Wednesday, August 28, 2013

Planning for the Worst - Pre-marital Agreements and the Law

As always, please review my disclaimer before reading this post by either following the link above or by clicking on this link.  As always, legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

The unfortunate reality of today's world is that nearly half of all marriages end in divorce (the percentage has been on a downswing lately, but it's still well north of 40%).  While it may not be what you want to think about when you are beginning your married life with someone you full well believe will be your partner the rest of your life, understanding the high probability of divorce may allow you to protect yourself.  If you have substantial assets, anticipate a substantial difference in income, or really have any long term concerns about your marriage, a pre-marital agreement (colloquially known as a "prenup" or "prenuptial agreement") may be the right path for you.

Pre-marital agreements are recognized to some extent or another in all 50 states.  That being said, there are limitations on pre-marital agreements, and important rules that need to be followed.

Law Governing Pre-Marital Agreements

For a long time there was a great deal of confusion in Virginia about how a court should treat pre-marital agreements.  Should they be treated just as a contract, subject to all contractual defenses?  As a result, should a prenup still be applicable if the marriage lasts a prolonged period?  What about if the prenup turns out to be horribly unfair to one party or the other?

Conflicts in the courts over how to treat pre-marital agreements led to Virginia adopting in the 1980's the Premarital Agreement Act, which is codified in Virginia Code Sections 20-147 through 20-155, and remains largely unchanged from its original enactment.  The law chose a hybrid approach to pre-marital agreements, treating them as not entirely contractual and subject to all contract rules, but not entirely immune from contract laws either.  Moreover, the law specifically prescribes what can be covered by a pre-marital agreement, creating the legal presumption that if something is not covered by the Premarital Agreement Act, then it cannot be covered by a Premarital Agreement.

Matters a Premarital Agreement Can Address

The list of matters that a premarital agreement can cover is contained in Virginia Code Section 20-150.  The list includes property rights, spousal support (alimony), wills and trusts, life insurance rights, choice of law, and any other matter "not in violation of public policy or a statute imposing a criminal penalty."

So, that last provision may sound like a catch-all, but it's really not.  The courts have construed this provision, in light of the nature of other provisions in the section, to still limit premarital agreements to essentially issues of property and money.

So, what does this mean a premarital agreement can do?  Well, it can say how any property either of you brings into the marriage will be dealt with, regardless of whether the other does anything with the property during the marriage.  It can say how property acquired during the marriage will be dealt with.  It can say how much spousal support either party may get in the case of a divorce (including none, or including making it dependent on how long the marriage lasts) and for how long.  It can make rules about how a divorce affects your wills and life insurance.  It can even make rules for how your divorce is governed (if you are religious, for example, maybe you want your divorce governed under the rules of your religion, instead of state law - just be aware a state court will not enforce any provision that actually violates someone's constitutional rights).

Matters a Premarital Agreement Cannot Address

The short answer to this header is "children."  You can certainly put whatever you want to in the premarital agreement regarding custody, visitation and child support in the case of divorce, but if you go to a judge and seek to have it enforced, be ready for the judge to laugh in your face.  Custody, visitation and child support are, in theory, based on "the best interests of the child," and no judge is going to accept that you knew what those best interests were before you even got married.  As a result, a custody, visitation or child support agreement in a premarital agreement is completely unenforceable unless a judge makes an independent determination that the arrangement is in the child's best interests.

Other matters that cannot be included in premarital agreements include prohibitions on re-marriage (except in the context of terminating spousal support upon re-marriage), rules forcing a person to stay part or become part of a religion, post-marital sexual restraints on a person, post-marital restrictions on where a person may live, and similar matters.

Defenses Against Application of a Premarital Agreement

While occasionally courts deal with cases that are arguments over construction of premarital agreements, oftentimes a legal dispute over a prenup involves one party trying to enforce the agreement and the other trying to have the agreement nullified.  There are some defenses to the enforcement of a premarital agreement, but the Premarital Agreement Act favors premarital agreements, and as such, those defenses are limited, and frequently an uphill climb.

