A Brief Overview of Virginia Attorney-Client Privilege Law

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

Introduction

Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means.  I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof.  Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.

Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.

A Brief History of the Privilege

As you probably know, attorneys have existed in some form or another since the Roman period.  Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England.  There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had.  Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them.  The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.

This is still the philosophical underpinning of attorney-client privilege.  It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages.  It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.

So, What Does Privilege Cover?

Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm.  That's it.

So, a few important things to note about the above.  First, privilege never expires.  Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death.  Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you).  Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged.  Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails.  Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney.  Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).

How Privilege Works

So, now that we know what privilege covers, it's worth discussing how privilege actually works.  So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this.  This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc.  If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained.  In other words, nothing privileged you tell your attorney can be used against you.  Unless the privilege is waived.

How Privilege Gets Waived

So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived.  Privilege can be waived many ways and for many purposes, both intentionally and unintentionally.  It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.

So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do.  The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.

Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm).  It does not matter who does the revealing - it can be you or your attorney.  It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization.  If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them.  If the revelation ends up hurting you, you can also sue your attorney for malpractice.  Nonetheless, the privilege remains waived.

Now, fortunately, this rule about revelation is not nearly as harsh as it used to be.  Courts recognize the supreme importance of the privilege, and protect it diligently.  As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter.  Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.

Similarly, where waivers are found, the scopes of those waivers are very limited.  With very rare exception, the courts virtually never find privilege to be fully waived.  Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed.  For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop.  I also stole Jerry's bike."  Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop."  Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."

As you might imagine, privilege is actually waived routinely in most cases.  This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side.  Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.

Exceptions to Privilege

Now, as you might imagine, there are some exceptions to privilege.  These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable.  There are a lot of exceptions to privilege, but most of them are very fact specific.  Here are the most common exceptions I encounter:

• Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests.  This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
• Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
• A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.

So, as you can see, the big areas where privilege does not apply are when you have a dispute with your attorney, or the communications that would have otherwise been privileged reveal some ongoing or future wrongdoing on the client's part.

Conclusion

Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand.  If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.

True Virginia Law: Some Common Myths About the Law

As always, before reading my post please review my disclaimer 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

After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder.  Honestly, I was horrified.  The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling.  In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.

To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession.  In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.

Myth:  Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality:  Lawyers are strictly forbidden from lying, in any capacity, in their work.  Lying during a trial or other official proceeding is a quick way to get disbarred.

In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading.  Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess.  First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses.  Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.

I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition.  As stated above, attorneys cannot lie.  My post on legal ethics gets into this in more detail.  There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.

As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.

The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you.  If she does, you should report it to the Bar immediately.

Myth:  Lawyers are generally greedy people who are only interested in you for your money.
Reality:  Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level.  Like all professionals, however, lawyers do expect to get paid for their work.

This particular myth is one that bothers me.  Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband.  What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.

We are professionals, like doctors, accountants and carpenters.  We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us.  That doesn't make us greedy.  This is our job, just like you have yours, and this is how we make our living and feed our families.  I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them.  These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.

If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.

Myth:  We have way too much litigation today.  We need tort reform to bring about some sanity.
Reality:  Litigation rates in the United States peaked in the 1970's and have been dropping steadily since.  Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.

My answer in the "reality" really covers this a great deal.  The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years.  While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits.  It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.

All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous.  Let me give you an example.

Let's say a company made a commonly used product that is moderately dangerous.  Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.

Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level.  Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.

Finally, a woman purchases the product and injures herself with it.  Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life.  In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product.  Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?

Well, I've just described to you the infamous "McDonald's Coffee" case.  McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings.  The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident.  This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control."  As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.

The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws.  This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.

Myth:  It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality:  It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.

I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court."  The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling.  In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.

When a court rules against someone I always tell them to listen carefully to why the court is doing so.  Most judges will give some explanation of their ruling.  Nine times out of ten, where a result is unfair, it's still the result mandated by the law.  In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible.  Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence.  What I remember most, however, was the exasperated exchange she finally had with the judge.  When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"

The judge responded, "I'm sorry, ma'am, but this is a court of law.  It is only a court of justice when that justice is authorized by the law."

