How to Select a Divorce Lawyer: Part 3

 Posted on May 19, 2014 in Divorce

So far you have worked diligently to find a good divorce lawyer. You have found a personable attorney with whom you can converse easily and candidly. This attorney is busy and has a good reputation, frequently appears before local judges in local courthouses, and keeps up to date with new developments in the law. Before signing her up though, one final question remains: is this attorney ethical?

Due in part to the contentious and emotion-heavy nature of divorce law, historically Illinois divorce lawyers have been the center of a large percentage of the state's total bar discipline complaints. The Supreme Court of Illinois likewise recognizes the particularly vulnerable nature of spouses in divorce proceedings and seeks to protect divorcing spouses by placing additional guidelines on the ways divorce attorneys in Illinois are allowed to collect legal fees.

Is Your Divorce Attorney Unethical?

Here are some common red flags to show that a prospective attorney might not be practicing ethically:

1. He/she promises you an outcome that is too good to be true.

Rule 7.1 of the Illinois Rules of Professional Conduct prevents a prospective divorce lawyer from making false or misleading communications about his or her services. It is extremely difficult, if not impossible, for even a good divorce lawyer to know with certainty how much marital property each party will receive in a divorce judgment. The result of a divorce judgment is a decision exclusively made or authorized by a family law judge. Therefore, if your prospective attorney expressly guarantees, for example, that you will take home a certain amount of money in a divorce judgment, that attorney may be guilt of making misrepresentations to you about the amount of information available to her.

2. He/she offers to represent both you and your spouse.

A second red flag is raised when an attorney offers to represent both you and your spouse in divorce proceedings. Especially for couples who do not have a contentious divorce, it seems like an appealing option to consult one professional and have her lead both partners through the divorce. At least in theory, this non-litigious option would seem to be cheaper, quicker, and less stressful than the traditional two-lawyer system. A problem lies in the fact that lawyers in the state of Illinois are forbidden by their code of professional conduct to represent two materially adverse clients in the same proceeding.

Even if spouses are willing to compromise and harbor no animosity towards each other, they still, by definition, have conflicting interests concerning how marital property and child visitation/custody should be apportioned. As hard as one attorney tries, it is impossible to zealously advocate for the best interests of both spouses at the same time.

When an ethical attorney counsels a client in an amicable divorce proceeding who may be better served by mediation instead of traditional litigation, that attorney should inform clients about alternatives to traditional litigation such as alternative dispute resolution. It should be noted that a lawyer need not terminate her representation of a client interested in alternative dispute resolution. Rather, the lawyer may act as a resource to counsel and prepare the client for upcoming negotiations.

3. He/she does not use a client trust fund to hold your retainer.

It is a common for attorneys to request an advance payment retainer or lump sum from which the attorney can draw to pay for legal services as they are rendered. This is a valid way of insuring the attorney is paid for legal services. The Illinois Rules of Professional Conduct require an attorney seeking to use an advanced retainer to undergo certain protocol to protect client funds. According to Rule 1.15,an attorney must keep funds collected as an advance payment retainer in a separate client trust account to avoid co-mingling of the client's funds with the firm's assets. Additionally, the retainer agreement must be sufficiently detailed and memorialized in writing and the amount of the retainer requested must not be excessive in light of the client's legal issue.

As your search for finding a competent, understanding, and ethical attorney comes to a close, we hope you will consider speaking with one of our experienced divorce and family law attorneys at Kathryn L. Harry & Associates, P.C. Call our Oak Brook office at 630-472-9700 or contact us via e-mail to set up a consultation today.