And keep a grip on your family practice

by Brenda McCourt & Felicia Folk

Brenda McCourt, a well known Vancouver family law practitioner, and Felicia Folk, Practice Standards Advisor with the Law Society of BC shared with Vancouver Family Law Section members their separate views on keeping a grip on your family practice.

Ms. McCourt began with a humourous list of 10 clues that you have been practising family law too long:

1. Chambers is filled with young lawyers you don’t recognize.
2. Your office space is filled with closed files.
3. Your closed files keep reopening.
4. You’re thrilled to handle a file other than family law.
5. You’re ecstatic when a trial collapses.
6. You receive a phone message and the name is unfamiliar to you; you presume it is for another lawyer in the firm and are surprised when you are advised that you just spent an hour with that client last week.
7. You have no clients sufficiently older than you to call “Mr.” and “Mrs.”.
8. You have more shoes at the office than at your home.
9. You find yourself arguing with the judge.
10. You have completely abandoned the idea of paying off your line of credit.

On a more serious note, Ms. McCourt stressed the importance of lawyers practising family law not to become over loaded with work. She gave four important tips:

1. Pick and choose your clients.
Learn to say no. Decide what kind of work you want to do and what kind of clients you want to represent. Three rules of thumb to follow are: Don’t see more than three clients in a day. Don’t take on files which are more than three inches thick. Don’t attend more than three social events in one week.

2. Educate your clients.
Your clients must understand the process that they are embarking on. It is important for you to take clients off of their “hopeful high horse” and prepare them for the worst. Be honest about fees and be sure to make a record of your estimate. Explain to your clients how Chambers works and if possible take them with you so that they can see how the system works. Tell them that you could be bumped down or off of the Chambers list, that the judge could reserve judgment and that many times the affidavits are not read by the Court.

3. Learn to handle high emotions.
Learn to remain calm at all times. It is important to have a buddy that you can go to for advice or simply to vent.

Avoid the “drama triangle” where your client is the victim, the spouse is the persecutor and you become the rescuer. These roles and the responsibilities associated with them will shift eventually and you will be the loser for it. Work with your client as a team and give your client lots of responsibility to ensure your client carries some of the responsibility regarding the proceedings. If a client becomes upset it is often very useful to either postpone a communication with them, to end a communication to give your client time to calm down and reflect, or to ask your client to leave your office.

It is important that you do not take abuse from your clients and that you protect yourself. Don’t let clients dictate strategy to you and don’t let clients dictate all of your time. Give comfort as you can and always think about what you would want and expect if you were a client.

Ms. McCourt also gave some advice on what to do when things go sideways:

1. Heed the first warning. There is usually ample warning of a matter going astray. Fix the problem as soon as possible.
2. Speak to a colleague whom you respect.
3. Advise your client without delay and don’t be afraid to apologize for your mistakes (but be conscious of the insurance problems of admitting liability when an error has been made).
4. Stay calm and detached at all times and remember you learn from your mistakes.
5. When a client is upset, listen to the client. Avoid being defensive and make sure the client feels that you are listening and understands that he or she is being heard. It may be appropriate to suggest a meeting and possibly to adjust your fees. Adjusting fees often goes a long way to quell the concerns of an upset client.
6. Avoid taxations. Only go if absolutely necessary.

Felicia Folk’s advice on family practice focused on her experience in dealing with complaints.

Although 11.25 per cent of practice in BC involves family law matters, 25 per cent of complaints received are with respect to family law practice. Complaints to the Law Society come from clients, litigants and other lawyers and are about ethics and lawyer behaviour.

Ms. Folk has identified three reasons for complaints:

1. general dissatisfaction with the lawyer;
2. a failure by the lawyer to communicate with his or her clients;
3. delay and excessive fees.

Ms. Folk offered suggestions to avoid the complaints she outlined: Pay attention to practice management, client management, time management and to your own attitude.

Practice Management
It is extremely important not to overload yourself. Your productivity goes down when you have too many files. Ethical problems result. Don’t take on new clients when you have a backlog of current files. Don’t take on every client who comes through the door.

All lawyers should have the following practice management systems:

• a bring forward system;
• a file opening system;
• a file management system;
• a communication system. It is important for your clients to know you haven’t forgotten them. Even if nothing has happened in a file for 30 days, you should consider contacting the clients to let them know that nothing has happened but that you have not forgotten them.
• a recording system. Keep records in the form of memos, letters and notes to protect yourself.
• a file closing system. The May 1994 issue of the Advocate contains a good article which sets out how long you must keep files in your office and how to store files.

Client Management
Communicate frequently with your clients. Be civil but frank and realistic with your clients. You must help them understand what is and is not possible.

Time Management
Make sure the client can afford your services. Conduct your research early on in the file. Before fees become too high, re-evaluate with the client the work being done and the issue of ongoing fees.

Attitude
With family practice, in particular, Ms. Folk advised that practitioners must remember that family law is not war. There are more complaints from lawyers about lawyers in family law than any other practice area. It is important to learn to manage a client’s attitude and your own by remembering that this is a process. Stay detached, objective and courteous. Remember that you can call others for support if you are experiencing difficulties. Consider Practice Advisory Panels of the CBA, Benchers, mentors, senior counsel and other members of the Bar.

Brenda McCourt is a family law practitioner. Felicia Folk is the practice standards advisor at the Law Society of British Columbia.

This article was published in the December 1998 issue of BarTalk. © 1998 The Canadian Bar Association. All rights reserved.