Dealing with Attorneys & Judges

Dealing with Attorneys and Judges

Dear Jeff & Andrew:

I have a dispute with my divorce lawyer over her fee. I paid every bill that she submitted while the case was pending but I ended up with a balance due because our contested trial took a little longer than expected.

When we got the decision from the court, I received almost everything I wanted although the judge did not order my husband to pay any additional money for my legal fees and expenses. My lawyer said I still owe her the money but I find it unfair for me to have to pay when she could not get the judge to order my husband to contribute. I have the money to pay her but I think I should stand firm on my principals. Am I right in refusing to pay?

Not even a little bit. You acknowledged that your lawyer's fee was properly incurred. You and your lawyer had an agreement that you would pay her at an hourly rate for time spent on the case, and she spent the time. Your contractual obligation with your lawyer is binding, whether she did a great job or not. What makes your position seem so unreasonable is the fact that you acknowledge that she did an excellent job in representing you.

It should come as no surprise that very few individuals going through a divorce win every argument they make in court. Following a trial, both sides usually wind up disappointed over at least something. Did it ever occur to you that the court may have taken into account the fact that you won every argument in making the decision to not award attorney fees? The bottom line is that the fee appears to be reasonable, you have a contractual obligation to pay it, the results were excellent and you can afford to pay. Our advice is to make a full payment to your lawyer right away. She seems to be extremely capable in the courtroom so we doubt that you want to be facing her in court in the future.

Dear Jeff & Andrew:

Does my lawyer have the right to withdraw from my case just because we had a disagreement?

He called me into his office and let me have it because he believed I lied to him. He said that he discovered that I was holding some cash that we failed to disclose to my husband's attorney. When I filled out his questionnaire, I did forget to tell him that I had $12,000 in a lock box I keep at home. I guess my wife stumbled on it when she was looking through my things.

My lawyer told me he simply did not believe my story and that he would not be a party to my lies. Not only do I think he has slandered me but I don't think he should have the right to stop representing me. Although he said that he would mail me a refund of my entire retainer fee, I don't want my money back. I want my lawyer to represent me and attack my wife as viscously as he is attacking me. Who is right? I need your help.

While you may need help, I find it hard to believe you will benefit from anything I have to offer. You need to quit kidding yourself into thinking anyone will believe that you innocently forgot to mention that amount of cash kept in a lockbox.

Not only does your lawyer have the right to refuse to further represent you, he probably has a duty under the Disciplinary Rules to sever the relationship. A lawyer must have the ability to zealously represent his client but may not permit the individual to perpetrate a fraud on the court. He knew you were going to lie and did the right thing by telling you that he would not be a party to your lie.

Accept the refund of fees and use the money to get some help with the lying. Then you can hire another attorney who will be able to work with you as the litigation goes forward. Your lawyer did you a favor... he kept you from lying in the courtroom and possibly facing perjury charges.

Dear Jeff & Andrew:

I am in the middle of a divorce that seems to be taking forever. My husband repeatedly fails to pay the temporary spousal support or the child support for our three children. I have filed for contempt but he pays something just before the hearing. My lawyer has advised me to dismiss the contempt because she believes the court will not do very much since he finally paid. However, each time I file it costs me time and money so I am really on the losing end. When I told my lawyer I wanted to go to court, she stated that my husband had “appealed” the temporary order and that the court will not find him guilty of contempt while that appeal is pending. Now it looks as if I have nowhere to turn.

Do you have any suggestions on what my lawyer can do or should I be thinking about firing her and getting someone else?

Actually, this is not an uncommon problem. Courts have busy dockets and lawyers tend to work hard not to waste the court's time. Occasionally, that translates into lawyers recommending that contempt actions be dismissed when the offending party is no longer violating the order.

While your lawyer is probably only trying to protect you, we think that too many litigants learn how this trend works and take advantage of it. If your lawyer does not feel that going forward with a contempt action is the best use of time or money, she should certainly ask for an award of attorney fees at the final trial. In all likelihood, your complaint or counterclaim asked for an award of attorney fees, so a separate motion is likely not necessary. It should be fairly easy to put together an exhibit documenting the efforts that were made - and at what costs - to get your husband to comply with the court's orders. While judges do not like to have their time wasted, they are also terribly displeased with litigants who thumb their noses at the court's orders and think they can get away with it.

Dear Jeff & Andrew:

My divorce case has been assigned to a magistrate instead of a judge. Why is my case going to be heard by someone who was not elected to hear divorce cases? Do I have the right to demand that the judge take over my case?

