MANAGING CLIENT EXPECTATIONS Family Law … · managing client expectations family law section...

MANAGING CLIENT EXPECTATIONS Family Law Section Program

Speakers:

Wendy S. Burgower Houston, Texas

Brian L. Webb

Dallas, Texas

Authors:

Kay Redburn Dallas, Texas

Natalie L. Webb

Dallas, Texas

G. Thomas Vick Weatherford, Texas

Thursday, June 10, 2010 1:30 p.m. – 2:15 p.m.

BRIAN L. WEBBThe Webb Family Law Firm, P.C.

Republic Center325 N. St. Paul, Suite 4450

Dallas, Texas 75201Telephone: (214) 871-2730

Fax: (214) 871-9339

BRIAN L. WEBB, born Philadelphia, Pennsylvania, April 12, 1949; admitted to bar,1975, Texas; U.S. District Court, Northern District of Texas, 1981; U.S. Supreme Court,1990. Board Certified, Family Law, Texas Board of Legal Specialization (1980). EDUCATION:

University of New Mexico (1971); Southern Methodist University (J.D., 1975)

AWARDS & DISTINCTIONS:

JUDGE SAM EMISON AWARDThe Sam Emison Award is bestowed upon a person who has demonstrated asignificant commitment and made significant contributions to the practice of familylaw in the State of Texas.

DAN PRICE AWARD The Dan Price Award is presented in memory of Dan Price who exemplified serviceto the profession and to the public. The award is presented to a practicing attorneyin recognition of an unreserved commitment to clients and to the legal profession asa volunteer and legal writer.

“BEST LAWYERS IN AMERICA” (listed since 1989)

TOP 100 TEXAS “SUPER LAWYERS”, Texas Monthly 2004, Texas Monthly 2005

TOP 100 DALLAS/FORT WORTH “SUPER LAWYERS”, Texas Monthly 2003-04-05

“BEST LAWYERS IN DALLAS”, D Magazine (multiple selections)

“BEST FAMILY LAWYERS IN DALLAS”, D Magazine 2009

CHARTER DIPLOMATE, AMERICAN COLLEGE of FAMILY TRIAL LAWYERS(limited to 100 members nationally)

BOARD CERTIFIED, FAMILY LAW, TEXAS BOARD of LEGALSPECIALIZATION

OFFICES & POSITIONS:

PAST CHAIR, FAMILY LAW SECTION, STATE BAR OF TEXAS

PAST CHAIR, TEXAS CHAPTER AMERICAN ACADEMY of MATRIMONIALLAWYERS

PAST PRESIDENT, TEXAS ACADEMY of FAMILY LAW SPECIALISTS

PAST CHAIR, FAMILY LAW SECTION, DALLAS BAR ASSOCIATION

BOARD OF GOVERNORS, AMERICAN ACADEMY of MATRIMONIAL LAWYERS

BOARD OF GOVERNORS, USA CHAPTER INTERNATIONAL ACADEMY ofMATRIMONIAL LAWYERS

PRESIDENT, AMERICAN ACADEMY of MATRIMONIAL LAWYERSFOUNDATION

SECTION REPRESENTATIVE TO STATE BAR OF TEXAS BOARD OFDIRECTORS

SECRETARY, TEXAS FAMILY LAW FOUNDATION

CO-CHAIR, PATTERN JURY CHARGE COMMITTEE, FAMILY LAW, STATE BAROF TEXAS

PAST CHAIR, FAMILY LAW COMMITTEE, INTERNATIONAL SECTION,AMERICAN BAR ASSOCIATION

MEMBER, EXAM COMMISSION, AMERICAN ACADEMY of MATRIMONIALLAWYERS

PAST MEMBER, CONTINUING LEGAL EDUCATION COMMITTEE, STATE BARof TEXAS

PAST MEMBER, FAMILY LAW EXAM COMMITTEE, TEXAS BOARD OF LEGALSPECIALIZATION

PAST MEMBER, FORMBOOK COMMITTEE, TEXAS FAMILY PRACTICEMANUAL

SERVED AS SPECIAL PROSECUTOR, STATE BAR of TEXAS COMMISSIONFOR LAWYER DISCIPLINE

PAST MEMBER, FEE DISPUTE COMMITTEE, DALLAS BAR ASSOCIATION

COURSE DIRECTOR:

ADVANCED FAMILY LAW COURSE, STATE BAR of TEXAS (won national awardfor excellence)

MARRIAGE DISSOLUTION COURSE, STATE BAR of TEXAS

TRIAL INSTITUTE, TEXAS ACADEMY of FAMILY LAW SPECIALISTS

NEW FRONTIERS IN FAMILY LAW, STATE BAR of TEXAS

AMERICAN ACADEMY of MATRIMONIAL LAWYERS WINTER MEETING

AMERICAN ACADEMY of MATRIMONIAL LAWYERS SPRING MEETING

ADR TRAINING:

CERTIFIED FAMILY LAW MEDIATOR

CERTIFIED FAMILY LAW ARBITRATOR (AAML)

COLLABORATIVE LAW TRAINING

MEMBERSHIPS:

AMERICAN COLLEGE of FAMILY TRIAL LAWYERS

AMERICAN ACADEMY of MATRIMONIAL LAWYERS

AMERICAN ACADEMY of MATRIMONIAL LAWYERS FOUNDATION

INTERNATIONAL ACADEMY of MATRIMONIAL LAWYERS

TEXAS ACADEMY of FAMILY LAW SPECIALISTS

AMERICAN BAR ASSOCIATION (FAMILY LAW SECTION & INTERNATIONALLAW SECTION)

STATE BAR of TEXAS

TEXAS BAR FOUNDATION

DALLAS BAR ASSOCIATION (FAMILY LAW SECTION)

DALLAS BAR FOUNDATION

TARRANT COUNTY FAMILY LAW BAR ASSOCIATION

TEXAS CENTER FOR LEGAL ETHICS & PROFESSIONALISM

TEXAS FAMILY LAW FOUNDATION

EDUCATION:

SOUTHERN METHODIST UNIVERSITY SCHOOL OF LAW, J.D., 1975UNIVERSITY OF NEW MEXICO, BACHELOR’S DEGREE, 1971ATTENDED EVERY ADVANCED FAMILY LAW COURSE SINCE 1977 (STATE

BAR of TEXAS)

AUTHOR & SPEAKER:

CO-AUTHOR, FAMILY LAW IN TEXAS, 4 VOLUME SET (LEXIS-NEXIS)

