New Lawyers and their Transition into the Marketplace
by Thomas F. Liotti
[continued from prior page]
Q - Mr. DaSilva, you have been involved in many Bar Association activities. Do you believe that Bar Associations provide substantial training and warnings for lawyers about some of the problems that you have described?
A - Not at all. I think it is a terribly inadequate area. You have to go back beyond the Bar Association, go back to the law schools. I think the law schools just turn people out. Sometimes I would say the best qualifications for getting into law school is to have the ability to sign the tuition check.
Many of the law schools will take everybody and anybody. People should not be lawyers sometimes. When they get in the law school, they do not focus on the practical aspects of a practice. They teach law primarily.
They may even have some clinics where you have a mock trial of the matrimonial case. I know Hofstra Law School, I have been involved with some of their intern programs where they have a situation where you represent a wife and somebody else represents a husband and you now negotiate, and I as a lawyer will observe what is going on and give my impressions, what they are doing right and wrong.
They don't deal, I don't think, with the business aspect of funding a practice. I don't know any law school that has a course in business, of funding a practice, what it means, what you have to go through. I think these people come out of law schools totally unprepared to run a practice. Yet many of them do. It was several years ago you could not get jobs. That was eight or ten years ago, and if they couldn't get jobs, they hung up shingles and they ran into problems.
Q - If a lawyer is having difficulty functioning, are there programs in place for lawyers such as lawyer counseling programs that can deal with the lawyer who has problems in maintaining or managing a practice?
A - There are some, but they are inadequate.
Q - Thank you. Mr. DaSilva, I started this line of inquiry by asking you about what is required and what is needed when a lawyer is coming out of law school and attempting to set up a matrimonial practice. What exactly do you need, a desk, chairs, telephone, what is required?
A - Basically the simple physical set-up, a place to see clients. Some people do it in their homes, sometimes they set up an office. It depends on how much funding they have available. If it is a person with limited funds, you rent an office in someone's suite, you have a telephone with an answering machine, a computer, and you sit and do your own work.
Then here is the question of getting clients in these days, in the last ten years or more, so you put ads in papers, PennySaver, Newsday or whatever . Newsday is expensive for advertising, but you use some of the PennySaver type publications and you wait for the phone to ring.
Q - Do you have to have employees?
A - No, not at all.
Q - Can you function without employees?
A - It is possible, sure, if you know how to use the computer or typewriter or have the ability to generate paperwork.
Q - You have indicated that matrimonial cases are, to use your words, very expensive. You have indicated that lawyers fresh out of law school doing this advertising would have difficulty making their overhead and so forth. New York is known as a grounds State; am I correct?
A - Yes.
Q - Would you please tell us for the record what a grounds state is?
A - A grounds state is sometimes called a fault state. You cannot get a divorce by consent. You cannot get it because the parties simply want it. You have to show that there are grounds for the divorce.
New York has fault grounds. At least four of the six grounds for divorce in the State of New York are fault grounds, and the only two non-fault grounds are where you have a separation agreement, and the other one where you have a separation judgment and you have lived under either the judgment or an agreement for a year, and if the parties substantially complied with its terms, that becomes the grounds for the divorce.
The other four are really the fault grounds and they fall within most of them. The most common one used is cruelty. Ninety percent of the uncontested cases or more are based on constructive abandonment, refusal to have sex for at least a year prior to the commencement of the action without justification, so we do have fault grounds, and you do have to get into the nitty-gritty of what the people are doing to each other. If it is going to be contested as cruelty, you have to deal with a possible violence. If there is no violence, you have to deal with emotional cruelty, you have to deal with issues of medical problems as the result of the cruelty.
A - Is there something called an uncontested matrimonial case?
A - You are using a word which now has been divided into two words, two kinds of cases. We used to have what we called uncontested cases. The matrimonial part have now segregated these into uncontested case and settled contested cases.
According to them, the uncontested cases where the parties do not have any issues, they have reached an agreement, there has been no litigation and they are simply now proceeding to a divorce on the basis of an agreement. That's an uncontested case.
The settled contested cases are where there has been some litigation and the case has been settled. The settlement means that all of the issues have been resolved by an agreement, so that would be coming under the generic term of uncontested case.
Q - What is a contested matrimonial?
A - A contested case is where there are issues upon which the parties cannot agree as to their resolution and it is necessary to present those issues to a judge for resolution. That's a trial.
Q - When someone first comes into you office on a matrimonial case, do you know at the outset whether it is an uncontested matrimonial or a contested matrimonial?
A - There is no way to tell. In fact, many times clients come to me and say they have a simple case, "We have agreed on everything, we want you to write up an agreement." That to me is trouble, because it is inconceivable that a layperson who has never been in the field can think of everything that should be considered in creating a complete settlement agreement or separation agreement.
The agreement does two things. First it should resolve whatever issues presently exist and secondly it should contain in its framework the basis for a resolution of issues that you can anticipate may arise in the future and try to avoid them.
As a simple one, the kids are three and five, what do you do about college. The Court will not deal with it at that age, but in doing an agreement you know at some point that that will become an issue. You put it in the agreement as something that may come up in the future. Most people don't think ahead in that fashion.
