Organizing Your Family Law Practice - Career Limiting Errors

Career Limiting Errors

Many complaints are made to the Law Society about lawyers in family matters. These tips may help you avoid such problems:

  1. Avoid a reactionary practice. Family law is not generally a field that allows you to juggle too many high conflict files at one time because each file will have a unique, and usually complicated, set of facts that require your thoughtful care and attention. Do not open a new family law file just to set it aside when another one comes along. Many family law files require attention to detail on a regular basis and over a long period of time. A happy client will appreciate the care that you put into their file. You want to avoid situations where your client is asking why you did not follow his or her instructions in a timely manner.  You also do not want to be surprised by short notice court applications that could have been avoided with the appropriate attention to the file.  While emergencies often arise in family law files, you can reduce their frequency by keeping on top of your files and managing client expectations.
  2. Confirm verbal decisions in writing. Remember that your client is under stress and possibly under a time constraint, particularly when it comes to financial matters. This client may not appreciate everything that you say and even if they do, they may not have processed the information in the way you intended. It is imperative to confirm all instructions in writing, particularly where the instructions involve significant legal expense or a change in the client’s position.  Whenever possible, provide the client a reasonable amount of time to consider your written advice and provide instructions.  Where decisions are made quickly by necessity, confirm the discussion in writing as quickly as possible.
  3. Avoid delay. Take action as soon as possible after a decision has been made. Failing to finalize and enter a court order, for example, will lead to complications if there is a change of lawyers. Also, it is not unusual for two lawyers to disagree on the court’s decision, requiring a return to court to resolve the matter. The process will be easier if the issue is fresh. It is your duty to enter a court order even if you are no longer solicitor of record, so a delay in doing so while you are the solicitor of record might mean that you will be doing this work without payment at a later date.
  4. Send interim reporting letters and accounts. Not only will this approach assist you in defending yourself in the event that a complaint is made against you, it will also force you to think strategically about your client’s case as you make recommendations in your reporting letter. It is an opportunity to remind your client that his or her instructions may not lead to the result he or she expects. This will allow the client the chance to reconsider his or her course of action. It also creates a written record of your advice to not take a course of action.  In your accounts, advise your client in sufficient detail of the work you have done. An account that contains statements such as “negotiating settlement of custody issues” or “representing you successfully against application to increase maintenance” is far better received than a multi-page listing of dates with notations such as “telephone call to/from opposing counsel”, “email to/from opposing counsel”, “attendance on client”, “attendance in court”, etc.

 A client may decide to change lawyers after reading your opinion about their chances of success.  Sometimes, a client may decide that your approach is not the approach he or she wishes to take.  This is most common with clients who seek only to litigate and who do not wish to make any attempts to settle.  This is not a statement on your ability as a lawyer, but rather a situation where you are not a good “fit”.  Clients in family law files are revealing intimate details about their lives and they must feel comfortable with the lawyer and the approach.  Some clients are simply difficult to deal with and both of you may have to consider whether to continue together.  For more resources regarding difficult clients, refer to the Law Society’s Small Firm Course.

The cost of your legal services will likely become an issue at some point in the file.  In order to avoid conflict with your clients over this issue, it is good practice to bill family files on a monthly basis and always after any major event such as a court appearance or mediation.  Where major events on a file are upcoming, be sure to advise the client of the potential cost in advance and seek a retainer for the estimated amount.  This eliminates any misunderstandings or the potential shock on the part of the client when he or she receives your bill.

Community Discussion

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Having practiced for many years, I only take on one or two high conflict cases at a time.  I only take on one high conflict child parenting case a year. I only book one trial a month.  I never book more than two clients a day.  At the end of each day I set aside and make notes regarding the files I will be working on the next day. Over the years I, like many senior lawyers, have developed a "sixth sense" about files that may result in problems requiring immediate attention either because of the client or opposing counsel. 

I strive to do quality work while maintaining balance in my life.

I always confirm instructions in writing and, as noted above, all important documents and correspondence, are sent to the client for review and discussion before they are sent out.

Monthly accounts are sent to clients as well as reminder letters regarding outstanding accounts.  If I sense a problem with an account or fees, I will address this directly with the client.

If I sense that I am having trouble communicating with a client or I am ethically uncomfortable with their instructions, particularly with respect to child-related matters, I will discuss the matter directly with the client and if necessary refer them to another lawyer.

I cannot recall receiving a short leave court application in the past ten years.

Keeping a written record of communication as well as sending reports to the client is a vital part of practice. As lawyers are often busy with numerous clients, after a talk on the phone or in person, the lawyer may forget very shortly the details of the conversation which may be vital later and could contain very important instructions from the client. Writing things down should be a habit for everyone, and not only this, but ensuring that the record is kept well within the file and is also scanned.