FORMER FACULTY MEMBER, FAMILY LAW TRIAL ADVOCACY COURSE,AMERICAN BAR ASSOCIATION

Author: “FAMILY LAW: SPECIAL APPEARANCES AND TRANSFERS,” TrialLawyers Forum, 1980; “POST AND PRENUPTIAL AGREEMENTS,” 1985;“FAMILY CORPORATIONS: DIVISION ON DIVORCE -REMEDIES &THEORIES,” 1986; “PRELIMINARIES: TEMPORARY ORDERS AND INTERIMFEES,” 1987, 1989; “THE FAMILY HOME IN DIVORCE,” 1987; “FAMILYCORPORATIONS: DIVISION ON DIVORCE - REMEDIES & THEORIESREVISITED,” 1987; “CONTRACTUAL ALIMONY? PROS & CONS FOR BOTHSIDES,” “JOINT CUSTODY, THE NEW LAW,” “THE USE OF MEDIATION”, 1988;“COURT ORDERED JOINT MANAGING CONSERVATORSHIP, A NEW ERA,”1988; “PRENUPTIAL AGREEMENTS, THE NEW LAW,” “TEMPORARYHEARINGS,” 1988; “FAMILY CORPORATIONS & PIERCING THE CORPORATEVEIL,” 1988; “HABEAS CORPUS,” 1989, 1990, 1991, 1992, 1993;“INTERSPOUSAL TORTS,” 1989; “TECHNIQUES OF PROPERTY DIVISION,”1991; “DEALING WITH EXPERTS AND PSYCHOLOGICAL TESTS,” 1991;“ENFORCEMENT OF AGREED DECREES AND AGREEMENTS,” 1991;“EVALUATING A CLOSELY HELD BUSINESS,” 1992; “HAGUE CONVENTIONON INTERNATIONAL CHILD ABDUCTION,” 1992, 1993, 1998; “REQUESTEDADMISSIONS AND INTERROGATORIES IN PROPERTY CASES,” 1993; “WHATIS A TEMPORARY HEARING,” 1992; “DIRECT AND CROSS-EXAM OFVALUATION EXPERTS,” 1993; Co-Author, “FAMILY LAW, TRIAL LAWYERSSERIES,” Knowles Publishing Co.; “ALTERNATIVE PROPERTY RECOVERIES,”1994; “DIRECT AND CROSS-EXAM OF MENTAL HEALTH EXPERTS,” 1995;“STRATEGIES AND TACTICS FOR WINNING UNUSUAL ISSUES IN PROPERTYAND LIABILITY LITIGATION” 1995; “COMMON EVIDENCE PROBLEMS INMATRIMONIAL CASES” 1995; “CUSTODY LITIGATION: PART ONE:DISCOVERY, EXPERTS, TRIAL, STRATEGY, ETC.” 1995, updated 1996, 1998;“AD LITEMS” 1996; “JURISDICTIONAL ISSUES BETWEEN FAMILY ANDPROBATE COURTS” 1996; “REBUTTING THE JMC PRESUMPTION: WHY,HOW AND WHEN AND THE USE OF PERSUASIVE EVIDENCE” 1996;“EFFECTIVE USE OF LEGAL ASSISTANTS AND STAFF” 1998; “DEALINGWITH SPECIAL PROBLEMS ATTENDANT TO DIVISION” 1998;“DISQUALIFICATION OF JUDGES & LAWYERS AND RECUSAL OF JUDGES,

INCLUDING THE VISITING JUDICIARY: INAPPROPRIATE BEHAVIOR” 1999;“DEFENDING AGAINST EXOTIC PROPERTY DIVISION THEORIES” 1999;“CHARACTERIZATION AND TRACING” 2000; “RELOCATION: SHOULD I STAY,OR CAN I GO?” 2000; “ORGANIZING THE TRIAL NOTEBOOK” 2000, 2001;“TEMPORARY ORDERS: HOW TO LOOK PREPARED EVEN IF YOU MET YOURCLIENT YESTERDAY”, 2001; “GRANDPARENTS, WHERE THEY STAND NOW:TROXEL, AN ANALYSIS OF THE U.S. SUPREME COURT RULING” 2001; “ALLTHOSE WITH STANDING, STEP FORWARD....NOT SO FAST GRANDMA!POST-TROXEL THIRD PARTY STANDING TO BRING SAPCR’S, ANDREPRESENTING EXTENDED FAMILY AND NON-FAMILY MEMBERS” 2001;“NEW BOUNDARIES FOR GRANDPARENTS VISITATION” 2001; “DEALINGWITH ABUSIVE LAWYERS AND TACTICS” 2002; “JURISDICTION, VENUE,TRANSFER AND STANDING” 2003; “INTERNATIONAL ISSUES AND THEHAGUE CONVENTION” 2005;“DEALING WITH DIFFICULT CLIENTS IN ADIVORCE” 2006; “TRYING THE CUSTODY CASE” 2007; “CHARACTERIZATIONAND TRACING” 2007 “LEGISLATIVE UPDATE” 2008.

Speaker: Marriage Dissolution Course, State Bar of Texas, 1985, 1986, 1987,1990, 1991, 1992, 1993, 1994, 1996, 1997, 1998, 1999, 2000, 2001, 2003, 2005,2006, 2007; Advanced Family Law Course, State Bar of Texas, 1987, 1988,1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001,2002, 2003, 2004, 2005, 2007, 2008, 2009; Second World Congress on FamilyLaw and the Rights of Children and Youth, 1997; New Frontiers in MaritalProperty Law, 1996, 1997, 1998, 1999, 2008; North American Symposium onInternational Child Abduction, 1993; SMU Texas Family Litigation Course,1987; Annual Conference of Texas Association of Domestic Relations Offices,1987; Panel on Joint Custody, 1983; Dallas Bar Family Law Section; DallasAssociation of Young Lawyers, “A Day With the Experts,” 1986, 1987; FamilyLaw in Texas, Legal Education Institute, 1988, 1989, 1990; Midyear Meeting,American Academy of Matrimonial Lawyers, 1988, 1990, 1993, 2001, 2008; TrialInstitute, Texas Academy of Family Law Specialists, 1988, 1990, 1991, 1992,1993, 1994, 1995; Advanced Family Law Drafting Course, 1992; Tarrant CountyFamily Law Bar Association, 1988, 1995, 1998, 2001; Family Law for theExperienced Non-Specialist, State Bar of Texas, 1989; Regional JudicialConference, 1990; South Texas College of Law, Family Law for the GeneralPractitioner and Legal Assistant, 1992; Pro Bono Training Seminar,International Child Abduction Treaty, 1992; Annual Meeting Family LawSection, State Bar of Texas, 1992; Dallas Chapter of the Texas Society ofCertified Public Accountants Annual Meeting, 1993, 1994, 1995; Family LawPractice Institute, University of Houston Law Center, 1994, 1995, 1996, 1997,1999, 2000; Texas Family Law for the Paralegal, 1995, 1997, 1999; NevadaFamily Law Seminar, 2007.

TOP TEN WAYS TO SHOW THE CLIENT YOU CARE AND AVOID A GRIEVANCE

Presented by:

BRIAN L. WEBB, Dallas The Webb Family Law Firm

Written by:

KAY REDBURN, Dallas

NATALIE L. WEBB, Dallas The Webb Family Law Firm

State Bar of Texas 33RD ANNUAL MARRIAGE DISSOLUTION INSTITUTE

May 6-7, 2010 San Antonio

CHAPTER 7.3

KAY REDBURNThe Webb Family Law Firm

325 N. St. Paul, Suite 4450Dallas, Texas 75201

(214) 871-2730(214) 871-9339 FAX

Certifications/ Board Certified Paralegal - Family Law - Texas Board of Legal Specialization, 2003Awards: Paralegal of the Year, 2006, Dallas Area Paralegal Association

President’s Award, Texas Academy of Family Law Specialists, 2008Volunteer of the Year, Mesquite Police Department, 2008

Employment:

1996 - present Sr. Paralegal to Brian L. Webb, The Webb Family Law Firm, P.C.

1995-1996 Owner, Per Diem Legal Resource, Free lance legal assistant/paralegal services to attorneysin the area of family law

1992- 1995 Legal Assistant/paralegal to Brian L. Webb; McCurley, Webb, Kinser, McCurley & Nelson, L.L.P.

