The purpose of these Questions and Answers is to educate you, the prospective client or litigant, so that the divorce and family law process will better serve you on matters lawyers and judges do not want you to know about.

For many years, I have been very involved as a volunteer attorney with a not-for-profit organization dedicated to reforming the divorce and family law system, as well as helping people going through it. Unfortunately, we have heard too many people’s horror stories of the many ways in which the process has let them down with often disastrous consequences. By better understanding certain aspects of the process, the prospective client or litigant will be in a better position to effectuate a more favorable outcome.

For more information and details about any of the Questions and Answers (or questions not asked or answered here), attend one of my seminars entitled “Navigating through the Divorce and Family Courts—What Lawyers and Judges Don’t Want You To Know,” or “The Nuts, Bolts, and Monkey Wrenches of Divorce.”

Questions & Answers

Should you ask for references before hiring an attorney?

What are some things you should know before you sign a retainer agreement with an attorney?

Why should you not agree to be billed in minimum increments any greater than “.1 hours”?

Why should you not agree to receive a billing statement from an attorney “at least every 60 days” (even though that is what the court rules provide)?

Why should you never give your attorney any documents or records, unless you have copies or the originals, and why should you always obtain copies of everything from your attorney as they get prepared or received by your attorney?

Why should you not wait to question a billing statement sent by your attorney?

Do you have the right to be present in court at the time that conferences are held?

Why should you avoid “stipulations of settlement put on the record?”

In the event of a fee dispute with your lawyer, should you agree to arbitration?

Should you ask for references before hiring an attorney?

Of course, you should ask an attorney for references. When you ask for references, the attorney will probably tell you this cannot be done because this would be revealing “confidential” information. While this is true, what you need to know is that this confidential information can be waived by the client. So, when the attorney tells you this is confidential information, ask the attorney if he or she would speak with some clients the attorney has represented to see if they would be willing to speak directly with you.

In response to a request for references, an attorney may also tell you, “I would only give you good references anyway. So, how could this help you?” Most people would probably leave it at that. But your reply should be: “Even if you would only give me good references, I would still like to speak with them.”

If the attorney is still unwilling or cannot find a single client or former client who would recommend him or her, look for another attorney.

In a booklet entitled, “Avoiding Grief With A Lawyer—A Practical Guide,” published by The New York Lawyers’ Fund For Client Protection, they advise that, “In selecting a lawyer, the consumer should take the same careful steps that one takes in choosing a physician or a dentist, or a home contractor.” They further advise, “Do not be afraid to ask for references from other clients and lawyers; even a sample of the lawyer’s written work.”

What are some things you should know before you sign a retainer agreement with an attorney?

You must act as your own advocate when it comes to negotiating a retainer agreement with an attorney. If there is anything in the agreement that you do not understand, you should ask the attorney for an explanation of it and, if you are still unsure and have concerns, you should have the attorney’s explanation written into the agreement, especially if you have concerns about whether the attorney’s explanation corresponds to the actual language of the agreement.

Do not rely upon oral statements, promises or assurances made by the attorney—have the attorney include in the agreement any commitments he or she is verbally agreeing to.

Beware of the attorney who, at the initial consultation, for instance, makes promises as to the outcome of your case. Indeed, there will almost certainly be a provision in the agreement which provides that the attorney has made no promises to you as to the outcome of the case.

Do not be in a rush to sign a retainer agreement at the initial consultation with the attorney. You may be feeling vulnerable, upset, or angry at the time. You should take the time to review the agreement, write down any questions you may have about it, and speak to the attorney about any of its terms at a later date.

Given what is financially and personally at stake when people are seeking a legal separation or divorce, obtaining a second opinion from another attorney is often advisable. Although you will likely have to pay another consultation fee, this cost will likely be only a drop in the bucket in relation to what is likely to be the overall fees and expenses incurred in your matter.

Why should you not agree to be billed in minimum increments any greater than “.1 hours”?

