Few things bother me professionally more than lawyers and law firms who seem to have the following business philosophy:

—First, take exceedingly large retainers up front.
—Second, churn the case for approximately 6 months by filing unfocused, fruitless pleadings and discovery.
—Third, withdraw from the case and file a fee petition against their former client for even more $$$.

We just got retained recently in a simple dissolution of marriage matter so I pulled the case file and took a look around. The previous firm filed the case some 9 months ago and took a $1,500 retainer up front. The case was filed and service was made on the Respondent; some 5 other court dates came and went; and, the firm withdrew with the case no closer to conclusion. Perhaps even worse was a matter against a gentleman who to my knowledge owes more past due child support than anyone in the state of Illinois. The firm brought several pleadings such as petitions for rule to show cause and motions to modify child support and visitation, never even got the pleadings they filed to hearing, then withdrew, and the last I saw had brought a $10,000 fee petition against their former client. It’s quite sad actually in much of my court-appointed contempt defense work, which is quite often procedurally post-divorce, the amounts of attorney fee judgments I see against former clients and the dissatisfaction of so many former clients with their attorneys.

What to do?

How about being a results-oriented attorney. How about starting with a specific end in mind and communicating with your clients specifically what you and her/his expectations are. Sadly I think these “lawyer churn” cases are almost the norm in the domestic relations field. Rule of Professional Conduct 1.5 disallows contingency fees in most domestic relations matters (child support collection being a notable exception). I suppose a contingency case for say custody of a child is rather unseemly, but some of my examples above aren’t exactly peachy either. Flat or capped fees? I’ve capped fees in some of the most common domestic relations matters like a motion to modify child support, for example. But in an early stage divorce it’s nearly impossible to gauge things like the opposing party/lawyer and the general tone of a case.

In my opinion at the end of the day you’ve got to create the personal policy of pushing your cases relentlessly towards settlement, hearing, and final resolution. And much of the pushing is about driving action BETWEEN court dates…that’s when the progress MUST occur. Waiting on those 15-minute court dates every couple of months is a recipe for disaster.

I finally got around to reading this case out of Sangamon County involving a trial court’s finding of indirect criminal contempt against a lawyer. It’s instructive specifically regarding lawyer conduct before a tribunal and I’m a self-labeled “contempt junkie” so that part of the case’s discussion is also useful if you have the same problem.

Briefly, a pro se client seemed to be unsuccessful in getting a motion to modify certain post-divorce financial obligations scheduled before the court although he did get a motion filed. Most courts have some local rule that says you need to set a motion/pleading for hearing in 90ish days from filing or it’s a nullity (you’d need to re-file…it’s treated as if it was never filed). Here, apparently the date of the original filing of the motion was important. Next, pro se client retains lawyer who files motion to set pro se’s previous motion for hearing and lawyer says the pro se motion was still timely BECAUSE it had been noticed up in the past but opposing lawyer had improperly appeared and that the motion set in court was stricken on that day w/o notice to pro se litigant.

And what does “new” lawyer for previously pro se litigant use as evidence of the above scheduling “issue”? An exhibit to his pleading which is a page from the judge’s court scheduling calendar.

Well, so then the case heads down the contempt road. Judge asks lawyer how/where he got the calendar page and lawyer says the clerk gave it to him and clerk denies this and there’s a whole contempt hearing sort of he said/she said between lawyer and judge’s clerk.

Lawyer is eventually held in indirect criminal contempt of court and fined $100 and required to apologize to the court. On appeal they modify to indirect civil contempt and remove the $100 fine. Short opinion and an interesting discussion of types of contempt.

I wonder how comfortable the lawyer is appearing in that judge’s/clerk’s courtroom these days.

Just a quick follow-up to a post last week about a Pennsylvania litigant recently released after spending 14 years in jail related to an indirect civil contempt finding, from the Chicago Tribune regarding a Will County judge who seems he can’t get enough of this contempt stuff.

Clifton Williams arrived at the Will County Courthouse in Joliet and sat in the fourth-floor courtroom where his cousin was pleading guilty to a felony drug charge. As Circuit Judge Daniel Rozak handed down the cousin’s sentence — 2 years’ probation — Williams, 33, stretched and let out a very ill-timed yawn. Williams’ sentence? Six months in jail — the maximum penalty for criminal contempt without a jury trial. The Richton Park man was locked up July 23 and will serve at least 21 days.

I had a knock-down-drag-out hearing the same day I read this article and after 45 minutes of testimony the judge starts to give his ruling and my client keeps interrupting the judge as he was speaking. My client was fortunate we had a patient judge.

**Update, the yawner was released August 13, 2009.

If a large percentage of your practice is prosecuting and defending various sorts of contempt of court matters as mine is, you may have heard of the former husband in a PA divorce case (who also happened to be an attorney) who was subject to the longest sentence in U.S. history stemming from a civil contempt finding. I know that at several of the trainings I’ve attended periodically he was brought up. The thumbnail is some $2.5 million in marital assets disappeared which according to him were lost in poorly performing investments and the former wife likely thinks that they’re still sitting around in some Swiss bank account. Well, since civil contempt is supposed to be coercive and not punishing, a PA judge said that jail has lost its coercive affect after 14 years. He’s out!

And while we’re talking contempt, can anyone help me with this riddle that I’ve struggled with all morning:

Court orders entered and party brings petition for indirect criminal contempt (aimed to punish for past acts). Later on, the orders that are the basis of the criminal contempt case get vacated/terminated, there has yet to be a hearing/trial on the criminal contempt case. Should the contempt case be dismissed or can it still be brought since the orders that were allegedly violated were enforceable at the time the case was brought??