As we have let go of the nasty winter weather and transition into spring, many of us wonder what the next few months will be like, so we can plan ahead. In some ways, family law clients must do the same when they have come to a point where they must decide to hire a family law lawyer. In deciding who they will choose to represent them, many client will ask their friends/family for recommendations, do some on-line research, and conduct other “homework” before they make a commitment to lawyer. Unlike predicting what the weather will be like for the next 4-6 months, a well-prepared client can be assured that if they take the time to understand what they are looking from from a lawyer, the road will be a little less bumpy for them.
However, there are many client who have pre-conceived notions of what they expect of me as a family law lawyer. Some of these beliefs are good ones, but others are not. Many clients come to me as jaded and soured on family law lawyers as a result of poor past experiences with lawyers and the legal system in general. But just like a dreary winter of 2022/23 does not foretell what the spring and summer will be, a person’s past experiences with one lawyer does not mean they will have the same experience with me.
This blog is about addressing some of the commonly held myths and misconceptions that people have when they hire me. Like a snowflake, no two lawyers are the same, and so this blog will only address what a family law client can expect from me. Not only do I tell the client this information at the beginning of the case, but I will also remind them of same through the lawyer/client relationship, especially when things don’t go as they expected during the life of their file (sometimes that happens in family law cases). The core of any relationship is clear communication, and whatever I tell clients verbally, I then put in writing, so that there is no misunderstanding. The list is not exhaustive, but it does cover many common themes I have seen in my nearly 30 years of practice.
Myth #1 – I work harder for cash clients than LAO clients
In family law, I have some clients who make well into six figures, and others who don’t make anything. As with many other family law lawyers, I accept both cash paying clients and clients with a Legal Aid Ontario (LAO) certificate. It is not a myth that I get paid very differently in each case. As of the date of this blog (Spring 2023), my regular hourly rate is $350.00 per hour and my legal aid rate is about $110.00 per hour. From that, some clients conclude that I will only work at one-third the level for my legal aid clients as opposed to my cash paying clients. This is not true. When I represent a client, the nature of the retainer does not have any impact on how hard I work or how much I care. The opposing party, lawyers or the judges do not know, and do not care, about how I am retained, and nor should they. My skills, my efforts, my representation and my professionalism are unaffected by my retainer.
Having worked with LAO for nearly 20 years of my career, I thoroughly enjoy representing clients on a legal aid certificate. The pay is less, but there are many benefits to doing legal aid work, such as the variety of clients you can help, the interesting and complex cases that challenge me as a lawyer, and the comforting knowledge that LAO will pay me when I send them my bill, so long as I do so within the terms of my pre-existing arrangement with them.
As well, after working nearly 30 years, I like knowing that I can provide my services to clients who may have some challenges in finding a lawyer to take their case. And I especially enjoy knowing that I can protect the interests of low-income clients who would otherwise get steamrolled by opposing lawyers or self represented litigants. I don’t like “family law bullies”
and I will fight them, tooth and nail, on behalf of my LAO clients. I cannot represent all LAO clients who call me – after all, there is only one of me – but they can be rest assured that I will work as hard for them as I do with each of my clients.
Myth #2 – I must see the other lawyer/the other side as the enemy
As I am of Italian heritage, I am a very passionate lawyer – I speak loudly and, yes, I use my hands a lot. But some clients are often dismayed when I do not get as upset as they do when they are telling me why they need my help. They are surprised that I am not ready to drop everything I have on my desk and proceed immediately to court, to “slay their dragon.”
The reality is that while the case is extremely personal for them, it isn’t at all for me. Their case is just that – it is their case, about them, their children, their finances, and their legal rights and responsibilities. I both expect and appreciate the passion that clients come to me with their family law problems. But my job is not to be a cheerleader for them or to be equally upset with what the injustice they may be dealing with. Some lawyers, especially in family law matters, lose their objectivity and become so friendly with their clients that they see the opposing lawyer and/or the other party as the enemy. This is wrong, and to allow this to happen only serves to make the case more difficult for everyone. I cannot properly advocate for a client if I see their success in negotiations or in court as being tied to my success as their lawyer. I must keep an emotional distance in the case.
That is not to say I am a dispassionate or uncaring lawyer. Just the opposite – I am both a passionate and very caring family law lawyer. It’s part of my brand. I have sincere empathy for my clients’ cases, but at the end of the day, I can only do so much to affect the best result possible for them. I would quickly be emotionally burned out and unable to help anyone if I were to make my own well-being wholly contingent on whether I was able to successfully secure them what they wanted in their family law dispute.