As I said before, premarital agreement law is quasi-contractual.  That means some traditional contract defenses apply, but some do not.  For example, the statute of frauds applies, and in fact is even stronger than the typical statute of frauds - in other words, a premarital agreement must be in writing, a verbal or implied premarital agreement is unenforceable.  A lack of consideration (a contract defense that says a contract is invalid unless both parties get a benefit [such as receiving money or goods] and suffer a detriment [such as paying money or giving up goods] from the contract) is specifically not allowed as a defense to premarital agreements.

Also, as you might expect, the contract defenses of duress (that you did not sign the contract voluntarily) and illegality of the terms of the contract are defenses.  On the other hand, the statute of limitations, while a defense, is tolled (as in, does not run) while you are married, so a breach of the agreement only becomes unenforceable if you have already been divorced at least five years (the statute of limitations on breaches of written contracts).

The final major defense is unconscionability - probably the most common attack on a prenup.  Unconscionability is a contract defense that says due to a combination of unfairness in how the contract was drafted and signed, as well as unfairness of its results, the contract should not be enforced.  Unconscionability, however, is only sort of a defense to a prenup.  In order for the unconscionability defense to succeed, the party attacking the agreement must not only prove that the prenup is unconscionable, but also that at the time of signing the prenup the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party and that the party did not voluntarily and expressly waive, in writing, that party's right to the disclosure.

In short, prenups are very hard to attack, and will usually be held to be valid and enforceable.

A Note on Marital Agreements

So, what happens if you are young and idealistic and decide "you know what, this prenup thing isn't for me, I'll never get divorced," but then a year later you and your spouse come to your senses and realize it would have been helpful to have a prenup just as a fallback safety net and something to reduce your legal fees if you did get divorced?  Well, you are not out of luck.  In 1987, Virginia adopted the Marital Agreement Act which is codified as Virginia Code 20-155.  All that the Marital Agreement Act really says is that if you sign what would otherwise be a prenup after you are already married, it is still enforceable under all the same laws and in all the same ways as a prenup.  So, it's never too late (and if you hear your friends who are in a divorce talking about their "Separation Agreement" or "Property Settlement Agreement" - those too are marital agreements to which this law is applicable).

Conclusion

Pre-marital agreements can be valuable ways to protect yourself and your property in case of divorce, but there are limitations to what a pre-marital agreement can cover.  Moreover, if you are considering signing one, review it closely - it's unlikely that you will later be able to challenge it successfully.  If you are considering or want to draft a pre-marital agreement, or you are involved in a legal dispute involving a pre-marital agreement, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me or another attorney in my office.  Your initial consultation is free for up to half an hour!

Thursday, August 22, 2013

FAQ's About the Legal System - Part I

As always, before reading this post, please review my disclaimer by following the link at the top of the page or by clicking on this link.  As always, all legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Well, it's Thursday, and I haven't done a blog post yet this week, so my calendar tells me I'm due for one.  Nonetheless, after spending most of the day yesterday in court, and then running around the county on various errands, I find myself this morning with a terrible case of writer's block.  Fortunately, I had planned for such a possibility.

Over the course of my legal career, there are numerous questions that I get asked repeatedly.  In terms of this blog, the answers to these questions are frequently too short to warrant blog posts on their own, so I've had an "FAQ" post on the back-burner for a while.  So, what follows are some of the questions I am frequently asked as an attorney, and my quick answers thereto.  I doubt this will be my last FAQ, however, as I have quite a few to go through.  Moreover, if there's an answer you want more information about, you can certainly leave a comment.  Heck, you may inspire me to extrapolate an entire post about that topic and help break my writer's block!

Anyways, here we go...

Why do lawyers charge so much money?

