Folks going through marital litigation–and, less often, folks going through custody disputes– often contact me regarding representation with the expectation that the other side will be required to pay my fee and the concurrent hope that I will work without an initial retainer (or for a low retainer) based upon that expectation. These litigants assume that because the other side is wealthier or a “bad actor,” that party will be ordered to pay their fees and therefore I don’t need them to pay my fees initially.
This is rarely a safe or accurate assumption. Litigants who are informed that the other side will pay most or all of their fees are likely to be disappointed. Attorneys who start these cases with little or no retainer on the assumption that the other side will pay their fees are likely to go unpaid or forgo much of their fee. There are numerous reasons for this.
The most common reason is that one starts the case hearing only one side–the client’s side. Humans lie–and when they don’t lie, they equivocate and exaggerate. Humans under stress are even more prone to this–and domestic litigation is stressful. “There are two sides to every story” is a cliche because it’s true. The other side may indeed be wealthier or a “bad actor,” but often one’s own client has some issues that makes the litigation more complicated than it initially appeared. Until one knows both parties’ positions, it is inadvisable to make predictions on any resolution of attorney’s fees. Basing any advice on this issue when one has only heard one side’s story is foolish.
Even when parties are awarded most or all of their temporary attorney’s fees early in the case, they are rarely awarded advanced suit costs. If the client has paid an initial retainer, the temporary attorney fee award can be applied to ongoing litigation. If the attorney has started work without an initial retainer, that attorney can achieve complete victory at the temporary hearing but still be left without funds to conduct discovery or prepare for mediation and trial.
Further, judges are not automatons and their rulings can be unpredictable. At trial, my clients have been both the beneficiary and victim of rulings in which one side prevailed on most or all contested issues but still wasn’t awarded attorney’s fees. Sometimes the ruling can be explained by a vast income disparity–but not always. In twenty-plus years of domestic litigation, I have yet to have a case in which one party was required to pay 100% of the other party’s fees (outside of contempt proceedings, in which compensatory contempt mandates that a party proving contempt be awarded all reasonable fees to enforce compliance). Litigants expecting this result are bound for disappointment. Attorneys forgoing retainers based upon such expectations are bound to forgo fees.
Additionally, a small subset of litigants engaged in marital dissolution proceedings reconcile. In cases where the attorney started without a retainer, the client has no incentive to pay the attorney’s fee and the attorney has little recourse other than suing the client to force payment. Beginning an attorney-client relationship in which there is this potential for non-payment, and further potential for an adversarial ending, is another strong reason for taking an initial retainer.
Finally, most cases settle prior to trial. Often one will make or receive a settlement proposal that is favorable on most issues but involved a mutual waiver of attorney’s fees (or an offer to pay a small portion of the other party’s fees). Where a client is mostly current on his or her fees, such proposals can be considered solely on the merits of resolving the underlying dispute. However, where one party owes his or her attorney substantial fees, that issue can undermine resolution by leading one party to reject what would otherwise be a satisfactory proposal.
That situation can also create tension between an attorney’s need to do what is best for the client against an attorney’s legitimate interest in being paid for his or her work. I’ve been involved in a few negotiations in which settlement stalled because the other side’s attorney was owed substantial fees and expected my client to pay them as a condition of settlement. When no such offer was forthcoming, that attorney was left with a number of unpleasant options: forgo a good resolution over an ancillary issue; become adversarial with his or her own client over the fee issue; waive payment of some of his or her fees. The easiest way to avoid such problems is to start with the expectation that the client, not the opposing party, will pay for his or her own attorney’s work.
Clients, and especially potential clients, prefer to hear that the other side will pay their attorney’s fees. Litigants have been known to select their attorneys based upon a promise of low or no initial retainer and the expectation that the other side will pay their lawyer’s fees. As noted above, this can create substantial problems when the case nears conclusion. An award of attorney’s fees from the other side should be treated as an unexpected bonus, rather than an anticipated condition, of any resolution. This requires the attorney to look to his or her own client for payment during the litigation rather than expecting payment from the other side at the end of litigation.