Why are contested divorce cases so expensive? Does obtaining justice in a family law court depend on how much you can afford to pay your attorney, custody evaluators, and/or expert witnesses? How did divorces become a $50 billion per year industry?
These disturbing questions and others are answered in the 2014 documentary film “Divorce Corp.” If you are involved in family law litigation, you must watch this film. The film explores the dysfunctional aspects of our family law courts by profiling parties who did not receive any measure of justice in their divorce and custody cases.
This famous illustration depicts a lawsuit between two farmers concerning the ownership of a cow. As the farmers pull and tug the cow, the lawyer is milking it. The only guaranteed winner in a lawsuit is the lawyer. This reminds me of the old saying: “A good lawyer wins in court, but an excellent lawyer keeps his client from ever going to court”.
Each year, I review dozens of retainer agreements drafted by Maryland law firms. Here’s my list of the six most common problems I find in Retainer Agreements:
1. The language in the Retainer Agreement is ambiguous: I reviewed a contingency fee agreement which was so poorly drafted that it was impossible to determine whether the client owed a 1/3rd or a 40% contingency fee.
2. The Retainer Agreement contains an unenforceable provision: I have encountered quite a few retainer agreements that state that if the law firm sues the client for fees owed, then the law firm is entitled to an award of attorney’s fees in the amount 15% of the amount due. Such a provision is unenforceable.
3. The Retainer Agreement has a provision that violates the Maryland Lawyers’ Rules of Professional Conduct: Many law firms state in their Retainer Agreement that some or all of the initial retainer paid by the client is “earned when paid”. Such a provision is unenforceable, unless the law firm has explained in writing the disadvantages of depositing the retainer into the law firm’s business account as well as the advantages of depositing the retainer into the Attorney Trust Account.
4. The Retainer Agreement contains repugnant language: I recently encountered a Retainer Agreement that states that the client will be charged double the specified hourly rate if the client telephones the attorney at his or her phone number, even if the attorney had requested that the client call him or her at home.
5. The Retainer Agreement states the law firm will bill in fifteen minute intervals: Most law firms bill in 6 minute increments. With a 15 minute interval, a law firm can bill a client for 1 hour of time, even if the lawyer performed four discrete 2 minute tasks in the course of a day. It is patently unfair for a client to be charged for one hour of work when the attorney has actually spent less than 10 minutes rendering legal services.
6. The Retainer Agreement is signed “under seal” by the client: Most Retainer Agreements in Maryland request that the client sign it “under seal” without explaining the significance of signing the agreement “under seal”. By having the client sign the Retainer Agreement “under seal”, the law firm has extended the time for it to sue the client for fees owed from 3-years to 12-years.
In 2013, Maryland enacted a law that authorizes an employee who is owed wages to file a lien against his or her employer’s property. Maryland Labor & Employment Code section 3-1101 et seq. An employee asserts a lien for wages owed by preparing a Notice of Lien and serving it on the employer. An employer then has 30-days to file a lawsuit in Circuit Court to dispute the lien. If the employer does not dispute the lien, then the lien for unpaid wages is established.
If the wage lien is disputed, the court will hold a hearing to establish the amount of the lien; and the court can also award attorney’s fees to the employee.
The employee may then record the established wage lien against the employer’s real and personal property. The wage lien can be enforced by having the Sheriff sell the employer’s real and personal property.
Most people are familiar with Advance Directives, which are also known as Living Wills. With an Advance Directive, you appoint someone to make medical decisions after you have become incapacitated; and you provide instructions to your physician as to the type of treatment you wish to receive when you reach the end stage of a terminal condition or when you enter persistent vegetative state.
Treatment options include: (1) keep me comfortable and allow a natural death to occur; do not provide medical intervention; and do not provide me with nutrition and fluids; (2) keep me comfortable and allow a natural death to occur; do not provide medical intervention; but provide me with nutrition and fluids; and (3) try to extend my life as long as possible and provide me with nutrition and fluids.
What most people do not know is that the Maryland Advance Directive contains your instructions as to what happens to your body after you die.
In Part I, you decide whether or not to donate specified organs and how your organs will be used (transplantation, research, therapy, or education).
