| No Oklahoma divorce litigant is required to have legal representation nor is he/she entitled to public appointment of a lawyer. Kiddie v, Kiddie, 1977 OK 69, 563 P.2d 139. Instead, a litigant may represent him/her self, use a divorce kit, or whatever. If you are considering the latter course, I'd surely recommend that you read the first two chapters: (1) The Adversarial Nature of Litigation and the Finality of Judgments; and (2) The Divorce Kit Do-It-Yourself Mentality, before making your decision. |
| This chapter assumes that a client wants to consider obtaining a lawyer and discusses the nature of the attorney/client relationship in a divorce case. It reviews these topics: |
|
Why Have Lawyers, Anyway? |
|
Why Does Divorce Law Have To Be So Complicated? |
|
The Attorney/Client Relationship |
|
Decisions |
|
Limitations On the Representation |
|
The Client's Role |
|
The Lawyer's Role |
|
One Lawyer Divorces |
|
Confidentiality |
|
Disputes and Terminating the Relationship |
|
Selecting An Oklahoma Divorce Lawyer |
|
Attorney Fee Contracts |
|
Retainers |
|
Hourly Charge Rates |
|
Attorney Fee Liens |
|
Retaining Liens |
|
Charging Liens |
|
Some Great Lawyer Movies |
|
WHY HAVE LAWYERS, ANYWAY? The desirability of having lawyers around has been argued at least since Shakespearian days ("First thing we do, let's kill all the lawyers") and in lots of modern humor ("Q: What do you call 5,000 dead lawyers at the bottom of the ocean? A: A good start"). Most everyone, especially lawyers, likes "lawyer jokes" and you'll have no trouble finding lots of them on the Internet... just search for "lawyer jokes". Gallup polls concerning various occupations' trust levels persistently place lawyers at or near the bottom of the list, around used car salesmen. So, why not have a good laugh and then get rid of 'em, just like Shakespeare said? |
| Before giving you my answer to the question, let me ask you another, instead: |
| How many of these movies have you seen (depending on your age, of course) and/or liked during the last fifty years or so: Absence of Malice, A Civil Action, A Time To Kill, A Few Good Men, Anatomy Of A Murder, ...And Justice For All, Armistad, Class Action, Ghosts Of Mississippi, Inherit The Wind, Murder In The First, Pelican Brief, People v. Larry Flynt, Philadelphia, Suspect,The Chamber, The Caine Mutiny, The Client,The Devil's Advocate, The Firm, The Hurricane, The Rainmaker, The Verdict, To Kill A Mockingbird, Twelve Angry Men, Witness For The Prosecution, and, to be sure, My Cousin Vinny. |
| I'll ask another: Why did you see these movies and (I'm guessing) why did you like most of them? |
| Probably, several answers are true: movies about lawyers and the legal system usually involve fundamental clashes between good and evil, order and disorder, love and hate, truth and lies. Such movies just make for good plain drama. Very often in the movies, the truth is presented clearly and the higher value prevails, or, at least, if it doesn't, we hope that it will. Such movies fantasize our hope. In movies and in real life, good doesn't always prevail, but, still, we hope that it will. In real life, truth is not always so clearly evident since perceptions of truth vary from one adverse client to another. But, whether in movies or in real life, the person on whose shoulders the client's perspective and hope rests is a lawyer who is seeking justice according to the perspective of that client. For many drawn to the legal profession, including this author, what higher a calling might there be? It is, I would say, a noble calling. For whatever reason, people are simply fascinated by movies about lawyers. |
| My suspicion is that, despite public opinion polls, if most of the public doesn't actually like lawyers, they want to. They want to because they know that, when lawyers do what they ought to, the lawyer's role is not only valuable to the client but is also valuable to society as a whole. The bottom line is that lawyers are needed by the public because lawyers help, or at least try to help, people who lack the ability to help themselves in a legal environment. Even if I'm wrong and the public really doesn't like lawyers, I'm not shy to say that the public is wrong. I've been a lawyer for 32 years and I know something about the men and women with whom I share this oath: |
|
I do solemnly swear that I will support, protect and defend the Constitution of the United States, and the Constitution of the State of Oklahoma; that I will do no falsehood or consent that any be done in court, and if I know of any I will give knowledge thereof to the judges of the court, or some one of them, that it may be reformed; I will not wittingly, willingly or knowingly promote, sue, or procure to be sued, any false or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice, but will act in the office of attorney in this court according to my best learning and discretion, with all good fidelity as well to the court as to my client, so help me God. |
| What I know about these women and men is this: For most, this oath is not an empty promise. Most lawyers endeavor to fulfill it. That's what makes lawyers worthwhile having around. When they are needed, that's why I suspect that the public is glad that lawyers are still around. That's why, when a person needs a lawyer, Ghostbusters doesn't get the call. |
| Quite a number of these new pages relate to the mobility of our society. In 1900, people did not move around all that much. In 2000, they do. Original child custody, visitation and support orders entered in one state must often be enforced and/or modified in another. When that occurs, what law applies - the original state's or the subsequent state's laws? Several "uniform" statutes have been adopted since the 1950's to address those questions in various contexts. |
