YOUR RELATIONSHIP WITH YOUR LAWYER

I am contemplating a divorce. How do I choose a lawyer?

Hiring an attorney is a process that requires thoughtful reflection, and involves the signing of a written retainer agreement. A retainer agreement is a legally binding contract between you and your attorney that specifies the services to be performed, the costs of the services and your obligation for payment for the services.

There is no foolproof method for selecting a competent and ethical lawyer. Selecting a lawyer to handle your divorce requires you to rely on your own judgment precisely at the time your judgment may be clouded by emotional distress. Therefore, it is best to start with recommendations from friends and relatives, trusted business associates and other professionals who are likely to have contact with lawyers. Names obtained from the internet, the local bar association, or general legal referral services may be random or on a pay-per-referral basis and therefore are less likely to provide meaningful recommendations. However, a lawyer referral service, which offers the services of a panel of matrimonial lawyers, may be helpful. Interview more than one lawyer. Three lawyers is a reasonable number.

Make sure your lawyer is experienced in the area of matrimonial law. Ask your lawyer directly how many divorce cases she or he handles annually. Look for evidence that your lawyer's concentration is matrimonial law, i.e. that your lawyer is a member of professional organizations specifically concerned with matrimonial and family law issues, has familiarity with the laws governing separation and divorce and has contact with other members of the matrimonial bar.

Ask tough questions during the initial interview. Without being aggressive and belligerent, try to get your prospective lawyer to be responsive to some of the real issues facing you. Ask your prospective lawyer what will happen if you run out of funds to pay fees on an ongoing basis. Question her or him about billing practices. Request an outline of a reasonable settlement for your case based upon a summary of your circumstances. A lawyer who becomes evasive, defensive or hostile is not the right lawyer for you. Most matrimonial lawyers charge for an initial consultation. Get your money's worth in advice and information.

Beware of a lawyer who is unwilling to discuss or negotiate the terms of the retainer agreement or who insists that it be signed on the spot. Beware of a lawyer who makes oral commitments at variance with the terms of the retainer agreement and who refuses to revise the agreement to reflect assurances made to you.

The lawyer should explain the laws and procedures affecting your case and any important deadlines. You and the lawyer should discuss the pros and cons of going to trial versus a settlement agreement. You should also be informed of the reasons for possible delays such as the requirement for pre-trial production of financial documents.

Keep in mind that in hiring a lawyer, you are making a business decision. Good lawyers will be sensitive to the mental and emotional state of their client. However, some lawyers may seek to attract clients by suggesting that they can offer emotional support, vindication or revenge against the estranged spouse. Your best "revenge" is to live a happy and productive life after the divorce. When listening to any promises or guarantees made by your prospective lawyer, remember that the outcome of your divorce will be influenced by the lawyers for both parties, the parties' respective needs, resources and expectations and by the court having jurisdiction over the divorce. No lawyer, no matter how skilled or dedicated, can single-handedly control these factors.

The realities of divorce can be grim. Don't automatically select the good news lawyer over the bad news lawyer. The lawyer who tries to induce you to engage him or her by offering an overly optimistic and unrealistic description of the outcome of your case may not be treating you as an equal. On the other hand, don't accept a lawyer who seems defeatist or passive or one who appears to be setting you up to accept lackluster performance by lowering your legitimate expectation for a fair and reasonable outcome. Your lawyer should offer you a significant role in shaping your case and encourage you to keep control over your case.

It is possible that your spouse will immediately interview well-qualified matrimonial attorneys in your area so as to prevent them from subsequently representing you. It may, thus, be important that you consult with an attorney at the early stages of marital strife. It is important to note that conflict of interest rules prohibit one attorney from representing you and your spouse. Also be aware that if one spouse is self-represented and the other spouse retains an attorney, the attorney may only represent his or her client.

You should be as organized as possible for your initial meeting. In addition to basic information, be prepared to provide an employment history and copies of tax returns, W-2 statements and pay stubs, a summary of assets and liabilities and any pre-nuptial or marital agreement.

