Avoiding Pitfalls in Family Law – Legal Up Virtual Conference 2025 by InfoTrack

Episode Notes

Transcript

Joe Scott:

Hello and welcome to On the Road with InfoTrack and Legal Talk Network. I’m Joe Scott, one of the programming coordinators at Legal Up the annual Virtual conference hosted by InfoTrack. Over the next few weeks we’ll present special episodes of the On the Road Podcast to highlight some of the best insights from past events. Our next presenter, Claude Ducloux, says he’s made a lot of mistakes when he started running a family law practice. So we asked them to break down the biggest issues holding family practices back, as well as how to consciously avoid conflicts by not letting the emotional work in family law undermine the business of family law. We hope you enjoy this episode and don’t forget to pre-register for the next Legal Up Virtual conference at Legal Up 2026.com.

Claude Ducloux:

Hi everybody, this is Claude Ducloux. I’ve been a lawyer, oh my God, in about 12 days, it’ll be 48 years. I am probably going to tell you a hundred things that I made a mistake on, but you try not to make the same mistake twice. Listen, we know from psychologist the five most stressful events in life are birth, death, a move out of from your house to another state or something like that. Job changes and divorce, birth and death. Also, marriage is in there, of course, a big change in your life, but the most stressful events, marriage, usually a happy event, but birth, death, move, chop change and divorce. You will often see clients in the state of shock or grief or anger and depression and so be sensitive and the most important thing you should do is just listen to them tell their story.

You may know immediately what to do Now before you even you’ve talked to them. Here’s a question I get asked, well, should I charge a consultation fee? My answer is probably the client needs to appreciate that your service is valuable and it comes with a cost. Also, you can weed out clients that are just searching for free advice or to conflict you out. Now we have a new, I finished my six years on the disciplinary rules committee and we created a new rule for new clients coming in. We call them the drive by conflicts where they’re attempting to come to your office to conflict you out and they want to buy an hour or two of your time so they can pour out their heart and then make sure you don’t handle their spouse’s divorce because they know who you are. If you’re a greater lawyer in that community, they sure as hell don’t want you on the other side of their divorce.

So we have a new rule that if they have no intention of hiring you, they’re not really a prospective client. And then also you want to judge. It’s so important if you judge their personality, their candor, their fit with you. When I candor is this person, someone who we believe is reliably, you’re going to tell the truth. Is this a person going to leave? In one of my divorces, the other side kept losing their lawyer. Her lawyer kept her lawyers one after another, three in a row kept with withdrawing because one told me privately because she keeps creating evidence and my client was a very nice guy. I just wanted the divorce, but it was the biggest state. They had properties in various different states in California and Colorado, Jersey and Texas. He said afterwards she asked me, he says, well, can’t I claim that my husband beat me?

And her lawyer said, well, did that happen? Her answer was, well, isn’t that for the judge to decide? She goes, okay, I’m out of here anyway. So you need to judge if you really want to do that now, creating the right impression, client size you up immediately by the courtesy and the appearance of your staff. The condition of if you still have old sandwiches from yesterday’s lunch sitting out on a table, if they see other client’s files open on your desk, if you do that, if your trash is full, if the place looks a mess, if you’re unkempt, I’m sorry, they’re going to size you up immediately. Now, even if they want to hire you, they’re not going to have, they think, well, this person’s such a mess. I can probably control the situation, your level of and your ability to concentrate on their case, right?

Interview your client. Now, let your client talk. I always say there are two absolute questions you need to ask. You need to know upfront what are their goals? Are they reasonable? What are your goals? What do you think I could do? Well, I’m so mad at my wife, I want 90% of the marital estate or community property. Well, that’s not a possible goal. The best answer to that question is, well, you’re the attorney. You tell me, great. I have a client that I can use logic with. But if they come in with unreasonable goals, you either need to pass on that case or explain that that goal is not reasonable and I’ll never be able to achieve it. Now the second question that absolutely you have to ask is what is your spouse saying about you? And that we get to be a fly on the wall in the other room because remember, your client only will tell you what he or she wants you to know about them.