1990-1992 Legal Assistant/paralegal to Charles H. Robertson, Laurence DePlaza; Robertson & Holmes, Dallas, Texas

1985-1990 Legal Assistant/paralegal to Thomas C. Railsback, Dallas, Texas

1983-1985 Legal Assistant to Leota H. Alexander, Dallas, Texas Education: University of Texas at Austin, 1973-1975, major: Psychology

El Centro Community College, 12 hrs, Paralegal Studies Assoc. Degree ProgramMesquite Citizen Police Academy, 21st class, 2005

Offices/Committees: Ethics and Professional Responsibility Coordinator, National Federation of Paralegal Associations, 2005-2007;Founding Member, Paralegal Advisory Commission, Family Law, Texas Board of Legal

Specialization, 1993- 2000; Member 2005-2007; chair 2007 -presentMember, State Bar of Texas Standing Committee on Paralegals, 1995-present;Paralegal Liaison/Parliamentarian, Texas Academy of Family Law Specialists, 2004-

present;Paralegal Committee, Family Law Section, State Bar of Texas, 1994-present;Chair, Professional Ethics Committee, Legal Assistants Division, State Bar of

Texas, 1994-1996;Paralegal Advisory Committee, El Centro College, 1993-1996, Chair 1996-present;

Chair, Ethics Committee, Dallas Area Paralegal Association, 2009 - present;Legal Assistants' Liaison, Family Law Section, Dallas Bar Association, 1994-

1997;Member, Dallas OK Commission, 1997Local Subcommittee Chair, Professional Ethics Committee, Legal Assistants

Division, State Bar of Texas, 1991-1994;Membership Vice-President, Dallas Association of Legal Assistants, 1991-

1993; Assistant Chair, Family Law Section, Dallas Association of Legal Assistants,

1993;Assistant Newsletter Editor, Dallas Association of Legal Assistants, 1990-1992Mesquite Citizen Police Academy Alumni Association, Vice-President, 2007-2011

Memberships: Paralegal Division, State Bar of Texas

Texas Academy of Family Law SpecialistsFamily Law Section, State Bar of TexasFamily Law Section, Dallas Bar AssociationTexas Family Law Foundation College of the State Bar of Texas, Legal Assistants Division - Charter MemberDallas Area Paralegal Association Mesquite Citizen Police Academy Alumni Association

Author and Speaker: “The Paralegal’s Role in the Family Law Jury Trial”, with panel: Dr. Jan Delipsey, John

T. Eck, Hon. Mary Ellen Hicks, Janet McCullar Vavra, Mike McCurley, and Glenn A.Perry, 35th Annual Advanced Family Law Course, August 2009

“You and Your Shadow Paralegal” with Brian L. Webb, Jim Loveless, Pam Farris,Advanced Family Law Drafting Course, December 2008

“The Team Approach in a Family Law Practice” with Brian L. Webb, 30th AnnualMarriage Dissolution Bootcamp, May, 2007

“Protecting your Attorney/Professionalism from the Paralegal Standpoint” 32nd AnnualAdvanced Family Law Boot Camp, August 2006

Co-Course Director with Heather King, “Practical Aspects of Enhancing your LegalPractice” 29th Annual Marriage Dissolution Institute Boot Camp, April 2006

Co-Course Director with Brian L. Webb, “The Attorney and Legal Assistant Team: YouCan’t Do It Alone!” 28th Annual Marriage Dissolution Institute Boot Camp, April 2005

“Pathway to Your Future - Family Law”, Dallas Area Paralegal Association Career Day,2005

“Ethics and the Paralegal”, Legal Assisting in Texas, November, 2004

“Ethics for the Paralegal” , Paralegal Career Symposium, Charting your Course, DallasArea Paralegal Association, Fort Worth Paralegal Association, State Bar of Texas LegalAssistants Division, September 11, 2004

“Use and Abuse of Legal Assistants in a Family Law Practice” , with Charles Hodges,Heather King, Julie Pruett Crawford and Melissa Johnston, 28th Annual Advanced FamilyLaw Course, August, 2002

“The Utilization of Legal Assistants in a Law Office and Legal Assistant Ethics”, CollinCounty Legal Association, April, 2002

“Custody Issues and Grandparent Access”, with Miriam L. Ackels, Legal AssistantUniversity, September, 2001

“Effective Use of Legal Assistants in a Family Law Practice”, with Brian L. Webb, GaryNickelson and Coye Conner, Jr., 27th Annual Advanced Family Law Course, August, 2001

“Taking the Case to Trial”, with Brian L. Webb, Texas Family Law Practice forParalegals, March, 2001

“Organizing the Trial Notebook”, with Brian L. Webb, James Loveless, Kimberly Naylorand Sherri Evans, The Ultimate Trial Notebook: Family Law, December, 2000

“Economics of Running a Law Practice”, with James Loveless, Dennis Brewer, DouglasHarrison, Curtis Loveless and Roy Moore, 25th Annual Advanced Family Law Course,August, 1999

“Handling Custody Disputes”, with Brian L. Webb, Texas Family Law Practice for

Paralegals, April, 1999

“Effective Utilization of Legal Assistant and Staff”, with Brian L. Webb, Coye Conner, Jr.,and Barbara Calcote; 24th Annual Advanced Family Law Course, August, 1998

“Utilization of the Legal Assistant”, with Brian L. Webb, Tarrant County Family Law BarAssociation Meeting, June 1998

“Ethics in Your Practice”, Advanced Civil Trial Seminar, Legal Assistants Division, StateBar of Texas, April 1998

“Basic Malpractice Prevention”, Nuts and Bolts General Practice Skills Course, LegalAssistants Division, State Bar of Texas and Dallas Association of Young Lawyers,October 1996

“Practical(ly) Legal Tips for Making Money with Your Legal Assistant”, Dallas BarAssociation Family Law Section Meeting (with Brian L. Webb), September 1996

“Effective Use of Legal Assistants - How to Make Time and Money”, Advanced FamilyLaw Course, Dallas, Texas (co-authored with Barbara Calcote, Brian L. Webb and CoyeConner, Jr.) August 1995

“Scruples”, quarterly column on ethics in Texas Paralegal Journal, (1995-1996)

“Texas Family Law Practice for Paralegals”, Clearwater Information Systems, Inc., Dallas,1995 - Ethics - What is it and Why Should You Care? and How to Recognize and Deal withthe Battered Wife (article by Christine Albano)

“Texas Family Law Practice for Paralegals”, Clearwater Information Systems, Inc.,Arlington, 1994 - Overview of the Texas Disciplinary Rules of Professional Conduct(article written with Mike McCurley)

“The Trial Notebook”, co-authored with Mike McCurley, Family Law Handbook for theParalegal, Professional Education Systems, Inc., Dallas/Houston, 1992

“Child Support Cases - How to Turn Lead into Gold”, co-authored with Charles H.Robertson, Family Law - The Team Approach for the Legal Assistant and the Lawyer,State Bar of Texas, Austin, Texas, 1990; and Family Law Handbook for the Paralegal,Professional Education Systems, Inc., Dallas/Houston, 1992

“Communication - the Key to Gaining and Maintaining the Confidence of the Client andthe Opposition”, co-authored with Harry Tindall, Scott Cook, Luanne Riley-Thomas andN. Roberts, Family Law for Legal Assistants and Attorneys, State Bar of Texas, CorpusChristi, Texas, 1987

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Top Ten Ways to Show the Client You Care and Avoid a Grievance

i

TABLE OF CONTENTS

TOP TEN WAYS TO SHOW THE CLIENT YOU CARE AND AVOID A GRIEVANCE ........................................ 1

RULE 1.03 COMMUNICATION .................................................................................................................................. 3

1.04 FEES (EFFECTIVE MARCH 1, 2005) .................................................................................................................. 4

AFFIDAVIT.................................................................................................................................................................... 5

Top Ten Ways to Show the Client You Care and Avoid a Grievance

1

TOP TEN WAYS TO SHOW THE CLIENT YOU CARE AND AVOID A GRIEVANCE 10. Don’t lie to them about anything. Honesty may

be painful, but it IS the best policy. 9. Make sure client’s expectations are realistic.

Don’t promise what you can’t deliver. And don’t succumb to their unrealistic expectations.

8. Don’t get emotionally involved in their case.

Maintain your professional detachment (which is why it’s called “professional”).

7. Give them something for free every once in a

while. A “no charge” phone call for example can go a long way toward keeping clients happy. And make sure you know they know you’re doing it. A big “NO CHARGE” on their bill is always welcome by clients.

6. Be up front (and do it in writing) about fees and

costs. 5. A busy client is a happy client. Give them work

to do. Remind them that whatever they can do to help saves them money (and you time).

4. Copy the client in everything that comes in or

goes out on their case. Everything. 3. Return client calls. 2. Return client calls. 1. Most importantly: RETURN CLIENT CALLS.