I often say to my clients that this is their case, and it is their decision to make when presented with my advice or the opinion of the judge. They must live with and accept their decision to either settle a case or proceed further in court. I do not do so. At the end of the workday, for my own well-being, I compartmentalize my work as a lawyer so I can enjoy my personal time with my family, to achieve a proper work/life balance. By being objective about the case, I can properly advise a client on whether to make, accept or refuse terms of settlement, without being impacted by my own emotion or my financial stake in the case.
I agree that it would be in my financial best interests for me to hate the other lawyer/other side so much that I would tell all of my clients to never settle and to take their cases to trial. The longer the case goes, the more I get paid. But that is not who I am. I always give them advice based on what is best for them, and not what is for me. I regularly tell my clients that once their case is done, I do not continue to see the other lawyer or the other side as the enemy. I may not like them, but I quickly forget about the case, as I have 100 other cases to focus on at any given time.
In my 20-year career, I have seen over 20,000 clients, and I have dealt with as many “other parties.” A few of them are quite distasteful and I thoroughly enjoy “beating them in court,” if I can. But I simply do not carry a grudge or have any hate in my heart for these people. It would be very unhealthy for me to do so, and I would be an ineffective lawyer if I was that emotionally invested.
Myth #3 – I will do whatever it takes to win
One of the bigger misunderstandings that some clients have when they first speak to me is that after I provide them with a road map for their case, they ask me what “tricks” I have up my sleeve to secure a victory. This is a big red flag for me, warning me that this lawyer/client relationship may not be a long or a successful one.
Unlike what you may see in TV or movies, or read in books, I am not a stereotypical, sleezy family law lawyer that will do whatever it takes to win my client’s case. Again, part of my brand is to act effectively and ethically when representing my clients. I am proud to say the vast majority of lawyers I have dealt with, and I will deal with in the future, are like-minded – by no means do I have a monopoly on ethics or professionalism.
But, I have come across some lawyers who do not share my belief. To them, winning and getting paid for winning are all that matters, and must be achieved at any cost. Once again, this is simply not true for me. The reason why is that, at the beginning of the case, I ask client what they want to achieve in their case, and as their case goes along, I ask them to update what they want, as their goal is usually a moving target. When I hear clients tell they want to bury the other side, or ruin them, or crush them, I know right away that I am not the right lawyer for them. Such goals are not within my power to do, not would I want to do so. It may sound boring, or hokey, but my role as a lawyer is to advocate for my client to get them a fair and just result.
Let me give you a common story I hear from one such client (fictional). She tells me she wants their child’s father to have supervised parenting time. I ask why. She tells me that after she broke up with him, and after 6 months of effective shared parenting, he had the temerity to start dating again. She wants him to suffer, and she is prepared to make up false criminal allegations of him having abused her, of having sexually touched the child, or making threats to her and her new boyfriend, and of stalking her. She wants the police, CAS, doctors and school authorities on-board to support her case. After reading this, let me assure you – this happens a lot.
I quick ascertain whether the client’s stories are true, because if they are, I am happy to aggressively pursue the clients instructions to protect her and the child. But if this is simply a ploy for revenge, then I tell them, “no thank you,” I do not wish to be a pawn in your grand scheme. From my experience and that of many colleagues, these cases quickly lose emotional energy, and just as quickly, clients cannot financially keep up with the litigation demands required to sustain/prove such false claims.
As I said in the last ”myth,” I do not live-and-die with my client’s cases, and I do not wish to be a part of the collateral damage when the client in these high conflict messy cases loses, as they often/usually do.
Myth #4 – The client is always right
I have written other blogs about the lawyer/client relationship and what I look for in a client and what a client should look for in me. I invite you to look at them. I remind my clients that I am not the same lawyer I was 5, 10, 15 or 30 years ago. I learn form my experiences, from both my successes and my mistakes. One of my core rules from the beginning is to remind a client that my job as their lawyer to do my best to achieve their family law goals within time and within budget. To do so, I set out to my client at the beginning of the case, in a retainer letter, what they can expect from me, and what I can expect from them. There are certain “ground rules” that need to be followed. Some clients believe that what they say to me goes, that I am their legal minion, and that I will simply “follow their marching orders.” This is just not true. Let me explain.
I set out what I will do for them, so that the client does not later on change their mind and/or add other goals for me to do. I tell them how long I can expect the cases to take, and how much I can expect the case to cost them. I provide exceptions that may lengthen the time or increase the costs, which are usually factors beyond my control. I then set out how/when I get paid, and that lack of payment will impact my ability to effectively help them. As passionate and caring as I am, I am not a volunteer – being a family law lawyer is my job, and I both expect and demand to be paid for my time, hard work and effort.