They won’t tell you the bad stuff. So I said, okay, what does that mean? Spouse of yours saying about you? And you’ll go, well, she’s going to say I’m an alcoholic and that I’ve had three affairs and that I don’t pay my bills on time. And that’s nothing that your client told you, but now you have prophylactically protected them into telling you the truth about them because those mean people in the other room are saying that. So always ask those two questions and remember those clients and are a good percentage that just want, they want their pound of flesh, that person that they loved and gave their life to and bore children for or they put them through school, whatever they want. Anybody who wants you to injure the other party for the principal will never be happy with your work. Two quotes, as I say, justice is expensive, but revenge costs a lot more.

And the other one is my favorite attributable to St. Augustine, but it’s always attributable to Brits and everything else. Revenge is drinking poison and hoping the other person dies. Ethical risks of social media, I always say, first of all, there should be a social media addendum. In your attorney contract it says, we will look at your social media, we will up your privacy settings and you will not post anything on social media about anyone in this divorce. You will tell your parents, your grandchildren, you’ll tell everybody, please do not post anything on social media. And I reserve the right to withdraw as your attorney if you kill yourself on social media by posting ugly, horrible stuff. And we’ll give you some examples. Privacy settings, increase them, change your passwords. I always tell my clients during the divorce, start a new Gmail account just for the divorce that I can use or Yahoo, whatever.

But start a new account just for us and nobody else. And don’t delete anything from your social media either. That’s going to get you in big trouble. Spoliation sanctions are huge for people that try to delete stuff. Alright, social media inspiring divorce event planner, Emma Brady learned of her husband’s affair when she saw an updated Facebook says Neil Brady has ended his marriage to Emma Brady and she’s going, what? I’m not aware of that. 28-year-old Amy Taylor filed for divorce from David Pollard after discovering he was sleeping with an escort in a virtual game world 34-year-old Bri Wayne Forrester stabbed his wife to death after learning. She had changed her Facebook status to single Louisiana custody case husband’s lawyer found some sexually explicit boasts and graphic pictures posted by his ex-wife on her new boyfriend’s social media page. Guess who got custody? Ex-husband. Because of that, in a dispute over alimony payments, ex-husband initially claimed in deposition, he didn’t have any real jog prospects, but his wife’s attorney found Twitter messages in which the husband tweeted about his new job offer such as, and LinkedIn is great and useful and so we say, Hey, I got a new job, yay, but I can’t afford to pay my child support.

Warn children about posting anything about mom or dad. Please don’t do that. We want to have a peaceful divorce. Don’t discuss finances, trips or expenses online. Now when you have a bad client, whether it’s the husband or the wife, is she going to listen to that? No, because she wants the kids on her side. We’re going to talk about that in a little and does the client blog tell ’em, okay, on your blog, please don’t talk about your divorce at all until it’s over. Practice step even in seemingly simple or uncontested situations, basic discovery should be conducted in every case to protect yourself to your basic due diligence requirements. If a client is adamant, and I’ve had, I will tell you twice in family law matters. My client said, no, I trust my husband. He’s going to sign this note and he’s going to do well.

I will write and as I call it an a MA letter against my advice, you’ve told me that you were going to trust Bruce to pay you this note. You have not let me do discovery. So I’m going to tell you that I believe that this is against my advice and you’re going to countersign this letter saying, I told you to do this, to fulfill my duty of making sure that he’s telling you the truth. And they always do. They sign it. I had one recent, well, it’s not that recent. It’s about 10 years ago on a prenup, prenuptial pre-marriage agreement where I warned this woman that this is a terrible agreement. There’s nothing in here for you. He gets to kick you out of the house within 30 days. If he files for divorce, he doesn’t give you any money for doing this. This is a terrible step.