The complete answer to this question is a fairly complex economics explanation - we charge what "the market" allows us to charge because clients come into an attorney-client relationship expecting to pay that much.  The simpler answer, however, is that like any business, attorneys charge at rates they need to in order to sustain their business.  Attorneys have very high rates of non-payment from clients for a variety of reasons (sometimes even the best attorneys lose, and clients seem to think they don't need to pay when that happens), and a large percentage of our workday is non-billable time.  As a result, we need to charge enough to keep the business going (pay rent, computer fees, employee salaries, etc.), and also to feed our families.  You see, there's this misperception that lawyers are all wealthy aristocrats which is largely false.  There's a small percentage of attorneys that make millions a year, but most make middle class salaries at best.

Why is the legal system biased in favor of people with lawyers?

This is a question I get a lot and most people are quite skeptical when I say the legal system is not biased.  In fact, I see judges often go out of their way to make sure pro se (unrepresented) persons get heard.  The problem is, we have a complicated legal system, filled with rules that are, in theory, designed to promote the efficient running of justice, and attorneys are forced early on to learn those rules, whereas an unrepresented individual who has never dealt with the court before hasn't, and can fall into those traps much more easily.  Moreover, attorneys know the law better because knowing the law is our job - we have studied the law much longer than most any pro se person will have.  This question is almost like asking "why are illnesses biased in favor of being treated by doctors."  Sure, anyone can treat an illness (and for some small illnesses, most of us do treat them ourselves), but doctors have spent years studying these things that we just can't, and so they know how to treat it better.  With lawyers and the legal system, it's largely the same.

What does "jurisdiction" mean?

The dictionary definition of jurisdiction is "the official power to make legal decisions and judgments," and that describes it pretty well.  Jurisdiction determines when a court can make a ruling, and when it cannot.  For most intents and purposes, there are two kinds of jurisdiction - "subject-matter" jurisdiction and "personal" jurisdiction, and in order for a court to be allowed to even consider a case to begin with, it must have both.

Subject matter jurisdiction is the law determining whether or not the court is allowed to hear cases of a certain type.  If a court does not have subject matter jurisdiction, it does not have the power to hear a case, even if all parties want the court to hear it, and any ruling issued by a court without subject matter jurisdiction is immediately void.  Subject matter jurisdiction is usually determined by the legislature that controls the court (so, state legislatures for state courts and Congress for federal courts), but there are some constitutional limits as well (the case you all learned in school - Marbury v. Madison, which established judicial review, did so by saying it was unconstitutional for the Congress to give the Supreme Court subject matter jurisdiction over the original filing of a writ of mandamus).

Personal jurisdiction is, as the name suggests, "jurisdiction over the person."  In other words, if the court does not have jurisdiction over the person, it cannot very well compel that person to do anything.  Personal jurisdiction is a much more complicated subject than subject matter jurisdiction, and it may very well warrant a short blog post someday, but the short (and admittedly imperfect) description is, a court has personal jurisdiction over you if a) you were served with process personally in the state where the court sits, b) you are being sued for an action that had some effect in the state where the court sits, c) you are a resident of the state where the court sits, or d) you willingly consent to the court having personal jurisdiction over you.  So, as you can see from d), unlike subject matter jurisdiction, personal jurisdiction can be overcome if the parties want it to be (and there are reasons why someone might consent to personal jurisdiction).

Who picks the judges in Virginia?

So, most of you are probably aware that in the federal system, the president nominates judges for confirmation by the Senate.  You may also be aware that in many states, the state judges are either similarly picked (Governor nominates, legislature confirms), or are elected.  Virginia, however, has a fairly unusual system - our legislature unilaterally (without any legal say from the Governor, though he may have a practical say) picks our judges.  The way this practically works is that when there is an opening, the local Bar Association interviews candidates and recommends several to the local legislature delegation, and the local legislature delegation then decides who to recommend to the full legislature.  It is unusual for the full legislature to go a different route than the local legislature delegation, though it does happen on occasion.  Our judges serve 8 year terms, except for the Supreme Court justices who serve 12 year terms, and must be re-appointed if they wish to stay on the bench at the end of their terms (most judges are re-appointed without difficulty, but every now and then one will get voted off).  Further, our judges have a mandatory retirement at age 70, although they can continue to serve as "senior" judges and justices after that, in which case they can sit on cases where other judges are not available.

