Common Questions (US)

• “I don’t feel that my lawyer is answering my questions. What can I do to change this?”
• “Should I tell my lawyer the whole truth? There are things I would like to keep to myself.”
• “I need to discuss certain aspects of my case. Can I call my spouse’s lawyer if mine is out of town?”
• “Can I fire my lawyer?”
• “How can I make more effective use of my attorney if I am mediating my divorce?”
• “Can I object to the amount of fees charged by my lawyer?”
• “Is it okay for me to have a sexual relationship with my lawyer?”
• “What if my lawyer doesn’t return my calls?”
• “What
  if I don’t agree with my lawyer regarding tactics and strategies? Can I
  get a second legal opinion without firing my lawyer?”

It
is very important that your lawyer responds promptly and appropriately
to your questions concerning the case. Frequent communication will help
you understand the process. Your lawyer should explain each step of the
case and the strategies that he or she plans to use in achieving a good
result for you. Answers to your questions should be in understandable
terms. If the explanation is not clear, you should not be bashful about
asking your lawyer to clarify his or her comments.

Your
lawyer has a responsibility to answer your questions for two reasons.
First, it’s a part of his or her job to keep you informed and to respond
to your questions. When a divorce lawyer takes on a case, he or she
should realize this. It comes with the territory.

Secondly,
Illinois lawyers are required by law to keep the client informed.
Section 508 of the Illinois Divorce Statute states that, “The counsel
will keep the client reasonably informed about the status of
representation and will promptly respond to reasonable requests for
information…”This is the law, and your divorce attorney must comply.

You
must make your questions known to your lawyer. You should do this in a
clear and concise manner. It’s a good idea to write your questions down
so that you will cover everything when you speak with your lawyer. Be
sure to take notes of your lawyer’s answer. You might want to leave
space on your pad after each question for your notes of the lawyer’s
answer.This way, you will have a record of your questions and the
lawyer’s answers, and you can look back at this information as the case
progresses.

Your
lawyer will most likely bill you for the time on the telephone in
dealing with your questions. This is money well spent because staying
well informed is so very important. You can save money by waiting to
call your lawyer until you have several questions rather than making
separate calls for each question.

If
your lawyer does not respond to your telephone calls, send him a
letter. Tell him in the letter that he has not returned your calls and
ask him to call you. Also tell him that you have questions and need
answers from him.

If
you still don’t hear from your lawyer after the calls and the letter,
it’s probably time to hire a new lawyer. It is not uncommon for parties
to switch lawyers during a case. If this happens, your lawyer is
required to turn over all of the papers and to refund the unused portion
of your retainer.

Remember,
your lawyer works for you, not vice versa. If you are not comfortable
with the relationship, don’t hesitate to move to a new attorney. The
divorce process is difficult, but a good relationship with an attorney
who is responsive to your needs makes things much easier.

Jay Frank is an experienced matrimonial attorney with 30 years of practice. He has handled numerous trials.

This
question raises one of the most interesting issues that someone going
through a divorce might encounter. We can feel so utterly exposed, so
naked, so besieged, that the thought of revealing the whole truth — to
anyone — can be unsettling. Perhaps for the first time in our lives,
with so much at risk, we may feel the strong urge to deceive even our
own closest advisors. And telling the truth could appear to be the
equivalent of signing our own death warrant. There are so many things
that we might prefer to keep to ourselves. The savings account where
I’ve been hiding my bonuses. My plans for moving out of state with the
kids as soon as he signs the dissolution agreement. The “lost
document”that she requested in discovery. And so on.

There
are at least three levels at which this issue can be addressed —
legal,ethical and practical. At the legal level, failure to inform one’s
lawyer or even mediator of matters that are directly relevant to the
case can have severe consequences. Dishonesty, when discovered or even
suspected by a judge, can result in sanctions, including orders that
impair or prevent you from presenting evidence in court. As a mediator,
it is my practice to withdraw from any case in which I learn that a
party has failed to disclose a requested material fact.

But,
as we all have learned by now, not all deception is detected. The human
mind seems especially well-suited by evolution to mislead those who
threaten us. Deception is an expression of mistrust, and signals an
unwillingness to rely on the very experts we have hired. It destroys the
pact of good faith that sustains a relationship of confidence. Partial
disclosure inhibits the ability of these allies to be useful, especially
at a time when we most need them. They may know how to help manage the
consequences of the “hidden truth”in ways that you could not have
anticipated. So nondisclosure may simply be unwise.