The “failure to keep the client informed”, Rule 103(a) is the most frequent violation by attorneys of the Texas Disciplinary Rules of Professional Conduct.

And if you show the client you care but still can’t avoid a grievance: 1. If it didn’t happen in writing, IT DIDN’T

HAPPEN. Document everything. Keep copies. 2. If they won’t follow your advice, get them to sign

“I’m a Dumbass” Affidavit. 3. Put reminders about client’s duty to supplement

discovery in each monthly billing statement. 4. Watch for red flags before taking a case.

Examples:

• “I don’t care how much it costs....”

• “I didn’t have any confidence in my four prior attorneys...”

• “The trial starts next week. You can be

ready, right?”

• “I just know he’s hiding money somewhere”

• “I want my kids half the time so I don’t have to pay any child support”

• “What countries are not signatories to the

Hague Convention on International Child Abduction?”

take protective steps) such as initiating the appointment of a guardian. The lav,ryer should !""# to such appointment or take othe.r protecth'e steps \:o..'hen it reasonably appears advisable to do so in order to serve the client's best interests. See Rule 1.05 (c)(4), dO) and (d)(2)(i) in regard to the lav')1er's right to re\'eal to the court the facts reasonably necessary to secure the guardianship or other protective order.

Rule 1.03 COl1ullunication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client !"#make informed decisions regarding the representation.

COtnlnent:

$%# The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued) to the extent the client is \villing and able to do so. For example) a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter! inform the client of communications from another party and take other reasonable steps to permit the client to make a decision regarding a serious offer from another party. A lawyer who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client ha\'e left it clear that the proposal will be unacceptable. See Comment 2 to Rule 1.02.

2. Adequacy of comrnunication depends in part on the kind of advice or assistance involved. For exarnple! in negotiations ",.'here there is tirne to explain a proposal the lawyer should review all irnportant provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand! a lavlryer ordinarily cannot be expected to describe trial or negotiation strategy in detail. Moreover! in certain situations practical exigency may require a lmvyer to act for a client without prior consultation. The guiding principle is that the lawyet should reasonably fulfill client expectations for information consistent v,lith the duty to act in the clienes best interests) and the client.s overall requirements as to the character of representation.

3. ()rdinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. Howe\'cr, fully informing the client according to this standard may be impractical, as for eX<llnple, where the client is a child or suffers from mental disability; see paragraph 5. When the client is an organization or group! it is often impossible or inappropriate to inform cn:ry one of its tnembers about its legal affairs; ordinarily! the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13.

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4

Where many routine matters are involved, a system oflimited or occasional reporting may be arranged with the client.

Withholding Information

4. In some circumstances, a 1<1.\\'yer may be justified in delaying transmission of information when the lawyer reasonably believes the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. Similarly, rules or court orders go\'erning litigation may provide that infonnation supplied to a la\vyer &'$(')#not be disclosed to the client. Rule 3.04(d) sets forth the lawyer's obligations with respect to such rules or orders. A lawyer may not, however, v;ithhold infonnation to serve the lav\ryer's own interest or cOlwenience.

Client Under a Disability

!"# In addition to comrnunicHting \\'ith any legal representative, a lawyer should seek to maintain reasonable communication with a client under a disability, insofar as possible. When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual relationship. Nevertheless, the client may ha\'e the ability to understand, deliberate upon, and reach conclusions about some matters affecting the client's O\:\ln well being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, childrens' opinions regarding their own custody are gh'en some weight. The fact that a client suffers a disability docs not diminish the desirability of treating the client with attention and respect. See also Rule 1.02(e) and Rule 1.05, Comment 17.

1.04 Fees $%&&"'()*"#+,-'.#1, /0012#

(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fcc or unconscionable $%%"#A fcc is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

(b) Factors that rnay be considered in determining the reasonableness of a fcc include, but not to the exclusion of other rele\'ant factors, the following:

(l) 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 employrnent by the lawyer;

(3) the $&&#customarily charged in the locality for similar legal ser"ices;

(4) the amount in\"Ol\'ed and the results obtained;

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;

AFFIDAVIT

THE STATE OF TEXAS )

COUNTY OF DALLAS )

BEFORE ME, the undersigned authority, on this day personally appeared

_________________ who, being by me duly sworn, upon oath stated:

"I, _________________, am the Petitioner in Cause # _________________ in the ____ District

Court in and for Dallas County, Texas. I have consulted with____________________________,

a duly licensed attorney practicing at __________________________________________________.

He has advised me regarding discovery and its relationship to any agreement that I may want to

enter into as a settlement of this Divorce action. I understand and acknowledge that he has advised

me not to enter into any agreement and further, not to settle the divorce now pending in this cause

without following his advice. He has advised me that he does not feel that I am sufficiently aware

of my husband's income or the value and extent of the community estate and has advised me that

I should go forward with discovery measures to fully determine the extent and value of the

community estate. He has advised me that he does not feel I am aware of any of my husband’s

separate property assets against which I or the community estate may have an equitable interest or

reimbursement claim. He has further advised me that due to the lack of knowledge concerning the

complete assets and liabilities, including tax liability, of the community estate or my husband’s

separate property estate in which I may have an interest, he cannot adequately advise me regarding

the terms set forth in any agreement. I hereby acknowledge and state that I have instructed my

attorney, against his advice, not to obtain the appropriate information necessary to ascertain the

extent and value of the community estate or my husband’s separate estate in which I may have an

AFFIDAVIT - Page 1 of 5

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:

interest, including liabilities. My attorney has advised me that only through full discovery during

the pendency of this litigation can these matters be determined with any accuracy. I have advised

him that I do not want to contest this matter in any way and that, despite his advice to the contrary,

it is my desire to enter into an agreement.

He has advised me that depositions, requests for disclosure, requests for production, requests

for admissions, subpoenas duces tecum, interrogatories, appraisals and other discovery measures are

available through which we could determine the actual value and extent of the community estate and

my husband’s separate estate in which I may have an interest, including all liabilities as well as

assets. He has further advised me that the Court, upon hearing all of the evidence regarding my

husband's income and the assets and liabilities of the community, might award me a

disproportionately larger share of the community estate than would be awarded to my husband.

Further, he has advised me that the Court, upon hearing all the evidence regarding the reduction of

both secured and unsecured liabilities of the community and my husband’s separate property estate

through contributions from the community and my separate estate, might award the community or

my separate estate a claim of equitable interest or reimbursement against the benefitted estate. He

has further advised me that once I have settled this case and a Decree of Divorce has been entered

based upon an agreement, I will not have an opportunity to avail myself of discovery measures

thereafter, nor will I be able to renegotiate the terms of the agreement or in any way alter the terms

of the agreement. I understand that an agreement will be final and binding upon me and that neither

my attorney nor the Court will have any meaningful ability to revise or alter the agreement in any

way. I further understand that should I wish to seek a review by the Court of the agreement after a

Decree of Divorce has been entered by the Court, the remedies available to me, if any, will be


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;

substantially less than those available to me while the divorce is still pending, and that the process

of seeking such a review by the Court will be substantially more expensive and less likely to be

successful than pursuing my rights to discovery during the pendency of the divorce. I further

understand that by foregoing discovery at this time and going ahead with an agreement against my

attorney’s advice I am almost certainly waiving the right to any review of the agreement by a court

and that I will be, because of my decision to forego discovery, bound by the agreement no matter

what facts or evidence, including fraud, I may discover in the future. Having a full understanding

of this and acknowledging this advice, it is nevertheless my desire to enter into an agreement.

My attorney has advised me that he is requiring me to execute this affidavit as a condition

of his continued representation of me since I am entering into an agreement against his advice. He

has specifically advised me that I am relieving him of any liability for the nature and terms of the

agreement, as well as any consequences of an agreement, by executing this affidavit. He has advised

me that be believes that by going forward with an agreement without discovery and against his

advice I am making a foolish mistake and taking an enormous risk. He has advised me that he is

requiring me to execute this affidavit specifically to make it unequivocally clear that he has advised

me against foregoing discovery and entering into an agreement and that I hereby relieve him of any

and all potential liability or responsibility whatsoever.

