- “What if I don’t agree with my lawyer about tactics?”
- “What if my lawyer doesn’t answer my questions?”
- “When should I telephone my lawyer?”
- “Can I fire my lawyer? How? Under what circumstances?”
- ”How can I shorten my divorce process?”
- “Can I get a second legal opinion without firing my lawyer?”
- “Should I always tell my lawyer the whole truth?”
- “What if my lawyer doesn’t return my calls?”
- “Can I object to the amount of fees charged by my lawyer?”
- “Can I call my spouse’s lawyer if mine is away?”
It depends whether you believe your lawyer is doing something unethical, an occasional but not likely occurrence, in which case you should change lawyers immediately. An unethical step, will inevitably lead to disaster for you — and probably your lawyer, too. Maybe not today or tomorrow, but eventually. At the very least, it will turn any judge who hears of it against you, and you’ll be behind the proverbial 8-ball from then on.
On the other hand, if you simply question the legal efficacy of the tactics, there are a number of steps you can take to lessen your anxiety.
First, tell your lawyer straight-up about your concerns — whether they relate to the overall strategy of the case, the cost-effectiveness, your otherwise good relationship with your children, or whatever they may be. Your lawyer probably has a good reason for taking a certain step, but since you’re paying for the advice, make sure you understand and approve of it.
Secondly, get your lawyer to give you an action plan: that is, a plan by which she or he is going to move your matter to resolution. This will enable you to evaluate the overall strategy the lawyer has in mind and may help you to evaluate better the specific tactics about which you are in doubt.
Thirdly, get an opinion from your lawyer as to the likelihood of success of the steps he or she is proposing to take. Getting a lawyer to put something in writing often makes the lawyer stop and evaluate the situation, which isn’t necessarily a bad thing.
Finally, if you’re still not satisfied as to the tactics the lawyer wants to undertake on your behalf, get a second opinion from another lawyer. Put the facts fairly to that lawyer. If his or her advice differs from that of your lawyer, decide which advice seems most reasonable and with which you feel most comfortable. Then, either instruct your lawyer to change course or think about changing lawyers. You should change lawyers if — and only if — you’ve lost confidence in your own lawyer. In short, your lawyer should proceed only in a manner that provides an intellectual and psychological comfort level for you. Remember: the lawyer gives the advice, you give the instructions.
Stephen Grant is a family lawyer practicing in Toronto.
This is often a serious issue. Sometimes there might just be a problem in communication, with the lawyer thinking he or she is giving you the answers and not realizing that the two of you aren’t on the same wave length. Be sure you have phrased your question so the lawyer knows exactly what you’re asking.
And don’t hesitate to make it clear that you don’t understand the answer you get. Ask that no “technical” language be used, or that the answer be put in a different way. Be persistent until you get the information — even if the response is that “there isn’t any answer” to your question.
If you can’t even connect with your lawyer and don’t get any reply to your phone calls, send him or her a note detailing the number of times you’ve called or written without response and setting out the question as well the importance of contacting you with a reply. Also mention when it’s most likely that the lawyer will be able to reach you, or when you’ll be calling back. You might mention if you don’t hear from his or her office within the time set out you’ll be contacting the Law Society’s Discipline Committee. That’s a bit harsh — but it’ll likely get attention.
Lastly, there’s the bigger question of why you should stick with a lawyer with whom you can’t communicate. Consider changing lawyers.
Joel Miller is a Toronto-based family lawyer. He operates Joel Miller’s Family Law centre.
There is more than one answer to this question, and the answer will vary depending upon your circumstances.
In a perfect world where everyone could afford to do so, meeting with a matrimonial lawyer to get answers about the general law in this area should occur before marriage. It should be one step in your preparations the year prior to marriage, just as you would organize your financial affairs or purchase a home. Couples who are remarrying seem to be better at this, but even they tend to leave matters to the last minute — after the honeymoon and wedding plans have been booked. It should not be an afterthought; it should be part of your marriage plans. The majority of young couples don’t believe divorce will ever happen to them, so they never bother to learn how the law will affect them until marriage breakdown occurs.
If you’re contemplating separation, consulting a lawyer should be one of the first steps you take. Most couples spend a year preparing for their marriages, but little if any time preparing for separation. It’s important to not take the wrong step, which will have lasting effect both on your life and your children’s lives. Clients should have the right information early on to make the right decision in their circumstances.
Another more critical point is that you want to remain in control of the situation — don’t let your lawyer make decisions for you.
A client will often consult a lawyer after making the decision to separate. If this is the case, and the couple is able to cooperate regarding financial, household, and childcare responsibilities, and are awaiting the sale of their home, you may not need a lawyer — except perhaps to draft an agreement on the basis of your decisions, or to answer questions about the sale of your home. If you have the right legal information, then you’ll know not to panic.
If, on the other hand, your spouse has removed children from the home without notice to you, seized money from bank accounts, discontinued financial support, or has abused you, call your lawyer immediately. You need to know your rights and your options for proceeding.
Joanne Guarasci is a family lawyer at Hamilton-based law firm Ross and McBride.