That judge was exactly right.  We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.

Myth:  The courts are biased against men/women, minorities, the poor, etc.
Reality:  In my experience, I have seen almost no evidence indicating that the courts are biased against anyone.  Some individual judges, maybe, but the courts or legal system as a whole?  Almost definitely not.  That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.

I hear this myth all the time.  Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod.  I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous.  Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone.  As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.

Nonetheless, my own experience tells me otherwise regarding "the system."  I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked.  Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.

Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class").  This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.

In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer?  Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed.  What about the people right at the threshold?  The people who have little money, but just enough to not get a court-appointed attorney?  Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.

The same is true to some extent in civil cases.  While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours.  Again, there are income qualifications, and those on the cusp are left out to dry.

What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings.  This is a problem, and one that begs a more creative solution.

Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded.  The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are.  That way, you can hire an attorney you can actually afford.

Some legal aid agencies also do this.  The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney.  I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country.  I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.

Conclusion

There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here.  You can look for this to be a continuing series in the future.

Virginia Law and the Blog Part II - More Common Questions About Past Blog Posts

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

Introduction

About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written.  I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had.  I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post.  To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.

As I said last time, sit back, relax, and see what you can learn from the questions of others.

"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees.  Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up.  I just had a consult with a lawyer who charges a 'refundable retainer.'  What is that?"

Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy.  It sounds like that's what's happening here - the lawyer is actually charging a fee deposit.  That being said, I cannot be certain without reviewing the actual fee agreement.  It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully.  Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.

"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to.  Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip.  I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones.  What should I do?"

No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous.  The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable.  I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client.  In smaller communities, however, this happens regularly.

Here's the thing to remember - the other lawyer can talk to you about anything other than the case.  Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you.  He won't want his son's field trip ruined any more than you want your daughter's.  This is also a good time to remember that while your case is your life, for the lawyer it's his job.  No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.

If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case.  If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc.  Just use common sense, the lawyer will do the same, and you should probably be all right.  Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.

"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only.  You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete.  Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me.  Do I have any other options?"

Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order.  I lay out the procedures for pursuing a protective order in a post from April.  Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member."  The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning.  If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years.  During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.

The down side to this approach, however, is that you actually have to have some evidence that you are in danger.  Just an underlying fear or intuition isn't good enough.  A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order.  Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.

"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest.  What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"

It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them.  There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.

The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000.  So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage.  Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event.  Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.

To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills.  To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.

"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien).  Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago.  I didn't know at the time, and he didn't list my debt on his petition.  What is the status of my judgment?"

Well, the bankruptcy code puts a lot of burden on the creditor.  If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged.  If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed.  Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.

Conclusion

As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future.  As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post.  If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation.  Our initial consultations are free for up to half an hour!

When a Virginia attorney misbehaves: Reporting attorneys to the Bar

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

Introduction

I have written before about my opinion that most attorneys are ethical, honest people, despite the reputation to the contrary.  Nonetheless, as in any profession, there are always bad apples.  Lawyers have a very extensive system set up to root out the bad apples, but it only works when those who become aware of a lawyer's misbehavior are ready to speak up.  In the right circumstances, a misbehaving attorney can be reprimanded (privately or publicly), suspended, or even disbarred, meaning that attorney likely can never practice law again.  In light of the role that "victims" or other witnesses play in attorney discipline, it is important that everyone knows how to spot an unethical attorney, and what to do if you learn of one.  This blog post will cover some of the basics.

How to Tell if an Attorney is Acting Unethically

The biggest issue preventing most people from recognizing if an attorney is acting improperly is the difficulty of distinguishing between behavior that seems wrong to you, but is actually just the attorney zealously advocating for his client, and behavior that actually violates the Rules of Professional Conduct.  Obviously, the easiest way to tell if a lawyer is acting unethically would be for you to learn the entire Rules of Professional Conduct, but that's probably unrealistic for most of you.  The next best thing, then, would be if you see a lawyer do something you think might be improper, then go to the link I just provided and check the rules.

