The following article originally appeared in the Fall, 2003 issue of "The American Journal of Family Law." We are grateful to editor Ron Brown for his gracious cooperation in agreeing to have us post it here.
CLIENT REACTIONS TO LEGAL FEES: MEANINGS AND MANAGEMENT
While the handling of fees is recognized as critical to any law practice management, it is probably more so in matrimonial law. In this specialty rife with clients' psychological complications, the receipt of the lawyer's bill can spark projections onto the fee of meanings that actually reflect very different concerns.
Billing and payment need to be viewed in the larger context of the attorney-client relationship in order to be fully understood. The presence of client upset, misunderstanding, and distortion is significant during divorce. The focus on the client's emotional well-being can take up a lot of the conversation between the client and lawyer. Paramount among these issues are anxieties about the economic future. This seems to be true whether the divorcing couple is of modest means or substantial assets. The worry seems to be about losing the lifestyle as it has been, and threats to it are not regarded lightly. It is difficult for the mental health professional to maintain divorce support or therapy groups in part because clients are so worried about having to pay a fee even if it is a ten or fifteen dollar co-pay! By contrast, the single biggest expense this individual may incur during the divorce is the lawyer's fee. Little wonder it can become the vessel into which the client's angst and anger flow.
Fees and billing also represent the intersection - often an uncomfortable one - of the business of lawyering and the service and personal nature of the relationship. Again drawing on the parallel between lawyers and therapists, the professional wants to show the client that he cares, is on the client's side, and is really trying to help. But the lawyer, like the therapist, has a business to run. When the client is revealing to the professional the very worst of her history, the shameful details, when the client's emotions are on display, the last thing he wants to be confronted with is the reality that the lawyer is there because it's how she earns her living.
Like therapists, many lawyers are not very good at juggling the business and personal service aspects together. Practice management courses, including fee management, are absent in most psychology graduate programs, medical schools, and law schools; and the relationship part is also missing in the latter two. Yet in a recent article in the ABA Journal about why clients like their lawyers, the author mentions the ability to show interest in the client as a person and clarity about fees as important factors. In a recent client relationship consultation to a law firm, two of the senior partners spoke of having unpaid bills of $50,000 and $200,000 respectively. This comes up commonly in my consultations, a reflection of the complexity of client relationship management, especially in divorce.
Adding to the personal and professional difficulties just described are the burdens of unclear and compromising ethical considerations around the handling of fees in divorce cases. Parley describes a New Jersey decision about appropriate attorney fees in which the court expressed concern about the amount of billed time related to attorney-client conferences. The court opined that the lawyer may be obligated to limit such conferences or to not expect to be paid for all of the time devoted to them. How difficult a charge is this for a lawyer when a client is spending half that time talking about his anger or unhappiness and when attempts by the lawyer to limit that part of the discussion are experienced by the client as rejection?
The fact that fees and billing can be so difficult is likely one of the reasons many lawyers avoid dealing with them fully or clearly enough. Let us look at some of the more common ways these difficulties are played out in the relationship.
Common Client Reactions to Fees
Perhaps the trickiest dilemma is the one that comes up most often. The client spends a significant part of the discussions with the lawyer talking about her depression, the difficulties she's been having with the children since the separation, how much he hates the judge or opposing attorney, and so on. The lawyer, either because she wants to be a good listener or doesn't know how to steer the conversation differently, lets the client go on at length, then appropriately bills for those discussions, only to receive an outraged phone call from the client about being charged for the time. After all, the client insists, "We didn't do anything!"
Against the backdrop of that New Jersey decision, and in response to having to repeatedly deal with angry clients, the lawyer may justifiably be confused about what things are reasonable to charge for, and what his role really should be! Since the client's emotionality is not what the lawyer wants to be discussing, he may find it difficult to justify these charges…yet these are indeed hours spent with the client.
In addition to which activities are legitimately billable, clients can also assign meanings to how much the attorney charges. They complain about the high hourly rate but may associate a lower rate with less competence on the attorney's part. Groner discusses this in terms of the dilemma it can create for new attorneys in trying to establish a fee. Suggesting that "a realistic assessment of the time required" is the most reasonable approach, she comments on lower-than-realistic fees resulting in situations in which the lawyer received little respect or gratitude, and "…as soon as the client was financially able to leave such an accommodating lawyer, the client did so, even though making the change escalated substantially the level of legal fees the client was willingly incurring." If the lawyer's dilemma is whether to charge more and incur wrath or charge less and be devalued, the real problem is likely that emotionally charged clients resent having to spend any money on an enterprise in which they don't want to engage! For the wife who is bereft, every bill received from the lawyer is salt in the wound. The vindictive spouse can only "win" the divorce by ending up with a lot more of the money (and the children) than the spouse; giving it to the lawyer does not match that need, even in those individuals whose vindictiveness stretches out the process and runs up the bills! For both spouses the worries about money and future lifestyle also make the lawyer's fee an easy target of their anxiety.
Another variant of clients' untoward reactions to paying their lawyers is their feeling objectified when they receive the bill, a reaction that comes from two sources.