If your spouse has a higher income and it is difficult for you to pay an attorney, Domestic Relations Law Section 237 creates a rebuttable presumption that counsel fees should be awarded to you. This means that the non-moneyed spouse has the ability to make a motion to the court (ask the court) for counsel fees to be paid by the moneyed spouse. The goal is to create equal access to the legal process so that the financially disadvantaged spouse may assert and protect his or her rights.

If you cannot afford a lawyer, the court, under appropriate circumstances, may appoint a lawyer to represent you on a pro bono basis (free of charge). There are local organizations such as the Pace Women's Justice Center and Legal Services of the Hudson Valley that offer information about no or reduced-cost legal services in matrimonial cases. You should also be aware that you are entitled to act pro se (represent yourself) in a legal case, including matrimonial cases.

In addition, Judiciary Law Section 35(8) permits the Supreme Court to appoint an attorney to represent you when the issues involve custody and/or a request for an order of protection. However, the appointed attorneys are not authorized to represent you on the remaining issues such as grounds for divorce and equitable distribution.

Please see the Resources and Readings Section at the end of this Q&A for further resources.

What is a retainer agreement?

A retainer agreement is a legally binding agreement between you and your attorney. Pursuant to a retainer agreement, you engage an individual lawyer (or the partners and associates of a law firm) to perform certain services for you and agree to pay for these services. Upon signing the agreement, you are required to pay the retainer, which is an agreed upon amount that is prepayment to the lawyer for services to be rendered and expenses to be incurred on your behalf.

The rules of the court in New York (the "Court Rules") require that a retainer agreement state the following:

1. Names and addresses of the parties entering into the agreement;
2. Nature of the services to be rendered;
3. Amount of the advance retainer, if any, and what it is intended to cover;
4. Circumstances under which any portion of the advance retainer may be refunded. Should the attorney withdraw from the case or be discharged prior to the depletion of the advance retainer, the written retainer agreement shall provide how the attorney's fees and expenses are to be determined, and the remainder of the advance retainer shall be refunded to the client;
5. The client's right to cancel the agreement at any time and how the attorney's fee will be determined and paid should the client discharge the attorney at any time during the course of the representation;
6. How the attorney will be paid through the conclusion of the case after the retainer is depleted; whether the client may be asked to pay another lump sum;
7. Hourly rate of each person whose time may be charged to the client, any out-of-pocket disbursements for which the client will be required to reimburse the attorney and the incorporation of any changes in such rates or fees into a written agreement constituting an amendment to the original agreement, which must be signed by the client before it may take effect;
8. Any clause providing for a fee in addition to the agreed-upon rate must be defined in plain language and must set forth the circumstances under which such fee may be incurred and how it will be calculated;
9. Frequency of itemized billing, which shall be at least every 60 days; the client may not be charged for time spent in discussion of the bills received;
10. Client's right to be provided with copies of correspondence and documents relating to the case, and to be kept apprised of the status of the case;
11. Whether and under what circumstances the attorney might seek a security interest from the client, which can be obtained only upon court approval and on notice to the adversary;
12. Under what circumstances the attorney might seek to withdraw from the case for non-payment of fees, and the attorney's right to seek a charging lien from the court;
13. Should a dispute arise concerning the attorney's fee, the client may seek arbitration, which is binding upon both attorney and client; the attorney shall provide information concerning fee arbitration in the event of such dispute or upon the client's request.

No specific text of a retainer agreement is mandated, but it is required that the terms of compensation and the nature of services to be rendered must be set forth in "plain language." In addition to formalizing the basic attorney/client relationship and providing for the payment of the retainer, the key elements of the retainer agreement should cover the issues outlined below.

The formula for payment of legal fees should include: 1) the cost per hour for services including any variation depending on type of service, for example, consultation, negotiation and court appearances; 2) the rates at which you will be billed for services provided by partners, associates, paralegal and other personnel; and 3) other expenses such as court fees, photocopying, telephone charges, travel expenses, fax, scanning, overnight delivery service and the like for which you may be charged. If it is your understanding that services are to be provided by a specific individual, the retainer agreement should specify this. The retainer agreement should not allow your lawyer to increase the amount of the fee based upon the outcome of your case. Further, in matrimonial cases your attorney is not permitted to charge a fee based upon the outcome of your case ("contingency fees").