Who is the boss of your case: you or your lawyer? Who gives the instructions: you or your lawyer? Without having taken a formal survey, I believe that most people would answer: “their lawyer.”
My clients often say: “You’re the lawyer; you decide what to do.” I explain to them that I’m there to advise them of their options and the law, but it’s the client who must make the final decision in his or her case. Invariably, a look of surprise comes over their faces when I say that they must give me the instructions and not vice-versa.
I’ve heard people say that they’re afraid to upset or anger their lawyer. It’s very important that you, the client, understand that you’re the boss. Your concern should be about how your lawyer takes care of your case, not the state of your lawyer’s feelings.
Similarly, it’s very important to understand that if the lawyer-client relationship isn’t working, then it’s in your best interests to terminate it.
There are certain conditions under which you would be well advised to fire your lawyer, for example: if you’ve lost confidence in your lawyer’s advice; if your lawyer is difficult or impossible to reach (he or she rarely returns your calls or not in a timely fashion); you don’t know what’s happening with your case (you’re never sent copies of correspondence, pleadings, etc.); you feel that you’re “pulling teeth” when you try to explain something to your lawyer (all at the lawyer’s expensive hourly rate!); you don’t trust your lawyer; or if there’s a lack of respect between you and your lawyer.
Under his or her Code of Professional Ethics, a lawyer is also entitled to terminate the relationship with a client; for example, if there is a serious loss of confidence between the lawyer and the client.
In order to have a viable solicitor-client relationship, you must have good communication with your lawyer and have confidence and trust in him or her. If trust and communication are missing, then you have a duty to yourself and to the welfare of your case to terminate the relationship. You must always remember that you are the customer: you’re paying the bill; and you’re entitled to fire your lawyer at any time and for any reason.
Before taking this step, however, it may be worth seeing if things can be set right by a meeting with your lawyer. Presumably, you chose him or her for a reason, which may be strong enough to warrant seeing if a face to face meeting with your lawyer to discuss your issues and concerns may result in the changes you need.
It is most important that you interview your lawyer before retaining him or her, asking about background, experience, fees, philosophy, and his or her opinion of the case. Finding the right lawyer for you is the first and often most important step in the litigation. It is a harsh reality of family law that the outcome of the case depends in large part on two factors:
The facts and merits of your case; and
The ability of your lawyer.
So it is very important that you take the time you need to find the right lawyer for you. Also, if somewhere along the road, you feel that your lawyer is no longer right for you, you owe it to yourself to terminate the relationship and find the right lawyer for you.
Anne Freed has practiced family law for 17 years, recently adding divorce mediation to her downtown Toronto practice.
Whether you’re negotiating, mediating, or litigating, separation is always difficult and stressful for spouses and children alike. The following steps can promote a more time-effective and constructive resolution of your divorce.
Be committed to having a conciliatory attitude. Nothing expedites the divorce process more than a willingness to communicate and find middle ground.
Choose a lawyer you feel comfortable with and whose approach is consistent with yours. Maintain ongoing, open dialogue as to an appropriate strategy for timely, cost-effective resolution of your case.
Develop reasonable, realistic goals for your case with your lawyer.
Be organized — obtain all required financial and personal documentation. Provide all relevant factual information to your lawyer at the outset.
Speak to your spouse directly about unresolved issues when appropriate. If dialogue is negative, avoid unessential contact and conflict. Restrict such discussion to counsel.
Be respectful towards your spouse and his or her point of view — even when you disagree. Avoid the temptation to use the legal system to “get even” or “win.” Be wary of those who suggest that you do.
Attempt mediation, particularly in matters relating to custody and residency of children.
Identify whether a negotiated resolution is likely. If it’s not, take needed litigative steps without delay.
Don’t “flog a dead horse” with endless, fruitless negotiations.
Establish timelines for required steps and responses. Ask your lawyer to follow up immediately with the next step when deadlines aren’t honoured.
When your spouse does compromise, acknowledge the difficult concession made. It’ll make him or her more likely to compromise in the future.
Garry J. Wise has been practicing family law in Toronto since 1986.
Of course. I always consider a second legal opinion to be a positive step for both the client and the lawyer. I see three benefits when a client obtains a second (or even a third) legal opinion:
The client will feel that the advice lawyer #1 gave is probably accurate if the second opinion is similar; this will result in greater confidence by the client in lawyer #1.
If the second opinion is quite different, lawyer #1 may learn something he didn’t know before, or he may realize there is a different strategy or approach that he didn’t see originally.
Sometimes an issue falls in such a grey area or is such a novel point that lawyer #1 would welcome additional opinions from other family law lawyers, so that he can formulate a carefully analyzed opinion.
The key to all of the above scenarios is that the client share the second opinion with lawyer #1 and have open communication about the possible differences in opinions. If the client eventually does change lawyers, lawyer #1 will at least realize the reasons for the change and there will be a smoother transition.
When a client obtains a second opinion, he should try to ask the second lawyer for the reasons behind the opinion. This will assist the client in making an educated decision about the different options available. I often show clients specific sections of statutes, textbooks, or cases so that they can read the relevant law for themselves.