I then set out the basis for communication between us. As with many other professional services, I have set office hours within which I will work, and within which they may contact me, whether by phone, email or text. Again, to manage a client’s expectation, I remind them that I am not “on call for them” and that although they can phone, email or text me when they want, I will not always respond when they do so.
Further, I set out that from time to time, I will present them with my legal advice to address one or more of the issue sin question, and I will need their instructions on how to proceed. As I have said earlier in this blog, this is their case, not mine, so I cannot decide for them.. My job is to present them with options and recommendations, but they must bear the sole responsibility of advising me what to do (or not to do).
Finally, I set out for them the possibility that there may come a point where we differ or disagree about the case, or something happens where the lawyer/client relationship must end. Not only does the client have the right to fire me, but as I make it clear that I, too, have the right to fire them. The client is NOT always right, so I provide them with some examples as to when I will decide to end things between us. These include, but are not limited to:
- if you fail to cooperate with me in any reasonable request; and/or,
- if you are abusive and/or threatening towards me or any of my staff; and/or,
- if you ask me to act in an unprofessional or unethical manner; and/or,
- if you mislead me in any of the key facts of your case; and/or,
- if you miss an appointment without a satisfactory reason for same; and/or,
- if you miss a court date without a satisfactory reason for same;
- if LAO refuses to provide me with requested authorizations; and/or,
- if LAO cancels the certificate.
As I said, I run a business, not a volunteer charity, so if the client is negatively impacting my business, my reputation, or my personal well-being, the relationship will come to an end.
Myth #5 – I guarantee the client will win or the client does not have to pay me
Finally, one of the biggest difference sin family law, as opposed other types of litigation, is the nature of getting paid for your work. Over the past 20 years, we have seen a proliferation of civil litigation (mainly personal injury lawyers) aggressively advertise in print, traditional media and on social media that they will take on a client’s case without any money down, and if they do not get the client the result they want, the client will not have to pay them.
Like any promise, the devil is in the details, so I strongly advise clients to “read the fine print.” But I sometimes get clients who demand that I offer them the same guarantee, and will tell me that they have spoken with another lawyer (whom they always refuse to name), who has promised them that they will only get paid when the case is successfully completed. This is one of the biggest myths in family law.
First of all, as I have said before, I cannot assure a client any result as there are so many factors in deciding whether a client will or will not be successful. I do not like to give odds, either, as I do not “place bets” on my clients’ cases. But I will tell a client whether they have a great case, a good case, an okay case, a poor case, or no case at all. I do tell the client that I reserve the right to change my opinion on the case as I gather more facts throughout the life of the case, or I complete my review of the law. As an example, a great case can easily become a poor one if the client’s facts as they first presented to me proves not to be true, or a key witness or piece of evidence is no longer available.
Secondly, some clients think that it is fine to have a “contingency arrangement” on a family law file, and that we will get paid a percentage of their client’s financial award (in property and/or support cases). We are precluded by the Law Society of Ontario, our regulatory body, from making any such arrangement. It is unethical for us to do so.
Finally, as I have set out above in this blog, I do my client a disservice if I “hitch my wagon” to the success of their case. This precludes me from being objective and alert to the facts of the case and the governing law to be considered. If I need to win the case to get paid, my advice may not be in my client’s best interests, but my own. And, as I have already said, a client’s idea of “winning the case” may look vastly different on day 1 of our professional relationship as opposed to day 600.
Conclusion
It may seem common sense to many, but I do my best to make clear whenever I enter into a professional relationship with my clients to understand what you want, to know if I can get it for them, to know how long it will take, and at what cost. It is my as their lawyer to assure them of what I can do, and what I cannot do. I cannot be embarrassed or feel uncomfortable in giving them bad news at any point during their case (especially the beginning).
It does the client very little good if I am successful in a “quick-and-dirty” negotiation of a separation agreement with the other side, only to tell the client (or my insurer) years later that I did not do my due diligence and ascertain what the client was entitled to or was giving up, merely for sake of being fast and inexpensive (even if the client demanded both of these terms from me).
As well, I am not doing my job as a good lawyer if I take a case to trial and achieve/exceed the client’s expectations, only for him to be alienated from his children because he spent the last three years saying horrendous things to them about their mother, or, as sometimes happens, to see them financially ruined after spending tens of thousands of dollars she did not have on opposing her ex’s very claim for a reasonable parenting time regime. That would be a pyrrhic victory.