In Part II, you decide whether or not to donate your body to medical science.
In Part III of the Advance Directive, you appoint someone (usually your health care agent) to make decisions concerning funeral arrangements and the disposition of your body, assuming you do not have a pre-paid funeral plan or a burial plot. Without such instructions, Maryland Health Occupations Code 7-410 provides who will make these decisions: (1) your surviving spouse (or domestic partner); (2) if there is no surviving spouse or domestic partner, then your next of kin will make the decision in the following order: (a) adult child; (b) parent; and (c) sibling.
In Maryland, the most common grounds for divorce is a 1-year separation. During this 1-year period, the spouses may not cohabitate or have sexual intercourse with each other.
Mr. Bergeris was denied a divorce, because he admitted that he and his wife had engaged in phone sex during their 1-year separation. The Court of Special Appeals vacated the dismissal of Mr. Bergeris’ Complaint for Divorce based upon a 1-year separation. Bergeris v. Bergeris, ___ Md.App. ___ (2014). The appellate court determined that phone sex does not constitute cohabitation.
This ruling is precedent that phone sex, sexting, cyber sex, and video sex between separated spouses does not constitute cohabitation or sexual intercourse; and such acts with a third party does not constitute adultery.
In April 2014, the Maryland Court of Appeals addressed the issue of whether a child, who is injured while trespassing, may recover damages. In Blackburn Limited Partnership v. Paul, ___ Md. ___ (2014), a 3-year old boy suffered severe injuries when he squeezed through a gap in a locked gate to an outdoor pool at an apartment complex and almost drowned. The trial court dismissed the case on the grounds that the child was a trespasser and that the apartment complex did not violate any obligation owed to the child.
The Maryland Court of Appeals vacated the dismissal of the case, because the pool owner violated a safety statute designed to protect young children. Section 10.17.01.21A(3) of the Code of Maryland Regulation (“COMAR”) specifically requires that a closed gate to the pool must not allow a passage of a sphere greater than four inches in diameter. The purpose of this rule is to protect a particular class of individuals, namely children under the age of 5.
Practice pointer: A safety statute or ordinance will supersede the Maryland common law doctrine that no duty is owed to trespassers, but only when the safety law is designed to protect a particular class of people, as opposed to the general public. For example, a statute requiring that an owner to enclose an abandoned quarry with a fence is intended to protect the general public, not just children.
The following report was written by a former client as part of a college class on research and survey design:
Several years ago, I had the misfortune of being involved in a protracted legal dispute. The entire experience was made infinitely worse by the first two attorneys that I retained. The first attorney, a highly regarded and extremely expensive Rockville attorney, was too busy to perform the necessary work on my case. I then interviewed 3 replacement attorneys. I made the rookie mistake of retaining a Bethesda attorney, who excelled at marketing herself and self-promotion, but lacked the sufficient legal skills and expertise to properly represent me.
After an exhaustive search, I then retained Stewart A. Sutton. What a difference the right attorney makes. He reviewed and personally organized my legal file and documents; he conferred with me to make sure that he understood the facts of my case; he researched and explained the applicable law to me; and he developed a new legal theory to resolve my case. As a result of Stewart A. Sutton’s efforts, I was able to settle my complex legal dispute quicker, more favorably, and less expensively than I had ever expected.
The lesson that I learned is that the right attorney will be able to resolve your legal problem in a favorable and expeditious manner. The wrong attorney will prolong your legal problems or make them worse. This makes the selection of your attorney a critical step in the process of solving your legal issues.
So that others do not repeat my mistakes, I wanted to determine how a person should go about retaining an attorney. In conjunction with a college course I was taking on surveys and research, I designed and undertook a study to answer my question.
My methodology was simple. I obtained the names and addresses of a wide cross-selection of former clients from recently closed civil court files from Montgomery County Circuit Court. I then interviewed the clients regarding whether or not they were satisfied with their former attorneys. I obtained basic characteristics of the attorneys from their former clients, the attorneys’ website, and other public databases. I then compared the characteristics of the attorneys from satisfied clients with the characteristics of the attorneys from dissatisfied clients.
