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EXAMINATION BY COUNSEL FOR THE GRIEVANCE COMMITTEE:
Q - Mr. DaSilva, I found your testimony fascinating. I will use some of it in my work
here. You are better than my family law teacher.
Mr. DaSilva, you testified that you often have a minimum fee which is stated in
your retainer, but that you still keep hourly time. Could you explain why you do
that?
A - The minimum fee is based upon case law that you are permitted to do it. There is
no such thing as a non-refundable fee. You are permitted to have a minimum fee
under the Court Rules governing matrimonial cases providing the retainer letter
states the basis for the minimum fee.
However, in the event that your services are terminated prior to the conclusion of
the case by way of settlement or trial, the judgment, or, in the event of a
reconciliation of the parties, you are required to refund to the client all of the
money not consumed by your time rates if you are going on a basic time rate.
I maintain that if I, for example, received a retainer of $10,000 and the client says
to me after a period of time that she and her husband are reconciling, they want to
terminate my services or go to a different lawyer or for whatever reason, I simply
add up my time records to see whatever that is and see how much I have earned of
the retainer and refund the balance.
Q - You made a differentiation between clients that come in with a great many assets
and those you characterize as lower end clients. How you characterize that client;
do you believe you have the same obligations to that client no matter what
position they are in as an attorney?
A - Absolutely, because even the client with minimal assets is a human being with the
same rights and the same privileges and the same expectations as the person with
a lot of money. There is no difference.
Again, I said the difference is where you place the decimal point, but the work and
the way you treat the client, what you have to do is exactly the same.
You are dealing with issues and how to handle issues. It is the same whether you
have a low end or a high end client. You have to devote the same kind of
attention and responsibility to both clients. It makes no difference.