The retainer agreement should provide that you will be billed at monthly or other specified periodic intervals in accordance with the Court Rules (which require that attorneys bill their clients no less frequently than every 60 days) and should state when payment is due. Bills should be itemized to indicate the component services and expenses reflected in the total amount due. Your lawyer's fee should cover routine overhead expenses and state whether you will be charged an extra fee if your case requires an extraordinary amount of secretarial or clerical support.

The retainer agreement should provide for the refund of the unused portion of a retainer if you, for any reason, decide to discontinue the services of your lawyer. Take notice of the term "engagement fee," which may indicate a non-refundable amount. The Rules prohibit non-refundable retainer fees or the charging of any fee beyond an agreed upon hourly rate, which is not refundable in the event that the lawyer is discharged prior to the conclusion of the action.

Keep in mind that the form of retainer agreement handed to you at an initial consultation is a document written by a lawyer for a lawyer. You can request changes. You have the right to request changes in the retainer agreement to reflect your actual and legitimate expectations for fair treatment and diligent legal services.

My original retainer paid to my lawyer has been used up and she is requesting an additional amount that I am unable to pay. What should I do?

The Code of Professional Responsibility, which binds all lawyers, prohibits a lawyer, who has accepted you as a client, from terminating his representation of you in the midst of divorce litigation simply because you are unable to continue to pay legal fees. To be released from his obligation to you, a lawyer must obtain your permission or apply for permission from the court. Despite this, as a practical matter, a lawyer who is representing you unwillingly may be little better than no lawyer at all. How you plan on financing your divorce proceedings, what funds are available to you for this purpose and what will happen when these funds are depleted are issues that should be discussed openly with your lawyer before the retainer agreement is signed. The outcome of these discussions should be clearly stated in your agreement.

What are my rights and responsibilities as a client in a legal representation?

A matrimonial attorney is required to provide you with a Statement of Client's Rights and a Statement of Client Responsibilities in the following form:

These rules apply to all actions or proceedings in either the Supreme Court or the Family Court or in any court of appellate jurisdiction where issues of divorce, separation, annulment, custody, visitation, maintenance or child support are involved. The client must receive the Statement of Client's Rights and the Statement of Client Responsibilities at the time of the initial conference and before the signing of a retainer agreement.

My spouse and I have agreed to divorce. Our relationship remains on fairly good terms. Should we engage a single lawyer to represent both of us?

While this may seem to be an economical approach to an amicable divorce, as stated above, a lawyer may not ethically simultaneously represent divorcing spouses

How much will my divorce cost? Both my spouse and I wish to end our five-year marriage?

Due to many variables, it is impossible to accurately predict from the outset the financial costs of divorce. Attorney's fees, of course, constitute the largest (but not the only) component of divorce costs. The two factors having the greatest influence on the amount of legal fees are the complexity of issues to be resolved and the willingness and ability of the parties to reach an agreement on the terms of the divorce, without resorting to contested litigation. Even thorny issues such as the custody of children and the division of substantial property can be expeditiously (and therefore relatively inexpensively) resolved when both of the parties are committed to negotiating in good faith and in the spirit of compromise. On the other hand, the inflexibility of one or both of the parties can cause even a “simple” divorce to cost tens of thousands of dollars. If custody is an issue, the court will often appoint a lawyer (“the attorney for the child”) who will represent the child and a forensic psychiatrist to interview the parents and children (if age appropriate). The fees of the attorney for the child and forensic psychiatrist will be paid by you and/or your spouse. If the value of a business is an issue, the court may appoint a neutral forensic accountant to review the financial records of the business(es).

Another variable influencing costs is the hourly rate charged by your lawyer. Lawyers' hourly rates vary widely depending on such factors as their experience, prestige and geographic location. The rates of many Westchester County lawyers with established matrimonial practices are in the $350-$475 per hour range. Regardless of the hourly rate charged, once trial preparation commences and a case goes to trial, legal fees far in excess of $50,000 are not unusual. Court costs and the fees of experts such as accountants, appraisers and psychologists may also be significant components of the costs of divorce.

What steps can I take to minimize my legal expenses?

