You Have the Right to a Competent Attorney, or The Very Best Attorneys are Nice People

This is a more broadly based companion to my article on how to find an attorney who is competent to handle a military divorce without outside assistance.

I have been an attorney since 1969 and, since retirement from the JAG corps in 1989, I have consulted on over 3,000 retirement division cases with attorneys in all 50 states. Some of the saddest conversations I have with clients center on problems they are having with their own attorneys. It is bad enough to have to fight your spouse and the spouse's attorney, but it is devastating to have to fight your own attorney. I could literally write a book about my experiences, but, hopefully this brief article will be sufficient to give you a sizable advantage.

Few people ever have to hire an attorney in the first place, and even fewer have ever had to go through the divorce process. Therefore, few people know what they can reasonably expect from a divorce attorney. In this article I will point you to some "red flags" that should help you find a good attorney and/or should alert you to concerns about your existing attorney.

In my practice I have worked with some of the cream of the crop and I have had to work with the dregs. The very best attorneys are nice people. By "nice" I do not mean "wimps", or "spineless" or "cowards." An attorney can be assertive and stand up for you without being mean. These are the very best.

The very best are not arrogant blow-hards, and show-offs, and do not try to convince you that they know everything.

Louder does not mean smarter!

I have a theory about this: the best attorneys do not feel like they have to prove anything to anybody. They know they are good, and so does everyone else. Those less skilled think they have to compensate for their lack of skills, knowledge and expertise by being mean, nasty, and arrogant. They also have big egos. This causes them to over-inflate their skills and abilities and causes them to under-prepare. Because they think they know it all, they are not inclined to do any research. They also are unwilling to cooperate with a consultant like me - this happens often.

When I teach retirement divisions in divorce to lawyers, I say this, "I view a divorce attorney as an old mule pulling a wagon of boulders up a hill. I want to take the retirement boulder from the wagon, put it into my wheelbarrow and walk along with you."

For a variety of reasons, attorneys who are abusive and show-offs are very dangerous and must be avoided. For example, their behavior will increase your costs and peg your stress meter. And it goes without saying that they will not get the best result for you. I should also add that in those rare cases where some or all of the case goes to trial, they will really turn off judges. Judges see a steady parade of attorneys through their courtrooms. Because of their lack of experience, some judges may be duped temporarily by these poor attorneys, but the more experienced judges spot this type a mile away.

The best lawyers in a jurisdiction are known by the judges and are respected by them. Therefore, these best attorneys have credibility with the judges, and the client benefits from this in many subtle ways.

In shopping for an attorney, remember that you are the client and the attorney is there to serve you. Unless something is illegal or unethical, the lawyer should do what you ask. If the attorney thinks that your approach or decision is a mistake the attorney should explore the issue with you in depth so that you will be making an informed decision.

Also remember that lawyers are like unregulated taxi drivers - they do not have to take every "passenger" - that is, nobody puts a gun to their head and forces them to take your case.

I know that many or most people will feel uncomfortable screening a professional. If you would feel this way, then take along a friend or relative who can give you support.

One of the general principles that I use is this: If an attorney had a sick child, would the attorney tolerate such behavior of the doctor treating their child? For example, no attorney would tolerate it if the doctor yelled at the patient, or did not return phone calls, or was arrogant. It is the same in dealing with an attorney. You be assured that an attorney looking for a doctor for a sick child is not going to use just anyone.

Just because a doctor has a wall full of diplomas and certificates does not mean that he/she is the one for you. The same is true with attorneys.

Finally, you should know that it is unethical for an attorney to attempt to represent you on a matter for which they do not have the necessary competence. Most states work under what are called the "Rules of Professional Responsibility", which replaced what many states called the "Canons of Ethics". It is not by accident that the very first Rule deals with competence:

Rule 1.1 - Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment to the Rule. In many instances the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

Therefore an attorney who attempts to represent you who does not have the necessary competence is acting unethically. This alone should be enough for you to go elsewhere.

Here are the some danger signs in an attorney. Clearly, some are worse than others, and I have not tried to prioritize them, but collectively, understanding these traits will help you be a better consumer:

• Arrogant
• Big ego
• Verbally abusive
• Show off
• Mean
• Angry
• Disorganized
• A poor communicator
• Lazy
• Refuses to return phone calls. (This can be a huge problem. No matter how busy an attorney is, within a few days the attorney should at least have an assistant call you and tell you when you may expect a response.)
• Requires you to do the legal research and legwork to find the law. (While this may seem like a smart way to keep expenses down, it is a clear sign that the attorney should bring in a knowledgeable consultant to help with the case. When things go wrong, these attorneys will blame you for any bad outcome. Do you think an attorney would use a doctor who required the patient to read the literature and provide a list of drugs that could help their condition?)
• Talks down to you.
• Uses a lot of "legal jargon."
• The office atmosphere is oppressive.
• Makes sexual advances or is flirtatious.
• Waits until the last minute to prepare for a case.
• Does not keep you informed of what is going on in your case.
• Makes decisions about your case without your knowledge.
• Tells you to "sit down and shut up" even if tactfully.
• Yells at you and/or the staff.
• Overworked.
• Has few cases.
• Understaffed.
• Impatient.
• Does not "walk you through the process" of developing strategy and tactics for the case.
• Has no strategy and tactics for your case.
• Promises a certain result.
• Refuses to discuss his/her qualifications. (See the companion article on questions to ask a prospective attorney.)
• Uses profanity.
• Uses vulgarity.
• Refuses to work with a consultant.
• Is a wimp.
• Avoids dealing with conflict.
• Lets the other side take the initiative and set the agenda.
• Lets the other side get away with violating court rules such as refusing to produce documents (called "discovery").
• Is new to the profession. (Yes, lawyers have to gain experience somehow, but it does not have to be at your expense. Let someone else pay for their education. And do not think that an attorney is experienced just because they have grey hair or wrinkles. Some people go to law school late in life. Ask for some written information about the lawyer's educational and work background.)
• Is new to the state in which the case is to be heard.
• Is not a member in any professional organization specifically related to domestic relations law. (While membership usually only means they have paid the dues, it does indicate some professional initiative.)
• Has a broad practice in which they try to deal in many areas of law. (In small towns and rural areas this may be all there is, but you should ask around to try to find out which attorneys focus primarily on divorce.)
• In those states that certify divorce specialists, does not have the certification or is not working toward certification or minimizes the certification process.
• Charges a lot less than others in the area of practice and geographical area.
• Inflexible
• Wants to fight over every little thing.
• Does not have a written fee agreement.
• Does not know how to delegate.
• Is not attentive to you when you are talking.
• Does not empathize with you. (Attorneys are poor therapists and do not try to use your attorney as one. But attorneys should still be able to "feel your pain", and not treat you like a piece of furniture.)