Where Does the Buck Stop?
The high cost of divorce
By Jennifer Jackson, JD (Family Law News, Vol. 16, No. 3)
Scene: Lawyer's Office: First Consultation
Players: Family Lawyer, Client
Client: How much is this going to cost me?
Attorney: Who knows? It will depend on your spouse, the attorney she chooses, the judge, and you.
Client: How so?
Attorney: Frankly, your divorce will take forever and cost a fortune if:
- Your wife hires attorney A, because A is sloppy and never gets around to anything;
- Your wife hires B, because B litigates EVERYTHING and her personal goal (nothing personal of course) is to make your life and mine as miserable as possible;
- Your wife hires C, because C's personal style is to settle "on the courthouse steps";
- Your wife hires D, because D and I hate each other's guts;
- We get Judge E, because E never wants to make a decision, makes you brief and rebrief everything, makes you come back to court a hundred times, and never wants to punish other attorneys or clients for bad behavior;
- Your soon-to-be-ex-beloved is out for your blood, because she'll retain someone who will be delighted to draw some for her;
- You are out for blood yourself, you balk at following my advice, you want to nitpick at everything and run the case yourself, you want to hide your income and you want to WIN every point at any cost.
Client: Who's going to pay for all this?
Attorney: You are: as Anthony Trollope wrote in 1867 in The Last Chronicle of Barset : "Always remember...that when you go into an attorney's office door, you will have to pay for it, first or last."
What's wrong with this picture?
What's wrong is that family law fees and costs are out of control - out of anyone's control it seems. Whose fault is it?
Are we over-legislated? Are there now just so many requirements that there is no pro per litigant alive today who can successfully get a divorce? Is the adversarial system simply the wrong forum for divorce? Are attorneys or clients actually being punished for troublesome behavior? Is anyone out there listening?
I don't pretend to have answers, especially in view of the fact that none of us is immune from being dragged down to the level of depravity of the most depraved player, becoming part of the problem rather than part of the solution. What follows is simply put forward to elicit debate and constructive thinking along these lines.
With the Attorney: Conduct Unbecoming...
Many believe the "buck" stops with the attorney. Would-be specialists were confronted on this year's examination with Question 4-D, which laid out a hypothetical dissolution case in which the behavior of Husband's counsel was truly outrageous - but unfortunately not atypical. He "showered" Wife's counsel with discovery requests, took multiple depositions and filed multiple motions, ignored Wife's offers of settlement, refused to negotiate, then refused to grant a continuance when Wife's attorney became seriously ill. Wife's attorney was then forced from his sickbed to prepare and appear at trial, the result of which was identical to Wife's first settlement offer. Wife's attorney sought fees and sanctions from both Husband and his counsel. The call of the question was: What result?
My answer would have been: zilch. The attorney - and the client - get away with it. Yet, there is light at the end of the tunnel from the court in Daniels (93 C.D.O.S. 8016) October, 1993, which did indeed impose limited sanctions on this very behavior, opining "It is a sorry record of the sort which brings the legal profession into disrepute."
Who got punished in Daniels? The client. Finding that "Section 4370.6 explicitly makes parties liable for the obstreperous actions of their counsel", the panel affirmed the trial court. However, the panel went on to acknowledge the potential unjustness, noting that - in the trial court - sanctions weren't sought against the attorney, and [weakly]:
As between counsel and her client, of course, it would seem only fair that counsel bear the cost of the award occasioned by her conduct unless that conduct was ordered, approved or countenanced by the client."
This dictum is destined to be an extremely well-kept secret.
With the Attorney: Self Regulation
If the "buck" stops with the attorney, is anyone doing anything about it? As we are painfully aware, the State Bar Disciplinary Committee has stepped up its efforts to punish bad actors, sometimes uncomfortably zealously ["...there but for the grace of God..."]. In a positive vein, Family Lawyers are struggling with and making herculean efforts to self-regulate attorney-client and attorney-attorney responsibilities and conduct.