What is a "Demurrer"?

As my boss likes to say, they don't call us the "Old Dominion" for nothing.  Virginia courts have a particular love for Latin terms that have long since been abandoned by most other states.  While most states have a "Motion to Dismiss" on the basis of "failure to state a claim" (this is Rule 12(b)(6) in federal court, for example), Virginia calls that a Demurrer.  Basically that just means you are saying that even if every allegation in the Complaint initiating the lawsuit were true, the plaintiff would not be entitled to the relief the plaintiff seeks.  Also, Virginia also still uses the term "subpoena duces tecum" which is the same thing as what other states call a "subpoena for documents."

I'm about to go skydiving, is my liability waiver valid?

So, liability waivers are another thing that might warrant a full blog post some day.  Virginia's rule generally, although there are some exceptions, is that you can waive liability in advance for property damage, but not for personal injuries.  So, a waiver that says "I will not hold x liable for damage that may occur to my property" is valid and enforceable, but a waiver that says "I will not hold x liable for any injury or death I may suffer" is invalid.  Again, there are exceptions, but that's the general rule in Virginia.

Conclusion

Well, I think that about covers it for today.  Thanks for bearing with me as I battle the dreaded writer's block!

Thursday, August 15, 2013

Feeling "In"secure - Security Deposits and the Law

As always, please review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

One of the simple facts of life is that when we live in an apartment, we wear things out - be it carpet, wall painting, or other parts of the apartment.  Long ago, in order to protect themselves from this damage, landlords established the idea of a security deposit - money paid up front by the tenant to help cover the costs of damage done during the tenancy.  However, ever since landlords also decided to set security deposits at an amount based on the rent number, numerous questions have arisen.  Can I use my deposit as my last month of rent?  How do I get my deposit back?  What responsibilities does the landlord have?

Security deposits present an interesting facet of landlord/tenant law, and mistakes in how security deposits are administered can have serious legal consequences.  This blog post will seek to explain some of the law around security deposits, and how to protect yourself, as a landlord or a tenant, from problems with the use of security deposits.

VRLTA vs. Common Law

Most people will remember from my post in May that there are big differences in many situations between the law regarding leases that are governed by the Virginia Residential Landlord and Tenant Act versus the law regarding leases that are not.  Security deposits are no different.  VRLTA lease security deposits are governed entirely by Virginia Code Section 55-248.15:1, and these provisions can only be modified by the lease if the lease makes them friendlier to the tenant.  Non-VRLTA leases, however, find no equivalent code section in Title 55, Chapter 13, and as such are governed almost entirely by the lease itself.  As you might imagine, this means that for a security deposit, knowing which law governs your lease is critical.

Security Deposits Under VRLTA

Honestly, nothing I say here will better prepare you for handling a security deposit under VRLTA than actually reading Virginia Code Section 55-248.15:1 but here are the basics.  First of all, the security deposit demanded cannot be more in value than two months' worth of rent.  As for the use of your security deposit, once your lease ends, the landlord has 45 days to send you an itemized list of how your security deposit was used, and if there is any of it left, then that is also the landlord's deadline to pay you the remainder.  Further, if the landlord takes money out of your security deposit during the rental (so, before you have moved out, perhaps if there's some damage that needed to be fixed while you still lived there), the landlord must notify you that he or she is doing that within 30 days of the landlord doing so.