That being said, there are some fairly basic rules you should know regardless.  These are the rules I see violated most often:

• Competence - if a lawyer is not competent in an area of law, and cannot reasonably become competent in a short period of time, he should not take your case in that area
• Communication with client - a lawyer should keep his client reasonably updated on the status of a case, and respond to requests for information with a reasonable level of promptness; a lawyer must inform his client of all settlement offers received
• Fees - a lawyer must charge only reasonable fees and the fees must accurately reflect the amount of work done
• Privilege - a lawyer must not violate attorney-client privilege except where allowed (or required) by law
• Conflicts - a lawyer must inform his client of all potential conflicts of interest and receive his client's express approval to continue representation (sometimes even then the lawyer must not continue the representation); this rule also applies to some degree to former clients and former potential clients
• Frivolity - a lawyer may not bring a claim or defense he knows is frivolous (note that a claim brought despite clear, controlling contrary case law may not be frivolous if the lawyer is seeking to overturn that case law)
• Honesty - a lawyer may not knowingly make a false statement to anyone in the course of his representation of his client; a lawyer may not present to a court evidence that the lawyer knows to be false, even if doing so does not require the lawyer himself to lie; if a lawyer knows that a witness is committing perjury, the lawyer must take all reasonable action to prevent the perjury from continuing, even if that witness is the lawyer's own client
• Witness/evidence tampering - a lawyer must not destroy or assist in the destruction of evidence; a lawyer must not advise a non-party witness not to appear at a hearing or take other action to discourage that witness from appearing
• Ex Parte Communication - a lawyer may not communicate with a juror except as permitted by law; a lawyer may not communicate orally with a judge outside open court about the substance of a case without opposing counsel being present (or having had an opportunity to be present); a lawyer may not communicate in writing with a judge about the substance of a case without sending a copy of such communication to opposing counsel
• Witness - a lawyer may not take a case in which he reasonably believes he will be a necessary, substantive witness
• Communication with opposing parties - a lawyer may not communicate with an opposing party about the matter at issue if that party is represented by an attorney unless the other attorney has expressly authorized the communication; a lawyer may communicate with an opposing party who is not represented, but that lawyer must make clear that he is not "disinterested" and that lawyer cannot give any advice other than advice to hire an attorney
• Safeguarding property - a lawyer may not take for himself any money in a client's trust account for any purpose other than payment of that client's bill owed properly to the lawyer
• Criminal conduct - a lawyer cannot commit any crime (while "on the clock" or "off the clock") that reflects poorly on the lawyer's honesty, trustworthiness or fitness to practice law; if a lawyer sees a judge violating the law, the lawyer cannot assist the judge in doing so
• Advertising - any written legal advertisement sent to directly to anyone other than a former client must have the words "ATTORNEY ADVERTISING MATERIAL" on the front of the envelope; all statements in advertising must be true and not misleading (which excludes nearly all subjective statements); advertisements referring to specific case results must include certain disclaimers about the unreliability of using such case results to pick a lawyer; a lawyer must not continue to solicit business from someone who has stated a request to no longer be solicited

So, those are the big ones.  There are, of course, many more rules, but if you know these, you'll catch the vast majority of unethical attorneys.

Ok, so then what?

So, once you see what you think is an ethics violation, you need to report it to the Virginia State Bar.  First, gather as much information as you can about the attorney (most importantly - name, office address, and, if possible, State Bar number).  Then, go to the Virginia State Bar home page (http://www.vsb.org), and at the top under "professional regulation" scroll down to "how to file a misconduct inquiry about a lawyer" then click on the "inquiry form."  You can also get to the form by just clicking on this link.  From there, fill out and follow all the instructions on the form.  If your complaint is longer than the space provided, you can attach a letter laying out your complaint.  Then send it to the State Bar (address is listed on the form) and they take it from there.