While it is true that magistrates are not elected to hear divorce cases, they are hired by the very judges who have been elected. The rules governing the courts of Ohio provide that magistrates can fulfill this role and it is a well-established practice in most counties across the state.
After a magistrate issues a decision, it is automatically reviewed by the judge for any legal deficiencies. Either party can ask that the judge review the substance of the magistrate's decision to determine whether it was issued properly and in accordance with the law.

Dear Jeff & Andrew:

I retained an attorney to represent me in a child support hearing. All I wanted was to have my support sent on a steady basis and to be able to claim my child for tax purposes. The lawyer charged me $575 to get started. I asked him to let me know when the retainer was used up so I could decide if I could afford to go on. I heard nothing further from him until I was in to sign final papers. His secretary told me that I owed $625 more and wanted me to pay by credit card if I did not have the cash. I was in shock. Is this legal?

Well, it depends upon a number of factors. Did you sign an engagement agreement or contract for legal services when you hired the lawyer? If so, you should consult that document to see what is says about your fees. If it specifies a flat fee of $575, we do not think you owe any additional money. More likely, the $575 you paid was a retainer fee and there was a written or oral agreement that your attorney would charge you on an hourly basis.

In all likelihood, however, your lawyer simply forgot to tell you when he had used up the retainer. If your lawyer kept you abreast of everything that was happening in your case, were you in a position to understand that he was spending more time on your case than either of you had originally thought? Your first step is to discuss this matter with your lawyer to explain your concern and to see if any compromise can be reached.

If that fails, and if you feel that the overall fee was excessive and unreasonable, you can always take advantage of the Columbus Bar Association's fee arbitration program. The Bar Association will have an independent committee member hear from you and your lawyer and make a determination that is binding on both of you.

Dear Jeff & Andrew:

I have been going through a divorce for over a year and it appears that it may take that much more time before the case is concluded. I am concerned about my attorney. My husband's lawyer speaks very eloquently in the courtroom and seems to have convinced the judge that his client is truly a wonderful person (which he is not). All my lawyer does is sit back quietly and listen. The judge has even chastised me on a couple of occasions so it rather obvious that she, the judge, believes my husband's lawyer. Now I am afraid to go to trial as I am convinced that the judge has already made up her mind to buy my husband's story.

Can I change judges since it appears we have a good deal of time before my case will actually go to court?

If you have no faith in your lawyer, it might make more sense to end that relationship. Having a judge removed from a case requires a showing of actual conflict, bias or prejudice. It does not sound like your case comes even close to that mark.

Do not mistake the fact that your husband’s lawyer is eloquent with the conclusion that the judge believes that your spouse is a truly wonderful person. Moreover, the fact that a judge chastises a litigant in court is a far cry from saying that the judge will rule in favor of the other party. Some criticism from the bench is intended to wake up one of the parties or a way to tell the lawyers that information is lacking. It does not mean that you will be treated unfairly in the case.

Before you take any action, talk to your lawyer and express your concerns honestly. Your attorney may have an excellent reason for keeping quiet. In most cases, there is a time to speak and a time to keep quiet. The right time for speaking may not have arrived.

Dear Jeff & Andrew:

When I went through my divorce I decided to spend a little extra money and hire a top divorce lawyer. He and his staff were worth it even though it cost more than I wanted to spend. Now I’d like to deduct the attorney fees on my tax return but I’m not sure if I can. My lawyer said he can’t advise me so I don’t know what to do. Can I write off the fees?

We wonder if your lawyer was really one of the “top” lawyers if he can’t give you a little help on the issue of deductibility of attorney fees. He may not know all the details but he should be able to head you in the right direction.

Generally speaking, attorney fees and court costs for a divorce are not deductible as they are considered to be personal expenses. However, you may be able to deduct legal fees paid for tax advice in connection with your divorce. If you received advice on federal, state and local taxes, you do have the right to deduct fees associated with that advice. Furthermore, if you spent money on legal fees to try to obtain spousal support or alimony, they may also be deductible. The rationale for this deduction is the fact that you must include spousal support in your gross income for tax purposes and fees associated with gaining taxable income is legitimate to claim.

Since fees you paid most likely include both deductible and non-deductible expenses, it is very important to ask your lawyer for a breakdown of the fees charged. Your lawyer can separate the costs for the services performed to assist you when it comes time to prepare your tax return.

Do you have further questions not answered here? Do not hesitate to contact Grossman Law Offices today to schedule an initial consultation.