James C Wing JR

James Wing

It is an unfortunate consequence of a large and long standing practice that sometimes we are chosen by and accept a client with whom we are not compatible. Happily, it is rare that one of our clients becomes as dissatisfied as the client who wrote this and therefore it was easy to deduce who it was. A divorce case can only be concluded three ways. The case can be withdrawn, the parties can reach an agreement and report their settlement to the court and the parties can try their case and have the court decide the outcome. In this case, we were hired to replace the attorney originally hired to handle the divorce with the expectation that the case was going to be tried and decided by the judge. I stepped in and participated in a Special Masters’ Pretrial days after being engaged, so as not to delay the matter from promptly reaching trial. I do not accept that my level of preparation was substandard. I recommended during the intake interview that a deposition be conducted to obtain testimony and commit the adverse party to a single story so there would be no surprises at trial and to demonstrate that litigation is an unfriendly and uncomfortable process. However, the client reversed the authorization for the deposition. This, in my opinion, stifled the best strategy available to promote settlement as an alternative to trial. During the 3 months we represented this individual, we frequently received more than 5 contacts per day by telephone or email, sometimes substantially more. We clearly communicated that all contacts are billable events and, as such, consume retainers. We urged the client, in our engagement agreement and subsequent communications to be careful about the expense of too frequent contacts for issues of minor or no importance. These warnings were not heeded. Still, emails received must be read and messages left must be listened to. We have a clause in our client/attorney engagement agreement that provides that we may charge at 1.5 times our hourly rate for services provided outside business hours and on weekends. This individual’s communications seemed to intensify at those times, especially on weekends. We advised that if the intrusion on our private time for non-emergency communication continued, we would charge at the increased rate, but the contacts did not stop. Regarding returning communications, there are several points. First, we try to respond no later than within 24 hours. Contacts are triaged and important contacts are returned first. On any given day, there might be a trial being presented for another client whose matter had been in preparation for months. These are intensely important to us and sometimes we are slower responding. Other reasons for less than immediate responses are weekends away with family and when I am ill. I know most clients accept that. This former client also says that I am available for lengthy discussions, but not about the client’s case. I never reveal information about other or former clients, but I do use examples from other cases, both ones I have researched and ones I have been involved in, that illustrate ideas I am explaining. I think the examples are useful to the client in reaching an understanding of the law and possible outcomes. These discussions are, therefore, always in the context of the client’s matter. In the particular case complained of, settlement could not be reached because the opposing party did not change position during my representation, despite an improved offer from our side. There was nothing more to be done other than to prepare for trial and wait for the assigned date. As trial approached, the client was expressing anger and personally attacking my assistant and me and finally engaged another attorney who filed an appearance in lieu of mine. Throughout the difficult representation we strove to be patient and respectful.