| And, sometimes, the Legislature writes statutes imprecisely and we scratch our collective head wondering, "What does this mean?" The 1999 statute which revised Oklahoma's child support guidelines, certainly the most poorly written statute these eyes have ever seen, is a good example. Assuming that a Legislative act passes constitutional muster, no law requires that Legislatures adopt laws which make sense, are well defined, or are even consistent with previously enacted laws. A Legislature is free to enact a law and then go home, accountable only to the electorate. |
| Individual litigants, lawyers and the courts are left to resolve statutory ambiguities and/or interpret terms the Legislature used but did not define. That case by case process is slow and costly. Only after one or several appeals are done does the legislation get the definition it could have had if the Legislature had written the text well in the first place. |
|
Rule 1.2 Scope of Representation |
|
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d) and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. |
| Limitations on the Representation. A lawyer is prohibited from assisting a client's intention to commit crime or fraud. Additional parts of rule 1.2 read: |
|
(b) A lawyer may limit the objectives of the representation if the client consents after consultation. |
|
(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. |
|
(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct. |
| Also, as discussed in "The Lawyer's Role", below, one lawyer cannot ethically represent both parties in a divorce case. |
| The client's obligation to tell the truth extends to sworn testimony before the judge, as well. While information received in confidence by a lawyer must be kept that way most of the time, clients should also understand that if a client lies in court and the lawyer knows about it, the Supreme Court's Oklahoma Rules of Professional Conduct may require the lawyer to tell: |
|
Rule 3.3 Candor Toward The Tribunal |
|
(a) A lawyer shall not knowingly: |
|
(1) make a false statement of fact or law to a tribunal; |
|
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; |
|
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or |
|
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take the following remedial measures: |
|
(A) when a client has offered false evidence, the lawyer shall promptly call upon the client to rectify the same; if the client refuses or is unable to do so the lawyer shall promptly reveal its false character to the tribunal; or |
|
(B) when a person other than a client has offered false evidence, the lawyer shall promptly reveal its false character to the tribunal. |
|
(b) The duties stated in paragraph (a) are continuing, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. |
| Rule 1.6, Confidentiality, is discussed below. Additional client roles will vary from case to case and from lawyer to lawyer. Most times, a client will save money and time by doing a lot of work - getting and/or copying needed documents, whatever. But, the bottom line here is this: A client's job is to tell the truth. |
|
Rule 1.6 Confidentiality of Information |
|
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). |
|
(b) A lawyer may reveal, to the extent the lawyer reasonably believes necessary, information relating to representation of a client: |
|
(1) to disclose the intention of the client to commit a crime and the information necessary to prevent the crime; |
|
(2) to rectify the consequences of what the lawyer knows to be a client's criminal or fraudulent act in the commission of which the lawyer's services had been used, provided that the lawyer has first made reasonable efforts to contact the client but has been unable to do so, or that the lawyer has contacted and called upon the client to rectify such criminal or fraudulent act but the client has refused or is unable to do so. |
|
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; |
|
(4) or as otherwise permitted under these Rules. |
|
(c) A lawyer shall reveal such information when required by law or court order. |
| So, while confidentiality is assured in most instances, if a client tells the lawyer he/she is about to commit a crime, or if the lawyer has been unwittingly "used" by the client in the commission of a crime or fraudulent act, of if the client has lied to the court and the lawyer knows it, or in the other areas addressed by Rule 1.6, the "confidential" information may require disclosure by the lawyer. |
|
Rule 1.16 Declining or Terminating Representation |
|
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: |
|
(1) the representation will result in violation of the Rules of Professional Conduct or other law; |
|
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; |
|
(3) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; |
|
(4) the client has used the lawyer's services to perpetrate a crime or fraud; or |
|
(5) the lawyer is discharged. |
|
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: |
|
(1) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent to the extent that it is likely to impair the client-lawyer relationship or the lawyer's ability to represent the client. |
|
(2) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; |
|
(3) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or |
|
(4) other good cause for withdrawal exists. |
|
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. |
|
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. |
| As noted above, if litigation is active, a lawyer may not just quit, even if fired by the client or if the lawyer "fires" the client. Permission of the court must be sought by a motion to withdraw. Although such motions are usually granted, if, for example, trial is immanent, the court may refuse the request. |
| The language in (d), above, is discussed in "Attorney Fee Contracts" and "Attorney Fee Liens", below. |