Well, I will. He won’t do that to me. I said, okay, sign this letter saying if you sign this free up, it’s against my advice. I think it is not in your best interest to sign this. And she did and within nine months she was kicked to the curb. So protect yourself with what I call, this is an against my advice letter. I saw another lawyer do that earlier in my career and it was the best thing in the world because that went really, it was a multimillion dollar divorce. And he told the client and I said, why aren’t you suing your well? And he said, because I have an ironclad against my advice letter saying don’t do this. This is bad. It’s going to have a bad outcome. And so do that. Think about that. So protect yourself promptly. Send any request for discovery to the client and keep the apprised thereafter of all the deadlines.

Now be aware of your own online print. Most lawyers have an online print that includes websites, Facebook account, Instagram. You must scrupulously watch what people are posting if you allow posting or comments. There was a really funny, I have a Facebook page that I never do anything. I post something about five times a year, but somebody posted on it, a funny picture of me in a silly costume, but it was embarrassing. I took it down. I didn’t want people to look at my thing and see some silly costume I wore, but looking like Harpo Marx. And then remember this Internet’s written in ink. What you posted never goes away and you’re always going to be known for your worst tweet or post, never your best tweet or post. As I always say to people, you can post 345 wonderful thoughtful tweets and then one night you’ve had a little too much Zinfandel and you think you’re being funny.

And that’s the post that comes off something. And guess what? That’s your tweet for life. So don’t do that. So objectives in a contested divorce. The goals of a divorce are to create reasonable expectations to fairly and lawfully divide America estate and debts to reduce unnecessary conflict, to preserve necessary relationships and to properly document the transactions. And any of you who want this slide deck, I’m happy to send it to you and set the tone for your case. Your job is to seek fair outcomes that a reasonable fee push back on unreasonable or unrealistic goals. I want 75% of the community property and I said, well then the spouse has got to be pretty much a murderer who’s going to be in jail the rest of their life. They’ll be reversed in Texas pretty much once you get to 67% pate, courts really look bad at them and then honestly inform them of what to expect.

The timeline, the cost, don’t sugarcoat it and alternatives, maybe we do this. Remind clients that you are the captain of the ship. You’ll determine. Now let’s go ahead and quickly document your representation. Don’t ever underestimate fees. Your clients will lie to you and say, we already have decided what you want. How many of you out there? I love it when I have a live audience. I say, put up your hand if your clients say on the first visit, my husband, my spouse and I have agreed on everything, everybody. How many times has that turned out to be true? Never. And what I do with clients says I say that, alright, you’ve decided on everything. I said, okay, how many qualified domestic relations orders will I need? And they go, okay, what is it? You have children? What is the state attorney general chart that says you have to pay?

I don’t know. I mean, what are you going to do about this? See, I’m not trying to make you sense. There’s just literally a hundred decisions you need to know before you say we’ve decided on everything and that’s my job is to guide you through that. Make sure you do the right thing. So that’s the way I handle that. Who’s paying me? How does that client plan to pay you? Does the client have the money? Don’t get started without a payment plan and make sure you make it easy to get paid. I have a little tab right on my website, pay your fees here and it takes them to two tabs. Says pay here if you’re paying a bill, pay here. If you’re depositing money, this goes into my trust account. So it’s very clear what to do. Alright? Are fees ever non-refundable? Stay away from saying that now in certain California allows you to do a thousand dollars, et cetera, et cetera, et cetera.

But the smartest thing to do to avoid all that is never say a fee is non-refundable because that eliminates the analysis that they’re entitled to under rule 1 0 3, 1 0 4, whatever it is in your state that says, was that reasonable to necessary? We have some bad case law on that. So all I say is yes, I’m doing this for a flat fee and I’m entitled to this fee and I can put it in my, if you’re in a state that allows you to do that, I can put this right into my operating account. Now that means I do have to finish that matter or else you’re going to be entitled to a refund. Once you put the words non-refundable, you’re getting yourself into trouble. So listen to me say unless it’s a small fee under thousand dollars, never use the words non-refundable. Alright? Difficult clients just because your client’s a jerk here in writing, call it unreasonably emotional, doesn’t give you the right to be a jerk.

