On a regular basis, weekly if not daily, I take calls, mostly from lawyers, who have questions about the Rules of Professional Conduct or, more broadly, the law of lawyering. I do not give legal advice or express an opinion but I do listen and try to help the caller by providing informed (relatively informed, no more than that), and objective feedback, including asking questions to help both of us understand what’s involved. Some of the calls I take are not from lawyers. A small number are from the press. A fair number of calls are from people who are currently or who recently were represented by a lawyer and who feel that something is or was wrong. In the last two days I received two calls from unrelated people who had the exact same concern, a concern I have heard on a regular basis over the years. Until now, other than talking with the callers and describing their (limited) options, I have not known what to do. Of course I only hear one side of the story. I never know what the facts are. It is not my job to conduct an investigation. But the one fact that I think is worth “publicizing” (this blog resembles a private diary more than it does any kind of “publication” according to the statistics about the number of visits) is this: too often divorce litigants tell me that:
1. The legal fees were excessive. Most recently the figures were approaching $500,000 and $100,000. As the cases were described to me it is impossible for me to imagine how, in either case, the fees could in any sense be regarded as reasonable, but that means nothing. I don’t practice family law. In each case a judge was involved, i.e. presumably a judge approved the legal fees (but maybe not……maybe the parties agreed to them and a judge accepted the agreement.)
2. The tactics used by opposing counsel were of the scorched earth, litigation-is-war variety, including the filing of discovery requests (notices of deposition the purpose of which appeared to be to embarrass and harass) to which counsel for the caller filed repeated objections, which the court repeatedly sustained. But the cost of those motions and objections was born by the litigants, i.e. paid out of the marital estate.
3. The parties were forced to settle in one instance because the caller’s lawyer threatened to withdraw if his (or her) client did not accept “the settlement” and in the other, most disturbingly, the only thing the caller could afford to do was to accept an unfavorable (and unfair) settlement.
4. The lawyers were unwilling to challenge each other’s legal fees and, in any event, the cost of challenging legal fees was, well, another significant expense for which there was no reasonable expectation of overall success. In other words, the cost of raising the issue simply added to the problem rather than offering any reasonable hope of a solution.
5. The judges and lawyers seemed to be part of a club or of a culture of “business as usual” with an emphasis on settling the case and of moving on to the next one regardless of the cost to the litigants in legal fees.
6. No one – neither the judges nor the lawyers – seemed to care about the cost of the divorce process, a cost which is born by the litigants and their children and which can have a detrimental affect on the ability of people to “get on with their lives.” In short, the “system” seemed calibrated to assure that lawyers got paid and cases settled by “agreement” even if the agreement was entered into because the cost of not agreeing was simply too great, i.e. the parties were “litigated into submission.”
My guess is that this is one of those situations where it is all too easy for the professional participants (judges and lawyers) to point the finger at someone else either as the source of the problem or as being responsible for addressing it.
My hope (forlorn) is that this post will generate some discussion among the divorce bench and bar if only to ask whether the kinds of complaints I heard this week are symptomatic of a more general problem. What restraint on legal fees in divorce cases is there? At the outset of representation, is it generally accepted practice to tell all clients that legal fees reduce the marital estate, a fact which ought to be taken into account at the beginning of the process along with the fact that most cases settle? Does the legal system give an unfair advantage to endlessly aggressive lawyers who use the legal process to bludgeon the other side into submission not on the merits but through a battle of attrition? Is there sufficient oversight by judges on who bears the cost of the litigation is war approach? Should lawyers who attack, attack and attack and whose attacks are rebuffed by the court have to pay – out of their own pockets – for the cost of what surely is an abuse of process?
It seems to me that these and related questions are at least worth raising and discussing. It also seems to me ironic and terribly unfortunate if the legal process itself is, on occasion at least, a major obstacle to and a financial burden on people who for themselves and their children and for society at large need to get on with their lives in as healthy and stable a manner as possible.
IMPORTANT NOTE: I am not suggesting ANYTHING by reporting, without revealing any identifying information, that there is a widespread problem or indeed any problem other than that there is in these two instances and in others like them a problem of perception. Whether there are substantive problems I DO NOT KNOW. So why report on these two instances? To give voice – muted and anonymous – to a complaint that I have heard often enough to be of concern to me from an institutional point of view. Even if what happened in these two cases was reasonable and justifiable, shouldn’t the system do a better job of explaining itself and of setting litigants’ expectation realistically at the outset and as the case goes along. To tell a client that there is no cost effective way to control legal fees without incurring additional expense and with no reasonable prospective of a successful and practical outcome is to tell a client that the legal system is stacked against the person who can not afford the cost of litigation, or that the system is content to let the parties and their lawyers deplete the marital estate until someone or both parties surrender.