There are other provisions in there too, but those are the main ones.  It is important to notice that failure by the landlord to give notice of the use of the security deposit within 45 days waives the landlord's right to use the security deposit.  This means the landlord must then refund the full amount, and if the landlord does not, as is typical for VRLTA, the tenant may sue, and may collect attorneys' fees upon winning.

Security Deposits Under Non-VRLTA Leases

As is typical for non-VRLTA leases, security deposits are governed almost entirely by the lease itself.  I cannot count the number of times I've had a consult with a potential client that goes like this:

Potential Client:  "It's been 45 days, and I haven't heard from the landlord about my security deposit."

Me:  "Well, where in the lease does it say that the landlord has 45 days?"

Potential Client:  "I saw it online that it's a law."

So, let me be clear - if that's what you think, then you have seen the VRLTA law, and if your lease is not governed by VRLTA, then that law does not apply to your lease.

When I represent a non-VRLTA landlord and I am dealing with a security deposit, the first thing I do is look at the lease.  How does the lease say that the security deposit is to be dealt with?  If it doesn't say anything about how the security deposit is actually returned, then as a general rule I follow the VRLTA timeline.  Most sophisticated landlords, especially ones with attorneys, will follow the VRLTA timeline, even though they do not have to, because it is a simple set of rules to follow.

But, as I said, that timeline is not manadatory.  My advice is that if after 60 days your non-VRLTA landlord still has not contacted you about your security deposit, and the lease is silent about how to handle the security deposit, then you should take action.  I recommend writing a letter to the landlord giving about two weeks to send you an itemized list and a refund of the remainder of your security deposit.  If you do not get a response, you can file suit for your security deposit.  Just be aware that unlike VRLTA, you probably will not be entitled to attorneys' fees.

Can I Use My Security Deposit for Rent?

I also cannot count the number of times I've had someone come to me saying "I don't understand why I got this Pay or Quit - it's my last month, and they have my security deposit.  That covers the rent!"  The short answer is, no it doesn't.

While this confuses many people because often a security deposit is equal to a month of rent, a security deposit is protection against damage, not against unpaid rent.  As a result, you cannot use your security deposit to pay a month of rent.  For a non-VRLTA lease, the landlord may agree to let you do that as an exception, but if the landlord does not expressly agree (and usually this needs to be in writing), then you cannot do it.  For a VRLTA lease, the landlord does not have the right to let you do that, and after you move out, unpaid rent is the last thing a security deposit can be applied against - meaning you are subject to suit, and probably even to paying the landlord's attorneys' fees, if you just skipped out on your last month of rent.

In short, unless you've got a written agreement from your non-VRLTA landlord saying otherwise, do not assume you can just use your security deposit as your last month of rent.

Conclusion

Security deposits have many pitfalls in the law, and the law governing them is dramatically different between VRLTA and non-VRLTA leases.  If you are uncertain about how to handle an issue related to your security deposit, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation with me.  The initial consultation is free for up to half an hour!

Tuesday, August 6, 2013

The Lawyer in Your Group of Friends or Family - When You Seek Legal Advice from a Friend

As always, please review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, any legal principles discusses relate only to the Commonwealth of Virginia.

Introduction

In this day and age, it seems like lawyers are everywhere.  As a result, it is almost impossible that you are reading this as someone who does not personally know an attorney - a family member, friend, or both!  This means that if you encounter a legal situation in your own life, your first temptation might be to talk to the attorney you know before you do anything else.

I’m not going to sit here and tell you that this first temptation is wrong.  Quite the contrary, friends and family members are great resources for many things in life, and if you know an attorney in such a context where you also know that this is someone you can trust, you’d be foolish not to speak to them first.  But what happens after that conversation?  What happens if the attorney they refer you to turns out to be no good?  What happens if you ask them to be your attorney directly?  Do you really want to risk your relationship with this person?
 
In this post, I discuss some of the pitfalls of having someone you know represent you or refer you to another attorney, and some advice on how to protect your relationship as a friend or family member while also pursuing your legal interests.

