09 Jun Initial Consult with your Divorce Attorney – What Can You Expect?
Once you have found an attorney and scheduled an initial consultation, you may be feeling anxious. You likely have hundreds of questions and concerns buzzing around in your head, and may find yourself unable to process the answers as you actually meet with the attorney. Therefore, it is helpful to draft a list of questions before the meeting. Then, you can listen and absorb everything that the attorney has to say and clearheadedly address any remaining questions. While every attorney conducts the initial consultation in her own way, most first meetings will include the following general components.
First, the attorney will likely ask you to describe a little bit about yourself and your relationship, and why it is that you have sought a divorce attorney. A good consultation will allow you to talk about yourself, including your educational and employment history. If you have children, the attorney will likely ask questions about your children to help identify if your case features any unique issues such as a chronic medical condition or special educational needs. The first part of the consultation should feature you speaking more than the lawyer as you provide important context and historical information.
The attorney will likely then offer an overview of the process that lies ahead, and might provide some insight as to what you can anticipate with regard to the following: the divorce process; matters pertaining to any minor children of the marriage; a distribution of the assets and liabilities of the marriage; child support and/or spousal support; and the attorneys’ fees and costs. You should also learn about different ways your case can be resolved. The attorney should discuss methods such as a “kitchen table agreement,” negotiation between counsel, mediation, arbitration, collaborative law and litigation (going to court and allowing a judge to decide). Each means for resolving your case features certain pros and cons that can be explored during a consultation. Generally, families and children fare better when a divorce case is resolved by an agreement rather than a court order. Of course, if a party is being wholly unreasonable, litigation may be the only option for resolution. However, be weary of the attorney who insists that litigation and court order are the preferred means for resolving your case. Most reasonable people would not want to leave critical decisions regarding their children and their life’s work to a stranger in a black robe!
Essentially, the meeting will be an information-gathering session for both the client and the attorney, as well as an opportunity to relay any expectations for the attorney-client relationship moving forward. The attorney might provide you with a list of documents and information that she will need, and will discuss your preferred method of contact moving forward. Having some documents before or during the initial consultation can be extremely helpful. Pay stubs for both parties, recent tax returns, account statements for retirement and investment assets, mortgage statements, and appraisals of real estate or personal property can give the attorney the information she needs to provide more comprehensive advice during the initial consultation.
As noted above, a crucial aspect of the attorney-client relationship is the cost to retain the attorney – you must have a clear understanding of how you will be billed, how much the case may ultimately cost, and the attorney’s expectation for payment. During your initial consult, the attorney should explain her approach. For instance, the following questions should be addressed: 1) Will the attorney require a retainer, and if so, how much? 2) What is the attorney’s hourly rate, and in what increments will you be billed? (Note: Attorneys generally bill on tenth of the hour increments, meaning that they account for their time in 6-minute installments, but there are some firms and attorneys that only bill by the quarter-hour rather than by the tenth of the hour.) 3) What rate will you be charged for work performed by paralegals or administrative staff? 4) If the retainer is not used in full, will it be returned to you? 5) Can a payment plan be arranged? 6) Should you expect contribution to your attorney fees by your spouse?
Domestic relations attorneys are generally ethically prohibited from being paid on a contingent basis. Unlike other types of lawyers who take a percentage of a settlement as their fee (and thus only get paid if they “win” the case), family law attorneys must use other billing methods. Making attorney fees contingent on a divorce settlement creates a conflict of interest between attorney and client—it may be best for the client to settle for a certain portion of the marital estate, however, if the attorney’s fee is dependent on a larger award, the attorney might discourage settlement to the detriment of the client. Most family law attorneys bill at an hourly rate determined by the market and years of experience. During the consultation, it is critical that you ask any and all questions you have regarding the attorney’s billing practices.
If all goes well and the client decides to move forward with hiring the attorney, then an Engagement Agreement will be prepared to formalize the relationship. However, if the client decides not to hire the attorney, it is important to understand that the attorney will still owe a duty to the client. The information exchanged during the consult will remain entirely confidential and a permanent record will be kept as to the fact that the attorney met with that individual. As a result, the attorney will be “conflicted out” from meeting with or representing the client’s spouse at any time in the future. Due to the strict rules of confidentiality and the ethical obligations bestowed upon attorneys, individuals approaching a divorce should feel comfort in knowing that they can speak openly and honestly with prospective attorneys without any negative repercussions. Additionally, the client should feel absolutely no pressure to hire the attorney, and can therefore explore all options available to her.
The attorney/client relationship is one that requires complete confidence and cooperation. Both the client and the lawyer need to feel mutual trust and understanding. The best means for determining whether the relationship is likely to be a success is in the initial consultation.
Stay tuned for our next post in this series, which will address gathering and exchanging information both informally and through a process called discovery.