The
third level is often the most important. Divorce is a moral challenge
and a test of character. How we handle the adversity will determine what
kind of person we will have to live with from here on out. Even if no
one else knows, even if it all “works out”, we all have a conscience
that will hound us like harpies. The sacrifice of integrity may seem
like a small price to pay at the time, but it has a tendency to
accumulate a lot of interest over the years.

Divorce
can isolate and make us feel alone under the best of circumstances.
It’s a time when we need allies, trusted confidants. If you can’t trust
your lawyer or your mediator, then find one to whom you can entrust the
truth.

Brian Muldoon is a mediator and consultant practicing in Evanston, Illinois and is the author of The Heart of Conflict.

No.
It is improper for you to contact your spouse’s attorney if you are
represented by another attorney. Further, it’s unethical for your
spouse’s attorney to even speak to you if you’re represented by another
attorney. If you call opposing counsel, you’ll most likely be told that
the attorney cannot or will not speak to you, and the attorney will
advise your attorney of the telephone call and that he/she didn’t speak
to you.

One
of the major advantages of the relationship you have with your attorney
is the attorney-client privilege, which means that your lawyer can’t
divulge anything you discuss with him/her. This privilege does not
extend to your spouse’s attorney — even if it’s a friendly divorce —
so anything you say to the opposing lawyer can be used against you. Your
attorney is better equipped than you are to determine what should be
discussed with opposing counsel.

Most
attorneys advise their secretaries and paralegals of the status of each
case before they go out of town for any length of time. In addition,
arrangements are typically made with another attorney to handle
emergencies. If it isn’t an emergency, it’s best to wait for your
attorney’s return; if it can’t wait (for instance, your spouse is moving
to Alaska with the kids tonight), inform your lawyer’s office of the
emergency and ask to be connected with your attorney or his/her
replacement immediately.

Linda R. Crohn is a partner at Shimberg and Crohn, a firm concentrating in family law in the Chicago area.

Ideally
you and your attorney should work together as a team to arrive at the
best possible outcome given your particular circumstances.

When
the attorney-client relationship disintegrates, either you or your
attorney has the right to fire each other. Legally, a firing or
discharge is known as “withdrawing.”Before taking such an action, you
should sit down with your attorney and discuss your dissatisfaction or
frustration with the case, as you may be able to resolve your
differences and continue working together. You should also consider
seeking a second opinion from another attorney before you decide to
terminate your relationship with your present attorney.

Perhaps
your lawyer is giving you sound advice and strategies, and the source
of your frustration is actually the delays inherent in the legal system
or the communication you are receiving from your attorney. Discussing
your concerns with your attorney will help clarify if you’re getting
“your money’s worth.”

On
the other hand, the attorney-client relationship may be damaged beyond
repair, and the best possible course of action is for your counsel to
withdraw. When this happens, typically your attorney will draft a motion
to withdraw, send you a copy of the motion prior to the court date, and
present the motion to your assigned judge. Typically, the judge will
grant the motion to withdraw and allow you time to find a substitute
counsel or file an appearance to represent yourself. In Illinois, no
motion by either party can move forward for 21 days after your attorney
withdraws. The 21-day period is the time you are given to obtain new
counsel.

There
are instances in which a judge will not allow your counsel to withdraw,
however, such as: your case is on the eve of trial; your counsel is the
umpteenth attorney on the case; or the judge perceives the withdrawal
as a tactic to prolong litigation.

You
should also keep in mind that your lawyer may desire to terminate the
attorney-client relationship. A lawyer may become disgruntled for lack
of payments; however, the new “level playing field”statute in Illinois
may assist the lower-income generating spouse in obtaining legal fees.
Attorneys also need their clients to follow through on document
production, meet with experts, and to act in accordance with the advice
given. Non-cooperation with these requests may result in an attorney
terminating a relationship with a client.

If
you think you can save money by firing your lawyer and representing
yourself, you should be aware that the court will hold you to the same
standard as an attorney if you decide to represent yourself. Your
ignorance of the law could ultimately harm your case.