So, what is the process?

Well, first the Bar will review to see if the State Bar has jurisdiction (checking to make sure the attorney is actually a Virginia attorney, for example).  If not, the complaint is dismissed.  If so, then the complaint is forwarded to Bar Counsel (an attorney for the State Bar) and a file is opened.  Bar Counsel will then review the complaint to see if the conduct alleged would actually indicate a rule violation if completely true.  If not, the complaint is dismissed, but if so, then a preliminary investigation begins.  Bar Counsel may ask the complainant for more information to make this determination.

At the preliminary investigation stage, the lawyer is sent the complaint and given an opportunity to respond.  If the lawyer responds, that response is sent to the complainant and the complainant can reply to it.  Once the complainant replies (or the time to do so has expired), the Bar Counsel will review the pleadings for basically what is "in play" (essentially all facts in the complaint not denied by the answer, all facts in the complaint denied by the answer but which denial was challenged by the complainant's reply, and all claims in the answer which were not disputed by the complainant's reply).  If those "in play" facts no longer support a rule violation, then the complaint is dismissed.  If they do, then a further investigation is ordered.

The full investigation will involve Bar Counsel interviewing witnesses (the complainant, the lawyer, anyone named as a witness by either, etc.), seeking documentary evidence, etc.  At the end of the investigation, the Bar Counsel will send the investigation results to a local committee to review and decide if there is sufficient evidence of a rule violation to continue.  If not, the complaint is dismissed, if so, a hearing is held.  If, after the hearing, a rule violation is found by "clear and convincing evidence," the attorney will be penalized accordingly.  There are then appeals that can follow.

Complainant's Role

As you can guess, then, your role may not end with the filing of a complaint.  You will be notified of the disposition of any complaint you file, but if there is a response filed by the attorney, you will likely need to file a reply for your response to not be dismissed.  Further, you will likely have to give a statement to Bar Counsel during the investigation, and you may have to testify at the hearing.  Otherwise, however, most of the work is undertaken by the Bar.

Conclusion

The Bar disciplinary process is very important to ensuring the integrity of the legal profession.  As a non-lawyer, you can help this system work by reporting unethical conduct you encounter from attorneys.

What Your Potential Lawyer Isn't Telling You - The Ethics of Legal Advertising

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

Introduction

Note:  This post was inspired by a question sent to me by "Chris" in response to my "Ask the Lawyer" post.  Please remember, you can submit "ask the lawyer" questions to me any time you want.  The question I was asked was "Why does your comment policy not allow you to accept comments about the quality of your work, even if they are positive?  All I see is a vague reference to the 'Rules of Professional Conduct.'"

Lawyer advertising (and by rule, this blog is a form of lawyer advertising) is subject to many rules put forward by the state bar that go far beyond the rules most other businesses face regarding advertising.  The logic behind these rules are that lawyers are a unique form of professionals that customers are at a unique disadvantage in terms of their knowledge of the profession, preventing customers from being able to discern useful versus unuseful information in advertisements and make wise decisions in hiring.  Most lawyers I know think this logic is absurd - do clients really know less about how to figure out if a lawyer is any good than, say, doctors, accountants, etc.?  But until those of us who feel this way get into positions of power (not likely), these are the rules that are in place.

While there are many very specific rules that I cannot reasonably get into in a single blog post, the general rule is that a lawyer's advertising cannot be "false" or "misleading."  The rule against advertising being "false" is fairly obvious - you cannot assert statements that are untrue.  This is the same as most industries.  The rule against "misleading" advertising, however, is where the rules get convoluted.  "Misleading" advertising is generally seen as advertising that asserts statements that might be perceived as factual but cannot be proven, or advertising "likely" to make someone think something they shouldn't think.  Finally, there is also a rule stating that a lawyer is responsible for all statements made in a forum he "controls."