In the May 4, 1993 report of the Committee to Examine Lawyer Conduct in Matrimonial Actions [New York], the Hon. E. Leo Milonas, chair of the committee, noted that: "As the work of our Committee progressed over a nine month period, it became abundantly clear that there is a compelling need for prompt reform." The committee made a laundry list of recommendations.1 Similarly, the American Academy of Matrimonial Attorneys recently published its own list of recommendations, put forth after exhaustive study and review.
What result? The jury is still out.
With the Attorney: Removing Obstreporous Counsel
If the "buck" stops here, can we consider a process by which an attorney can be "recused" for reasons other than conflict of interests? Perhaps an incredibly naive analogy, but why not charge the dissolution court with the duty to protect the marital estate from the jaws of the over-litigating attorney, just as the probate court is charged with the duty to protect the estate from the unscrupulous executor.
The Court in Estate of Frances B. Hammer (93 C.D.O.S. 8276), November 4, 1993, overcame the tough abuse-of-discretion standard to reverse a trial court which did not remove an executor who had engaged in improper conduct.
What is the fundamental difference between a marital estate and a probate estate that would prevent similar rules from applying to both? Is it that the executor acts on behalf of the will and the beneficiaries and cannot take a position adverse to a beneficiary? Is it a presumption that there is one deceased party in a probate action who cannot speak to his interests as opposed to two parties in a dissolution action who are presumably capable of doing so? Why not hold the estate itself out as an entity to be protected in either case? Why is this not similar to the court's charge to protect children independently of each parent's respective interests, when the children are not parties?
A court that finally sanctions one party at the end of the case, in an abstract sense, simply depletes the estate further. Why not remove an attorney who is wasting the community estate by aggregious behavior? Should behavior which would subject an attorney to such removal be legislated? The subject of local rule? Local policy? State Bar rules or policy?
If so, how would behavior be measured? What is "over the line"? Who decides? And what about the senile or incompetent attorney who is just no longer capable of representing people?
Who would have the authority to remove an attorney? The other attorney, with one automatically granted challenge per case or with unlimited ability to remove "for cause"? The Court, for abuse of the behavior described in the applicable policy/rule/statute/regulation? A peer review panel?
Having said all this, trying to think of ways to get rid of opposing counsel is probably just about as useful as a game of "Old Maid" or just trading attorneys in the middle of the case (except that we would inherit the "fruits" of all of our own endearing litigation tactics and literally get a taste of our own "medicine"). The repercussions for malpractice if a recusal process were available are staggering, as would be the sheer cost of the "recusal" process itself, never mind the fees you have already wasted.
With the Court: Actually using those code sections
Many believe that the "buck" stops with the Court - the only entity with any actual power to affect change. Why not USE those Code sections? Put some teeth into them; do some investigation into who is causing the problem and then come down hard? It actually could work. The judge says "Look: this is how we run family law in this court room, and if you don't do it this way, you will get sanctioned." And then do it. In Alameda County, attorneys fall all over themselves to get documents to you because they know what Judge Duncan's position is on disclosure and they want to look good.
Believe it or not, judges know which attorneys mostly wear white hats and which attorneys mostly wear black ones [regardless of the hats their respective clients are wearing]. A judge's ability to impact the situation is limited by whether or not an attorney makes a thorough and clear case for sanctions (and delineates clearly whether it is the other party or his counsel who is at fault), what the bench officer has observed, and how far the judge can go before the habitually offending attorneys simply will challenge the judge who punishes them.
How far can or should a judge go with sanctions and beyond? Should there be a separate fee court, dealing with just these sorts of issues? Should a court be able to report an attorney to the state or local bar or to this fee court or to any other administrative or peer committee? Suggest to a litigant that he or she should arbitrate his or her fees with that attorney? Get another attorney?
It is comforting to hear the judges admit in this issue's Judicial Survey that the identity of the attorney who is making a request for fees - whether or not as sanctions - makes a difference. An attorney's reputation for reasonableness, courtesy and professionalism will lend credibility to his declaration as to the questionable conduct, the amount requested or to need for the work generally.
