Battered Mothers Gain Fair Attorney Client Terms at Conference
Attorney, legislator and author Karen Winter opened the 8th Battered Mothers Custody Conference in Albany, New York reviewing attorney billing practices.
Attorney, legislator and author Karen Winner opened the 8th Battered Mothers Custody Conference in Albany, New York with her presentation, “How to Think Like a Lawyer on Legal Billing Issues”, on Friday afternoon January 7, 2011. Winner is well known for her report on family law abuses in Marin County, California which was published during 2000. She developed a Statement of Rights & Responsibilities for use between attorneys and their clients in 1993. The Statement of Rights & Responsibilities was subsequently incorporated into New York State law and was utilized as a model by many other states as well.
Good Attorneys Respect Client Rights
The hallmark of a good attorney is one that establishes expectations at the outset of the business relationship and understands that mutual respect is essential. Winner’s Statement of Rights & Responsibilities for clients include: appropriate, respectful treatment; avoidance of a conflict of interest; competency; fair billing practices; an expectation to be kept informed of the status of your case; a right to privacy; ethical conduct, and; an equal opportunity for representation. If the state you live in has not incorporated a similar Statement of Rights & Responsibilities, be aware the statement can be incorporated by copy into a retainer agreement negotiated with an attorney.
Good Attorneys Zealously Represent Client Interests
The attorney client relationship is a precarious balance of sharing the most intimate details of life with someone who is in business to make a living from dispatching heartache as effectively as possible. Conflicts of interest occur as a result of personal relationships, spousal or business relationships that are frequently not revealed by attorneys. Cronyism can play a part as well. Some small towns’ “business as usual” legal practices frequently include improper ex parte communication or enmeshment of business opportunities.
Some attorneys project that social graces and professionalism require a personal need to “play nice” with other attorneys. They may also choose to placate the judge by avoiding unpopular points of view, thereby putting their need for social acceptance ahead of their obligation to zealously represent their clients’ best interests. It isn't unusual to hear, “That's the way it's done here...” Just like any medical diagnosis, in a crisis, your legal diagnosis merits a second opinion. If you live in a small town where there are only a few attorneys, you can make a request for an “objective memorandum” on the issues you are trying to resolve.
Good Attorneys Have Fair Billing Practices
In many states, attorneys are required to bill within sixty days or forfeit their fees. If you have never been billed by your attorney, you are not legally obligated to pay the bill. However, in the interest of fairness, it isn’t unreasonable to balance how many tasks your attorney has performed for you without charging you. A client should consider several issues before they ‘nickel and dime’ each line item on the attorney’s invoice. Did the attorney forget to bill for an appearance or a letter to your benefit in the past? Is the business relationship generally fair? If so, it may be better to let an oversight slide. It's appropriate to ask your attorney to define appropriate benchmarks for your case to help you fairly gauge their performance and to allow for a reasonable anticipation of the length of time and expense related to your legal issues.
If you entered into an attorney client relationship while you were overwhelmed by the circumstances that led to your asking for representation, once you catch your breath, you can go back and request that your attorney renegotiate the terms of their retainer. If your case transitions, for instance, from a custody case to a child support modification, these separate legal actions are appropriate opportunities to address the incorporation of the Statement of Rights & Responsibilities. A retainer should reflect the scope of work that is actually being performed.
Good Attorneys Arbitrate Billing Disputes
If a client finds addressing financial issues emotionally traumatic or too difficult to understand, it's perfectly reasonable to request that a trusted family member or friend temporarily assist while addressing billing issues. Attorneys are required to maintain contemporaneous records to justify their billing practices. If you're addressing an error in billing, your attorney should be willing to rectify it. If you are being billed for administrative and clerical tasks at the attorney's hourly rate, it's time to address billing practices.
If you come to an impasse with your attorney about their billing practices, request arbitration. In New York State, an attorney who does not provide arbitration papers to a client objecting to a bill, may be subject to forfeiting their fees. In many cases attorneys are required to present their bills to the court for approval of fees. They must be reasonable, itemized, as well as substantiated. If they are not, then a judge has the right to reject the billing or reduce it to more reasonable fees.
Good Attorneys Protect Battered Mothers
Understanding and preserving client rights and responsibilities is particularly important to battered mothers. The controversial nature of obtaining fair, equitable and protective provisions from the courts is a more difficult task for victims of domestic violence. The laws of evidence are not consistently applied within the family courts as they are in other areas of the law. A family law judge is allowed to dictate many aspects of a divorce or custody action without challenge, and are given immunity if they are mistaken.
The discretion of judges, custody evaluators and other legal participants is much more subjective and it is not subject to the same scrutiny by appellate courts. An attorney that is not diligently representing the interests of a battered mother, while draining her financial resources, can deliver negative consequences that last for generations to her children.
To include a copy of Section 1210.1 of the Joint Rules of the Apellate Division (22NYCRR§1210.1):
You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.
You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).
You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.
You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.
- You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.
- You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.
- You are entitled to have your legitimate objectives respected by your attorney including whether or not to settle your matter (court approval of a settlement is required in some matters).
- You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.
- You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.
- You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.
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