Chapter I
THE ATTORNEY/CLIENT RELATIONSHIP
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
| Contents | Married? | Jurisdiction | Grounds | Children | Sep Prop | Mar Estate | Alimony |
| Fees | Extrajuris | Procedure | Settlement | Trial | Misc | Shortcut | Moving On |
Do I need a lawyer? Object of the relationship Choice by the client Can I choose a specialist?
What about lawyer ads? What about quality firms? Do I need excellence? How should I choose?
Choice by the attorney Confidentiality Exclusivity Uniqueness of your case Decisions Communication Attorney fee
contract Written or oral Expenses Contingent fees Flat fees Hourly charge rates
Time required Results obtained Minimum & nonrefundable fees
Disputes with your attorney Attorney's liens Retaining lien Charging lien
It is essentially your attorney's job to advise you candidly about the law as he/she considers that it applies to your situation and to litigate your case to the best of his/her ability and in an ethical fashion. It is essentially your job to be absolutely straightforward with your lawyer about the facts, to cooperate in obtaining needed information, and to make settlement and some other decisions as your case progresses. Your relationship with your attorney will be enhanced if you know more about it.
HEY, NOT SO FAST! Do I need to have an attorney's assistance
In divorce litigation? Isn't it kind of simple? Top of Chapter
Need is a relative term. When you have plumbing problems, you are not required to employ a plumber. You may attempt any needed work yourself, if you choose. You are not required by Oklahoma law to have an attorney advise and represent you in a divorce case. Concerning the simplicity of divorce settlement and/or trial, read Loudenback's Lay Divorce Guide and judge for yourself. You might want to take a quick glance at Chapter 15, Shortcutting the System.
Object of the Relationship Top of Chapter
Your attorney is merely an extension of you. Your lawyer's object is to accomplish the legal results you want which you could theoretically accomplish if you had no attorney. Were you doing your own plumbing, in your frustration, you might have occasion to want to beat a pipe with a heavy wrench, just as I have done under such circumstances. If a plumber would do that, the reason would probably arise from his knowledge and experience that it would help solve the problem.
A competent divorce lawyer will not see the object of divorce court as being the setting for
one last blood-letting between marital partners for the purpose of satisfying personal
grievances which will not affect the outcome of the litigation. That does not mean that
unpleasant matters should not be gotten into in a divorce case; it does mean that, if they are, it
should be for legal purpose. Divorce court is a place to accomplish a legal result, not a moral
or personal one.
Mutuality - Attorney and Client Top of Chapter
The attorney and client mutually choose each other. Attorney selection is important to the client. Client selection is important to the attorney. Given the intimacy required concerning Family Law representation, it is desirable that the match be a good one.
Choice by the Client Top of Chapter
A client should choose his/her divorce lawyer with great care. But, how might you go about doing that?
Can I Choose A Specialist? Top of Chapter
The answer is, "Yes, you can; but, no, you can't." Yes, there are excellently qualified Family/Matrimonial Law attorneys in Oklahoma City, Tulsa and throughout the state. Many of them devote almost all, some even all, of their practice to Family/ Matrimonial Law. No, none of them are objectively recognized by the Oklahoma Bar Association as specialists. Further, none of them can ethically tell you that they are specialists.
With the exception of patent/copyright attorneys, the Oklahoma Bar Association provides no means to attorneys to acquire "certification" as having particular expertise in any field of law. That means that no attorney may properly advise you (without risk of Bar discipline) that he/she is "certified" or a "specialist" in Family Law. Compare the medical profession, which certifies that certain physicians have special expertise to perform certain types of medicine. The Oklahoma public will have to wait for that type of knowledge concerning the legal profession.
What this boils down to is that one attorney could properly advise you concerning the skills, expertise, etc. of some other attorney, e.g., lawyer John Jones could tell you, "Mary Doe is specializes in Family Law and in my opinion she is an expert in the field." But, Mary Doe is prohibited from saying that to you about herself.
What About The Ads? Top of Chapter
Many lawyers accept divorce representation, which is no secret to anyone who reads the television program inserts to our Sunday newspapers or peruses the telephone yellow pages. While attorneys may not represent themselves to the public as "specialists," lawyers are not generally prohibited from telling you that they want your business. You must judge for yourself whether the equation, Solicitation = Competence, has any logical validity. It does tell you that the lawyer accepts cases in the field and wants your business.
