Family law, contingency style.

Family law, contingency style.

Posted By The Manely Firm || 13-Sep-2012

There is a relatively new development in my field of practice, family law. With the Great Recession, many family law firms closed. The money to pay attorneys shrunk so fewer attorneys survived. As a result, we now have a new breed of family law attorney, the contingency lawyer.

You know a variation of this approach. Personal Injury is a contingency practice. Attorneys don't get paid unless you get paid. In family law, it takes a slightly different approach. Here, contingency lawyers charge a modest retainer and then run up the bill knowing their client has few funds to pay it. Of course, that client is still obligated to pay and the lawyer could sue, but the contingency lawyer banks on a different outcome: that his client's spouse will pay the hefty sum.

In Georgia, we have a statute, O.C.G.A. §19-6-2, which allows for fee shifting if one party has a significant economic advantage over another. Think of the wage earner having economic leverage over the stay-at-home parent. The statute is a sound law. I think it makes good sense.

The problem lies when the contingency lawyer sees this statute as the golden goose. He can take the lower wage earner's case and, rather than try to expeditiously and economically arrive at a viable conclusion that helps the family, he bills the case to death to generate significant fees. The higher wage earner gets hit with higher fees but the whole family suffers from diminished resources and from a bruising and often unnecessary fight.

We are constantly mindful that there are five actors with a stake in the divorce: the parties, obviously; their attorneys and the judge. Part of our analysis is understanding everyone's stake in the action. If Opposing Counsel's stake is to generate excessive fees, hoping that our client will have to pay them, watch out. They won't settle. That doesn't work for them.

Not long ago, we were forced to try a case that we insisted could be settled. In the end, after the judge ruled, the only difference between the judge's ruling and my expectation of the ruling was two fewer weeks of visitation in the summer. All the numbers, asset distribution, debt distribution, child support and alimony were right on the nose, but opposing counsel got himself a pretty payday. And the parties were left more embittered. Their recovery will take a much longer time.

The Manely Firm does not take cases on contingency. Not only is it against Bar rules, it is a practice guarranteed to make former spouses even more estranged. In the end, the only person who benefits from such a fee arrangement is the contingency lawyer.

Michael Manely

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