08/04/2011 01:50 pm ET Updated Oct 04, 2011

Attorney and Client: Who Works for Whom?

I was in court this morning on a hotly contested divorce. We had been in mediation the night before and it looked like everything was blowing up. I talked to the mediator after the mediation, and the mediator informed me that he believed the case should settle and not go to trial. He also informed me that the case should be calmed down if at all possible. When we got to court in the morning, I asked for a private meeting with the other attorney, in chambers with the judge, before going on the record. There were several motions pending and going on the record and arguing the matters in open court would just heat the case up even more.

The other attorney and I spoke with the judge. The other attorney's attitude was that there was no hope for settlement and he wanted to proceed to trial. The judge talked to me and asked me if I felt that there was hope for settlement. I informed the judge that I believed the case could and should be settled. My client believed so and his wife did as well. I also informed the judge that if we spoke to the mediator he would express the same opinion. The judge then called the mediator, while she and the two attorneys were sitting in chambers. The mediator stated that he believes with another session the case could and should be settled.

What does this all mean?

The first issue is who is working for whom. Too often attorneys and clients forget that the attorney works for the client and not the other way around. In this case, the attorney is known as a bully and the client was very intimidated and afraid to speak up. In this situation she had been told, and lead to believe through her attorney that there was a strong possibility that the case will not be settled and the case will go to trial. This will mean that she will spend many, many thousands of dollars unnecessarily to achieve a result that can and should be achieved through mediation without the emotional, financial and legal costs that go hand-and-hand with a trial.

In this case, the client and her husband spoke at length and decided that they did not want to go to trial, but wanted to do everything possible to settle the case. So we have a situation where both the husband and wife want to resolve the divorce amicably. The mediator is trying to foster that and I, as the attorney for the husband, am also. The only one out of step is the attorney for the wife. It is critical that when you work with an attorney you make sure that he or she understands that the attorney works for you and not the other way around.

The next issue: There at two types of attorneys. There are those who solve problems and those who create problems. If you are dealing with a problem solver as your attorney, in most situations the case will settle and you will spend many thousands of dollars less than you would have if you have an attorney who creates problems. The attorney who creates problems often will turn a divorce into a run-away train, creating unnecessary court appearances, unnecessary pleadings, too much work and tremendous fees and costs. These are often out of all proportion to what should be involved in a case. As a client, don't hesitate to ask for monthly statements. Don't hesitate to scrutinize your bill. If you are concerned about the costs, talk to your attorney, and if you don't get the answers you want, do not hesitate to get a second opinion.

Some clients want to create havoc because of bitterness and anger or of feeling left behind. In these situations, they may have some satisfaction in the short-run, but in the long-run they are doing more harm than good, because the problem creator or the attorney who is the hired gun, is just there to create havoc and have a scorched earth policy. It won't help lead to a settlement that makes sense. It is not going to help towards a process where there should be healing, especially where there are minor children. Once the divorce is final and the legal battles have ended, the husband, wife and children must go on and rebuild their lives. If there is a scorched earth policy, it is much more difficult to rebuild than if the attorney is a problem solver.

There is an old saying "be careful what you wish for." Do you want an attorney who runs you and creates problems, or do you want an attorney who is working with you to try to get you through a horrible time in your life with as little costs and acrimony as possible? What is better for you? You be the judge.