Minimizing expenses requires an understanding of how lawyers charge for their services. The overwhelming majority of lawyers charge for their time at an hourly rate. They keep daily records of time spent on each of their clients. Typically these records are divided into minimum billing intervals. Every time your lawyer answers a phone call from you, a member of your family (with your permission), or your spouse's lawyer, works on documents or correspondence relating to your case, participates in negotiations on your behalf, prepares for trial, or appears in court, the time so spent will be charged to you at this hourly rate. When you save your lawyer time, you save yourself money. Here are some steps you can take to minimize your legal costs:

1. Be organized. Your lawyer will need an accurate picture of your financial situation. Try to assemble a complete collection of relevant documentation and organize it in a coherent way. Important documentation includes personal and business federal and state income tax returns, bank statements, mortgages, loan statements, stock option plans, brokerage accounts, employee withholding statements (W-2's), 1099 forms, pay stubs, and pension and other retirement statements. Other important documents include financial statements prepared in connection with loan applications, closing documents relating to the purchase and sale of a home, deeds, title certificates, registration statements for vehicles and boats, insurance policies and premium statements, and documentation of loans and gifts from family members and others. Your lawyer will also require information regarding trusts, inheritances, collectibles and collections, frequent flyer accounts and reward programs, rights in intellectual property such as copyrights, patents and trademarks and the fruits of the creative process, such as publishing a novel. Your lawyer will also need information about your family expenses. Assemble a file documenting expenses such as rent, house payments, car payments, household maintenance, utilities, tuition, child care, medical care, insurance (life, homeowners, auto, etc.) and any other significant, recurring expenses. For most families, checking account and credit card records will be critical to establishing a history of these expenses. It is wise to begin this process of documenting your expenses and net worth and to obtain copies of relevant financial papers at the first suggestion of marital trouble. Financial records may be maintained on your computer. Later, when conflict is more open, your spouse may attempt to hinder your access to this important information. It is also helpful to prepare a written summary and chronology of the relationship between you and your spouse. Don't withhold information. It is better for your lawyer to know any negative information about you than be caught off guard as your case progresses.
2. Keep notes and records of your discussions with your attorney. If you have a question for your lawyer, jot it down on a notepad kept for that purpose. If possible, resist calling your lawyer until you have several issues to discuss. Take notes of your telephone and personal conferences with your lawyer and record the time of your calls. This will prevent you from repeatedly seeking the same information. Your businesslike manner and vigilance will communicate to your lawyer that you hold her or him accountable for the time billed to your account.
3. Your lawyer should send you a copy of all correspondence and legal documents produced or received in connection with your case and keep you posted about all major developments and key deadlines. Maintain your records in an orderly file. In addition to providing a resource for you to understand the legal process you are participating in and to work more efficiently with your lawyer, keeping such a file could facilitate a decision to change lawyers, should that become advisable.
4. Inquire whether your spouse will be required or requested to pay all or a portion of your legal fees. As discussed above, Domestic Relations Law § 237 to creates a rebuttable presumption that counsel fees shall be awarded to the less moneyed spouse. This is intended to create equal access to the legal process so that the financially disadvantaged spouse may assert and protect his or her rights. This legislation provides that an order for counsel fees may be granted to ensure that the less moneyed spouse be placed on a “level playing field” at the very beginning of the case or during the case. In the past, the burden was placed on the party seeking counsel fees to demonstrate why awarding the fees would be in the interests of justice. Under current law, it is left to the moneyed spouse to show why it would not be in the interest of justice to award attorney's fees. However, the amount and timing of the awards are in the discretion of the court. Accordingly, neither you nor your lawyer can rely on them with certainty. The extent to which your attorney is willing to accept court awarded fees as payment for services should be discussed during the initial interviewing process and specified in the retainer agreement.
5. Ask for estimates of the costs of major legal services or strategies. Before insisting upon or giving permission for a major legal initiative such as the filing of a motion or the hiring of costly experts, engage your lawyer in a “cost/benefit” analysis of the proposed action. Each such decision should be addressed from a business perspective. It usually doesn't make sense for you and your spouse to pay your lawyers $1,000 to argue over property worth $500. If you and your spouse insist on retaining particular property after divorce, the disputed property may be sold and the proceeds of sale divided or you and your spouse may “trade off” one or more items of property for the desired property. Resist the temptation to act emotionally or seek personal gratification by taking aggressive or punitive steps not likely to materially improve your situation.
6. Do not seek non-legal services from your lawyer. Your lawyer may be a source of good practical advice, but he or she is usually not trained as a psychotherapist or money manager. It is wise to ask your lawyer for a referral to a trained professional or to seek such referrals from other qualified sources. Please see the Resources and Readings Section at the end of this Q&A for further resources.
7. Educate yourself about the legal issues of your case. Early on in your case, your lawyer should provide you with a copy of relevant portions of the New York Domestic Relations Law and discuss the law with you.
8. Keep in mind that there is liberal "disclosure" in matrimonial cases. You have the right to obtain copies of your spouse's financial records of assets and liabilities, including business records.
9. Legal recourse in the event of a disagreement about legal fees. The Court Rules require that you have the right to resolve the dispute by arbitration. In the event of a fee dispute, your lawyer is required to provide you with necessary information about the arbitration program. Also, an informational pamphlet explaining Fee Dispute Arbitration is available in the Office of the Administrative Judge for each district of the New York State Supreme Court. Please see the Resources and Readings Section at the end of this Q&A for further resources.