If
you’re dissatisfied with your attorney, the best course of action is to
seek a second opinion. You may determine your retained counsel is
adequately representing your case but just not communicating with you
frequently or clearly enough, or a second opinion may confirm that you
need to hire a new lawyer.

Joy M.
Feinberg of Feinberg & Barry, P.C. has practiced family law in
Chicago for the past 21 years. She is past-president of the Illinois
Chapter of the American Academy of Matrimonial Lawyers.

Your
attorney is an important part of the mediation team. Properly trained
mediators will insist that you and your spouse each have an attorney
available between sessions for purposes of consultation. Your attorney
thus serves as a resource — someone to turn to for information about
divorce law. Mediation depends on the participants making informed
decisions, and your attorney can assist you to become an informed party
in the mediation. The mediator relies on the attorney to give clients
realistic assessments and feedback.

Early
in the mediation process — perhaps even before it starts — ask your
attorney about the likely range of outcomes he or she would anticipate
if the case were to proceed through the court system. This gives you a
context in which to evaluate proposals being discussed in the mediation.
You should also ask your attorney to help you identify issues of
importance from a legal point of view. Attorneys are good problem
solvers: your attorney can help you identify and prioritize some of the
options available to you.

As
the mediation progresses, remain in frequent contact with your
attorney. Call the attorney between sessions and update him or her on
the status of the mediation. Discuss any areas of concern and the agenda
for the next session. If you’re having a problem, ask your attorney to
call the mediator.

When
you approach the negotiating phase of the mediation, ask your attorney
to coach you before the session. If you’re like most people, you do
little formal negotiating in your day-to-day life, so ask your attorney
to provide tips and techniques that could help create a positive
outcome. If you still feel uneasy, consider asking the mediator to
permit the attorneys to sit in on the mediation itself.

Finally,
listen to the points and concerns your attorney has to offer. Although
you’re the one who’s ultimately responsible for making decisions in your
divorce — and will have to live with the outcome — your attorney has a
wealth of experience upon which to draw. Consider what he or she has to
say before making your decisions.

Jerald A. Kessler is an attorney and mediator in Highland Park and president of the Mediation Council of Illinois.

A
client may object to the reasonableness of fees charged by his or her
lawyer by filing a Petition for Settling of Fees. The court will then
determine whether those fees are, in fact, reasonable. The court will
consider the following factors:

1. Whether
   the work was reasonably required and necessary for performance of legal
   services given the circumstances of the case, considering novelty,
   importance, and difficulty of questions raised;
2. Attorney’s degree of responsibility;
3. Time and labor required;
4. Skills and standing of the attorney;
5. Benefits resulting to clients;
6. Usual and customary charge in the community; and
7. Financial
   position of the parties. No clients shall be required to pay more than
   the reasonable value of the legal services rendered simply because he or
   she has the ability to do so.

The
amount awarded should be fair compensation for only those services
which were not unreasonable and unnecessary to the action. A mere
compilation of hours and hourly rates will not necessarily justify the
award of attorney fees as requested. An attorney must specify the
services performed, by whom they were performed, the time expended, and
the hourly rate charged. Finally, a client should keep in mind that the
court will award fees to attorneys if the above factors are satisfied.

Lawrence
W. Byrne is a family law practitioner at the Law Offices of Byrne,
Nadborne & Associates. Their other areas of practice include
employment law and consumer fraud.

Although
it’s easy to understand how and why clients and lawyers could cross the
line from professional to personal relationships, a client should never
enter into a sexual relationship with his or her lawyer. In fact, in
Illinois and many other states, the Rules of Professional Conduct
prohibits a lawyer from having a sexual relationship with a client; a
lawyer is subject to severe sanctions for violating this rule, including
possible suspension of his or her law license.

There
are many reasons for both the client and lawyer to maintain a purely
professional relationship, especially when the case involved is a
divorce. Husbands and wives in the throes of divorce are on an emotional
roller-coaster. Clients often come to depend on their attorney not just
to handle the legal aspects of the case, but to act as therapist and
best friend. The lawyer becomes the proverbial shoulder to cry on, and,
as the case progresses, the lawyer and client spend increasing amounts
of time with one another, discussing very personal and emotional issues.

