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Family Law	Collaborative Law	Litigation

Keeping the Faith of Our Clients and Avoiding “Negligent Referral” to a Family Law Attorney

Charles M. Goldstein, Contributing Author

Suppose you are about to complete a corporate merger or finalize a personal injury settlement (or whatever it is you take pride in accomplishing) for Joe Smith. Mr. Smith suddenly calls you in desperation for a trusted referral to an attorney who can represent him in a family court hearing occurring in one week. It is, in fact, not uncommon for a personal injury case or large business transaction to cause family discord. Joe’s impeccable business acumen and appearance may have given you no clues that his personal life is in a shambles.

People often procrastinate in responding to the invariably unpleasant nature of family court pleadings and your client may be no different. He is distraught that the demand for support appears untenable and precious time with a child may be lost as a result of the hearing. With no time to explore options or interview attorneys located via referrals by friends or relatives, your client is relying upon you for guidance in securing effective representation on very short notice.

Although "negligent referral" has not been recognized as a cause of action, a successful referral will, at no cost to you, generate tremendous good will. A poor referral may erase any good will created by your high quality representation. The client’s interest in hiring you for future matters or referring others may hinge upon the experience he has with the attorney you recommend. Family law is generally recognized as a sort of mutant being within the law, requiring specialized knowledge and a unique approach. What do you do?

The Problem

I recently met a colleague on an airplane and the discussion turned to referrals of clients for matters outside of our respective practice areas. I was surprised to learn that when an attorney in his firm needs to locate a family law attorney, he or she sends a mass e-mail to other members of the firm. The e-mail frequently lists only two criteria for the requested referral: 1. Gender; 2. Location.

While clients may be more comfortable with a specific gender for their attorney and appreciate convenience, these are not sufficient criteria to establish a qualified referral. Because your client will be entrusting a lifelong accumulation of assets, future earnings and potentially, custody of children, this is not a referral that one should make lightly or with a limited scope that does not truly relate to the attorney’s qualification to handle a family law matter. Family law is not limited to allocating cars and fielding phone calls about visitation conflicts. Situations common to family law include the identification of marital versus non-marital property, the equitable division of those property interests, the rights and responsibilities of parents, step-parents, and grandparents (and often, the children themselves), and the judgment to advocate settlement or trial on these and other issues.

When that treasured client suddenly faces a divorce or other domestic relations matter, upon what standards should one insist for referral to a family law attorney? When selecting a family law attorney, there are favorable and inadvisable criteria to consider.

Unfavorable Criteria

Location and gender, while important to many clients, are no indications of the effectiveness of legal representation. Nor is your friendship with that individual. Would you choose an attorney to orchestrate valuation of a corporation you spent a lifetime building, negotiate a stream of potentially lifelong payments with an ex-business partner, or conduct trial representation on every important aspect of your life, based on gender, friendship, or business location? While these criteria provide a good starting point, the right attorney for your client may be of the opposite gender and practicing on the other side of town.

Hourly Fee or Retainer

Another faulty approach is to base a referral upon the hourly rate or retainer charged by an attorney. Although finances are a primary concern for the individual facing a divorce, neither the retainer required, nor the hourly rate charged by the attorney are indicative of the cost-effectiveness of legal representation in a family proceeding. While virtually any issue in family law is handled on an hourly basis (a contingent fee is prohibited by the ethical rules, unless the matter is pure collection), some offices charge flat fees for drafting of standard documents, allowing more predictability. However, as with any area of law, neither the hourly rate charged, nor the retainer are accurate predictors of total fees. A high hourly rate does not guarantee competence, applicable experience, or efficiency. Conversely, a low hourly rate does not necessarily translate into a lower overall fee. An experienced and efficient attorney charging a higher hourly rate may log substantially fewer billable hours than the inexperienced attorney charging a lower fee. Thus, a lower bill and better representation may result from utilizing the attorney at the higher hourly rate. At the same time, not every case justifies use of an attorney billing $200.00 or more per hour.