If you choose to engage in arbitration, your attorney is required to participate. If you do not arbitrate the dispute, you may seek to litigate the dispute in court. Arbitration is less formal than litigation in court. However, unlike a court decision, an arbitrator's decision, for the most part, may not be appealed. While your oral testimony is evidence in arbitration, you will want to provide the arbitrator with written evidence, as well. For example, written evidence may include your retainer agreement, letters discussing legal fees and canceled checks. Your presentation to the arbitrator may include a statement that presents the basic facts of your case, presentation of evidence and a closing statement that sums up your case.

I owe my lawyer several thousand dollars in legal fees and he has asked me to give him a lien on my house and to sign a confession of judgment to secure this debt. Is this ethical?

When you incur legal fees that remain unpaid, your lawyer becomes your creditor. Giving your lawyer a lien on your house changes her or him from a general creditor to one who may have priority relative to other creditors with regard to your equity in your home. A confession of judgment eliminates the need for your lawyer to sue you, prove the amount of your indebtedness and obtain a judgment in order to collect fees.

In order to obtain a security interest during the course of representation of a client, there are rules which must be followed:

1. A client must be advised in the written retainer agreement whether, and under what circumstances, the lawyer might seek a security interest.
2. An application (motion) must be made to the court, on notice to the adversary, for approval of the proposed security interest.
3. The court may grant the application only after reviewing the parties' finances in the context of an application for legal fees.

The Court Rules also provide that a lawyer may not foreclose upon a mortgage placed on the primary residence while the spouse who consents to the mortgage remains a titleholder and continues to reside in the residence.

The nature of many matrimonial practices is that a lawyer occasionally represents a client without the current payment of fees for extended periods of time. Discuss with your lawyer how this situation will be handled before it arises. This will not be a situation unfamiliar to her or him. Ask your lawyer how the problem has been handled in the past with other clients. If your lawyer agrees to represent you accepting court-awarded attorneys' fees as payment or makes other specific commitments to you, ask that these be described in the retainer agreement.

If you receive a questionable bill and you are satisfied with the lawyer's services, a good approach to solving the problem amicably would be to contact your lawyer as soon as possible and ask whether there is a clerical error and request an explanation of the charges. It is in your lawyer's interest to resolve your complaint, as a satisfied client is often a source of other business.

To what extent are my conversations with my lawyer confidential?

The attorney/client privilege requires your lawyer to treat everything discussed between you and your lawyer as confidential. However, the privilege may be waived if you choose to discuss confidential information with a third party present or if you send an e-mail, text or fax to an email account, number or fax machine that is not used exclusively by the attorney and the attorney's staff. Be aware of the pitfalls, as well as the benefits, of technology. Also, beware of holding confidential conversations in settings in which your conversations may be easily overheard.