Some retainer agreements may provide language such as: “a minimum of 2/10's (.2) of an hour is applied to all telephone call time charges and a minimum time charge of 1/2 hour (.5) is applied to all office meetings and conferences, irrespective of the actual time expended with respect thereto, unless the actual time expended exceeds the minimum, in which event the client will be charged for the actual time expended.”

Other retainer agreements may provide language where the initial billing increment for each service will be “.2” or “.25” hours but that time over and above the initial billing increment will be billed in “.1” increments.

Understand that if your attorney is billing you at $400.00 per hour, for instance, a “.25” telephone call will cost you $100.00. Even if you spend only a minute or less on the phone, you could be charged for 15 minutes (.25 hours). These charges will add up to be very significant over time. For each initial charge, wouldn’t you rather pay $40.00 as opposed to $100.00?

An attendee at one of my seminars was already divorced but involved in post divorce enforcement and modification proceedings. She stated she had been billed in initial increments of .25 hours with an attorney who charged $400.00 per hour. I asked her approximately how many telephone calls she had with her attorney over the course of her contested divorce. She stated she had well over one hundred, and that nearly all of them were under 5 minutes. She acknowledged that because she was billed in minimum increments of .25 hours, as opposed to .1 hours, she spent over $10,000.00 for telephone calls for which she would only have been billed $4,000.00 had she known to request to be billed in minimum increments of no more than .1 hours!

There is no good reason why a firm or lawyer cannot bill you in minimum increments of no more than .1 hours. Suppose, for instance, you have only a 15 minute meeting with your attorney. If you were being billed in increments of .1 hours, and based upon a $400.00 hourly rate, the cost would be $120.00 for .3 hours. However, based upon one of the above possible provisions, you would be paying $200.00 to the lawyer for .5 hours!

It is your money. Would you rather be able to put money away toward your own retirement or children’s college education or toward your attorney’s retirement fund?

Why should you not agree to receive a billing statement from an attorney “at least every 60 days” (even though that is what the court rules provide)?

Pursuant to the Statement of Client’s Rights and Responsibilities, a copy of which you should receive at the initial consultation and before retaining a lawyer, “You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days.” Your retainer agreement will likely have a provision that you will receive an itemized billing statement at least every 60 days.

However, you should negotiate with the attorney that you be sent an itemized billing statement at least every 30 days and that this language be included in the retainer agreement. In fact, you might also want to consider negotiating a provision that you will be promptly billed if a particular service or expense exceeds a certain amount of money.

There is really no good reason why you cannot be sent a bill statement at least every 30 days, give or take a few days, or upon a significant service or expense being incurred. It’s your money. Don’t you want to know sooner rather than later how your money is being spent?

Why should you never give your attorney any documents or records, unless you have copies or the originals, and why should you always obtain copies of everything from your attorney as they get prepared or received by your attorney?

Whether meeting an attorney for the first time or at any time thereafter, never give your attorney any documents or records without making a copy of the documents for your own records. (For that matter, do not give your attorney any personal property, such as jewelry.) You need to know that should a problem later arise in your relationship with the attorney and the attorney/client relationship is terminated, if you owe your attorney money at the time of the termination, the attorney can claim what is called a “retaining lien” and keep everything (whether documents or property) in the attorney’s possession until any unpaid fee is paid or adequate security for the attorney’s fee is provided.

Prospective client beware! Many attorney client relationships terminate, not coincidentally, when bills remain unpaid and/or you can no longer afford to pay your legal fees.

However, the attorney who claims a retaining lien will not have as much leverage over you in connection with the outstanding fee if you do not need the papers in the attorney’s file in order to retain new counsel.

