Norm Pattis: The Limited Appeal Of Limited-Scope Representation
When things turned south in the economy in 2008, money was tight, lawyers scrambled for fees. Real estate lawyers were observed hustling the criminal courts, charging low rates to handle felony cases, a new form of bottom feeding.
We all might share the same law degree, but the fact remains that most lawyers are adept at only a few things. I suspect you will never see me handle a real estate closing, for example. I am clueless about real estate.
I do, from time time, stumble into family court, although on the few occasions that I do fill me with a sense of terror. I'm not a family court expert. I've never held myself out to be one. I feel like an infant released from a wading pool into a shark tank. The family bar is sharp, and inbred.
The new rule permitting lawyers to file limited appearances in family court is going to invite more lawyers into the family courts. Like real estate lawyers entering the criminal arena, some of these lawyers will be attracted by a quick fee for what seems to be simple work. Why not take a few hundred dollars to draft a motion, or appear for argument on some contested claim?
You will not see me or any member of my firm appear in a court proceeding under cloak of a limited appearance. I would no more dive head first into a complex proceeding than I would go to a surgeon to ask him to to remove half a tumor.
I understand why the head honchoes in the Judicial Branch like limited appearances. Some 80 percent of family litigants end up representing themselves. A contested divorce is part suicide, part murder. It stirs the deepest of passions, passions that litigants will spend everything to address. Having a lawyer in the well of the court makes sense in terms of trial management; it will make the judges' job easier.
But what, aside from a quick fee, does a limited appearance offer a lawyer?
It will be interesting to see the sorts of malpractice claims that limited appearances yield. A lawyer with an eye on the clock steps into a years-long war to offer spot advice on the crisis du jour. Once his cameo lawyering is complete, he leaves the fray, with court approval. Then come the consequences, whether foreseen or not, of the lawyer's work. What's the defense to a malpractice claim? "I wasn't hired to handle the whole case."
A more sensible approach to handling the crisis in the family courts would be to assure, at least in those cases involving the welfare of minor children, that litigants are appointed counsel paid for by the Judicial Branch: let's transfer the incentive to resolve cases promptly with sensible rulings to the decision-makers. Too often family court becomes a forum for wars of attrition, with the litigants trying to bleed their once-loved, now-hated, adversary to financial death.
And let's scrap the fantasy that the courts can determine what constitutes the "best interest of the children." Aiming at the very best is perilously close to aiming at perfection. Philosophers can't agree on what constitutes the good life. Expecting harried judges to agree about what's best after hearing from warring experts is simply a gravy train for the paid professionals. Most of us grew up with parents who struggled to meet the "it's as good as I can do with the resources at hand" standard.
Unbundled legal services is an unmitigated disaster. It will buy momentary peace for judges and litigants in a handful of cases. But it doesn't address the underlying crisis in the family courts. And it is an invitation for creative malpractice lawyers to take aim at lawyers signing up to do something offer adequate counsel to clients in crisis.•