First, the client already feels like an object in a number of situations that arise in the course of a traditionally litigated divorce. The issuance of initial orders is the first time a stranger, the judge, has told them what to do with their house, their savings, their children. In other words, they are told how to run their lives…or so it feels. Discovery brings feelings of violation, of being scrutinized by strangers (lawyers, accountants, etc.) at the behest of the spouses who used to love them. While collaborative law and other approaches within the comprehensive law movement offer the possibility of avoiding feelings of dehumanization, this is currently not the choice of the majority of divorcing people.
A second source of the sense of objectification is the client's perception and expectations of the attorney. In a relationship rich with distortion and projection, the lawyer may be seen as savior, caretaker, vanquisher, or a host of other roles. At the very least, clients want their lawyers to pay attention to them and to care about them. When the bill arrives in the mail, it is a reminder that this is a business relationship, no matter whether those other things are also true! It is a tough nut of reality for the client to swallow.
Good Client Management and Good Fee Management Go Together
The client need not be left in confusion nor the lawyer uncertain regarding fees. By taking simple steps the attorney can prevent much of the turmoil and reduce the intensity of reactions to fees.
Be clear. Deal with fees actively and directly, both orally and in written form. Don't use estimates or "ballpark figures." A detailed, written fee contract can clarify at the outset what the client should expect and can help to provide a stabilizing structure to the working relationship that will carry forward. Parley points out that written retainer agreements are required in some states and that in some instances the contents are also outlined. Make sure that the written contracts and your oral explanations are understandable to the client. With people who are highly affective this means using simple terms and asking for client feedback to make sure he understands. It is also important to remember that, given the emotional roller-coastering that often goes on in divorce, what the client understands today may not be so two months from now. Always be prepared for the kinds of reactions described earlier and ready to talk about them. But an initial fee arrangement that the client fully owns may reduce those reactions.
Explain who will work on the case, what they will do, and how much the client will be billed for their work. Clients become easily confused about the use of associates and paralegals. This is often expressed as concern about whether hourly charges are the same for each of these professionals as for the attorney who heads the case. While this is a legitimate question, it also masks the concern that the attorney who was hired is giving the representation to "lesser" people to carry out. To the extent that the lawyer is clear at the beginning about these roles and the associated charges, he can reduce the client's distortions of them later on.
Be especially clear about billing for minimum units of time. A patient of mine recently told me the following story. She had emailed her attorney a question about an upcoming event in the legal process. The email response was a succinct, "Yup," which was sufficient to answer the question. When the next bill arrived she noticed a charge of $35.00 for that email exchange. She was furious! The solution here is not necessarily to eschew the use of minimum billable units. It is to anticipate that there may be client reactions, to explain the reasons for such units, and to be prepared to acknowledge the client's feelings and calmly re-explain when needed.
Pay attention to when your bills go out. While sending bills out is a routine part of your office procedure, it is often a major event for the client. Of particular concern are bills that arrive after a prolonged period of non-communication between lawyer and client. While you know what activities you have been undertaking on the client's behalf, she doesn't. This is one of those times when the client will feel objectified and taken advantage of. With the lawyer's work invisible to the client the feeling is that the lawyer is only interested in the client for the fees she can pay. The need to itemize such bills clearly is obvious but insufficient. Part of your explanation of billing procedures at the beginning, and then repeated as necessary, should be about the fact that there will be "quiet times" during the case; but that doesn't mean a lack of work on your part. Give examples. Then anticipate for the client that he may wonder or even be upset about the charges at such times, and invite him to let you know. You may also want to routinely inform clients of ongoing activities before bills go out. Such currency of information both reduces reactions and keeps the client better contained during those times when she is feeling out of touch with the lawyer.
Be active in communications. Your greatest allies in reducing intense emotional reactions in clients are clarity, information, anticipation, and preparation. An experienced divorce lawyer will be familiar with the psychological and emotional reactions of a variety of clients and so will have developed a personal data base. Drawing upon that to inform clients allows you to provide expertise beyond your legal knowledge. But to do so you must be willing to use it. Fees test the alliance between lawyer and client. That alliance is best formed and maintained when the lawyer is able to reduce surprises for the client. That is why the clarity and detail of the information about fees that you provide is so essential. You can buttress it by sharing with the client your experience of other clients.
Talk to the client about what clients talk about. Inform him about when clients get confused about fees. Tell him how to let you know if he has such reactions and encourage him to do so. Check in once in a while to see if he has any questions or concerns he'd like to raise.
Talk to the client about the relationship between your business and the personal nature of the services you provide. Let her know that they may feel contradictory at times, that it can be an uncomfortable fit. Remind her that she shares the obligation to protect the working relationship and that she can do so by sharing with you rather than withdrawing.
Actively raise these questions and issues if payments are late, if a client wants you to make unusual fee arrangements, or if you sense that untoward reactions are occurring. Suggest some times when the client will be able to reach you if he has questions about an upcoming bill after he has seen it.
Respond to clients' emotional reactions calmly and firmly. Remind them about those initial explanations of fee and billing policies and about previous discussions of possible reactions. Never discourage the client from talking about these things. If she is permitted to express her feelings and you can address them as suggested, they are more likely to be satisfied and less likely to grow.
The imposition of fees and the requirement that they be paid are straight-forward, objective realities. Divorce is not. Hence the potential for fees to be the precipitant for the release of many of the client's emotional responses to the divorce itself. A proactive approach by the lawyer can help keep fees and payments less confused with other sources of upset in the client.