Don't Expect the World from your Referral
 
I’m going to cover referrals to other attorneys first.  One of the reasons I say that it is a good idea to speak with an attorney you know when you have a legal issue is that an attorney who is already your friend is more likely to say “I don’t know anything about that area of law” than an attorney who sees you as a potential paying client.  An attorney who sees you as a potential paying client might think he could gain sufficient competence in that area of law during representation to reasonably say “yes, I can do that,” and while that might work out, do you want to take that chance?  So, with a friend or family member, you are more likely to get an admission of a lack of knowledge.  Your follow-up question, however, is where the danger comes.  You’ll likely respond with, “well, do you know a good attorney who does?”

The fact is, contrary to what is often portrayed on TV, attorneys are often very insulated in their areas of practice.  An attorney is likely to have a good idea of who the good attorneys are within their field, but if they are within their field, then that attorney would not have answered that she does not know anything about that area of law. So, if we are asked to refer you to someone in a field of law we know nothing about, we are not likely to have much more information than you do - unless for some reason we had to hire an attorney in that field ourselves.

Attorneys do get to hear whispers of reputation, and while there are plenty of reliable sources to find attorneys that are available to the general public, the average person in the public does not know what those sources are, but an attorney does.  As a result, we may still give you more reliable referrals than you could find yourself.  Nonetheless, we typically will not know the attorney personally, or have ever seen them in court.  I know I, for one, can count on one hand (I believe the exact number is two) the number of attorneys I personally know and can recommend from personal experience that practice in fields in which I do not practice.  One is solely because he rents an office from our firm so I encounter him on a daily basis, and the other is solely because he happened to be handling the real estate side of a very complex landlord/tenant case I handled.
 
As a result, perhaps the best way to preserve your relationship with an attorney friend or family member when they refer you to an attorney is to keep your expectations reasonable about that referral.  If that attorney turns out to be lousy, tell your friend or family member so that they do not refer that attorney again, but otherwise understand that they just do not know much more about that attorney than you do.

Retaining the Attorney you Know
 
I shock people when I say that I do not think it is a bad idea, if you are in an area of law that the attorney practices, to actually retain a friend or family member as an attorney.  After all, money is, to be honest, a good motivator but not the greatest of motivators.  Few things, however, can be a stronger motivator for a person than protecting those you care about.  There are few ways you can be surer that your attorney will go to the mat for you than hiring a friend or family member.  Moreover, a friend or family member will start out knowing more about your situation than most anyone else.  While every case is unique, and I certainly can’t say this would happen for you, I once had a case where the other attorney, who did not know I was representing a family member (since it never came up), made the mistake of trying to get me to have sympathy for her client, when I knew, from personal experience, the mistreatment her client had subjected my family member to.  I responded very directly with a great deal of specificity in which I made clear where my sympathies lie, and within another week we had settled the case very favorably.
 
Of course, there are numerous ways that the attorney-client relationship can end up harming your friend or family relationship - and that’s why so many think it’s a bad idea altogether.  The most common causes of this breakdown is fighting over payment of fees, dissatisfaction with the results of the case, or inability to separate the attorney relationship from the personal relationship.  I want to address those points now, as it is entirely possible to avoid those problems.

Never Make an Hourly Rate Fee Arrangement
 
The fact of the matter is 99.9% of fights over fees are a result of an hourly fee arrangement (that percentage is completely made up for effect, by the way, but you get the point).  You may also recall from my post a couple months back that hourly fees are the most common fee arrangement.  So, the fact is, if you are going to retain a friend or family member, the odds are you will be doing so in a situation where, typically speaking, they charge an hourly fee.

