How being my clients’ fiduciary impacts my practice

Comment one to Rule 1.15 of the South Carolina Rules of Professional Conduct make attorneys fiduciaries for their clients. For those not familiar with the term “fiduciary duties,” it is a requirement that one acts in the best interest of another.

Most salesmen don’t have fiduciary duties and are entitled to put their financial interests above their customers’ interests. This is why folks comparison shop and smart people have a used car examined by an independent mechanic before purchasing. It’s shocking to me that the investment industry fought the imposition of fiduciary duties. Because it did, no matter how much I like my investment advisor, I would never accept non-mainstream advice from him.

There’s an old saying–often attributed to Abraham Lincoln–that “a lawyer’s time and advice is his stock in trade.” Almost all of my work is billed by the hour. Thus, my fiduciary obligation impacts both my time and my advice.

Since my time costs my client money, and since I am supposed to put my client’s interests above my own, I have developed my practice so that my client does as much of the work as possible. Tasks that many family law attorneys have paralegals handle, I delegate to my clients. The retainers I quote anticipate my client doing much of this work. Where many attorneys plan on three hours of trial preparation for each hour of trial, I anticipate closer to a one-to-one ratio. To assist clients, I have written procedures to guide them and an extensive FAQ section on my website to provide general information. Many of these frequently asked questions were inspired by a client’s question. All of this is intended to marshal my time for strategic thinking and high-level work.

Given my case volume and my lack of dedicated support staff, I simply lack the time to do first drafts of discovery, financial declarations, or witness affidavits. A law practice that anticipated me doing this work would require lower case volumes, a paralegal, and higher retainers. While there’s nothing wrong with that law practice model, I don’t find it a good fit for my strengths and weaknesses. Most clients, with a bit of prompting, accept this process. The ones who don’t often require increasingly aggressive nudging. For the clients who simply refuse to do this work, I encourage them to seek other attorneys. Trying to be the right lid for every pot prevents one from being a great lid for any pot.

My fiduciary duty also impacts my legal advice. I spend a lot of time encouraging clients or potential clients not to do things. Absent a fiduciary duty, every single potential custody modification client could simply be quoted a retainer and have me file the modification case. If I prevailed in few of them, it would be the client’s problem. If we didn’t discuss budget before we filed, and the client ran out of funds midway through, that would also be the client’s problem. Absent a fiduciary duty, when representing a defendant I could aggressively defend each claim rather than helping the client decide which claims are worth defending and which (either due to the facts or cost-benefit analysis) are worth settling or conceding.

Absent a fiduciary duty, I could counsel every unhappy spouse to file a fault divorce or separate and file for separate maintenance. Instead, unless there are safety issues, my counsel is to consider the impact on their finances, the impact on their children and their relationship with their children, and, to the extent their identity is tied to their marriage, the impact divorce will have on that identity. Only then can they make informed decisions about ending their marriage.

Telling folks what they don’t want to hear–and no one wants to hear his or her case is weak or that they should remain in a marriage that is making them unhappy–is never comfortable. One can provide this advice without being judgmental or abrasive. There’s a difference between telling a client, “you’re not getting custody because you’re an abusive parent and a drunk” and telling that client, “there’s substantial evidence your corporal punishment was excessive and you’ve been drinking heavily around your children; given those facts, the family court is unlikely to award you custody.” But sugar coating this advice (sometimes referred to a “good bedside manner”) can often shade into downplaying the negatives. As a fiduciary, I’d prefer to under promise and over deliver than over promise and under deliver.

I talk myself out of a lot of business. However, to the extent I have a good reputation as a family law attorney, it’s because those who retain me and follow my advice tend to be happier at the end of the process then they were when they retained me. Most of my family court colleagues take their fiduciary duties seriously. The few who don’t develop reputations that I wouldn’t be proud of.