Steven Fehrle has practised family law and civil litigation as a sole practitioner in Toronto since 1991. He is a board member of the Family Lawyers Association and a member of Family Mediation Canada.
The short answer is: “Yes.” If you want to test the intuitive accuracy of this answer, think what Bill Clinton would say if asked a similar question.
What the Clinton saga illustrates is what family lawyers experience everyday: that failure to tell your lawyer the whole truth is a recipe for disaster.
Accuracy and completeness are important wherever there are contested issues, but may be irrelevant where there is no issue. For example, the reasons why you separated may have nothing to do with the case. If so, spending time telling your lawyer the whole truth about why you separated may just be very expensive and ineffective therapy for you. On the other hand, if support is an issue, then you owe it to yourself to be honest and thorough about your income and expenses.
What are the disasters you could bring on yourself by not telling the whole truth?
You’ll get ill-informed advice. You’ll probably increase the cost, bitterness, and stress of the case. You may jeopardize your chances of succeeding on the issue in question. You may even jeopardize your chances of succeeding on unrelated issues. You risk getting stung for your ex-spouse’s costs. If you have an ongoing relationship with your ex because you have children together, you will probably have poisoned whatever chances you had of having a reasonably amicable separated relationship.
In short, trust your lawyer with the relevant facts. He or she can’t represent you effectively without a thorough — and truthful — account of the facts.
Michael Nash, a family lawyer with 21 years of experience, practices with Turkstra Mazza Associates in Hamilton, Ontario.
There are a number of reasons why your lawyer may not be returning your calls. First and foremost, he/she is probably busy with another client. Nevertheless, that doesn’t mean that if you have an urgent problem or need to ask your lawyer a question that you should have to wait for weeks to get a reply.
Here are some things to consider before you get too nervous about your lawyer not returning your calls:
How many times have you left messages that have gone unanswered on a voice mail? If days have gone by and neither your lawyer nor his/her secretary has returned your call(s), consider writing a letter to your lawyer and advising him/her of this matter.
Has anyone from your lawyer’s office called to tell you why he/she has not returned your calls? A secretary, law clerk, or associate should be able to tell you why your lawyer is not calling you back (for instance, he/she could be away, sick, or in the middle of a trial). If so, you have to believe that your lawyer is not neglecting you but simply dealing with matters in a priority that is in everyone’s best interest.
Most lawyers have a routine for dealing with files on a day-to-day basis. Maybe he/she is only able to return calls in the evening, early morning, or on the weekend. Find out when your lawyer returns calls, and make sure he or she knows where to reach you at those times.
Your questions can often be answered by secretaries and law clerks who are familiar with your case, or who may be able to ask questions on your behalf if your lawyer is really busy.
Remember that when your matter becomes urgent, other clients will be put on hold and you’ll become the priority.
If you regularly come up with questions for your lawyer, try writing your questions down and faxing your lawyer the list of questions or concerns. This way you won’t forget to ask anything, and your lawyer will most likely answer your questions by writing you a letter. This route will probably cost you less than calling his or her office regularly.
Rely on your instincts. If you feel that your matter is urgent and your lawyer has not called back — and this happens often enough to cause you stress — you should seriously consider finding a new lawyer.
Gary Stern has been practicing family law for more than 11 years, and has offices located in North York, Scarborough, and Whitby.
If you think your legal bills are unreasonably high, the first person to speak to is your lawyer. He or she may be able to give you a reasonable explanation for the fees. If you’re unable to resolve the issue with your lawyer, you can take the bill to the Ontario Court (General Division) in the area where you live and request that the account be “assessed” by the local assessment officer. Upon a formal written request (and after obtaining a $53 fee) the court will open a file and an order for assessment will be signed. Ultimately a hearing can be held at which time the lawyer will be required to justify the account. After hearing evidence, the assessment officer can confirm or reduce the account. Once that decision is made, you will be subject to a court order to pay the account as assessed.
Philip J. Clay is a partner in the Hamilton law firm Harris & Henderson and practices family law exclusively.
Lawyers must not communicate directly with any person who is represented by another lawyer, unless they have the consent of that person’s lawyer to do so. Most lawyers make arrangements to have another lawyer cover their practice while they’re out of town. You should contact your lawyer’s office and inquire as to which lawyer is handling your file in your lawyer’s absence, and then speak directly with him or her, giving the lawyer some background on your file and the nature of the issue that you wish to discuss. While lawyers often agree to handle another’s practice, they aren’t necessarily familiar with your particular file or the issues and details that are important to you, so don’t be disappointed if they know little about your file. If there is no lawyer appointed to handle your file, speak directly to your lawyer’s secretary or law clerk, as they are not only familiar with your file, but have probably had previous dealings with your spouse’s lawyer or their office, and can contact them on your behalf. Law clerks and secretaries, however, can’t provide you with any legal advice. If you have difficulties in arranging for someone from your lawyer’s office to contact your spouse’s lawyer, you should advise your spouse that your lawyer is out of town and when you anticipate that he or she will be able to communicate with your spouse’s lawyer on your behalf.
Avra Rosen is a practicing family lawyer and mediator in downtown Toronto.