As a matter of law, a party to a domestic violence proceeding is entitled to have a “support person” with him or her at the table. When an adult retains counsel, frequently she brings someone along, a friend, parent or significant other. While this might be a great idea in theory, in practice it can become a nightmare.
Clients get what is termed the “attorney-client privilege” every time they retain an attorney to represent them. This means that everything they share with the attorney is protected from disclosure. The attorney may not reveal client confidences under any circumstances in the pending proceeding.
The person who “owns” the privilege is the client: only she can waive it. It is waived, however, when the client allows persons not attorneys (or the attorney’s staff) to participate in attorney-client meetings or communications. This means that if your mom comes with you and pays the retainer, ostensibly, opposing counsel could subpoena Mom to testify about what you discussed with your lawyer. It may not be relevant, and most certainly would be objected to, but having an extra set of ears voids the privilege.
The real problem, however, especially when the third party is funding the litigation is: Who calls the shots? The Client? The Third Party? The Lawyer?
Anyone who is paying money for services generally wants a say in how those services are administered. That means that although the client must make decisions that affect him personally, he may be unduly influenced by the person paying the fees (who thinks he doesn’t know what’s good for him). This is problematic not only in terms of attorney-client privilege, but just try and get an answer out of a client who is not paying for the attorney personally when his lender is sitting there. Nothing gets accomplished by committee, but by having third party funding in the attorney-client loop creates one for the litigation.
Ask any attorney who has had to take the call from “the money” side of a case, who felt that fees were too high, costs to extraordinary or results that were sub-par – all of these come from the discussions had between client and the money source. The client wants to get results. The source wants to stop the outflow of cash. The attorney wants to get paid. No one is happy.
The solution is to know, before you leap, what your litigation might cost. Simplistically, in the Counties I have practiced, the average cost of a motion is about 10 hours’ worth of work, or $3,500. If it doesn’t resolve the first time, it may require further efforts, ergo, more money. This is why a lot of attorneys charge $5,000 as the initial retainer: it gets you into court and maybe, support until the whole thing is finished. Realistically, though, most attorney-represented dissolutions, even the very amicable, agree-upon-everything kind, cost about $10,000 to complete from filing to judgment, sometimes less. You should get back whatever amount of your retainer that your attorney has not spent on your behalf.
The school solution is to borrow enough to get started and support yourself in the process until support starts being paid (it will take at least six weeks assuming the payor pays it under an order; if you have to collect it, it may take longer).
Another alternative, if you have children requiring support, either under age 18 or 19 and still in school, or adult special needs kids, go online, type “DCSS” and open up a case with the County to collect support for you. This is a free service and is ironclad in terms of finding the money, be it wages, unemployment benefits, tax refunds, stocks, bonds, anything that can be attached. The individuals working with the Department of Child Support Services (hence “DCSS”) are skilled and devoted attorneys, social workers, commissioners and judges. They are tireless in their duties to help families in need and you will not find any better representation on the planet. And it’s free! Repeat, F-R-E-E!
Finally, when someone is paying your way, there is a tendency to take their generosity for granted. Divorce is good people at their worst. It’s easy to forget that while it may be hard on you, it’s costing a lot on your behalf. Your attorney and your funder are invested in your success. Keep that in mind because the money you have had to borrow should be repaid when your divorce is over. Attorney fees and costs are a line item in every settlement: they should be borne equally between the parties, so keep track of what you have borrowed and to whom it is owed, even if it’s a balance transfer on a credit card.
The bottom line is that the client calls the shots in the case. The lawyer follows the client’s directives. If you feel that financing the endeavor entitles your third party to a voice, it’s best to make sure everyone agrees and if not, keep looking until you find a fit for all parties concerned.