However,
both the client and the lawyer face problems once the line is crossed
and a sexual relationship develops. An unscrupulous attorney can easily
take advantage of a vulnerable and emotionally distraught client.
Knowing that the client will follow whatever advice the lawyer gives, he
can get away with anything — including overcharging and encouraging
either a settlement or a trial for the wrong reasons, rather than simply
acting in the client’s best interests. Likewise, a lawyer should be
wary of a client who wishes to have more than professional relationship.
The lawyer may not only be investigated and face possible suspension or
loss of his license, but may permanently jeopardize his reputation and
open himself to a legal malpractice suit when the case and the personal
relationship end.

An
attorney in downtown Chicago, Beverly Pekala has extensive experience
with women’s rights, custody issues, and financial settlements. She is
also the author of Don’t Settle for Less: A Woman’s Guide to Getting a Fair Divorce and Custody Settlement.

One
of the most difficult tasks for a divorce lawyer is to return all the
calls received during the course of a day. When I’m engaged in trial or
involved in handling an emergency situation, I often find it difficult
to return telephone calls immediately. However, I try to return all of
my client’s calls the same day — even if only to explain that I can’t
discuss the particular problem right now, but would be happy to make
arrangements to speak with them the following day.

If
the problem just can’t wait, I either attempt to discuss it at that
time or refer the client to one of my associates for advice and counsel.
I’d suggest that you contact your lawyer and explain to him or her how
difficult a time you are having and how frustrating it is not to have
your phone calls returned. Ask your lawyer to return your calls the same
day — even if just to touch base with you or leave a message
acknowledging your call and arranging an appointment to speak. You could
also suggest that if your lawyer is unable to return a call, a
paralegal or secretary could let you know that your concerns have been
conveyed to your attorney.

Do
you have access to e-mail? Many lawyers are happy to communicate via
e-mail because they can respond whenever they have a break in their busy
schedules.

Oftentimes
clients make calls to lawyers merely to inquire, “Is my deposition
going ahead next week?”or “Have you heard from my husband’s lawyer?”Ask
whether your lawyer would prefer to receive such routine questions via
e-mail, fax, or voicemail; he or she could then reply via the same
medium.

If
none of these strategies work, then you need to decide whether or not
your lawyer is properly representing your interests — which is doubtful
if neither your lawyer nor anyone in his or her office is returning
your calls. Consider changing lawyers if yours is unwilling to meet your
needs with respect to communication.

Howard
W. Broecker has specialized in the area of family law for over 25
years. A practicing divorce lawyer and mediator, his primary practice is
in Dupage and Kane County areas.

In
general, a lawyer has numerous professional responsibilities to a
client. The lawyer is required to abide by the client’s decisions
concerning the objectives of the representation; the lawyer is required
to consult the client as to the means by which those objectives are to
be pursued; the lawyer is required to act with reasonable diligence and
promptness in representing the client; the lawyer is required to keep
the client reasonably informed about the status of the case; and the
lawyer is required to explain matters to the client in order to help the
client make informed decisions concerning the representation.

To successfully represent a client in a divorce or custody case, the lawyer should have:

• an extensive knowledge of family law;
• many years of actual experience representing clients
• the ability and
  dedication to listen carefully to all of the client’s concerns and
  questions, and respond to them with a genuine understanding of the
  client’s needs.

Ideally,
the lawyer and the client should work together as a team for the
client’s benefit. In these very personal cases, communication is
essential, and every client is entitled to take an active role in the
case.

If
the client doesn’t understand the lawyer’s tactics or strategies, or
disagrees with them, he or she should discuss it with the current lawyer
in order to reach an agreement as to the manner in which the case
should be handled. However the client may choose to obtain a second
legal opinion, at any time, concerning any matter.

The
client can obtain a second opinion before or after retaining the
initial lawyer. The client may seek the advice of the second lawyer
privately (without informing the first lawyer), or may choose to tell
his or her lawyer about wanting a second opinion.

No
lawyer has all the right answers to every question of law, tactics or
strategy. Getting a second legal opinion may help the client achieve a
more informed understanding of the law, the judicial process, and the
client’s choice of legal counsel.

Steven
D. Gerage, J.D., is a lawyer with Chicago-based Rinella and Rinella
Ltd. He devotes his practice to representing his clients in divorce
cases as well as negotiating and drafting premarital and marital
settlement agreements.