I cannot stress strongly enough that you should not, under any circumstance, hire your friend or family member on an hourly basis.  Remember my above statement about how hard your attorney will fight for you in this situation?  Well, now you’ll be paying for those extra hours, and trying to guilt your friend over their fees.  The problems easily spiral from there.  You should only allow a friend or family member to represent you on a pro bono basis, a flat fee basis, or a contingent fee basis.  If the attorney does not have the flexibility with his or her firm (or the willingness for whatever reason - you don’t know, maybe their personal budget is tight that month) to not charge an hourly fee, then be understanding and accept that, and ask the attorney for a referral to someone else.
 
Few things can harm a relationship between friends and family members more than disputes over money.  To date, I have represented a friend or family member three times, once on a flat fee basis and twice on a pro bono basis, and the result has been that I have yet to have a single fee-related fight with these friends and family members.  Moreover, in the pro bono situations, they already recognize that I can only do so much for them since I am not getting paid, and as a result they are less demanding of my time - meaning if I was charging an hourly rate, they’d actually be keeping their bill down (of course, this is actually the opposite of what typically happens in a pro bono case where you are not representing a friend or family member, but that’s neither here nor there).  If you avoid hourly rate fees, you will likely avoid this fight, and it’s simply better to not hire your friend or family member at all than to do so on an hourly rate basis.

Remember that Sometimes Attorneys Lose
 
Legal cases are uncertain.  The law is frequently unclear, and there is always two sides to every story.  Perhaps the biggest pitfall an attorney who has a friend or family member as a client faces is that we will believe you completely, as opposed to the more skeptical eye we would take to a client who we do not know personally.  As a result, we may tell you at first that your case is very strong, but then as the case develops, it becomes clear that it actually is not.
 
As with referrals, expectations are the way to prevent this problem.  Understand that if you lose your case, it’s probably not your attorney’s fault.  Moreover, if your attorney set your expectations too high, it’s probably because your attorney believed you completely, and you did not allow your attorney to see the other side of the situation.  If you understand these facts, and set your expectations accordingly, you can preserve your personal relationship with the attorney, even if the professional relationship ends poorly.

Leave Your Case at Your Attorney's Office
 
I’ll be blunt - if I’m coming over to your house for a poker game, I want to drink a few beers, play some poker, relax, and have some fun hanging out with my friends.  If we’re gathering for Thanksgiving dinner, I want to spend the evening catching up with family, eating good food, and telling jokes about the family members who made the mistake of not showing up (just kidding about that one… mostly).  If I talk about work, it will be in the context of “you won’t believe what happened today.”  What I do not want to do is actually do work.

You need to understand that if you have a personal relationship with your attorney, then you have a professional relationship on weekdays, and a personal relationship on weeknights, weekends and holidays.  One should not intrude on the other.  You wouldn’t show up at my office to spend three hours telling me about the raging party you went to this past weekend, would you (assuming that something didn’t happen at that party that impacts your legal case in which I am representing you)?  Then why would you show up at my house for a guys’ night and spend three hours talking about your case?
 
I understand that your legal issues are very important to you and an important part of your life - but if I’m your attorney, to me, they are work.  They are part of my job.  The first issue above (fees) can result in anger in both directions.  The second (fighting over results) almost always comes up where the personal relationship is harmed due to the client’s unhappiness.  This issue almost always comes up where the personal relationship is harmed due to the attorney’s unhappiness.  Just like you don’t want to bring your work home with you, we don’t either.  If you want to help preserve your personal relationship, leave the professional relationship at work.

Conclusion

In short, if you have a legal issue and you know an attorney personally, good for you.  By all means, talk to her about it.  Just recognize that you are about to enter a danger zone for your personal relationship.  You can take simple steps to preserve your relationship, however.  If the attorney refers you elsewhere, be reasonable about your expectations.  Understand that while your attorney friend or family member probably does know more about that attorney than you do, it’s probably not by much.  If you actually retain your friend or family member as an attorney do not do so on an hourly basis, keep your expectations about the case reasonable and do not hold it against your attorney if it turns out poorly, and don’t let your professional relationship intrude on your personal relationship’s time.