I can give clients a very rough estimate of what the cost might be and how long their case will take to complete based on previous cases I have done, each case is very individual. Ultimately, how much a case will cost and how long a case will take to complete is dependent on how much work you do yourself and how willing you and your spouse are to work together to reach agreement quickly and efficiently. What I tell my clients is that I am committed to keeping them informed about their accounts every step of the way and am willing to discuss how the legal fees can be kept down.