The results were astonishing. I found that the attorneys for the satisfied clients shared many common characteristics. I have distilled my findings into 6 areas of inquiry and 15 essentials questions that a client needs to ask to retain the right attorney.
I. SURVEY QUESTIONS
Step 1: GRADUATE OF A TOP RATED LAW SCHOOL
The first step is to select an attorney who attended a top rated law school. There are 200 law schools in the United States. Select an attorney who attended one the top 20 law schools as ranked by U.S. News and World Report.
Top rated law schools have a highly selective admission process; and graduation from one of these schools assures that the attorney has received a first rate legal education. While the University of Maryland produces many fine lawyers (Ranked No. 48), you are more likely to be satisfied with graduate from these local law schools: University of Pennsylvania (No. 7); University of Virginia (No. 10); Duke (No. 11); Georgetown University (No. 14); and George Washington (No. 20).
The other schools in the top ten are: Yale; Harvard; Stanford, Columbia, University of Chicago; New York University; Berkeley; and University of Michigan. The remaining schools in the top 20 are: Northwestern; Cornell; UCLA; University of Texas; Vanderbilt; University of Southern California; and Washington University in St. Louis.
Questions for clients to ask:
1. Which law school did you attend? (top 20 law school)
2. When did you graduate? (12 or more years ago)
Step 2: LARGE FIRM EXPERIENCE
The best students from top rated law schools are recruited by prestigious law firms located in major cities. These large firms are structured to train young lawyers to gain the necessary skills to practice law.
Questions for clients to ask:
3. Where did you work after you graduated law school? (a prestigious or well known law firm)
4. How many attorneys worked at the law firm? (50 or more)
5. Where was the law firm located? (a city with a population over 500,000)
6. How long were you employed at this law firm? (5 or more years years)
Step 3: BEGAN OWN LAW FIRM
After working at least 5 years at a large law firm, a lawyer has acquired sufficient skills to represent clients without supervision. A small fraction of such lawyers will eschew the high pay and prestige of working at a downtown law firm and start their own legal practice in suburban areas.
An attorney who starts his or her own firm is both confident and ambitious. You are looking for an attorney is a founding member of the firm and has been self-employed for at least 3-years.
Questions for clients to ask:
7. Are you a founding member of this firm? (yes)
8. When did you start your firm (3 or more years ago)
Step 4: SMALL FIRM
Small law firms (1 to 3 lawyers) have a distinct advantage over large firms. Small law firms have less overhead, less staff to supervise, and are less likely to become overextended with too many clients. A high attorney-to-staff ratio ensures that the attorneys are performing the work, not paralegals or secretaries.
Questions for clients to ask:
9. How many attorneys work at your firm? (1 to 3)
10. How many staff do you directly supervise? (0 or 1)
Step 5: NON-MATERIALISTIC
Many lawyers deliberately attempt to create the impression that they are successful by displaying their extravagant lifestyle. They drive high-end luxury vehicles, wear designer clothes and expensive jewelry, and live in high priced homes. The problem arises when lawyers live beyond their means. Such lawyers have a dysfunctional incentive to take on more cases than he or she can possibly handle. The hallmark of an overextended lawyer is providing low quality legal service to a high number of clients and charging excessive fees.
A non-materialistic lawyer is not concerned with creating the impression that he or she is successful by displaying ostentatious badges of wealth. The hallmark of a non-materialistic lawyer is providing high quality legal services to a small number of clients. Such lawyers can afford to turn away business, because they are not burdened with an extravagant lifestyle overhead.
Questions for a client to ask:
11. What type of vehicle does the lawyer drive? (under $30,000)
12. What type of watch does he or she wear? (under $250)
Questions concerning the attorney’s personal property can easily be worked into your initial interview with your prospective lawyer. You might say that you admire the attorney’s watch and inquire as to the manufacturer. You may inform the attorney that you are thinking about buying a new car, solicit his or her advice, and then ask him or her what type of vehicle he or she drives.