"Misleading" Advertising - Subjective Statements

Perhaps the biggest rule in advertising for lawyers is that when talking about themselves or their firm, they pretty much cannot make any "subjective" statements.  These are statements about the quality of their work.  They cannot say they do "good" work, that they "are great," etc.  They can't even say they "specialize" in something, unless they have a certificate of specialization, and then they have to follow up their statement by providing the name of the organization that certified them.  This is because the bar is afraid that customers will take these subjective adjectives as some sort of verified truth, and make their decisions based on these statements.  This is why lawyer advertising usually talks about things like years of experience, number of cases handled, etc., without really adding anything more.

"Misleading" Advertising - Unexplained Objective Statements

You might think based on the above that if a lawyer makes only verifiably true statements, then he or she is in the clear.  This would be wrong.  There are also categories of statements that, while objectively true, are considered to be of such character as to still mislead potential customers.  For example, I cannot say in this blog (and the following statement is not true, it is just illustrative) "I won a $1 million verdict in court yesterday."  Instead, I would have to say "all cases are different and are driven by the facts of the case, so my results in one case do not indicate the results I would get in your case, but I won a $1 million verdict in court yesterday."  Basically, we are strictly forbidden from talking about our case results in an advertising context without leading off with a disclaimer.

"Misleading" Advertising - "Vulnerable" Targets

Finally, there's the fact that we can make perfectly valid statements in our advertisements that are still not allowed because of who we make them to.  In Virginia, we have a rule (although this is being considered to be changed) forbidding lawyers from contacting people they know were in a wrongful death or personal injury situation to offer to represent them.  This is because the bar thinks that these people are particularly susceptible to coercion, and might even think you're offering to "help them" for free.  For others that we advertise to directly, if we do it in writing, we have to denote "ATTORNEY ADVERTISING MATERIAL" on the outside of the envelope (if a letter) or at the start of the message (if an e-mail).  Again, the idea being that these individuals might not realize we are seeking to be their paid attorneys.

Forums We "Control"

The final issue to address today gets back to the question that sparked this post.  Why does all of the above mean that I cannot allow subjective comments on my blog?  Well, the bar has decided that if an attorney has the power, in any way, to control what is displayed about them in a particular setting, then the lawyer can be seen by potential customers as "controlling" what is said about them, and subsequently the lawyer can be seen as supporting what has been said about them - and we cannot support statements that are in violation of our advertising rules.  In other words, because I can control blog comments, then any comments on this blog could be seen as being my statements, so I cannot allow comments that, if I were to make them directly, would violate our advertising rules.  Since I cannot make subjective statements about the quality of my work, I cannot allow comments by others which do the same.

As a side note, this is why websites like Yelp and Martindale-Hubbell are so popular amongst attorneys now.  These are sites where we very much do not have the power to control comments, so these are some of the first public forums where people can say positive things about us and have those things stick around for others to see.

Conclusion

This post is essentially a long answer to a short question - why can't people comment about me on my blog?  I hope, however, that I have helped you understand why attorney advertising often looks very strange and very different than other types of advertising.  If you would like someone to represent your legal needs, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.

Ask the Lawyer and FAQ's About the Legal System Part II

As always, please read 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.  Finally, please note that at the end of this post, there will be a call for readers to contact me with questions - please feel free to do so.

Introduction

Two weeks ago, I got hit with a nasty case of writer's block, and used that opportunity to do a brief FAQ on this blog.  That post turned out to be substantially more popular than I expected it to, and now that this blog is getting something of a readership I would like to actually spend some time providing content that you, the readers, want to see, instead of just whatever I happen to feel like musing about (although there will certainly still be plenty of that).

As a result, this week I'm going to introduce "ask the lawyer."  It will be my call for you, my readers, to submit questions to me that you would like me to cover in my blog - either via an FAQ post, or a full post.  However, since just that call for action can hardly constitute a whole post, I will also use this opportunity to do Part II of my FAQ.  As a result, below are some more of the questions I am frequently asked, and then an explanation of how "ask the lawyer" will work.

Why should my Complaint for Divorce ask for custody when I only want visitation?