| Specialization, Nyet! Some states have implemented "specialization" or "certification" procedures by which a member's longevity as a lawyer, his/her percentage of cases in a given area, and the successful completion of standardized "tests" will authorize a lawyer to represent to the public that he/she is a "specialist" or "certified" in certain fields of law. Unfortunately (my opinion), Oklahoma is not one of them. Under Rule 7.4, while a lawyer may say that he/she limits his/her practice to a particular field of law, he/she may not hold him/herself out as a "specialist" (except for patent or admiralty attorneys). While Mary Doe, attorney may properly say, "John Doe specializes in divorce law", John Doe cannot properly tell you that about himself. |
| Take note: Advertisements do not equate to specialization. Solicitation of cases by a lawyer tells a potential client almost nothing he/she "needs to know", other than the fact that the lawyer wants to be hired and is willing to pay someone to publicize that fact. "Yellow pages" ads don't come cheap! |
| Think About What Is Needed To Be Done. What does a client "need to know" about a lawyer when trying to make a selection? In my opinion, two things about the lawyer's reputation are needed to be known - his/her reputation for ethics (e.g., honesty and not being a jerk in litigation) and his/her reputation for the knowledge and skill as the same relates to the complexity of the client's case. |
| Reputation for ethics and not being a litigation jerk: Lawyers whose word cannot be trusted, and/or lawyers who are uncooperative with opposing counsel as the case unfolds in its discovery or other pretrial phases, not only give the legal profession a black eye, they drive up the financial and emotional costs of litigation to all concerned. So, while a client will rightly want a lawyer who is skilled, tough and thorough in the courtroom and isn't some sort of pansy when working with opposing counsel, a client does him/herself a disservice by thinking, "I want the meanest son-of-a-bitch lawyer I can find." |
| Skill and knowledge requisite to the tasks needed to be performed: Some divorces involve very difficult and elaborate issues, but most do not. A relatively "simple" divorce case is one in which child custody is not at issue, the marital estate is not humongous, and no unusual fact and/or legal issues are involved. A client will be as well served by a lawyer who is old enough as a lawyer to have a good grasp of fundamental divorce law and principles but not so seasoned and established in the divorce lawyer community as to have established a reputation for being "one of the best". The latter group charges more, the former group charges less. And, if a case is pretty "simple", "less is more" as far as the client's needs being satisfied are concerned. If a case has one or more complex issues, e.g., child custody, division of a large marital estate, a request for a large amount of support alimony, the client should probably consider a lawyer whose reputation for skillful handling of such things is rather well established. |
| Family Law Section Leadership. Many state bar associations have organized elements composed of lawyers who are highly interested in particular fields of law, and these elements are usually called "sections". The Oklahoma Bar Association's Family Law Section is one of the most active and highly respected of such "sections" in the OBA. A telephone call to the current or a past "chair" or other officer of that organization will likely get a potential client some candid and accurate recommendations of lawyers in various geographical areas of the state. To see a list of this year's section officers, click here and select Family Law in the "section" box. Or, call the Oklahoma Bar Association, 405-524-2365, and ask for the name and phone number of the current chair or chair-elect of the Family Law Section. |
| Lawyers You or Your Friends Know. If you know a lawyer you respect (or who comes highly recommended to you by a friend), even if that lawyer does not take family law cases, call that lawyer and ask if he/she is willing to recommend a lawyer in the community to you for the kind of case you have. Lawyers are usually glad to provide such assistance. |
| If You Qualify For Legal Aid Representation. If you qualify for representation by such pro bono organizations, my experience with their lawyers is very good and my opinion is that they provide quality representation to their clients. Click the following for information about such offices in Oklahoma: Western Oklahoma (including Oklahoma City); Eastern Oklahoma (including Tulsa). |
|
Rule 1.5. Fees |
|
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: |
|
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; |
|
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; |
|
(3) the fee customarily charged in the locality for similar legal services; |
|
(4) the amount involved and the results obtained; |
|
(5) the time limitations imposed by the client or by the circumstances; |
|
(6) the nature and length of the professional relationship with the client; |
|
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. |
|
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. |
|
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, whether the client is to be liable for reimbursement of litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery showing the remittance to the client and the method of determination. |
|
(d) A lawyer shall not enter into an arrangement for, charge, or collect: |
|
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the result obtained, other than actions to collect past due alimony or child support; or |
|
(2) a contingent fee for representing a defendant in a criminal case. |
|
(e) A division of fee between lawyers who are not in the same firm may be made only if: |