Favorable Criteria

Utilization of a paralegal is essential for serving family law clients efficiently and effectively. Our area of practice particularly requires client handholding, often on issues that cannot be effectively addressed in the legal process. The experienced paralegal has the knowledge to explain those distinctions and make practical suggestions to the client, as well as express sympathy and direct the individual to other resources, all either at no charge or at a fraction of the attorney’s hourly rate.

A paralegal is trained in the drafting of pleadings and affidavits, and conducting legal research. Assuming the paralegal also has some writing experience and a talent for writing, the drafting of more complex documents and briefs can be accomplished at a reasonable cost, with the attorney dedicating time to formulating strategy and perfecting the documents to be submitted to court. This is particularly effective for the client who presents numerous narratives from friends and relatives to be transformed into discernible, concise and effective affidavits for presentation to the court in support of arguments for custody and visitation.

Computer Programs

Effectively handling a family law matter requires competence in handling calculations relating to cash flow, taxation and valuation of assets such as pension plans. The family law attorney must possess and be proficient in using a computer program that addresses these issues. One program of choice at this time is FinPlan, a divorce finance program which calculates child support obligations based upon various deductions, cash flow to each party after support payments, and the tax consequences to both parties resulting from spousal maintenance and some property awards. Although some of the calculations are less reliable than those which would be utilized by an expert on issues such as valuations of retirement plans, the program at least provides estimates which assist the attorney in approaching a negotiation of asset division and support payments.

In-office access to either Westlaw or Lexis/Nexis is highly useful for legal research. Family law cases are frequently heard on appeal. Although a small percentage are published cases, the varied and fine factual distinctions cause even unpublished cases to frequently be useful. Because divorce cases generally involve a limited number of primary issues, it is significantly likely that a relevant case has recently been heard by the Court of Appeals. If the attorney does not appear in court, laptop in tow, with cases to date on the hard drive (available through Modern Informational Retrieval Systems, a Minnesota-based company), a crucial case could be missed and the representation of a client seriously compromised.

Focus/Orientation

Family law is an area that has been commonly utilized by larger law firms as a "teeth-cutting@ experience. The rationale being that it is an area which involves the tools of litigation, but usually not the typical winner/loser framework of most civil litigation. Nor does it necessarily involve the sophisticated client who has been through the process numerous times and is distrustful of the green associate. In addition, many attorneys make the mistake of handling an occasional divorce merely because their client base naturally results in those inquiries. This sort of dabbling may not be particularly harmful if it involves placing an occasional bet at the racetrack, however the often irreversible damage it can cause to a family law client is inexcusable. For example, there are limited and fairly rigid criteria applicable to motions to re-open a Judgment and Decree, particularly as they relate to property settlements).

Knowledge of substantive statutory and case law applicable to family law matters, including adoption, the Soldiers and Sailors Relief Act, the Uniform Child Custody Jurisdiction Act, the Domestic Abuse Act, Hague Convention rules and requirements, among others, is essential. Add to this the applicability of the Minnesota Rules of Civil Procedure and the Rules of Family Court Procedure. Special rules applicable to family law appellate practice further complicate deadline requirements.

The attorney to whom you refer family law clients should have family law as a primary if not sole area of practice (sole is safer). He or she should also have sufficient knowledge of estate planning concerns to at least refer the client for those needs. Although there is no ‘specialist’ certification in this area, an MSBA Family Law Certification Committee was established this year. The committee’s first task will be to define the practice of family law in Minnesota, create standards of recognition of Family Law Specialists and become the certifying agency in Minnesota. The MSBA Family Law Section is likely to become the certifying agency in Minnesota. Until the certification process becomes a reality, one will need to question the attorney being considered for a family law referral as to his or her devotion to this esteemed by some, and despised by others, area of practice.

ADR Orientation

Unlike any other area of law, alternative dispute resolution and the creative results it can engender is well suited to most family law matters. Further, while enforcement is a chronic problem with family court orders, studies have found that individuals who have participated in a successful mediation process are more likely to adhere to the dictates of a mediated agreement and resultant legal stipulation and court order. Not only was the agreement satisfactory to both parties, each has a feeling of empowerment by having been a key contributor to the outcome.