A contested divorce case takes a long time to work its way through the court - sometimes up to a year, sometimes even longer.  A lot can happen during that time.  If you don't ask for custody in your Complaint, and then something comes up where suddenly you need custody, the process of getting it is more complicated.  Moreover, asking for custody in your Complaint can provide a bargaining tool when you are attempting to negotiate other matters.  It is better if your Complaint seeks too much than if it seeks too little - and this is true for more than just divorces.

Why do you no longer handle custody/visitation cases?

I get asked this a lot.  As the "no longer" implies, I did used to handle such cases.  In fact, I do still handle some, since I grandfathered in my previous custody/visitation clients when I stopped taking those cases.  The brief answer is that when I handled these cases (custody especially), I would spend the two or three weeks leading up to the trial as a complete wreck - emotionally and physically.  It affected my home life, and the quality of my work on other cases.  After one particularly brutal case, I came away with a complete victory for my client - everything we asked for, and then some.  Yet, I felt absolutely no satisfaction.  If I was going to put myself through weeks of hell only to get nothing out of even a total victory, I asked myself "what am I really doing?"  It was a bit of a personal crisis, but luckily I have an extremely understanding boss whose exact statement to me was "life is too short to do work you don't find professionally satisfying."  So, we struck a deal that I could stop taking custody/visitation cases if I expanded my practice areas into other fields that our firm at the time did not have anyone working in.  This is why there are things that my firm does which I don't (mainly custody/visitation), and why there are things that I do which the rest of my firm doesn't (mainly landlord/tenant, contract, debt collection and appellate work).

What happens if I don't file an Answer to a Complaint for Divorce within 21 days of being served?

Back in July, I did a post about what happens when you are sued.  Since all divorces are conducted in the Circuit Court, the Circuit Court timeline is applicable.  But the question becomes, what does being "in default" in a divorce case, where there is not a money judgment being sought in the traditional sense, really mean?  Well, the answer actually is, generally, very little.

You cannot obtain a divorce by default.  So, if you file a Complaint and get no Answer, you still have go through the process of proving to the court that you have been separated long enough, etc.  If you are seeking support, you will still need to establish that you should get support and how much support you should get.  It is just easier if you are unopposed.  Now, if you are on the other end and you want to prevent that from happening, but you were late, you still have some options.  Again, you are never "in default" in a divorce case - however the case can proceed without further notice to you, per a law passed last year.  Further, all allegations in the Complaint can be taken as true without you having a right to rebut them, although courts practically never do that.

As long as the divorce has not already been taken all the way to its end and a Final Decree been entered, you or your attorney can file a "Motion for Leave to File Responsive Pleadings Out of Time."  This will almost always be granted - allowing you to file an Answer and participate in the case.  Be aware, however, that if the case has been pending for a while, you likely will not get a continuance on a final hearing date, and you may have missed your chance to send discovery requests to the other side.

What is "Discovery" anyways?

Discovery is the process by which each side in a civil case gets to make the other side give them information they need in order to prepare their case.  Discovery comes primarily in four forms - Interrogatories, Requests for Production, Requests for Admission and Depositions.

Interrogatories are a list of questions that the other side must answer in writing and under oath.  Requests for Production require the other side to turn over documents and other things to you that may be relevant to the case.  Requests for Admission require the other side to admit that certain statements or true, or deny that they are true.  Depositions force the other side to come into your attorney's office (or some other agreed place) and go under oath and answer questions in front of a court reporter.

Interrogatories, Requests for Production and Requests for Admission generally need to be responded to within 21 days of being received.  The penalty for being a little late, however, is usually minimal.  With Requests for Admission, however, that is playing with fire, since technically even being a day late on those can cause a court to deem all of the statements as "admitted."  Further, if you deny a statement in the Requests for Admission, but the statement is later proven to be true, you can be forced to pay the attorneys' fees the other party accrued proving that statement to be true.

Most civil litigation attorneys will tell you that cases are usually won or lost in discovery.  Making sure you ask the right questions and answer questions the right way can be key to your entire case.