|
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; |
|
(2) the client is advised of and does not object to the participation of all of the lawyers involved; and |
|
(3) the total fee is reasonable. |
| To summarize Rule 1.5, the fee should be "reasonable", its basis must be communicated by the lawyer either before or shortly after commencing representation, preferably in writing, and contingent fees in divorce cases are prohibited (with the exception of post-divorce actions to collect accrued and unpaid alimony or child support). |
| The rule against divorce contingent fees is well entrenched in Oklahoma. Opperud v. Bussey, 172 Okla. 625, 46 P.2d 319 (1935). In addition to divorce actions themselves, the Rule also applies to appeals from divorce judgments, even though the granting of divorce is not an issue in the appeal. McCrary v. McCrary, 1988 OK 122, 764 P.2d 522. In State ex rel OBA v. Fagin, 1992 OK 118, 848 P.2d 11, the Supreme Court held that provisions for an "enhanced" fee based upon "results obtained" was tantamount to a contingent fee, and, hence, prohibited. |
|
¶13 It is a well-settled proposition of law that an attorney has a general possessory or retaining lien which attaches to property or monies of his client in his hands for the fees or for any general balance due him form his client. American National Bank of Stigler v. Funk, 68 Okl. 169, 172 P. 1078 (1918). We find nothing in the statutes which evinces legislative intent to do away with an attorney's possessory or retaining lien and such intent cannot be presumed or implied. Such a general possessory or retaining lien upon a client's documents, property or monies coming into an attorney's hands finds its genesis in the common law, as distinguished from the statutory foundation for a charging lien upon a client's specific recovery, if any, in a particular cause of action. The practical difference is that the common law retaining lien depends upon the attorney's possession of and attaches to certain documents, property or monies; while the statutory charging lien arises only upon the commencement of an action or the filing of an answer containing a counterclaim, and attaches only to a verdict, decision, finding or judgment. Thus, in the absence of contrary agreement, the attorney's retaining lien may be the only recourse available to secure the satisfaction of a client's debts for legal services not requiring the commencement of an action or the filing of an answer or counterclaim. The retaining lien is therefore uniquely applicable to those situations, including the performance of legal services in the course of settlement of disputes through counsel. Nevertheless, the retaining lien entitles the attorney only to retain lienable documents, property, or monies in his possession pending satisfaction of any general balance or fee due him from the client. An attorney validly exercising this retention right is not thereby vested with legal title to the retained documents, property or monies and may not reduce them to his independent benefit prior to agreement between attorney and client or, in lieu thereof, judicial adjudication of the attorney's asserted retaining lien. Moreover, if possession of such documents, property or monies is voluntarily relinquished to the client, the retaining lien is lost. |
| Charging Liens. 5 O.S. §6 provides that: |
|
From the commencement of an action, or from the filing of an answer containing a counterclaim, the attorney who represents the party in whose behalf such pleading is filed shall, to the extent hereinafter specified, have a lien upon his client's cause of action or counterclaim, and same shall attach to any verdict, report, decision, finding or judgment in his client's favor; and the proceeds thereof, wherever found, shall be subject to such lien, and no settlement between the parties without the approval of the attorney shall affect or destroy such lien, provided such attorney serves notice upon the defendant or defendants, or proposed defendant or defendants, in which he shall set forth the nature of the lien he claims and the extent thereof; and said lien shall take effect from and after the service of such notice, but such notice shall not be necessary provided such attorney has filed such pleading in a court of record, and endorsed thereon his name, together with the words "Lien claimed." |
| Such a lien may continue even if the client subsequently discharges the attorney and secures another. Campanello v. Mason, 1977 OK 209, 571 P.2d 449; Martin v. Buckman, 1994 OK CIV APP 89, 883 P.2d 185. As noted in Campanello v. Mason, even if the words "Lien claimed" do not appear on a pleading, other means exist of informing a client adversary or an adversary of such a claim. The court summarized the means in ¶14 of its opinion: |
|
In interpreting the statute, this Court has held that an attorney's lien may be made effective in any one of three ways: |
|
1. By the endorsement of the claim upon a petition or other like pleading filed in the case. |
|
2. By giving written notice to the adverse party (such notice to be given before judgment or settlement becomes effective), or |
|
3. By entering or causing to be entered a statement that a lien is claimed in the judgment docket opposite the entry of the judgment (such entry in docket book may be made any time before the rights of third parties intervene). |
| The court took care to note that it was not addressing whether charging liens might attach to support orders as well as property division orders, and, to the knowledge of this writer, that particular issue has not been addressed in an Oklahoma appellate court decision. |
| ---------------------------------------- |
| For gripping drama, sometimes comedy, but always engaging entertainment, here's a list of some great movies about lawyers and/or the legal system. |
|