Now You See Them, Now You Don’t: Your Clients are Just Loaned to You by VISA, You Do Not Own Them

Now You See Them, Now You Don’t: Your Clients are Just Loaned to You by VISA, You Do Not Own Them

I heard this week from a veteran family lawyer, esteemed in her community and a published author.

She was reflecting on what might be the most important single finding of my research with SRLs –  corroborated over and over by lawyers across the country in conversations over the last 12 months.

More than half – 53% – of my sample began with a lawyer. They went out and hired a lawyer when they or their spouse wanted a divorce; or when they felt that they were unfairly terminated from their job; or when they wanted to change the custody and access arrangement they made three years ago when they first got divorced and before they pulled their lives back together – they went to a lawyer because, as one put it and many echoed “that’s what you’re supposed to do, isn’t it?”

They gave their lawyer $2000, $5000 or even $10,000 for a retainer. Many borrowed this money – how many people have this amount of cash lying around in their bank account? The more flush cashed in RRSPs, or dipped into savings.

Six months or less later, they did not yet have a divorce order, a resolution of support, an agreement on custody and access, their unpaid bills paid, or their job back. And their retainer was all gone. So they and their lawyer parted company, and they joined the ranks of the self-represented – bitter, often, about the money they no longer had and their new burdens as they faced the courts on their own.

The 53%  

My QC friend wrote me thus:

“That 53% figure haunts me.  This is how I interpret it – and I know I can be wrong, but I have spent over 25 years in this business and this is what I see.  Someone has a problem, walks into a lawyer’s office, cobbles together a retainer (sometimes on VISA).  The lawyer starts an action and the retainer is gone.  Now the person has used up their tiny nest egg (or pays VISA for the next ten years) and is looped into the court system because someone started an action for them. Lawyers call this business as usual….we need a serious discussion about change.”

What This Means for How We Think About Change

Action Step One of the Ten Action Steps we are promoting at NSRLP, and our theme for the month of February, is “How We Think About Change”.

So what does that 53% figure mean for how lawyers think about change?

  1. Do not assume that your clients will remain with you for the duration of their case.
  2. Some of your clients will run out of money, go solo, then return because they have found some more money and are sufficiently desperate to reinvest in legal services, then run out of money again – this is the “on-again-off-again client” that is increasingly common
  3. Your clients are going to expect you to explain to them what you can do within their limited resources. This may not be your gold standard – but it is all that they can afford.
  4. Your client may ask for their documents when they leave you because they will have to continue on their own.
  5. You may bump into your former client in the courthouse.
  6. You may find yourself “coaching” your client to enable them to go solo.

What Does this Mean for Practice?

This “new normal” leaves lawyers facing a series of difficult questions, including:

  • Do I withdraw service?
  • Do I provide limited (unbundled) service? Legal coaching?
  • Do I reduce my hourly rate?
  • Do I move away from requiring a retainer upfront?
  • Do I (informally) share my practice with a para-legal who bills less than I do? With another professional? (nudging up against those outmoded business regulations…)
  • Do I leave the practice of law altogether?

Adjusting to the New Normal 

This may not be what most lawyers – both those nearing the end of their careers like my friend above, or those just called to the Bar and carrying 10’s or possibly 100’s of thousands of dollars of student debt – entered the profession to do. It is probably not what they envisage as the best way to provide service. But it is the new normal.

And as a service profession, there are only so many times that we can tell our clients that we know better than they what is “good for them”.

In 2014, clients will make their own minds up about what they think is good for them, and will not be dictated to. They will be less willing than their parents and grandparents to accept their lawyer’s (doctor’s, financial advisor’s, realtor’s, etc) opinion without reservation.

And even if they agree (as most of my study respondents vociferously did) that they would be better off with a lawyer – most simply cannot afford you.

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