I've been sued in General District Court and have demanded discovery, but the other side is refusing to cooperate.  What can I do?

Nothing, I'm afraid.  Virginia law has the notion that courts below the Circuit Court should proceed quickly and smoothly, and that the cases they include do not warrant discovery.  Whether this is accurate or not, it is the law we have.  So, discovery is only available as a right in the Circuit Court (this includes, by the way, appeals to the Circuit Court from a lower court).  In the General District Court, you're stuck with the Summons, anything attached to it, and a Bill of Particulars (or Answer and Grounds of Defense) if pleadings were requested at the return day.  In the Juvenile and Domestic Relations District Court you can request the right to conduct discovery (which is almost always granted), but even then you are not permitted to do depositions.  So, if you've been sued in the General District Court and want discovery, the best hope you have is to convince the other side that if they send you these things, you might be inclined to settle - then they might do it voluntarily.  You cannot, however, force the other side to send you anything.

Ask the Lawyer

So, I think that's a good number of questions to cover today.  Now comes what I discussed earlier - ask the lawyer.  The way this works is that you send me any question you have that you think I might know the answer to about the legal system or various areas of law.  You can do this by sending your questions to me at my e-mail address - sleven@thebaldwinlawfirm.com - or by leaving a comment on this blog post (I may not approve the comment to be visible, but I will still receive it).  Then, I will either respond by telling you it is something that I do not know the answer to and an explanation of why, along with, hopefully, some advice on where to go to get an answer, or I will save your question and answer it either with a full blog post or with an FAQ.  If I write a post or FAQ in response to an ask the lawyer question, I will indicate I am doing so, and I can give you personal credit if you wish (you need to let me know when you ask the question, along with how detailed you would want the credit to be in terms of your name), and I will try to e-mail you to let you know I have done so (although I cannot promise that I will remember to do this).

This will not be the last time that I do an "ask your lawyer" specific call, although you should consider me open to receiving "ask the lawyer" questions at any time, whether I've called for it in my last blog post or not.

This is not, however, a call for you to ask me about your specific legal case.  The statements I give on this blog, as explained in my disclaimer, are not legal advice, and cannot be specific to your case.  If you have a question about your specific case, you'll need to set up an initial consultation, which you can do by calling (703)281-0134, or by e-mailing me at sleven@thebaldwinlawfirm.com.  Our initial consultations are free for up to half an hour.

I look forward to receiving your questions!

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.

Can You Hear Me Now - Getting Your Lawyer's Attention

As always, before reviewing this post, please read my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed are applicable only to the Commonwealth of Virginia.

Introduction

One of the most frustrating issues that clients encounter when working with an attorney is the fact that calls and e-mails will sometimes go days, if not longer, without a response.  To you, your legal issue is a central part of your life, and you think it should be to your lawyer as well.  The problem is, lawyers, like everyone else, need to make a living, and we just simply can’t do that by paying attention to only one case.

It actually took me a while to realize this, and I was frustrated with other attorneys who were so slow to respond.  In the early days of my legal career, I used to promise clients that every e-mail which required a response would receive a response no later than the next business day, but frequently the same day - and I stuck to that pretty well.  Then, as I gained experience and took on more responsibility, this became a problem.  While I still strive to that goal, I no longer make it a guarantee.

The reality is, if your attorney is any good, she probably has a lot of cases to juggle.  I, for example, am currently the primary attorney on more than sixteen active cases, and am also assisting other attorneys in my office with nearly a dozen more.  If your case has a hearing next week, but your attorney has another case with a hearing this week, she’s going to focus on the case with the hearing next week - she’ll focus on yours once that hearing’s done.

 
That being said, however, there are some things you can do to help yourself stand out from the crowd as a client, and make sure your case gets more than your attorney’s average level of attention.  In this blog post, I hope to help you be a better client, so that your lawyer can be a better lawyer to you.