So, in addition to making copies of everything you provide your attorney, also make sure you receive all papers and documents prepared by or received by your attorney. Indeed, this is one of your rights as is stated in the Statement of Client’s Rights and Responsibilities which you should be provided a copy of at your initial consultation with an attorney and before retaining the attorney. Check your billing statements which should state what documents are prepared or received (reviewed) by the attorney to ensure you get copies of everything. Having an organized copy of all your records and documents will make it much easier for you to avoid delays in your case and to secure new counsel in the event you owe your prior attorney money and your prior attorney claims a retaining lien.

Why should you not wait to question a billing statement sent to you by your attorney?

When you receive a billing statement from your attorney, if there are any questions or concerns you have about it, you should address them immediately, but diplomatically, with your attorney, preferably in writing so there is a record of it. The Statement of Client’s Rights and Responsibilities provides that, “Time spent in discussion or explanation of bills will not be charged to you.”

If you think you can put off and deal with the attorney’s bill(s) at some future time, it may be too late. There is a legal doctrine called an “account stated.” What this means is that if you did not raise any objections to your lawyer’s bill(s) and, in fact, paid something toward the bills, you will not be able to later object to them when, for instance, the lawyer seeks his fees from you in an action brought against you. In effect, by not objecting to the bills and by having made partial payment(s), you have essentially “ratified” and agreed to the bill statements and the amount owing.

There is something you can do at the outset of the attorney/client relationship, when the retainer agreement between you and the attorney is negotiated, to also help you avoid falling prey to the "account stated". The Statement of Client's Rights and Responsibilities provides that you have the responsibility "to raise any objections or errors in a timely manner" to the attorney's itemized billing statements, and that you "be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary."

In the retainer agreement which you negotiate with the attorney, you should request that a provision be added where, in essence, it is agreed between the attorney and client that in order for you to be able to properly evaluate the attorney's services and itemized billing statements, you must have been provided with copies of all documents prepared by the attorney or reviewed by the attorney that formed the basis of a time charge in the billing statement.

What you need to know is that notwithstanding your right to be provided with copies of papers, attorneys often out of neglect or oversight do not provide their clients with copies of papers and, especially where fees are owed to them, purposely do not provide copies of papers so that they can later claim what is called a "retaining lien" (something addressed as part of an answer to another question "Why should you never give your attorney any documents or records, unless you have copies or the originals, and why should you always obtain copies of everything from your attorney as they get prepared or received by your attorney?")

However, if you have negotiated a provision in your retainer agreement like the one referred to above, then, assuming the attorney has not provided you with copies of papers, and when the attorney later seeks to invoke the "account stated" doctrine against you, it is this author's opinion that you will have a valid defense, namely, that because the attorney did not provide you with copies of papers referred to in the billing statements as contractually agreed to, and until he or she does so, you are unable to evaluate the attorney's work and services rendered, and you were, therefore, unable to properly raise any errors or objections to the billing statements. Under such circumstances, it could further be argued that you had no obligation to raise any errors or objections to the attorney’s billing statements.

Do you have the right to be present in court at the time that conferences are held?

Yes. When you consult with a matrimonial/family lawyer, the lawyer is required by court rule to provide you, as the prospective client, with a document called a “Statement of Client’s Rights and Responsibilities.” One of your rights stated in that document is:“You have the right to be present in court at the time that conferences are held.”

Yet, notwithstanding your right as a litigant, many judges still tell the court officer or clerk who calls the parties into court that the judge wants to see the attorneys only. Also, many attorney(s) do not request of the court that their client be present when only the attorneys are requested.

Why judges request to see only the attorneys, why attorneys do not insist upon their client’s right to be present, and why you should not waive your right to be present, cannot be addressed here.

However, a few days after attending one of my seminars, an attendee/litigant reported that the litigant was in court and the judge wanted to see only the attorneys. The litigant nevertheless requested to be present since she had that right (having the Statement of Client’s Rights and Responsibilities in hand and being able to cite the source.) While the court was not very pleased with the litigant, information was being discussed by the attorneys and judge during the conference which was not accurate yet significant. The litigant was able to speak to the attorney who corrected matters. At the conclusion of the proceeding, the judge said to everyone that it was a good thing the parties were present.