Judges are beginning to make positive use of the provisions of Civil Code section 4370.5 to control and manage fees. An ingenious and constructive use of fee management comes from The Hon. Thomas Ashworth, who will provide a "bonus" to attorneys who bring the case to a close constructively, efficiently, cheaply and quickly.
The definitive and perplexing question of whether judges should be involved in family law at all is being hotly debated in many areas of family law [child support, discovery, et. al.]. Removing family law from the adversary process/court system would have an anomalous result: on the one hand, the opportunity to actually and literally "over-litigate" would disappear. This advantage would be swiftly crushed by the absence of power and authority to regulate, by the opportunity to spend just as much time preparing for administrative review of your case and as you would prepare for litigation, and by the ability to be just as nasty in the process.
With the Court: Putting a stop to overconducting a case
A costly problem not necessarily related to conduct is the overconducting of a case: looking under every rock. One colleague suggested that the Court limit the amount an attorney could charge in a given case to a percentage of the total value of the estate. This standard is obviously simplistic, and doesn't contemplate a myriad of vital and substantial issues, such as custody and domestic violence.
Other suggestions are assigning a value to a particular task, refusing to allow battles between experts, and other ways for judges to delicately suggest to you how you should be running your case - something your malpractice carrier probably wouldn't accept as a defense.
With the Litigant
Many believe that the buck ultimately lands in the litigant's lap, in more ways than one. In just about every case, the burden falls on the client, regardless of the reason for the outrageous fees.
In many cases, the blame lies with the client as well. The fact that it is a mistake for an attorney to identify with his client's position doesn't change the fact that this position is often unreasonable and unshakable.
Ultimately the client is - in theory, at least - in control. The obstreporous client often chooses an attorney to match - if she does not succeed the first time, she will change attorneys until she does. Until things change, the client is entitled to the attorney of his or her choice, even if that attorney is milking the case for all it is worth. Even if the attorney is not acting on the client's instruction, the client is free at any time to change the conduct of the case by changing attorneys. Admittedly, sometimes the client is the last to know, but this defense pales when you consider that the client has to be reading - and believing in - all of his own press releases, pouring out of his attorney's office as nasty letters and vicious pleadings.
Again, the answers are unclear, but we must embark on serious dialogue if we are ever to see change - or, indeed, if we are to save the profession from collapsing under its own weight. For divorce is simply beyond the ability of the majority of our clients to manage financially; their most painful and difficult struggle is increasingly not with the devastating emotional burden of the divorce, but with paying for it.
A prospective client must be provided with a "Statement of Client's Rights and Responsibilities" prior to signing a written retainer agreement. The attorney shall obtain a signed acknowledgment of receipt from the client. There shall be a written retainer agreement between the attorney and client setting forth in plain language the nature of the relationship and the details of the fee arrangement. This agreement shall be filed with the court and a copy given to the client. A nonrefundable retainer fee is prohibited. No attorney shall take a security interest, obtain a confession of judgment or otherwise obtain a lien from a client, without prior notice to the client in a signed retainer agreement and approval from the court after notify to the adversary. Mortgages placed on the marital residence shall be nonforeclosable against the spouse consenting to the mortgage. Within 30 days after an attorney has been discharged or withdraws form a case, the attorney shall forward the case file to the client. At the client's election, fee disputes between attorney and client must be determined by an arbitration panel consisting of two lay persons and one attorney. A sexual relationship with a client during the course of representation is prohibited. The public should have access to disciplinary proceedings once formal charges have ben filed against an attorney for the Departmental Disciplinary Committee. The Committee proposes improved procedures in case management which include: the imposition of sanctions for abusive motion practices, noncompliance with discovery and all other forms of improper conduct prompt enforcement of court orders, early court intervention, early identification of critical issues, including custody; prompt resolution of pendente lite applications, frequent and ample awards of legal fees, early resolution of custody or visitation issues; the sue of court-appointed experts where possible; prioritization of matrimonial cases for un-interrupted trials, and an expedited process for interlocutory appeals.