What About "Quality Firms"? Top of Chapter
Law firms that have established reputations for excellence usually earn that status through hard and good work for their clients over a significant period of time. If the reputation was based upon excellence in Family Law practice, your choice would have logic to it. If the reputation is for achievement in some other legal discipline (e.g., corporate practice, tort claims, etc.), there is a probable flaw in your logic.
In the final analysis, importance to you lies with the individual attorney you select, not with the organization within which the attorney works.
Do I Need Excellence? Top of Chapter
Yes, relative to the complexity and difficulty presented by the issues in your case. You need an attorney who has the capability of performing the associated work well - if your case has any complex child custody, property or support alimony issues, you would do well with a lawyer more seasoned and skilled in divorce practice. However, if your case is a relatively simple, you don't need to pay for the hourly charge rate that such lawyers charge - but you still need a lawyer who is competent in divorce practice, even if the lawyer is not as experienced or skilled as some other "divorce" or "custody" lawyers in the community.
Excellence in divorce practice requires solid knowledge of a complex and rapidly changing legal discipline. It can involve non-legal fields, such as psychology (you want a lawyer who knows the difference and can examine a child custody psychological evaluator upon the different psychological tests such evaluators utilize), or the skill and knowledge to cross-examine the other party's accountant or other expert witness as to the dollar value of "good will" which that expert has attributed to a business owned by one or both spouses. Divorce practice often requires adept negotiation abilities. It may require excellence in preparation for and handling of trial to a well-educated jurist. And, divorce practice requires more than a tolerance for working with clients at an exceptionally intimate level.
You've Told Me Nothing - How Should I Choose? Top of Chapter
It is said, and with good reason, that the best recommendation is from someone whose opinion you have reason to value. The "someone" may be an acquaintance who has been represented by the attorney you are wondering about, or it may be a lawyer who you know to have an excellent reputation in his/her own right. Even if that attorney does not become involved with divorce litigation, he/she will have knowledge of various attorneys' reputations within the legal community.
Other information may be obtained from the lawyer you are considering to represent you. There is no reason for shyness. What percentage of the lawyer's practice is in the field of "Family Law?" How much continuing legal education has the lawyer received in Family Law during the past year? (In order to maintain good standing with the Oklahoma Bar Association, an Oklahoma lawyer is required to accumulate a minimum of twelve continuing legal education credit hours each year, although the education may be in any field of law.) Is the lawyer active in professional organizations which are specifically concerned with Family Law? In Oklahoma, you might ask about the attorney's involvement with the OBA Family Law Section, and, if you wanted to test it out, call the Oklahoma Bar Association in Oklahoma City (405-524-2365) and ask for the name and phone number of the current OBA Family Law Sections Chair, and, then, call that person to obtain his/her opinion about the skill of the lawyer you have in mind. (Remember, while a lawyer is not permitted to tell you that he or she is a "specialist", some other lawyer can tell you his/her opinion about some other lawyer). A lawyer does not become Chair of the OBA Family Law Section without possessing expertise and interest in family law - and that person will likely be willing to share his/her thoughts with you.
If you have a friend who has recently experienced divorce in circumstances reasonably similar to your own, speak with him/her to get an idea of how his/her lawyer performed the needed tasks - did the lawyer return phone calls promptly? Did the lawyer appear to work hard and handle the tasks well? How well did the lawyer attempt to settle the case and how did the lawyer do in trial? These are but a few of the questions you might want to ask.
Choice by the Attorney Top of Chapter
An attorney is not required to accept the representation of a client just because the potential
client asks it. The lawyer will normally want to become acquainted with a client and his/her
circumstance before agreeing to accept litigation representation of the client.
It will be important to the attorney to know if there are any considerations present which prohibit his/her acceptance of the case. Some such considerations are possible conflict of interest; the insistence of the potential client in pursuing an illegal or improper course of action; and any other reason which would disable the lawyer in thoroughly and aggressively representing the client.