In summary, it is the advice of my attorney that I do not enter into an agreement and that no

settlement of this matter be entered into until such time as full discovery measures have been utilized

in order to determine the full extent and character of the community or separate property at stake

in this cause, including liabilities as well as assets and any claims for equitable interest or

reimbursement. I understand that by entering into an agreement against my attorney’s advice, the


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<

agreement will be final and binding upon me and that I will have no recourse thereafter to alter or

change the agreement or avoid liability created by the agreement. I acknowledge that this advice

was given to me by ________________ and it is my desire to enter into a settlement of all issues

before the Court without utilizing discovery measures. It is my desire not to contest this matter in

any way. For this reason, I am executing this Affidavit to acknowledge that this settlement is being

entered into contrary to my attorney's advice and to relieve my attorney, ________________ from

any and all liability for the consequences of my decision.

This Affidavit is executed of my own free will and I have not been coerced, threatened,

bribed, or offered any inducement or promise to execute an Affidavit. Any settlement that I enter

into is made with full awareness of the possible detriment to me and with knowledge that I am

almost certainly depriving myself of certain rights and benefits which I may have obtained had I

heeded the advice of my attorney and used the discovery measures available to me to determine the

exact nature, character and extent of the community or separate estates prior to settlement of this

cause of action."

_____________________________________________________(name)

SUBSCRIBED AND SWORN TO before me on the ____ day of ________, 20__, by


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=

_________________.

_____________________________________NOTARY PUBLICState of Texas

________________________WITNESS


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>

MANAGING CLIENTS EXPECTATIONS AT TRIAL

G. THOMAS VICK, JR. Vick Carney & Smith, L.L.P.

111 York Avenue Weatherford, Texas 76086

(817) 596-5533 [email protected]

State Bar of Texas MARRIAGE DISSOLUTION BOOT CAMP

May 5, 2010 San Antonio

CHAPTER 5

G. Thomas Vick, Jr. Vick Carney & Smith, L.L.P. 111 York Avenue Weatherford, Texas 76086 (817) 596-5533 [email protected] Board Certified-Family Law, Texas Board of Legal Specialization Fellow--American Academy of Matrimonial Lawyers Fellow--International Academy of Matrimonial Lawyers Bar Activities State Bar of Texas

Board of Directors 2005-2008 Commissioner, Texas Access to Justice Commission 2006-2009 Chair, Supreme Court Task Force to Expand Legal Services Delivery (2006-2007) Chair, Family Law Section (2004-2005) Member, Family Law Section Council (1991-2006) Chair, Family Law Section Council Pro Bono Committee (1997-1999) Member, Editorial Committee, Texas Family Law Practice Manual (1991-1997)

Texas Academy of Family Law Specialists President (2004-2005) Board Member (1994-2006)(Former Editor, Family Law Forum)

American Academy of Matrimonial Lawyers (National Officer: Treasurer 2006-Present, Secretary 2003, Parliamentarian 2002; Texas Chapter President 2000-2001)

American Bar Association (1981-2008) (House of Delegates 1981) Texas Bar Foundation, Life Fellow American Academy of Matrimonial Lawyers Foundation, Life Fellow Texas Family Law Foundation, Life Fellow Tarrant County Family Bar Association Parker County Bar Association (Past President) Education Austin College, Sherman, Texas, BA 1977 South Texas College of Law, Houston, Texas, JD 1981 Course Director 2007 New Frontiers in Marital Property, Memphis, TN 2002 Advanced Family Law Course, Dallas, TX 2000 Marriage Dissolution Institute, Fort Worth, TX Texas Academy of Family Law Specialists 13th Annual Trial Institute (1999), Las Vegas, NV Assistant Course Director, Texas Academy of Family Law Specialists 11th and 12th Annual Trial Institutes

(1997, 1998), New Orleans, LA Publications & Lectures 1995 to Current Effective Presentation of Evidence, Panel Discussion, 2009 Advanced Family Law Course, Dallas, TX Managing Client Expectations, 2009 Family Law Basic Training, Dallas, TX Managing Client Expectations, 2009 Am. Academy of Matrimonial Lawyers Mid-Year Meeting, Kauai, HI Spoliation, 2008 Advanced Family Law Course, San Antonio, TX Possession Orders, 2007 Advanced Family Law Course, San Antonio, TX

Negotiation: You Can’t Try Them All, 2007 Marriage Dissolution Institute, El Paso, TX Managing Client Expectations; Trying the Property Case on a Shoestring; Top Ten Trial Tips, 2007 Nevada State Bar Family Law Course, Ely, NV International Child Issues and the Hague Convention, 2006 Advanced Family Law Course, San Antonio, TX When the Texas SPO Won’t Work,2006 Texas Advanced Paralegal Seminar, Addison, TX Direct and Cross Examination, 2005 Family Law Basic Training, Dallas, TX Legislative Update, 2005 Associate Judge=s Conference, Austin, TX Temporary Orders, 2005 Poverty Law Conference, Austin, TX Reforming Your Client=s Expectations, 2004 Legal Assistant=s University, Fort Worth, TX Life of a Grievance, 2004 Advanced Family Law Course, San Antonio, TX Managing Client Expectations, 2004 Marriage Dissolution Institute, Fort Worth, TX Dealing With the Client From Hell, 2003 Advanced Family Law Course, San Antonio, TX Setting and Getting Fees, 2003 Marriage Dissolution Institute, Houston, TX Spoliation, 2001 Advanced Family Law Course, San Antonio, TX Closing the File, 2001 Marriage Dissolution Institute, Corpus Christi, TX Getting the Most Out of Your Discovery, The Ultimate Trial Notebook: Family Law (2000), New Orleans, LA Top Ten Things in a Family Law Practice, 2000 Advanced Family Law Course, San Antonio, TX Bankruptcy In Divorce, 1999 Advanced Family Law Course, Dallas, TX Bankruptcy Meets Family Law, Univ. of TX School of Law 2nd Annual TX Marital Property Inst. (1998), Austin, TX Working as an Expert in Family Law Cases, 1998 Divorce Conference (Dallas Chapter, TX Society of CPA=s) Divorce vs. Bankruptcy--When Worlds Collide, 1998 Farm, Ranch and Agri-business Bankruptcy Inst., Lubbock, TX Jurisdiction, 1998 Advanced Family Law Course, San Antonio, TX Parent-Child Third Party Practice, 1998 Marriage Dissolution Institute, Austin, TX Recent Federal Legislation, 1998 Am. Academy of Matrimonial Lawyers Mid-Year Meeting, San Juan, PR Creative Divisions of Property, 1997 Advanced Family Course, San Antonio, TX Trying a Property Case on a Shoestring, 1997 Marriage Dissolution Institute, Dallas, TX Recent Interesting Cases, 1997 College of Advanced Judicial Studies, Houston, TX Modification of Rights and Powers of a Joint Managing Conservator, 1996 Adv. Fam. Law Course, San Antonio Enforcement Workshop, 1996 Marriage Dissolution Institute, Corpus Christi, TX Direct Examination in a Property Case, TX Academy of Fam. Law Specialists 9th Trial Inst. (1995), New Orleans Honors/Activities 2009 American Academy of Matrimonial Lawyers Fellow of the Year 2009 Texas Academy of Family Law Specialists Judge Sam Emison Award, “For Significant Contributions to the Practice of Family Law in the State of Texas” 2008 Dan R. Price Award; State Bar of Texas Family Law Section Outstanding Family Lawyer 2008 State Bar of Texas Presidential Citation for Service to the Bar Named in 2003, 2004, 2005, 2007, 2008, 2009 Texas Monthly as a ASuperLawyer@ Named in The Best Lawyers in America 1993 to current Named 1993 Southwest High School (Fort Worth, Texas) Distinguished Graduate Mayor, City of Weatherford, Texas 1982-1986 Trustee, Weatherford Independent School District 1995-2001

Managing Clients Expectations at Trial

i

TABLE OF CONTENTS

I. ! INTRODUCTION ................................................................................................................................................... 1!