Familiarity with arbitration is also key. Backlogged court calendars and the unpredictability of court calendars and schedules make arbitration an attractive resolution mechanism. The individual enmeshed in family law problems has sufficient stress without having to deal with the inconvenience and unpredictability of court proceedings.

The attorney practicing family law must be amenable to alternative resolution procedures. Although these procedures are not appropriate for every case, the various options available should be considered. Saving clients time and money is often the result.

Experience

Some family law attorneys never want to deal with custody issues, and others will refer cases requiring complex litigation over division of the value of a business. Still others customarily pledge to automatically withdraw if the matter requires litigation to resolve conflicts between the parties! You must have some familiarity with the attorney’s relevant experience in dealing with your client’s family law needs. For example, an out of state custody matter involving interstate compacts may fall outside the realm of the attorney’s knowledge and experience. If the attorney is offended by your inquiry, look elsewhere.

Discuss your client’s needs in the context of the matters you are handling for him or her. It is more likely than not that those matters will be affected by the outcome of the divorce. This will also give you a feel for whether the attorney has a handle on the subject area that needs to be addressed. In addition, this increases the likelihood of cross-referrals as mutual respect is developed.

Professional Contacts

Handling a family law matter often necessitates consultation with and retention of experts that may include appraisers, psychologists, and vocational evaluators. Does the attorney have familiarity with experts who would be a good fit for the client’s needs and be able to serve as effective advocates for the client, particularly if the case goes to trial? Question the attorney on the sort of expert likely to be needed for your client’s case and whether the attorney has established contacts with highly effective experts in that area.

Sensitivity and Guidance

Your client will be looking to a family law attorney not only for competent representation, but also for sympathetic interaction. The attorney who is jaded and behaves brusquely toward the client may not be a satisfactory choice. The family law attorney who has a reputation for making ‘mince meat’ of the opposition through brazen and reckless litigation tactics is not likely to be one who will treat your client in a desirable and respectful manner. Nor do such tactics generally result in cost effective representation or encourage peaceful co-existence post divorce (a desirable arrangement when children are involved). Though sympathetic listening and courtesy do not increase the likelihood of legal victory, the client appreciates this sometimes nearly as much.

Further, for the "Pogo-esque" client who has ‘met the enemy and it is us’, the family law attorney has the unique role of protecting the emotional client from him or herself. After all, arguing over valueless property to which the client is emotionally attached will usually lead to a legal bill the client will remember far longer than he or she remembers the effort the attorney made. A client demanding physical custody of children when he or she has serious drug and alcohol problems, or travels extensively for work while the soon-to-be-ex-spouse is a stay at home parent, never amounts to attorney fees well spent. The attorney needs to care enough to control the client without completely discounting his or her concerns.

Follow Up

Ask the client you referred if the attorney provided satisfactory service and make your inquiries sufficiently specific to determine the strengths and shortcomings of the attorney. This is one of your best gauges as to whether future referrals to the attorney are likely to be desirable. Be aware, however, that family law is an area in which bitterness sometimes predominates, and unmet and unrealistic expectations are sometimes vented on the attorney. Especially indicative of this problem is when the client has had three attorneys in succession, none of whom performed to the client’s expectations. Your questioning should be somewhat in depth if you are going to obtain useful information.

Conclusion

While most clients are sufficiently realistic to understand that attorneys are not familiar with all areas of the law, they reasonably expect that each of us has acquaintance with competent attorneys to refer them to when their needs fall outside of our realm of expertise. Let’s not disappoint them when they have placed their faith in our recommendations. Interviewing an attorney on all of the above issues to establish such a referral relationship appears onerous and time consuming. Yet, the benefits of doing so greatly outweigh the risks of referring to an attorney merely based upon gender, convenience or friendship.

Goldstein Law Office, P.A. is licensed to practice family law in the State of Minnesota: Hennepin County, Ramsey County, Dakota County, Anoka County, Carver County, Scott County, Washington County, Sherburne County, McLeod County and Wright County, Minneapolis, St. Paul, Minnetonka, Plymouth, Wayzata, Maple Grove, Hopkins, St. Louis Park, and surrounding Twin Cities suburbs.

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Minnesota Divorce and Family Lawyers

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