And, to be sure, after resolving that no causes prevent the lawyer's acceptance of a case, a lawyer - whose livelihood depends upon his/her clients paying for legal services rendered - will want to know something of the prospective client's willingness and ability to pay for legal services which would be required to be performed. The lawyer knows that the client will rightly expect legal services to be performed skillfully, timely and in accordance with the goals and objects of the client. If a lawyer accepts a case, these become his/her legal duties. The lawyer has expectations of his/her client when this is done - payment by the client of the legal fees due when payment is billed.
Many a good attorney/client relationship goes sour when an expectation surfaces in a client who expects the lawyer to deliver his/her services timely, promptly and skillfully but who does not feel a corresponding need to pay the bill when it is presented. A lawyer, like a client, resents being taken advantage of, of being used. Such a feeling by either the lawyer or the client will typically end the relationship, or, at best, cause it to linger on in a fashion other than what it ought to be.
Confidentiality Top of Chapter
Generally, an attorney may not reveal information conveyed to him/her without client consent. But, there are exceptions. For example, if a client reveals that he/she is about to commit a crime or that the client has committed perjury, attorney dis-closure without client permission may be required.
Your lawyer needs to know what you know. If you want your attorney to be fully prepared to assist you, you should make a thorough and honest effort to advise him/her about any skeletons in your closet, whether a particular closet is asked about or not. Do not be fearful to tell your lawyer about your past. He/she is not your judge in any sense of the word and should not care to be. His/her sole object is to assist you, whoever it is that "you" are.
You do not want your lawyer to learn any unpleasantness about you in the midst of trial from some other witness. Believe me, you do not want that to happen. You should tell your lawyer everything asked. If not asked, and you know that some possibly important information has not been mentioned, mention it. Ambushes can be fun, but only if you are the ambusher.
The attorney/client relation is an exclusive one. It is not possible that your lawyer represent your spouse in the litigation, even if you and your spouse may be in agreement as to how the divorce litigation should be resolved. Legal advice is invariably asked of the lawyer, in addition to the accomplishment of the task. A lawyer may not advise both of the adversaries in the same case. Occasionally, a spouse may decide to represent his/her interests personally, without an attorney. That is strictly up to your spouse. See Chapter 15, Shortcutting the System.
Uniqueness of Your Case Top of Chapter
Your case is exactly like no other. You may have well-meaning friends who will advise you about what you should do, not do, or expect in your divorce litigation. Please take to heart what was said in the Introduction. In addition to the actual facts which will vary from case to case, numerous other factors will vary, also, such as credibility of witnesses, attitudes of the assigned judge, or difficulty in working with your spouse and/or his or her lawyer. While others may advise you, you will be doing yourself a disservice to think that your case will or should be decided like another case with which you are familiar.
Decisions Top of Chapter
Both the lawyer and the client have decision-making roles within the relationship. All settlement decisions belong to the client. See Chapter 12, Settlement Negotiations. At various times you will be advised concerning the taking of one position or another.
Your lawyer should advise you if he/she thinks your general or specific positions are realistic or not and/or if your interests would be better served by altering what you want to ask for in settlement or in trial. You must decide whether to follow your lawyer's recommendations or not.
Generally, the "What" decisions belong to you. The "How" decisions belong to your lawyer. The "How" includes settlement and trial strategy and representation. A lawyer will often want the client's input about the "How" and will ask for it. But, in the same sense and for the same reasons that you would not instruct your physician in the technique of performing surgery, it is important that your lawyer have the province of decision-making concerning "how" to accomplish "what" you have asked him/her to do.
While you would have authority to instruct your attorney in these areas, your lawyer might rightly withdraw from your representation, should your instructions to him/her become a problem in the proper handling of the case.
Communication Top of Chapter
It is important that you understand what is going on in your case. Loudenback's Lay Divorce Guide will explain much of the case structure to you. Even though you will not want to become a nuisance by frequent and unneeded communication, you should not hesitate to call your attorney when you do not understand something or you have new information to pass along.
Your call should be answered quickly, although it might not be on the same day if your attorney's other business prevents that. Lawyers' policies will vary concerning telephone contact after office hours, and you should know the preference of your own attorney.
It is important that he/she know how to reach you. You need to keep him/her advised of any telephone and mailing address changes.