Is it a good idea to consult with a second lawyer before a separation agreement is finalized to determine whether it is a fair agreement?

While seeking a “second opinion” prior to signing a separation agreement is not unheard of, whether or not it is a useful practice is highly dependent on the circumstances of a particular case. The “fairness” of a separation agreement is not generally apparent from the document itself. A separation agreement is the result of the give and take of the negotiating process and the product of that process cannot be meaningfully evaluated without a full understanding of the whole course of negotiations. So, for example, a low figure for maintenance might appear unfair or inadequate unless it is understood that this was bartered for in return for a favorable division of the marital property.

On the other hand, if you are being pressured to finalize a separation agreement and you have serious doubts as to its fairness or its treatment of specific issues and you are not satisfied with your lawyer's responses to your concerns, it could make sense to seek another legal opinion.

What is divorce mediation? How does it work?

Mediation is a voluntary and confidential process in which an impartial party helps spouses to reach a mutually acceptable settlement. The general idea behind mediation is that the traditional adversarial approach to marital dissolution can be costly, counterproductive and emotionally punishing. Mediation may provide a way to resolve the various issues surrounding the dissolution of a marriage in a relatively amicable way. However, be aware that the mediation setting may also become just another forum for a wife and husband to vent their anger, frustration and other emotions in a counterproductive manner.

Your spouse cannot force you to participate in mediation, nor can you force your spouse to cooperate. To be successful, mediation requires that both parties to the divorce be committed to the mediation process and be prepared to openly discuss financial and other issues. Mediation is not recommended if there is domestic abuse, the threat of abuse or if one spouse is likely to “overpower” the other spouse in the mediation process. To commence the mediation process, a mediator mutually acceptable to both spouses is selected. Some mediators have professional backgrounds in the field of social work. A mediator may or may not be a lawyer but should not provide legal advice in his or her capacity as mediator. Unlike an arbitrator, a mediator cannot impose settlement terms on the parties.

Mediation has not achieved standardization and is practiced in a variety of ways. A mediator might combine separate meetings with each spouse with joint sessions to discuss such issues as property division, maintenance and custody. A mediator does not eliminate the need for legal representation. Mediators, who are not lawyers, often formally incorporate the participation of lawyers into their procedures. In any case, independent lawyers should review and finalize an enforceable settlement agreement.

Apart from the mediator, other professionals who may contribute or participate in the mediation process include accountants, social workers and psychologists, therapists or psychiatrists.

Please see the Resources and Readings Section at the end of this Q&A for further resources.

What is Collaborative Law?

Collaborative Law is a practice in which both parties and their attorneys agree in writing that each will use their best efforts and good faith to come to a mutually agreed upon settlement without resorting to judicial intervention. Four-way settlement meetings are conducted where each party and their attorney is present. The difference between collaborative law and mediation is that unlike mediators, collaborative lawyers are active legal advisors and negotiators for their clients. The structure of the four-way meetings is led by the attorneys, not the parties.

In order to find a collaborative law attorney, there are several options available to you. You can contact your local bar association and inquire about any collaborative lawyers in your area. You can also contact the International Academy of Collaborative Professionals to locate collaborative lawyers near you. Please see the Resources and Readings Section at the end of this Q&A for further resources.

Whichever method you employ to find collaborative lawyers, make sure once you do, you interview several of them and ask for their resumes. Excellent and reasonable questions to ask the collaborative lawyers are how many collaborative law cases they have handled, how many of them were terminated without agreements, and what training the collaborative lawyer has had in collaborative law, alternative dispute resolution, and conflict management. Do not assume that because a lawyer's name appears in an advertisement for collaborative law services that the lawyer is necessarily suited by temperament or background to represent you effectively.

If for any reason, once you and your spouse have engaged an attorney and began the collaborative law process, and cannot reach a settlement and therefore must seek a judicial remedy, your individual lawyers up to that point cannot represent you or your spouse in court. You and your spouse must obtain new counsel in the event settlement negotiations fail. The additional expense of bringing new counsel “up to speed” should be considered in determining whether the collaborative law process is the right approach.

Please see the Resources and Readings Section at the end of this Q&A for further resources.