I remember in 1976 when I conducted my very first new client interview. A man who as best I could tell had found someplace to take a shower just before seeing me as he must have lived on the streets, consulted with me about custody of his four year old daughter. Having passed the bar and taken divorce CLE classes I knew a problem client when I saw one! I also remember a very experienced divorce lawyer lecturing that if you didn’t really want to take a new client you should quote a very high retainer. So, I quoted $500, my client took out 5 crisp $100 bills and I had my first client. I learned a lot from that experience, including not to make snap judgments as this first client turned out to be a wonderful man and devoted father.

Fast forward 33 years and the experience of doing a divorce initial consultation is different in many ways. I have put a lot of miles down during my career but the clients in many ways haven’t changed – they are for the most part hurt, scared, damaged and anxious. I frequently encourage clients to bring someone with them to consultations because I think that sometimes they retain about 10% of what they hear. Now, instead of just telling them to hire a lawyer, file the motions, do the discovery and get ready for trial, I need to help them understand which one of many alternatives will suit them best as they go through the divorce process. There are the Big Three: Litigation, mediation and collaborative. But now each approach has permutations in terms of the case specific involvement of various professionals and an individualized approach that will work for each unique family. Worst of all, the clients are asked to commit to a process, and staff it with professionals, at a time when most can barely organize around functioning on a day to day basis.

When I started my divorce practice, initial appointments offered one process alternative to clients based on the litigation/adversarial model: file the papers and temporary motions, go to court on temporary motions, conduct discovery (interrogatories, request for production of documents and depositions), prepare for trial and try the case. Settlement was considered a good thing but tended not to happen until the trial loomed close. In the mid-80’s I trained as a mediator finally providing an alternative to the litigation model to offer my clients.

As a result, I started to restrict my initial interviews primarily to a discussion of process leaving the substantive issues related to the children and finances to the next consultation (what I frequently call “Divorce 101″). I did this for a couple of reasons. First, I realized that to render opinions about outcome in the first interview is a very dangerous prospect. The lawyer doesn’t have enough information (not to mention an understanding of the other side of the story) to have a reliable opinion at this early state. . Also if a lawyer does express an opinion this early clients tend to remember only the “good news” leading to attorney regret for having set early expectations based on insufficient information. (By the way, to be careful at cautious at the first meeting when answering client’s anticipated cost for the entire case – clients will only remember the lowest number mentioned and not the cautions about why the case could cost more.)

One clients select the procedural approach they want to take to the divorce and pay retainer, attorney divorce professionals must comply with the ethics rules requiring a written retainer
agreement signed by the client(s) and the lawyer. Practicing divorce lawyers have a “general” retainer agreement that sets for the terms and conditions of employment. The only restriction on what the lawyer will do that I typically see in these retainer agreements is an express provision that the attorney is not taking any responsibility for filing appeals and that any appellate work requires the execution of a new retainer agreement.

Once divorce clients understand their procedural options, some want attorneys to provide more limited services in many cases: review counsel at the end of a mediation, advising (or as we say coaching) a client during mediation, collaborative divorce that disqualifies the lawyer if the case does not settle and other select services for the client. Rule 121 (with commentary) retainer agreements that limits the lawyer’s services to achieve the goals and objectives of the client. Not do the rules require this type of retainer agreement it protects the attorney from later allegations that he/she did not perform particular services if not specified in the agreement. The limited services retainer agreement should also be clear and concise for the protection of the client in terms of describing the exact services that the client is expecting from the lawyer.