Pay Your Bills On Time, Every Time
 

It’s crass, it’s unfortunate, but it’s also reality.  As I said above, lawyers are people too.  We have bills to pay, children to put through college, and food to put on the table.  Moreover, despite our reputation, most of us are not filthy rich and raking it in from our work.  If you are interacting with an attorney in a small law firm - say, one with fewer than ten attorneys, and if you are hiring an attorney as an individual that’s probably what you’re doing - the odds are you are dealing with attorneys who make a middle class to upper-middle class income, and no more - possibly less.  Add to that, if they are younger, possibly $100k or more in student loans, and you start to realize that we have all the same financial concerns that you do.

So, put yourself in your attorney’s shoes.  Each client is kind of like an employer.  So, if you had two jobs, both of your bosses wanted you to work for them for eight hours, those eight hours they want actually overlap with each other, and one job always pays you your paycheck on time while the other is sometimes months late or sometimes never pays at all, which job are you going to go to?

 
Now, understand that when a lawyer takes a case, she has an ethical obligation to provide her services to you thoroughly and competently, and if your failure to pay her is starting to affect her ability to do that, she is supposed to (and usually will) withdraw as your attorney, not simply neglect your case.  Nonetheless, if you want your lawyer to do more than just an adequate job, and if you want your concerns addressed quickly, instead of in due turn, the best way to do that is to make sure your lawyer knows she is going to get paid for the work she is doing for you - and quickly.  The best way to do that is to pay your bills on time, every time.

Be Friendly

This may seem like a silly rule, but I really cannot emphasize it enough.  There’s a saying that you “catch more flies with honey than with vinegar,” and at least when it comes to attorneys, that’s certainly true.

I suppose my running theme of this blog post is to point out again and again that attorneys are people, just like you.  Take my example above and put yourself in your lawyer’s shoes again.  Once again, you have two jobs, your bosses each want you to work eight hours, and the hours overlap, only this time both are equally likely to pay you on time.  However, one boss is extremely friendly, and one constantly threatens you with what will happen if you don’t do what that boss wants.  Which job are you going to go to?

Despite the seemingly obvious simplicity of this rule, you’d be amazed at how often clients don’t follow it.  One e-mail takes two days to get a response instead of one, and suddenly you are the worst attorney in the world and subject to repeated threats and guilt trips from your client, who also then starts threatening to not pay his bills.  Do you think that really is going to make your attorney more responsive?

 
I know that I, for one, will generally respond to all of my clients in due course, no matter how unpleasant they may be.  But I cannot deny that when I have a particularly friendly and pleasant client, I will go out of my way to make sure that client’s needs are met.  I have even ended up friends on a personal level with some clients after their cases ended (one even became my family’s go to dog-sitter!) - and I know I’m not alone in this.  In sum, it never hurts to be friendly and understanding towards your lawyer - doing so will likely foster a better attorney-client relationship, and with it get more attention paid to your case.

Be Persistent
 

The final piece of advice I have is simply to be persistent.  Things slip through the cracks - that’s just reality, and it’s always possible that your e-mail, voice mail or letter is one of those things.  Maybe your attorney opened your e-mail then got a distracting phone call - and now your e-mail no longer shows up as unread.  The point is, it very much is possible that your communication has simply fallen through the cracks.

 
The best solution to this problem is friendly persistence.  A “Hey, I just wanted to see if you got this” is good.  A “You jerk, you never responded to my e-mail” is not.  Nonetheless, it's amazing how often a client will send one e-mail, not hear back in a couple days, and then just give up.  Use your common sense, be persistent, and you will get your response.

Conclusion

Working with an attorney who is busy can be very frustrating to a client - even if the end result of your case is ultimately positive.  There are ways you can minimize that frustration, however, by standing out from your attorney’s other clients.  Ensuring that you always pay your bills on time, being friendly in all of your communications with your attorney, and being persistent with your attorney are three of the best strategies to ensure the best possible attorney-client relationship.  If you feel you are being neglected unfairly by your current attorney, however, feel free to give a call to (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com and set up a consultation with me.  It’s free for up to half an hour, and we can figure out at that consultation if I can actually provide faster service to you