Never write an email or tweet you’d hate to see in a future PowerPoint presentation. Observe your duties of your lawyers. We have a lawyer’s creed and ensure your client understands your duty to do so. Again, I have lots of actual real life stories. I could tell you about this where the client was mad at me for being nice to the other lawyer and I said, that person is a very competent lawyer and she is working hard to represent her client. And you know what? After your case is over, I practice in the same community and we are going to be colleagues once again. Now if you have a problem with the way I’m handling your case, that’s different. But for my being cordial to the other cause, that’s what I do. If you want me to be mean, just know this case will cost more and it’s not likely result in any benefit to you except for more money to me.

Settlement process. People go to court or a hearing when settlement’s impossible and we always blame my client, whoa, settle. Right? Oh, it’s just my bad client. My client simply is not going to settle. But the failure in my opinion, is our fault for not creating the necessary environment for settle. And when do cases settle when each lawyer has enough information to make reasonably informed decision. So what does that mean? Even the laziest yet competent lawyer has to wait until he or she has enough information and they’re too lazy to get it from you. So give it to them. The reason I’m evaluating the community value of the IRA is because here’s the value on the day of the divorce, a hundred thousand and now it’s 400,000, which means it has a 300,000. Give them that document rather than say, well, I have to evaluate it.

Well you haven’t asked for that. So the other side, when it says when the client understands the cost of benefit going forward or when some outside influencer intervenes and when the parties are together, I always try to get the parties together over at my office or the other lawyer’s office, not that we’ll be in the same room yelling at each other, but I say we make a lot of progress when we’re right there to make quick decisions on little things. How about this? We’ll do this and we’ll pick up the kids on Friday and we’ll do that. Getting them together rather than getting on the phone tag is much better and it always leads to a case resolving a lot sooner in my anecdotal experience. Alright, so settlement process. First of all, good client control, reasonable expectations of what you can, what you’re going to seek, right?

Client teamwork and the client’s goals are understood. Good relationships with opposing counsel. Don’t burn your bridges unless you’re independently wealthy. Where the word wealthy come is probably behind that thing. And respect from the court or agency and staff requires integrity and dependability. Remember when you go to that Courtroom, you are the least important person there. You make friends with all those staff and be courteous to them and respect them. Running your office. Let’s quickly go through the mistakes we make in running our office. You know what? Embezzlement a real problem, but we don’t know about it because every firm is embarrassed when some legal assistant or office manager embezzles money. So listen to me carefully here. There’s no excuse for you not to look at your accounts every day. It doesn’t take nowadays 60 seconds to log into your bank and look at your trust account and look at your operating account and to see that nothing looks out.

If you catch it early, you stand a lot better chance. There’s no excuse once a day there. 60 seconds it takes you. So how often do you review that? Who’s allowed access to your checking accounts? Nowadays, there’s not a whole lot of reason for a lot of people to do that. We don’t send as many checks nowadays. There’s no excuse not to do that all the time and collecting payment, big picture, getting bills out the door at the beginning of the month is it creates the easiest path for getting money in the door. That’s what you need. The Berg Curve, and for those of you who remember the famous old lawyer, Jay Berg, I think he’s alive, I think he might be 90 years old. He had the famous Berg Curve, which looked like a ski slope and said, this is how fast your client willingness to pay your bills are from the time you send out the bill.

If you wait 30 days, your client says, wow, Claude Cher is proud of his attorney’s fees. After 60 days, the client says, there’s no way in hell I’m paying Claude that much money. And after 90 days they said, you know what? I didn’t even need a lawyer for this. If you want to get paid, get that out the door now, record your time daily at the end of each day, if you can’t remember what you did, look at your outgoing email. It always gives you tips of what you worked on that day. And don’t use shorthand. Don’t use shorthand into bills nowadays. If you’re in what they call a fee shifting case, in other words, you can ask the other side to pay your attorney’s fees, which you can in many states for divorces nowadays, the judges are not going to give you any credit for a redacted bill.

