I Owe My Attorney $100,000 and She Is Reluctant to File a Breach of Fiduciary Duty Motion for Me - Should I Go It Alone?

Hi Mr. Arnold,

I am in a very contentious divorce. Long story short: had a 7 day bifurcated trial on date of separation while judge refused to schedule a hearing for attorney fees before and during trial that took 6 months... The playing field was definitely not leveled.

Opposing side won their date of separation, December 2001. The judge blatantly omitted my objective evidence etc. The minute order was so obviously one sided with misstatements, gross omissions and inaccuracies of uncontroverted facts. We have requested a statement of decision…

For 8 months the judge continued my hearing for attorney fees and spousal support 15 times! I have two questions.

  1. How do I prevent the judge from continuing his reluctance to rule on attorney fees and spousal support?
  2. Because I owe my attorney over $100,000 she does not want to do any more work such as filing sanctions against my husband for violating court orders. Can I do a pro per on this matter? He liquidated stocks a year ago that were enjoined valued at over $100,000 and he withdrew money from heloc without notice.

I wanted to ask you this on your blog but didn't see where I could input. I love your website! It's comforting to know there are attorneys out there who care.



Good evening Rita!

Yikes, yet another horror story from a thoroughly broken system – so sorry to hear of it, and on behalf of it all I apologize! All of us are being marginalized by powers beyond our control, and your experience is just one more facet of this systemic malaise – but every bit as sad and important as every other facet for each and every other one of us.

Forgive me for babbling some more and making certain assumptions about you, your attorney, or your situation that may not be accurate, but here are some seat of the pants observations.

Have you hugged your divorce attorney today? Because, maybe she deserves it and a little appreciation, mixed with sober expectations of what can and cannot be achieved, can go a long way towards completing what is, all too often, a divorce marathon. Representing yourself in divorce is always a bad idea! I hear from so many people who let their attorneys go and then try to pit themselves against the opposing attorney, and often the judge themselves, and the stories generally don't end well.

First, if you have an attorney whose been carrying you to the tune of $100,000 (or even for more than $20,000), you have a gem that you probably can't replace – whether you had money in hand (or borrowed) to hire another replacement attorney, or not. She cares, big time, and I am sure if she won the lottery you'd get a quick million from her! The only reason I've made the potentially bad economic decision to represent people who've run up such high fees with my office is because I was so passionate about them as humans, and for the injustice of their cases. I suspect your lawyer feels the same way about you, which can be priceless. Fortunately, I've always gotten paid because the outcomes ultimately allowed that but I certainly have cut my fees when the money finally came in to make that possible, but always in proportion.

At some point attorneys have to cut their losses (which decision might wind up guaranteeing those losses for you both, as compared to hanging in there together), and maybe she is at an end, but I'd recommend doing everything in your power to keep her – as you become more frantic, however, it is possible that she will feel that you blame her for the outcome thus far and also that she internalizes her sense of responsibility for caring for you, no matter that it is not her fault but some selfish or reactive judge's decisions that were beyond her control – so, please be careful and be sensitive with her when you vent. We attorneys take a lot of emotional responsibility for our clients, even when it is not fair that we do that to ourselves. If she is at the edge of her pain threshold at the moment, I'd advise you to back off from insisting that she do one more thing or lamenting the fact that she won't until she gets refreshed by whatever helps her to reset herself (money works, but honoring your attorney can be equally efffective and much cheaper). I've seen (and I hear from) so many people who decided in complex litigation to go it alone, whose cases thereafter went into a death spiral (sometimes economic, sometimes emotional in the form of their helplessness and depression). You may well be equipped intellectually or energetically to battle on your own for a while longer – it is, after all, your life and you know it best, and your case, and that can power you on for a time – but you will wear out, I promise, and you really need a buffer. Family law attorneys get paid, in part, to be "sin-eaters".

So, getting to my meandering point, try not to blow up this relationship with your attorney if it can be salvaged, even if that means holding off on the things you'd like to do, and let her catch her breath. If you start making demands then she will have to withdraw and you simply don't want that. If you have any access to funds, and can give her something that symbolizes your gratitude and respect for her efforts and contributions (i.e., a small one time payment, offering to start paying some small amounts each month, borrowing $10,000 more from your parents or siblings), this might be a good idea. All of this assumes, however, that you are indeed grateful and believe that she has been authentically doing the best she can – as opposed to being perceived as a guarantor of outcomes, a magical talent that people really do not possess. Some clients develop the same sense of entitlement towards their attorney's efforts as they may feel towards the spouse or domestic partner who has burned them, but this is a toxic transference.

A common reason why people become frustrated with their attorneys in situations like yours sounds to be is that they begin grasping at straws, or don't have a realistic view of what relief they can expect to receive from a judge, when their ex's have committed technical (or even arguably substantial breaches of fiduciary duty) fraud, and the clients learn about fiduciary duty concepts and – based upon what the statutes and the occasional appellate decision says – they think that THIS will finally get the judge's attention. Unfortunately, trial judges generally (and it sounds like this judge specifically), often don't understand FD rules or the importance of imposing consequences for financial cheating behaviors and, when a lawyer has that opinion of the judge, then they may know that it is a waste of their time, especially time they aren't getting paid for, to press the issue and pursue that route. So, you will get push back from your attorney, and you really shouldn't blame her for that. If you have reached the point where you owe a big divorce legal bill, you don't have the luxury of demanding a Cadillac when you can only afford a Suburu (or maybe a take a bus? - oh, nooooo!)

In (more of a) direct answer to your question, I lack sufficient information to guide you well (for instance, the relative income and asset picture between you and the other party). I don't think that a breach of fiduciary duty RFO relating to the $100,000 your husband stole or monies he took from a HELOC to pay, for instance his own attorney, will benefit you or justify the effort at this point in the litigation. If you try to indignantly make this point on your own, you will likely find yourself spinning and becoming more dejected. We already feel too powerless in these times, so why set yourself up for me of the same? This does not, however, equate with giving up. I am suggesting that you become realistic and pin-pointed.

Instead, tell your attorney how much you appreciate her and ask if she is willing to discuss an economical strategy to get the judge to rule without her being forced to finance your case beyond bare bones. Discuss what strategy would likely force the judge to issue a ruling on the attorney fee request he keeps dodging, so at least it would be appealable. You could consider yourself complaining to the presiding judge if this trial judge keeps dodging the issue, but understand that your attorney cannot have any part of that endeavor. If you get a final ruling on the attorney fee question, I suppose you could try to educate yourself to do the appeal portion yourself, keeping you attorney in on the case at the trial court level.

With the information I have, my recommendation to you is do whatever you can to keep your attorney on board, that you recognize that certain avenues will turn out to be cul de sacs and that your attorney probably knows the difference, and that you two agree that she will do the best she can to move the case forward in as economically feasible manner as possible. Try to pay her some money for these "go-forward" fees. If a client religiously pays something each month, it expresses that their recognition that they are the ones with "skin in the game". Honoring those whose would help us, if we let them, is always a smart idea. Not sure if this helps, and maybe I've completely missed the mark. If you appreciate the response, you can appreciate me for giving it by following the link at the end of this email and support the Enlightened Divorce Blog™!

Good luck, Rita! If you have some further questions or more information (within reason – I too am overwhelmed), please feel free to shoot me another E. In the meantime, here is some real wisdom:

"God, grant me the serenity to accept the things I cannot change,

The courage to change the things I can,

And wisdom to know the difference."

Author: Thurman W. Arnold III