Attorney Fee Contract Top of Chapter
How much will it cost? Unless your attorney is willing to agree to charge you a "flat fee" (the same fee amount regard-less of how much time it takes to do it), it is absolutely impossible for any attorney to predict the answer to that question. Your total fee might be based upon many different factors, all of which should be stated at the beginning of the attorney/client relationship in an attorney fee contract. Concerning the possibility of recover attorney fees and expenses against the other litigant, see Chapter 9, Attorney Fee & Expense Awards.
Written Or Oral Top of Chapter
Whether written or oral, the precise terms of the attorney fee agreement should be determined early in the relationship. Ordinarily, that should occur upon the first communication between the attorney and client. While the contract need not be in writing, the Oklahoma Rules of Professional Responsibility for lawyers states a preference for a written agreement and written agreements are preferred by many attorneys and clients because of their exactness, certainty and provability. Others prefer oral agreements. Either way, the client should be informed early in the relationship of the exact basis upon which the client's fee will be determined. The client should insist on an exact under-standing of his/her liability for fees.
Expenses Top of Chapter
Usually, expenses will be required to be incurred in the course of the litigation. This may be as simple a charge as court filing fees to the court clerk (presently $79.00) and process serving fees (typically $30.00 - $40.00). It may be as complex as the cost associated with a complete psychological evaluation of parents and children concerning a child custody dispute (ranging from about $3,500.00-$8,000.00). Other significant expenses might include those of property and business appraisers (the cost will vary depending upon what is being evaluated -- a residential real property appraisal costs around $300.00, but the appraisal of and testimony in court concerning a business valuation may be as much as $5,000.00 to $15,000.00 or more), deposition expense of shorthand court reporters (a one hour deposition costs around $350.00 for the court reporter, plus your lawyer's time and charge) or an accountant's or actuary's fee to determine the present value of retirement accounts. While it is not required (unless a court orders it) that you incur such expenses, and depending upon your need that such expenses be incurred, your lawyer may recommend that such expense be undertaken.
A lawyer is not required to incur such expense on your behalf - if they are incurred, the client must pay them. An attorney is not obligated to advance a client's expenses and should not be expected to do so. A thoroughly prepared attorney/client fee contract should cover the possibility of litigation expenses and make clear the client's liability for them.
Contingent Fees Top of Chapter
Contingent fees (fees strictly based upon the amount of recovery obtained for a client) are absolutely prohibited in divorce cases. The entering into such a contract by an attorney subjects the lawyer to disciplinary action by the Bar Association. However, contingent fees may be agreed to in post-divorce proceedings to collect unpaid child support or alimony.
Flat Fees Top of Chapter
Although some attorneys are agreeable to performing divorce legal services upon a flat fee basis, this author is unable to recommend such an arrangement. The variables in each divorce case are simply too great to be capable of realistic prediction concerning the amount of time which will be required to represent the client properly. Consequently, a flat fee may either be too low or too high, relative to the amount of time required to fulfill the obligation in a proper manner.
Hourly Charge Rates Top of Chapter
Hourly charge rates will vary considerably between and within Oklahoma's cities and
counties. If your case is relatively uncomplicated, you might do very well with an attorney
who is recommended to you who has only a few years' of family law practice experience, and
the hourly charge rate may be in the range of $100.00 to $125.00 per hour. If you want or need
and are recommended a very experienced and established family law attorney in the
Oklahoma City or Tulsa areas, you should expect to pay $175.00-$200.00 per hour.
Emphasis is placed upon the coupling word used above, "recommended." It would be an error for you to assume that just because an attorney charges a particular rate, he/she is what you want. An attorney may legally charge whatever hourly rate he/she wants and someone agrees to pay. Hourly charge rate, in and of itself, is not necessarily indicative of the attorney's expertise and interest in divorce litigation.
Time Required Top of Chapter
As stated, the amount of time which will be required to properly represent a client in any particular case is incapable of accurate prediction. An extremely simple case might require only 6-10 hours of time if everything moves smoothly. An exceptionally complex one might require 200 hours of time or more. After your attorney has conducted a careful review of all significant matters, a general prediction range may become feasible, if the assumptions upon which it is based remain valid.