II. !ROLE OF THE ATTORNEY ................................................................................................................................. 1!A. ! The Texas Disciplinary Rules of Professional Conduct .................................................................................. 1!B. !Texas Lawyers Creed ...................................................................................................................................... 1!

III. !FEES ....................................................................................................................................................................... 3!A.! The Law Of Diminishing Appreciation ........................................................................................................... 3!B. !Using TDRPC to Set a Fee .............................................................................................................................. 3!C. !Forbidden Fees ................................................................................................................................................ 4!

1. !Unconscionable Fees ............................................................................................................................... 4!2. ! Fees in Family Law Matters .................................................................................................................... 5!

D. !Getting Your Fees From The Court ................................................................................................................. 5!E. !Getting Out ...................................................................................................................................................... 6!

IV. !TIME ....................................................................................................................................................................... 7!

V. !OUTCOME ............................................................................................................................................................. 8!A.! Property ........................................................................................................................................................... 8!B. !Suits Affecting the Parent Child Relationship .............................................................................................. 8!

VI.! CONCLUSION ....................................................................................................................................................... 8! APPENDICES SAMPLE PROPOSED DIVISION ....................................................................................................................... 11


1

MANAGING CLIENT EXPECTATIONS AT TRIAL I. INTRODUCTION Today=s family law client is as sophisticated and well informed as ever. He has access to more information about the law, the lawyers, the judges and the legal process than imaginable. Clients find information on the internet, from the media and as always, from friends, relatives and neighbors. This is occasionally a blessing, but most often a curse. More often than not, my worst enemies in a case are the friends and relatives of the client who want to dispense advice about what the client should be doing and how he should be doing it. Dealing with these issues, managing the client’s expectations, is an important, if not vital part of every successful family law matter. Doing so properly will result in a client more pleased with the process and the outcome; and, will make managing the case and client better for both you and your staff. II. ROLE OF THE ATTORNEY At the outset of any engagement it is important to make clear to the client what it is you will and will not be doing and the fees you will be charging for your services. All of this should be addressed at the outset of the case clearly and in writing. It is important that the client know what you are not: Dr. Phil, his mother, his buddy, his accountant, his buffer between his bill collectors and he, his daycare, or his appointments secretary. Too much television and too much instant access, has blurred the lines between the role of the attorney and these other Afriends.@ Your life will be simpler and your likelihood of appearance before a grievance committee slimmer if you and your client are cognizant and in accord about your role. A. The Texas Disciplinary Rules of Professional

Conduct The Texas Disciplinary Rules of Professional Conduct outline your responsibility to your client. The four most relevant to this discussion are as follows:

1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's affairs and reporting about them to the client or to others.

3. In all professional functions, a lawyer

should zealously pursue clients' interests within the bounds of the law. In doing so, a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law.

4. A lawyer's conduct should conform to the

requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.

B. Texas Lawyers Creed In every contract for employment, and there should be one in every case, a copy of the Texas Lawyers Creed should be attached. The Supreme Court has mandated that the client be made aware of the Creed and the attachment of the Creed to the contract is an easy way to comply. More important however, is the information contained in the Creed with respect to your conduct of


2

the case and your role vis a vis the Court and opposing Counsel. Through the media and common folklore, many clients believe it is our job and our duty to be argumentative and obstreperous. Many are under the impression that to be successful, we need to be disagreeable and difficult, if not rude, to opposing parties, witnesses and counsel. A reading of the ALawyer to Lawyer@ portion of that Creed will not only dissuade them of those false ideas, but will help them understand that we are bound not to engage in that conduct. The client must be convinced at the outset that his case can best be handled in a businesslike and Aabove-the-board@ fashion. The ALawyer to Lawyer@ is set out below. The entire Creed can be found at http://www.txethics.org/referencecreed.asp. A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

I will be courteous, civil, and prompt in oral and written communications.

I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

I will identify for other counsel or parties all changes I have made in documents submitted for review. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected. I will not serve motions or pleadings in any manner that unfairly limits another party's

opportunity to respond. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement. I will readily stipulate to undisputed fact in order to avoid needless costs or inconvenience for any party. I will refrain from excessive and abusive discovery. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make


3

objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

III. FEES Together with the need to uphold the standards of the profession is the need of most professionals to operate the practice as a business. Most attorneys I know can do their best work when unencumbered by worries of overhead and client receivables. It is in both the client’s and attorney=s best interest that a reasonable fee be set and paid. Likewise, it is in the best interest of the judicial system that reasonable fees be set and paid. Almost all of the spurious, vindictive and wasteful litigation I have witnessed were in cases wherein one or both of the litigants were not paying their own attorney fees, either because the lawyer was not charging them or because a third party was paying the fee. There is no incentive to take a reasonable position if there is no consequence to taking the unreasonable. This is even more true when one side is paying and the other is not. It has been opined that the two best days of the case are the first and last. To make the case better all of the way through, careful consideration needs to be given to setting the initial fee. In many cases this may be the last money you see for a long time. More and more clients are borrowing funds to pay their initial retainers and have few resources to continue paying once the case is in midstream. A. The Law Of Diminishing Appreciation Over the years I have observed a continually repeating phenomenon that I have come to refer to as the Law of Diminishing Appreciation. It goes like this: You work diligently, long after the initial retainer is gone, and you put on an excellent show at trial. On the last day of trial or particularly on the day the favorable ruling is handed down, you are God=s gift to the legal profession; the client is effusive with praise: AWe could never have done this without you,@ AYou were awesome,@ AWhatever this costs, you just let me know,

that was fantastic.@ In about thirty days when the bill arrives the attitude is slightly adjusted: AHe was ok, but it sure wasn=t worth this much,@ AThat sure is a lot of money for what we got,@ A I=m getting your money together but that sure was expensive.@ After sixty days the attitude shifts markedly: AI=ll pay you when I can, but I have a lot of bills; it costs a lot of money to raise those kids I got custody of and my ex isn=t paying the support on time. Why aren=t you doing something about that?@ After ninety days, you will still not be paid and the client believes that a) he did all of the work on the case, b) you have way overcharged because he thought that the initial $1500 was for the entire custody case (despite everything the retainer agreement says and all of the discussions about fee that were had as the case transpired), and c) Anot only would I never send anyone back to that lawyer, I=m thinking about filing a grievance over those excessive fees.@ The fact is that the client has other demands on his cash and you are at the bottom of the priority list because your work is through and he does not need you any longer. A good fee agreement and a realistic retainer can ensure that you are paid for your time and effort and can also be beneficial in your relationship with your client. My experience is that in all but the rarest of cases, the initial fee is the single most determining factor in whether you are going to be adequately compensated for your work. It is at the outset of the case that the matter is most important to the client. It is at the outset when the client needs you the most and is most motivated to find a way to pay you. If you have assessed the case and determined what you reasonably believe the case will require, and if the client cannot pay the feeBDON=T TAKE THE CASE. Someone else will take the case and someone else will get burned on the fee and have a growth experience, but it does not have to be you! B. Using TDRPC to Set a Fee How then do you assess a case to determine a proper fee? First, listen to the client. No, really listen. Does the client have unrealistic expectations? Does he have motivations and desires for the prosecution of the case that you find distasteful or unethical? Can he be dissuaded from those ideas? Paragraph (b) of Rule 104 of the Texas Disciplinary Rules of Professional Conduct sets out factors to consider (all of which should be set out in your fee agreement). Those factors, in italics, and a discussion of those factors are as follows: (b) Factors that may be considered in determining the

reasonableness of a fee include, but not to the exclusion of other relevant factors, the following:

(1) the time and labor required, the novelty and

difficulty of the questions involved, and the


4

skill requisite to perform the legal service properly; This is where you need to consider how much time the case will take. Consider how difficult opposing counsel has been historically, how difficult will it be to get information from your client or the opposing party, how difficult will it be to get a hearing, how much Ahand-holding@ will the client require (and do you have the time and tolerance to do it), how many and how difficult are the claims that will have to be made to make the client whole, and whether you are attempting to make new law or to convince a judge to do something she historically does not do.