It is your case. Don’t you want to see first hand how your attorney is representing you, what is being claimed by the other side, and what the court is telling the attorneys? After all, the divorce and family law system is supposed to serve you, the litigant and consumer of the system, not the other way around.

Why should you avoid “stipulations of settlement put on the record?”

Would you obligate yourself to buy a car, for instance, without having the opportunity beforehand of reading and understanding the terms of the contract of sale in writing? Do you believe lawyers or judges would do so?

At the 2007 Judicial Forum held at the headquarters for the Coalition for Family Justice, Inc., the candidates (judges seeking re-election and attorneys running for judicial office, in the Ninth Judicial District consisting of Westchester, Rockland, Putnam, Dutchess, and Orange Counties) were each asked whether they would buy a car without a written contract or whether they, as attorneys, would advise a client to do so. Of course, it should come as no surprise to anyone that each of the judicial candidates stated they would not do so.

Yet, what is so surprising is that verbal contracts, where parties are unable to read the terms in writing before they become binding, about matters of far more reaching consequence than just the purchase of a car, not only happen every day in the courts, they are actually encouraged by judges and lawyers!

These sorts of verbal contracts, where the terms of the contract are verbally recited before a judge while being recorded are called “stipulations of settlement put on the record.” These sorts of verbal contracts are just as binding as if you had read and signed a written contract.

If judicial candidates would not advise clients to buy a car without a written contract, why would you do so without a written contract and an opportunity to review and understand it, especially on far more significant matters including custody and access, child support, spousal maintenance, the sale or buy out of a person’s interest in a home or business, the division of retirement assets, the allocation of debt(s), etc.,?

What you need to know is that you do not have to enter into a stipulation of settlement put on the record. Although pressures will come to bear upon you to enter into a stipulation of settlement put on the record, insist upon being able to review a written contract to be signed by the parties. For more detailed information about these sorts of contracts and how to avoid or be prepared for them, read my article entitled “Stipulations of Settlement Put on the Record.”

In the event of a fee dispute with your lawyer, should you agree to arbitration?

The Statement of Client’s Rights and Responsibilities states, among other things: “In the event of a fee dispute, you have the right to seek arbitration. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.”

First, do not agree upon a provision in a retainer agreement that requires you to submit to binding arbitration in the event of a fee dispute.

Also, whether or not you should arbitrate will depend upon a number of factors you will need to consider at the time.

One thing you as a litigant and consumer of the legal system need to know is that attorneys prefer to resolve “fee disputes” by making a motion to the judge presiding over the divorce action by seeking some form of “security” for their legal fees against you. This is a much easier procedure for the attorney than dealing with arbitration or bringing a separate lawsuit against you for legal fees. So, when you receive forms from the attorney about your right to elect to resolve the fee dispute by arbitration, you should seriously consider doing so. If you elect to resolve the issue by arbitration, depending upon the amount in question, it will either go before one arbitrator (who will be an attorney) or to a panel of three arbitrators (one lawyer and either two laypeople or one lawyer and lay person). While you might not like the prospect of your case being decided by one or more attorneys, in the event either side is not pleased with the result of the arbitration, either side can elect a trial “de novo”, meaning a new trial before a judge as if there had been no arbitration in the first place. Whether it is you or the attorney who seeks the trial “de novo”, you should be able to request a jury trial in that lawsuit. The point and factor you need to be aware of is that a jury of your peers will likely be more sympathetic to you and to your situation than to a matrimonial attorney. By electing arbitration in the first place, you will be making things much more difficult for the attorney.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters, and electronic mail. Contacting me does not create an attorney/client relationship. Please do not send any confidential information to me until such time as an attorney/client relationship has been established. Email addresses are provided for your convenience and do not establish an attorney/client relationship. Sending information to John H. Rubin Law via e-mail or other means does not establish an attorney/client relationship.