Well, I can’t tell you what I did because it’s confidential. Well then you don’t get any money. I can’t pay for confidential work. I got to pay for what you did. So you just don’t reveal any confidences. So know that. Don’t say reviewed file 0.3, I get nothing out of that. You get no money. So instead said called client to warn them of the to advise pretrial hearing, discussed the fact that we were unable to find and ask him to send the accounts for the month of May, June, and July. Then put 0.3 and you look like a really reasonable lawyer, right? Long right. The other thing is remember in a fee shifting case, just because you choose Bill your client $600 an hour doesn’t mean the client, the judge will award that if the reasonable value is $375. So just remember that you don’t get what you charge.

Just your client agreed to pay you and remember it never reveal confidences in billing to suit recover attorney’s fees. Your entire mill may be subject to review, bad billing habit. I call it making your stapler a profit center. You could charge a bill for $2,204. You know what they’re going to be mad at? You charge them $65 to bind the exhibits. Don’t make your stapler a profit center. Nobody believes you had to go to Office Depot to buy paper just because you got hired. And don’t charge for office products. Office products should be like air. It should be just there in your office. And Bill promptly, this is me talking. Don’t surcharge for use of credit cards. What I do, since most of my buildings by the hour, I know that I can work an extra 10th of an hour ethically work, but I’m going to dedicate that time to paying whatever the charge is to the finance for people who are, well, I’m in a bill of charge.

In those states where you’re allowed to, some states you’re not $50. If you pay by credit card, that’s silly. I don’t want to call you stupid because you’re silly. I want to get paid. I want my clients to feel like they’re getting a prize. You get to keep your miles, your points, your Delta things, your Southwest Airlines points by paying me, yay, I get paid and you get a prize. So don’t do that. Charging excessively for legal research and overcharging for things like copies and faxes, just don’t be stupid. Okay? Alright, let’s keep going. Civility is communication. The words you use, we always tease about Dallas Council, if you miss your deadline, first thing is I’m filing this motion for sanctions. You should have had these to me on Tuesday and now it’s Wednesday night. No. How do we solve this? Is it better than I demand you do this?

Or I always give the look after. We all need a break now and then from a missed deadline, I always say if somebody’s missed a deadline, my first email is, hi Mary, or Hi Joe. Hey, did I miss miss this deadline? I have it on that. Your interrogatories were due on Tuesday and do you need more time? Or did I dismiss it? Because let’s work together on this. That’s so much easier. And the other side feels, yeah, they’ll call you and say, yeah, I’m sorry I’m a little behind. Hey, how about give me the weekend? That’s great. That’s fine because I’m going to want that benefit too. As a board certified appellate lawyer, there’s a lot of lawyers that don’t get there. I always agree to anybody’s extension of time, there’s maybe only two times in my entire career or I didn’t because it was like their third extension and there’s a deadline.

Something’s going to have to happen. Don’t ever expect better treatment than you’re offering the other side. So let me just see this. Make sure you have a work-life balance. Make sure you do things in your life. You can’t help others. If you can’t function with competency, talk to people. Have someone to talk to. Be resilient. Make sure you spend time for yourself and for your family. Your final short, make sure you interview in a way that gets reasonable expectations. Have a good written agreement. Communicate often with what’s going on. Always keep your client informed. Have excellent billing habits. Make it easy to be paid. Be wary of the danger of social media and don’t sue if you get burned. It’s part of doing business. And use a DR when it’s available to you. And finally, improve always and defend our profession. I think we’re the most important profession in America. Our profession will be courteous. If you are strong, if you stay active serving your community, if you help and you’ll helping those. If,

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