(2) the likelihood, if apparent to the client, that

the acceptance of the particular employment will preclude other employment by the lawyer; We know that if you take the divorce case for one spouse that you will not represent the other spouse; nor will you likely ever represent his relatives, corporate entities or friends. You will not represent the opposing party in any modification years later. The only exception to this rule is if you do such a good job of civilly, professionally and surgically destroying the opposite party, you may get a lot of referrals based on his talk about how good you were.

(3) the fee customarily charged in the locality for

similar legal services; This should be a consideration both in the hourly rate and the retainer charged. Think realistically about what your market will bear and who your competition may be.

(4) the amount involved and the results obtained;

Consider here the amount of money in the estate: if you are charging big retainers and hourly rates, the best thing you can do in a smaller case is to refer it to a good younger attorney who will appreciate the business. Further consider the impact that the case will have on you and your staff if it is much larger than those you normally handle. Can you really service this new client and take care of everything else you have currently? Will you need to add staff or engage other lawyers or accounting professionals to assist you? Do you have malpractice limits to cover the amounts at risk? Are you going to worry or obsess about the case because of its size or notoriety? Understand what all of your limitations are and work within them. Don=t be afraid to get help or to say no.

(5) the time limitations imposed by the client or by the circumstances; Having assessed the difficulty of the case, can you get the job done in the time the client or Court will want it completed, knowing that the docket in some court move like wildfire, while others take indeterminable months or years to get to trial. Always be candid with your client about all things, but particularly this.

(6) the nature and length of the professional

relationship with the client; This usually dictates the amount of the retainer you will require. If the client in the divorce has been your good regularly paying client for years, the need for a large retainer is diminished. Do not however underestimate the initial expense of starting the case and setting up the file. You need also consider that if you are starting a divorce for a regular client, he may expect disproportionately more prompt and attentive service initially which will impact your ability to service your other clientele.

(7) the experience, reputation, and ability of the

lawyer or lawyers performing the services; You need to be charging an hourly rate commensurate with your expertise and your years of experience. If you have been doing this for a long time and have a good staff, there are things you can do better and more efficiently that you did your first day out of law school, and your hourly rate should reflect that. If you are working on your third divorce case ever, you will spend a lot of time inventing the wheel and researching issues for which it would be unfair to charge your client.

(8) whether the fee is fixed or contingent on

results obtained or uncertainty of collection before the legal services have been rendered. A discussion of contingency fees is set out below. Uncertainty of collection in the future may be the biggest component of this entire list. (See The Law of Diminishing Appreciation above.)

C. Forbidden Fees The comments to Rule 1.04 make it clear that in family law matters there are two types of fees that should not be set: unconscionable and contingent. 1. Unconscionable Fees

A7. Two principal circumstances combine to make it difficult to determine whether a


5

particular fee is unconscionable within the disciplinary test provided by paragraph (a) of this Rule. The first is the subjectivity of a number of the factors relied on to determine the reasonableness of fees under paragraph (b). Because those factors do not permit more than an approximation of a range of fees that might be found reasonable in any given case, there is a corresponding degree of uncertainty in determining whether a given fee is unconscionable. Secondly, fee arrangements normally are made at the outset of representation, a time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved. The "unconscionability" standard adopts that difference in perspective and requires that a lawyer be given the benefit of any such uncertainties for disciplinary purposes only. Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability.

8. Two factors in otherwise borderline

cases might indicate a fee may be unconscionable. The first is over-reaching by a lawyer, particularly of a client who was unusually susceptible to such overreaching. The second is a failure of the lawyer to give at the outset a clear and accurate explanation of how a fee was to be calculated. For example, a fee arrangement negotiated at arm's length with an experienced business client would rarely be subject to question. On the other hand, a fee arrangement with an uneducated or unsophisticated individual having no prior experience in such matters should be more carefully scrutinized for overreaching. While the fact that a client was at a marked disadvantage in bargaining with a lawyer over fees will not make a fee unconscionable, application of the disciplinary test may require some consideration of the personal circumstances of the individuals involved.

2. Fees in Family Law Matters

9. Contingent and percentage fees in family law matters may tend to promote divorce and may be inconsistent with a lawyer's obligation to encourage reconciliation. Such fee arrangements also may tend to create a conflict of interest between lawyer and client regarding the appraisal of assets obtained for client. See also Rule 1.08(h). In certain family law matters, such as child custody and adoption, no res is created to fund a fee. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified.@

D. Getting Your Fees From The Court In some instances it will be necessary to get your initial or ongoing fees from the Court. In most cases your client will want fees paid by the opposing party at the conclusion of the litigation. In either case there are a number of statutes that will assist the client in this recovery. In addition to case law, the Civil Practice and Remedies Code, and a few provisions of the Rules of Civil Procedure, the following Family Code sections authorize the Court to award attorney fees: 3.303(c) Payment for an appointed attorney for a

Respondent reported to be a prisoner of war or missing on public service

5.104(c) Payment for an appointed attorney for a Respondent reported to be a prisoner of war or missing on public service (Sale of Homestead)

6.502 Temporary OrdersBinterim fees and expenses

6.708 Costs may be awarded against a party in a divorce

6.709 Attorney fees and expenses in temporary orders during appeal

7.001 Just and right division 8.208(c) Fees to an employee who has been

discriminated against because of a writ of withholding

9.014 Fees in post decree proceedings for enforcement, clarification and division of property problems

9.205 Fees for dividing previously undivided property

41.002 Fees in parental liability cases (property damage by minor child)

41.0025 Fees in parental liability cases (property damage by minor child at a


6

hotel) 42.006(a)(1) Civil liability for interference with a

possessory interest in a child 42.009 Fees for a frivolous suit--Civil liability

for interference with a possessory interest in a child

81.005 Protective Orders 105.001(a)(5) SAPCR Temporary OrdersBinterim

fees and expenses 105.006(h) Fees and costs for false allegations of

sex abuse or neglect 106.002 Fees and costs for any Title 5 suit

(SAPCR=s) 107.015 Ad Litem Fees 109.001(a)(5) SAPCR Attorney fees and expenses in

temporary orders during appeal 152.312 Fees and costs in UCCJEA proceedings 156.005 Fees and costs for frivolous

modification actions 157.164 Fees to appointed attorneys for

indigents in enforcement actions 157.167 Fees when Court finds Respondent has

failed to make child support payments 157.323(c)(1) Foreclosure of child support liens 158.206(b)(3) Fees from an employer who does not

withhold per a writ 158.209(c) Fees to an employee who has been

discriminated against because of a writ of withholding

159.305 UIFSA 159.313(b),(c) Fees to a UIFSA Obligee who prevails 160.636(c) Fees and costs in paternity 162.308(e) Fees in adoptions when discrimination

is found 231.211 IV-D cases, no fees against an agency 231.303(c) failure to comply with a IV-D subpoena 261.108(b) Frivolous claims against persons

reporting abuse or neglect 261.110 Fees when employer retaliates vs.

