The potential domestic client who wants the attorney to work on promise of payment

Posted Friday, November 22nd, 2013 by Gregory Forman
Filed under Attorney-Client Relations, Attorney's Fees, Not South Carolina Specific, Of Interest to Family Law Attorneys

The combination of the front loaded nature of contested family court cases (i.e., preparing for motions for temporary relief) and the general reluctance of attorneys to sue clients for fees means that experienced family law attorneys generally require significant up-front retainers before beginning representation.  However many (most?) folks who needs family court attorneys have limited or no savings.  Thus, they ask attorneys to begin working for little or no money down and upon the promise of payment.

Experience shows such clients to be bad credit risks.  They may start with every intention of paying but if they don’t get a result they like at the initial hearing payment generally stops.  Further the temporary hearing may result in an order requiring them to pay substantial fees to opposing counsel or substantial income to a co-parent or estranged spouse.  A supported spouse or custodial parent may emerge from the temporary hearing with less funds than anticipated, and with lesser ability to pay his or her own attorney.  In all circumstances such folks will have other bills to pay and these bills frequently become a higher priority than paying their attorney for previous work.

For all these reasons I never start work on the promise of payment.  Most potential clients have family and friends.  I’ve typically just met the potential client; family and friends have known him or her for years.  If a client needs funds to begin or defend a family court case, that client should look to them, not me, for those funds.  And if the client has no friends or family willing to assist, that is often a warning sign that the client has significant mental health or substance abuse issues that alienate him or her from others.

Basically to work on the promise of payment is to lend the client your time.  For attorneys who bill by the hour, time is money.  If no one close to the client considers him or her a good credit risk, an attorney is a fool for assuming otherwise.

One thought on The potential domestic client who wants the attorney to work on promise of payment

  1. This is in response to Greg Forman’s argument in his blog thatlawyers should not accept domestic clients who cannot presently pay. Greg is a brilliant attorney who routinely does what more lawyers should do. He thinks. I eagerly read everything Greg posts to his blog, although I skip some responses from his readers. I enjoy disagreeing with Greg because he is so smart and I am so likely to be wrong or caught with a fallacious argument that it satisfies my need for adventure and danger, like rock climbing, defusing bombs, or screwing with The Phantom.

    Family Court lawyers should consider the difference in the definition and prohibition of “contingent fees” in Rule 1.5, South Carolina Rule of Professional Conduct, and the “contingency of compensation” provided in almost every attorney’s fee case cited by the appellate courts in South Carolina. For example, see Glasscock v. Glasscock, 304 S.C. 158, 403 S.E.2d 312 (1991).

    One of the six elements or factors in determining a reasonable attorney’s fee by the family court is “(4) contingency of compensation.” What does this mean? It means that the less money your client has, the more contingent your compensation or, in other words, the more dependent you are upon the court for an award of attorney’s fees if you are to be paid.

    This is critical for two reasons. First, the lawyer is justified in setting a higher fee where there is a high likelihood the client cannot pay the lawyer. If I represent Bill Gates I will charge my normal fee of $240 per with close to 100% assurance that Mr. Gates will pay me. If I represent a wife with no job, no ability to earn, not property in her name, and no ability to borrow money, then I can reasonably and ethically charge a higher fee, maybe $360 or more per hour, knowing that I will only be paid what the court awards me and knowing that the court may not order my full fee.

    Second I love to make this argument to the court: Your Honor, most family court judges prefer to avoid pro se litigants. Many litigants, such as my client, cannot hire a lawyer unless the lawyer can reasonably expect an award of attorney’s fees. If you award my full fee, which is reasonable and fully earned, you are sending a message to other lawyers and to me that we can undertake representation of destitute and indigent clients knowing that this court will properly apply the law to the facts and award attorney’s fees. If you do not award attorney’s fees, or hold attorney’s fees in abeyance, you are sending a message that lawyers should not undertake representation of destitute and indigent clients as there will be no award of attorney’s fees. An award attorney’s fees is not only correct, just, and proper under theses facts and the law from our appellate courts, it serves public policy and encourages other lawyers and me to undertake representation of indigents. It reduces the number of cases you and other judges must hear presented by pro se litigants.

    We may also want to consider the Attorneys Oath administered to us by the Supreme Court of South Carolina: “I will never reject, from any considerations personal to myself the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice.”

    Frequently we know that the presently penniless potential plaintiff has zero ability to pay a retainer fee but will most probably be awarded a kazillion dollars in the equitable apportionment of property. An assignment in the retainer fee agreement may make this fee highly collectable; however, assignments by clients is a serious separate subject suggesting selection as a singular study.

    In summary, we should consider accepting indigent client for professional, ethical, and profit motives.

    This is not an invitation for anyone to refer an indigent litigant to me. If you think this sounds hypocritical, you are right.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.




Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.