Q - If someone comes to you, Mr. DaSilva, on a matrimonial question and they ask you for your representation, do you charge a minimum fee retainer?
A - I have a basic fee. The basic fee will vary with the case. In other words, when I see a client for the first time, I schedule two hours with the client. I cannot do it in less than two hours. I spend a full two hours going through the history of the case, the history of the marriage, what is involved with the people, and try to perceive what the issues are in the case, and ascertain, if I can, the possibility of which of those issues appeared to be settleable and which ones are not.
Based upon my conclusion of that two-hour session, I am able to give some recommendations to the client, give them some kind of advice as to what should be done, and I can also formulate in my mind what that case minimally will take in order to handle it. That's on a case by case basis. They have no set fee minimum.
Q - Is there a uniform rule or a minimum fee, if you will, that you. ll charge on any
matrimonial case?
A - Yes. It depends upon the case.
Q - Let's take the simplest case.
A - Okay. $2,500.00. The reason is that that would be where all of the issues have
been resolved, and I create the agreement and handle the paperwork for a divorce,
and part of that function in my mind is to assure that the agreement fulfills my
responsibilities to put in writing, in language that should not be challenged, the
deal that was made and to see that the deal is complete and that it projects some of
these future problems.
Also it is a responsibility and a liability that I am assuming to perform that task,
because as a lawyer I do have a liability to clients to perform a task in accordance
with the standards of practice.
Q - Where you say minimum fee, do you mean that you would not undertake that case
for less than $2,500.00?
A - That is correct.
Q - Do you also keep track of your hours against the $2,500.00?
A - Yes.
Q - Your hourly rate is what?
A - $400 an hour.
Q - Do you know of matrimonial lawyers who work for less than an hourly basis?
A - Certainly.
Q - Do you know of matrimonial lawyers who would undertake the simplest
matrimonial case for less than $2,500.00?
A - Yes.
Q - Let's take the most gruesome set of circumstances, a couple, the wife comes to
you and they have two children, maybe there is some indication of battering, a
husband is not providing for, he is not providing maintenance, the wife is not a
moneyed spouse, not earning any money, the husband has left the marital home, in
a case like that where you think you may have issues involving custody and other
problematic concerns, what would you charge?
A - You left out some factors such as the types of assets that are involved. If he has
stock options, it is extremely complex. If you deal with certain types of pension
plans, it is very difficult to deal with some of them. The man may be involved in
the corporate business that has a complex structure that may require difficult
evaluations. He may be involved in the real estate business of some sort.
You have to look at the asset picture as well, but you mentioned one thing,
custody. When I hear the word custody my ears go up. Is this a true custody
issue? If it is, that's one thing. If I smell that it is not a genuine custody issue, I
will talk turkey with the client and maybe not even handle the case, because if I
think a client is trying to use the custody issue as maneuver for a financial
advantage, I am going to tell the client flat out, "You are not going to do it with me as your lawyer, because there is too much scarring with children."
The worst thing that a child can have in his lifetime perhaps is a custody battle. I
will not be a party to it. I explained that to him, and I am surely successful in
deferring a client from suing on a custody issue if it is really not genuine. Even
where there are some issues, there are ways to work them out without the fight of
a custody battle such as shared parenting.
If you have a client that you perceive could be reasonable, you can deal with that.
If you have a true custody case, it is enormously expensive. I tell most of them
they cannot afford it.
Q - The same statement of facts that I gave you, let's take one fee that you would
charge as a minimum where it is not a true custody situation and one where it is?
A - The difference for custody would be $10,000 to $15,000. When you have a
custody case, it is going to be tried, almost certainly, if it is a genuine issue. There
are very few of them. Most custody cases are unnecessary. If you do have one,
you are looking at ultimate expenses in the $50,000 to $75,000 range including
the expert testimony and everything else you'll need.
You. ll have a Law Guardian who will be paid on standard rates for a Law
Guardian, which could be $150 or $250, and you have forensic evaluations, $200
or $300 per hour, and sometimes 20 or 30 hours of forensic time is necessary, so
you are dealing with very, very big bucks there. As the attorney, you have to
devote yourself very assiduously to that case.
- Do I have it right that you just indicated that as the lawyer, forgetting
disbursements or the payment of experts or anything else, but just for the legal
fees, you would charge on a contested matrimonial case involving custody
$75,000 up front?
A - No, not at all.
Q - What would you charge?
A - I would determine what the case is worth in terms of a retainer. If custody were
not involved, and I would add $10,000 or $15,000 to the retainer for the custody
issue. I would lump it altogether, but in my mind, that's how my mind works.
Q - For the underlying matrimonial?
A - It depends how complicated the issues are the magnitude of assets we are dealing
with. Bear in mind that the larger the assets the bigger your liability is if you
make a mistake. There is more time you have to put into a case. If I am dealing
with megamillion dollar assets, I am going to have a much higher retainer, not
because the people are wealthy, but because of my responsibility in dealing with
those assets, the complexity of them, and I could charge anywhere from $25,000
or $50,000 as a retainer.