employee who makes a child abuse claim

264.108(g) Fees in foster care and placement cases when discrimination is found

These provisions should be used in every instance to attempt to persuade the Court to award fees from the opposing party. E. Getting Out Like other forms of gambling, success in setting and getting attorney fees hinges on knowing when to get in and when to get out. If you demand a reasonable fee for your services and demand that it be paid, you will earn the respect of your client, the Court and your peers. If you do not, you will be the scorn of all three-Band you will not have served your client, your profession, yourself or your family. It is not fair to your other

clients or your staff to continue to work for an ungrateful client who will not pay. It produces unrealistic demands on them and on you because you are doing work for free when you need to be servicing the clients who have paid and who rightfully expect your attention. The added stress will make your staff unhappy and will create problems for both you and your family. So, the final key in setting and getting fees is knowing when to withdraw. By billing regularly, your client will be aware of what services you and your staff are performing. He will know that someone is working almost daily on his case. He will also know that he is being charged for phone calls and emails. Most importantly, he will be aware of his financial status with you. As soon as it becomes apparent that you will be requiring more money, have that frank discussion with your client. None of my clients would expect to go to their places of employment and work for months at a time and not know when or if they would be paid. Every one of them would find other work. Clients understand this logic. If they cannot afford to pay you, they need to find other counsel. By having this discussion early, it is possible to withdraw from the case at a time when no one=s interest is compromised. No one is being served properly when you are not being paid for your time. Section 9 of the Texas Disciplinary Rules of Professional Conduct outlines the rules for declining and terminating the attorney-client relationship:

Rule 1.15. Declining or Terminating Representation

(a) A lawyer shall decline to represent a

client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if:

(1) the representation will result in

violation of Rule 3.08, other applicable rules of professional conduct or other law;

(2) the lawyer's physical, mental or

psychological condition materially impairs the lawyer's fitness to represent the client; or

(3) the lawyer is discharged, with or

without good cause.

(b) Except as required by paragraph (a), a lawyer shall not withdraw from


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representing a client unless:

(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 may be criminal or fraudulent;

(3) the client has used the lawyer's

services to perpetrate a crime or fraud;

(4) a client insists upon pursuing an

objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;

(5) the client fails substantially to

fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, 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) When ordered to do so by a tribunal, a

lawyer shall continue representation 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 payments of fee that has not

been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.@

Following these rules and getting out early can save a tremendous amount of heartache for everyone. While there are exceptions to every rule, and while it is often difficult to sever the relationship with a divorce client because of the unique bond generally built in these cases, know that you have a business to run and other clients to serve. While it may sound cynical, know also that few of these clients will have any particular affinity to pay you once the case is concluded. For most of us, payment for our work is the life=s blood of our practice. It=s significance cannot be overlooked. Without it we cannot continue to practice law at any level. With it we can be the great professionals we aspire to be. You will be far better off walking away from a case that cannot pay, than in taking one that meets a short term immediate cash need and causes long term problems. We are all afraid of that void that seems to loom on the horizon if we finish all of our workBit perpetuates procrastination in many of us. But the real truth is that every time you do a good job finishing a case, a better one will come along to take it=s place. I have never withdrawn from a case and regretted it later, the converse is not true. IV. TIME Many clients have an idea that a divorce is over in sixty days. In spite of significant discussion of the Asixty day rule@ many of my clients call in sixty days to determine if or when the case will be over. If the Aaverage case@ in your office or your jurisdiction takes six months or twelve months, clients need to hear that from you from the beginning. There is a very orderly process that most divorce cases follow. In a nutshell it is:

a) arriving at some resolution of how the folks will operate during the pendency of the case (temporary orders);

b) coming to an understanding of what comprises the community and separate estates and what claims the parties have (discovery);

c) making some attempt to settle the case (usually a failed negotiation followed by a successful mediation); and if necessary,

d) a final trial followed by; e) a battle to get all of the closing documents

(including the decree) signed. Clients need to understand that process. They need to further understand that you have no control of three


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significant elements in the process: 1. the behavior of the opposing party (whom they have probably described at the outset as difficult, if not crazy); 2. the behavior of opposing counsel; and 3. the Court=s docket and the attendant delay involved in scheduling matters for hearing and trial. They need further to understand that many cases are delayed because the client attempts to shortcut the process-Busually thinking that instead of answering discovery or preparing inventories, that the opposing party can be talked into a settlement-Bonly to find that when that Ashortcut@ failed weeks, if not months, had been lost in the process. V. OUTCOME A. Property Most clients want to discuss the probable outcome of the case from the very first moment they meet you. The problem is that you have almost no reliable information on which to opine about anything. The obvious course of action in the initial interview is to spend more time listening and less time opining. There are some concepts that should be explained early and some notions shot down from the start. If your Judge always divides the community portion of the retirement 50/50 and your prospective client thinks he should get all twenty years of that retirement because he was the one who got up and went to work every day while she laid around the house and did nothing, that idea should be quashed from the very start. If that means you don=t get hired, you are a fortunate lawyer. Clients need help in determining what to seek in relief and the vast majority wants to be fair. Obviously it is this concept of Afair@ that sends many people to the Courthouse. The client relies on your expertise to consider all of the aspects of a property settlement including, tax impact, cash flow to support the assets, valuation of the assets, and the appropriateness of a disproportionate division. At the outset of the representation, the client should be given the task of beginning work on an inventory. In very large and complex estates the client will likely work with the retained accountant on this project. If the client is impaired, you or your staff will have to assist him. If your side of the case is completely out of the information loop, the opposing party must prepare an initial inventory that you will then need to independently verify—usually through more formal discovery. Once that is done, the inventory should be summarized in a spreadsheet and a meeting arranged with the client to review the spreadsheet. The client can then begin an exercise putting various assets and liabilities on one side of the sheet or the other and will generally arrive quickly at an idea of what is possible and what is not. A sample of such a spreadsheet is attached. This same spreadsheet can be used at mediation as a worksheet to consider offers and will be used as a summary at trial to show the Court your

proposed division. Client involvement in this process early on will force him to be realistic in his expectations and should make negotiation much simpler. If the case is not resolved in mediation, that same set of spreadsheets will become your trial exhibits. There is no wasted effort in the process. The key is that the client is a part of the process in determining what is in the estate and can understand from the start what a reasonable and likely division of the estate will be. Having done this early, the client will likely not be dissatisfied with the outcome at settlement or trial. B. Suits Affecting the Parent Child Relationship Like property, clients have many misconceptions about custody, support and visitation. After hearing what the client desires, prudent counsel will outline the status of the law as it relates to joint managing conservatorship, visitation and support. A discussion of the presumptions in your jurisdiction and the proclivities of the Court is always important at the initial consultation. As an example, without telling the client that supervised visitation probably will not happen, it would be more prudent to describe the Court=s duties and the burden of proof necessary to overcome the presumptions. The client then can evaluate the circumstances based on his own facts and will likely arrive with you at the probable outcome. A generous explanation about hearsay and the difficulty of proving the rumors the client has heard is also helpful. To brief the client in this candid fashion is to avoid a good deal of probably fruitless and certainly incendiary litigation. If the matter is to be litigated, the client will know the difficulty in achieving the objective from the start. If your Court is going to follow the support guidelines religiously, give your client a copy of the guidelines with an explanation of the expense and difficulty of convincing the Court to rule outside those guidelines. It is important to dispel myths and straighten out misinformation from the initial interview. While many prospective clients may not be happy to hear the news you have for them, there is no advantage to creating false expectations about outcome. If the case is an uphill battle and the client understands, but persists in undertaking it, he will not be in a position to complain about the fee or the outcome. And if you prevail, you will in fact be the hero. VI. CONCLUSION Most of us want to please people, and we certainly want to please our clients. We want them to sing our praises and to refer more good business. Unfortunately, family law is one area of the practice where that is most difficult. We represent people experiencing one of the most tragic events in their lives. Rarely is anyone “happy” with the outcome. But it is possible for clients to leave your office and know that you did everything that could be reasonably expected, that you charged a


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fair fee, and that the result met or exceeded their expectation. That can only be accomplished if the expectation was reasonable to start with, and that is well within your control. If you cannot control that expectation, you are better served sending the prospective client along his way and to let him be disappointed with someone else. When that client complains about his result, his friends will tell him he should have listened to you.

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MANAGING CLIENT EXPECTATIONS Family Law … · managing client expectations family law section...

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