Hiring a lawyer is expensive, not to mention intimidating. Depending on the circumstances, there can be a million different reasons why you can’t really afford to have someone completely handle your entire case from beginning to end – especially since it’s really difficult, ahead of time, to get an accurate estimate of what the case might cost.
That’s not because lawyers TRY not to give accurate answers to questions; that’s because it’s virtually impossible to guesstimate costs ahead of time. Most of the time, when my prospective clients are asking me to estimate, I don’t know anything about their husband or the attorney he’ll hire – two HUGE wild cards in any family law case. Not to mention, of course, that in many cases my clients aren’t that honest with me to start. Its not so much that they lie intentionally; it’s that they’re not in the clearest headspace, so it’s difficult to get a real, accurate feel for the case.
Sometimes, I find that they really overestimate the difficulty. In other cases, they completely minimize it, or they assume that, because their husband said one thing, that’s how the case will go. It’s hard to estimate with complete information, so it’s even harder to estimate with incomplete information (which is almost always where we, as attorneys, start).
Recently, I had a question from a woman who has a case pending in two different states. It’s hard to get a clear answer, since it was a question asked to me in the middle of a seminar, of exactly what’s going on, but it sounds like she filed in her home state and he filed in his home state. Which state would ultimately be the right venue for the case, well, I’m not sure based on the incomplete information I got during the course of the seminar. But, basically, she was trying to litigate the case in one state, and he was trying to litigate in another.
She was served with discovery here. She wanted to know – would one of our attorneys represent her just to respond to the discovery until she figured out how to move forward on the case in her home state?
It’s an incomplete question missing a ton of information, so I don’t pose it here to actually answer that exact question, but instead to answer the larger question: Can I hire an attorney for one, specific, limited purpose, and then be done? Like, could you retain someone just to answer discovery, just to represent you in a pendente lite hearing, or just to appear at your final divorce trial – but essentially try to do the rest of the work yourself, pro se?
Technically, yes – our ethical rules allow us to do this, though that’s a relatively recent change. Still, in most cases, I don’t think attorneys would be willing to do it.
There are a couple of reasons for this. For one thing, it’s difficult to get out of a litigated family law case once you’ve made an ‘appearance’. For the purposes of litigation, it’s an ‘appearance’ to answer discovery, or file a responsive pleading (like an answer or counterclaim), or appear at a hearing. Once you’ve ‘appeared’, it’s difficult to disappear – you need a signed order of withdrawal from your client, sometimes also from opposing counsel (or the opposing party, if he’s unrepresented by counsel). If you can’t get that, you have to get permission from the judge to withdraw.
Well, what difference does that make to me? That sounds like a personal problem for the attorney.
Sure – and it is. But once we’re in a case, we can’t just…stop working on it. So, if things keep happening, we keep having to do work – which costs you money. We can’t just not respond because you wanted your attorney to respond to discovery and that’s it.
Technically speaking, I think you’d have to enter into a limited retainer agreement, but, even so, it’d be difficult to actually stick to that – to make one appearance, or do one thing, and then bail. You might have to sign an order of withdrawal early on, to make sure that your attorney can actually get out of the case. But, even so, it might not work. After all, no one has a crystal ball; you don’t know what might come up in your case between then and now. So, it’s sort of a recipe for unhappy clients and attorneys, because you’re making a today decision without information about where you’ll be tomorrow. In a regular case, when the attorney is supposed to see the case through to the end, it’s less potentially devastating. What if you don’t want the attorney to withdraw? What if the case gets messier?
It’s also a question of being able to do a good job. Ethically, we have a responsibility to zealously represent our clients. That’s hard to do when you don’t have a sense of the case, or when you haven’t been able to lead the charge as you head towards a hearing. If you haven’t, for example, issued your own discovery, how can you be prepared to represent a client at their pendente lite? If you haven’t been in charge of making expert witness designations, or making proffers, how can you be ready to litigate a final divorce trial? If you don’t write a brief, how can you appear at a settlement conference?
Trying to scrap together a victory from a case that you haven’t been able to completely prepare yourself is a challenge, and one that, practically speaking, most attorneys would avoid. No one wants to lose a case just because they couldn’t put the work in ahead of time that they felt they needed to be successful.
So, I guess, the answer to the question is that, yes, technically, we are allowed to take on a limited scope representation like this – but most attorneys would not. It’s difficult, maybe even impossible, and it makes it difficult for the attorney to follow their own particular process.
It’s possible, but it’s probably unlikely. Totally fine to ask an attorney if they’d be willing to take a case like this, but be prepared, too, to hear the answer “no”.