STEP 6: ACKNOWLEDGED LEGAL EXPERTISE
A non-materialistic attorney wants to impress clients, colleagues, and judges with his or her legal knowledge and skills. Such lawyers write legal books or articles for law journals, teach other lawyers at seminars, and serve as expert witnesses in court cases.
Questions for a client to ask:
13. Have you written a book or an article for law journal? (yes)
14. Have you taught other lawyers at a seminar or conference? (yes)
15. Have you testified in court as a legal expert? (yes)
II. INTERPRETING THE SURVEY RESULTS
The clients who were most satisfied with their attorneys had affirmative responses to 12 or more of the questions. The clients who experienced the least amount of satisfaction had affirmative responses to 6 or fewer questions. Clients who had between 7 and 11 affirmative responses generally had a neutral experience with their attorney.
My findings are only preliminary in nature. A comprehensive study will have to be conducted to validate my results. My recommendations may only be applicable to clients who are seeking to retain an attorney in Montgomery County, Maryland.
Based upon anecdotal evidence of friends who have used my recommended methods for retaining an attorney, my advice increases the probability that the client will be satisfied with his or her attorney.
I just received the 2014 edition of Super Lawyers Magazine for Maryland. It lists about three dozen Montgomery County lawyers as being Super Lawyers in the field of family law. There is no scientific validity to the selection and rating process used to identify these so-called best or top lawyers in Montgomery County, Maryland.
In fact, this rating guide contains a typical disclaimer, stating: “THE HIRING OF AN ATTORNEY IS AN IMPORTANT DECISION THAT SHOULD NOT BE SOLELY BASED UPON ADVERTISING OR THE LISTINGS IN THIS MAGAZINE. NO REPRESENTATION IS MADE THAT THE QUALITY OF THE LEGAL SERVICES PERFORMED BY THE ATTORNEYS LISTED IN THIS MAGAZINE WILL BE GREATER THAN THAT OF OTHER LICENSED ATTORNEYS”.
Unlike the ranking of colleges or the quality of life in different cities, there is no objective criteria to rate lawyers. At most, the designation of top, best, or super lawyer signifies that the attorney has obtained some degree of popularity in Montgomery County, Maryland. But you wouldn’t want to choose a football league’s MVP based upon the player’s popularity. Instead, you would want to award this honor to the player who had the best season based upon measurable metrics, such as touchdowns thrown, points scored, passes caught, or yards gained.
In fact, the use of the designation of “best attorney” or “top lawyer” in advertising actually violates Rule 7.1(c) of the Maryland Lawyers’ Rules of Profession Conduct. This rule prohibits an attorney from comparing “the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated”. According to Maryland Bar Counsel, a Maryland attorney should never use superlatives, such as “top”, “super”, “premier”, “best”, “most aggressive”, or “most successful”, because “it is almost impossible for the lawyer to factually substantiate” such claims.
My advice to clients is to disregard all print and internet advertising that claims that the attorney is the “best”, “top”, “greatest”, or “most” when searching for an attorney in Montgomery County, Maryland. Please read my post on how to retain a family or divorce attorney that will best serve your needs: http://stewartsutton.com/tag/best-divorce-attorney-in-montgomery-county
Parents often sign a waiver of liability form when their children participate in organized sports. Parents generally understand that there is an inherent risk of injury when their child plays soccer or baseball.
But is such a waiver enforceable when a parent agrees not to sue a commercial enterprise on behalf of their child? That is the issue that was addressed by the Maryland Court of Appeals in B.J.’s Wholesale Club, Inc. v. Russell Rosen ___ Md. ____ (2013). The warehouse club contained a play area for children. The parents signed a waiver not to sue the store if their child was injured in the play area. A child fell off a play apparatus and was seriously injured due to the absence of foam padding.
The Maryland Court of Appeals ruled that the parents’ waiver of liability on behalf of their child was enforceable. The appellate court reasoned that if parents in Maryland can settle personal injury claims on behalf of their children, parents also have the inherent authority to waive in advance personal injury claims on behalf of their children.
The profound effect of this ruling is that every for-profit daycare center, private school, and summer camp in Maryland will now require parents to waive their children’s potential personal injury claims. I advise parents to cross-out these so-called exculpatory clauses whenever they are encountered.