But, assumptions do not always remain correct. For example, a relatively simple divorce case in which it is agreed that the mother will receive child custody becomes quite a different case if the mother comes to claim that visitation should be restricted because of the father's alleged child abuse. The actual time which will be required to represent a client cannot be ascertained until the case is quite, quite finished.
Results Obtained Top of Chapter
Some attorney fee contracts around the country properly contain a provision which, in part, provides for a "bonus" fee, over and above the contracted hourly rate, if exceptionally good results are obtained for the client. The Oklahoma Supreme Court has determined that the same is tantamount to a contingent fee and is therefore improper for Oklahoma attorneys.
Minimum Fees and Non-Refundable Retainers Top of Chapter
Most if not all attorneys will require the payment of a minimum fee - the lowest possible fee they will charge for a client's representation -- to be paid upon the attorney's agreement to provide litigation representation. The amount of such a minimum fee varies considerably, based upon the attorney's policy, his/her credentials and the complexity of the case.
Television guide ads seem to place the low end for any attorney at around $200.00. This author's experience with established family law attorneys places that number between $750.00-$5,000.00, depending upon the complexity of the case and attorneys' policies.
May minimum fees paid in advance of representation be agreed to be non-refundable? The Oklahoma Supreme Court has not addressed this issue in either a bar disciplinary or civil litigation context, and only the Oklahoma Supreme Court has the status to determine such issues for all of the state's lawyers. One opinion by an Oklahoma Court of Civil Appeals (an intermediate appellate court in Oklahoma) has determined that such provisions violate the Oklahoma Rules of Professional Conduct for attorneys and are, therefore, not valid. Regardless of how this issue may be ultimately determined by the Oklahoma Supreme Court, as a practical matter, since an attorney's duties at the onset of the litigation will usually be rather time consuming, a minimum fee of $1,000.00 to $1,500.00 will be exhausted rather quickly in most cases.
Disputes with Your Attorney Top of Chapter
Communication between attorney and client normally solves problems which arise. Occasionally, it does not. If problems persist, the point may regrettably come to be reached that either the lawyer or the client wishes to terminate the relationship.
An attorney's termination of the relationship is based upon the attorney's ethical and legal requirements and the status of the pending litigation. Generally, an attorney may not withdraw from pending litigation without court approval. It is not usually difficult to obtain such approval unless the case is scheduled for imminent trial.
A client's right to terminate the services of an attorney is generally more absolute, although, if the case is scheduled for imminent trial, the court may refuse to release the attorney unless another has been obtained by the client and delay will not result from the withdrawal.
Attorney's Liens Top of Chapter
Oklahoma law allows attorneys two types of liens to secure payment of their fees. One is called a "retaining" or "possessory" lien, which may attach to property of the client which is in the possession of the attorney. The other is called a "charging lien," which is a lien against the client's recovery in the litigation. It is desirable, but perhaps not necessary, that these matters be discussed in the attorney fee agreement. Often, clients are unaware of the existence of such liens until they are asserted against the client's property by the attorney.
Retaining Lien Top of Chapter
In most cases, the client will have delivered to the attorney various documents and records concerning the divorce action, e.g., bank records, deeds, etc. Upon occasion, the attorney may also be holding property of the client which has more tangible value, such as money deposited into the attorney's client trust account to cover anticipated fees or litigation expenses. Generally, the attorney is entitled to retain possession of such property until payment is made for legal services which have been rendered.
It is legally unresolved in Oklahoma whether an attorney may properly assert such a lien if litigation is pending and the property is required by a successor attorney for proper representation of the client's interests. This author's opinion is that copies of documents required for client representation in pending litigation should be surrendered and a retaining lien not be asserted by the attorney in that particular context. However, if no litigation is pending in which the documents are needed, there is little, if any, doubt that an attorney's assertion of such a lien is legally and ethically proper under current law.
Charging Lien Top of Chapter
If an attorney has filed a document in the pending litigation which states, "Attorney's Lien Claimed," or other words to that effect, the attorney may have a valid claim against judgments secured by the attorney against the other litigant, concerning his/her unpaid legal fees. A litigant who ignores such a lien may have liability to the attorney for amounts paid directly to the attorney's client.
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