The Initial Consultation • Your Divorce Case
In this episode of How to Split a Toaster, Seth Nelson and Pete Wright kick off season 10 with an exciting and in-depth season-long series: Your Divorce Case. In this first episode, we start by diving into one of the most important relationships you'll have during your divorce: the one with your attorney. Seth shares his expertise on establishing the attorney-client relationship, from the initial consultation to the next steps in the process.
Seth and Pete discuss key aspects of working with a divorce attorney, including attorney-client privilege, conflict checks, and what to expect during your first call. They also explore strategies for finding the right lawyer for your case and how having a good attorney on the other side can benefit both parties.
Questions we answer in this episode:
• When does the attorney-client relationship begin?
• What should you expect during the initial consultation?
• How can you prepare for your first call with a divorce attorney?
Key Takeaways:
• Attorney-client privilege starts from the moment you believe the attorney represents you, even without a formal agreement.
• Be prepared for conflict checks and providing basic information during your first call.
• Having a skilled attorney on the other side can help resolve your case more efficiently.
Seth and Pete's insights will help you navigate the early stages of your attorney-client relationship with confidence. By understanding the process and knowing what to expect, you'll be better equipped to work with your lawyer and achieve your goals in the divorce.
This episode is packed with valuable information that can save you time, money, and stress as you begin working with a divorce attorney. Tune in to learn how to establish a strong foundation for one of the most critical relationships in your divorce journey.
Links & Notes
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Intro:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from true story FM. Today, it's time to meet your toaster for the very first time.
Seth Nelson:
Welcome to the show everybody. I'm Seth Nelson. As always, I'm here with my good friend Pete Wright. As you know, this is a show about saving your relationships, and we focused a lot on personal relationship with yourself, with your kids, with your co-parents, with the ghost people, the grandparents that care about the kids that are getting involved, meddling, maybe helping, maybe not. And we've touched on this other relationship, but we're going to focus on this, this season, the attorney-client relationship, one of the most important relationships you have while you're going through this absolutely horrible process.
Pete Wright:
When we started this podcast, Seth, everything I had learned about the attorney-client relationship, I learned from movies, as you know. And so my assumption was that my attorney would also be my paid best friend. I have been disabused of many of those assumptions in my friendship with you.
Seth Nelson:
Yes. Huge, huge assumptions in many levels. Okay. We're not having our own counseling session-
Pete Wright:
No. No, we're not.
Seth Nelson:
On episode one, season 10.
Pete Wright:
Season 10. This is big. But what I'm interested in to kick us off is when you need an attorney and you're making the first call, what is it that starts to define the attorney-client relationship?
Seth Nelson:
The attorney-client relationship begins, check your local jurisdiction, when you think it does.
Pete Wright:
What does that mean?
Seth Nelson:
That's when it starts. So as we know, if you tell your attorney something, it's confidential. The attorney cannot share what you've shared with them, except in extremely limited circumstances. So when does that relationship begin? So here's what I learned way back in law school when you take a class called professional responsibility, and the first question is "Who is your client and when do they become your client?" So this guy runs in to your office, and you're a first year associate, and he's covered in blood, and he's holding the knife and he says, "I stabbed her. I need a lawyer." And you look up and say, "I do real estate law." Okay?
Pete Wright:
Okay. Was that exchange confidential?
Seth Nelson:
If that client, potential client, believed that when he was talking to you, he knew you were a lawyer, he tells you what happened, if he believed that you were his lawyer in that moment, that is all protected under attorney-client privilege.
Pete Wright:
Wait. Question. So what you're just describing is a relationship that sounds to me like it has not been contractually or financially established, but just circumstantially established. There was a guy who admitted to a crime and he happens to be in the same room with an attorney, and he feels pretty strongly that guy's his attorney.
Seth Nelson:
Yeah, he sees your name on the door, Seth Nelson Attorney. He comes in, "Are you an attorney? Yes. I stabbed her. I need you to defend me." And you're like, "I do real estate law."
Pete Wright:
Even though you don't practice that kind of law?
Seth Nelson:
That's right.
Pete Wright:
You're still locked in, and no money is exchanged hands, still locked in.
Seth Nelson:
So just this week I had a potential client set up a call. We ran the conflict check through our system to make sure that the other side hadn't already called me. Sits down in my conference room, doesn't fill out the information that we give. I'm like, "Well, they're here. I'm going to talk to them. I won't make them fill out a form. What's the problem?" And there is a parent and an adult child sitting in the conference room, and I said, "Who's whom?" Because I don't know. And I have a lot of parents that show up with an adult child to help them through their divorce. And the parent starts telling a story, that I quickly realize is not family law, it deals with family dynamics, but it's not a divorce case, it's not a paternity case. It is nothing to do with the area of law that I practice.
Pete Wright:
A case you would not take.
Seth Nelson:
I am not taking this case. It's not my area of law. So before he said anything, I said, "As long as your adult son's in the room, we don't have attorney-client privilege. So if you're going to tell me anything, I can be called to testify." Right? Because it's not protected.
Pete Wright:
And because the son is not...
Seth Nelson:
Is not the potential client.
Pete Wright:
The son's not the client. Okay. Okay.
Seth Nelson:
That's right. Okay. So now the adult son steps out. I'm talking to the parent who tells me this story, and I said, "Not my area of law. I can't help you." Give some referrals, goes along with their life. Okay. Everything that was said is protected under attorney-client privilege. He never paid me. We never signed a contract. He's sitting in my office. He's telling me this story. All protected from day one. So I give, at our firm, at NLG, we give free potential client consultations. And the reason we do it is we believe that it's a way to give back, because maybe we can't help everyone and maybe they're not, can't afford us, or maybe they don't even really need us, but we can point them in the right direction, and that's what we do. Every single call is protected under attorney-client privilege as long as no one else is on it, and I am now conflicted out if the other side calls me.
Pete Wright:
Process question. How do you remember all of the engagements that require attorney client privilege? Do you just assume every conversation we have is protected?
Seth Nelson:
Oh, every conversation with a client is protected.
Pete Wright:
But I mean just in general, people who come in, they don't end up engaging your services. You just have to be... I just am having trouble wrapping my head around how enthusiastic you have to be about protecting attorney-client privilege, given the number of just starting conversations you have that don't lead to client relationships.
Seth Nelson:
There's two points to this. One is I take the attorney-client privilege in relationship very seriously. So when I go home and talk to my wife about my day, I will never say a name. I might say, "Oh, I had a really tough case," or "I had this really interesting legal argument, and I represent husband or I represent wife." And sometimes I say "I represent X against Y," because maybe I don't even want to say whether it's a man or a woman or maybe it's a same sex marriage, and it just gets confusing in telling the story when you use pronouns and not names and I'm never going to use a name.
So it starts there, and people are like, "Well how do you keep track of who calls? You can't remember all that." And you're right, I can't. And the other thing is we have five other lawyers in the office. So one of my law partners, or an associate, could take the potential call in the morning and talk to a client, a potential client, and that's already put in the system. And if the opposing party calls in the afternoon, we run a conflict check, it comes up a conflict, I'm out.
Pete Wright:
Okay. Does attorney client privilege extend to the firm?
Seth Nelson:
Yes.
Pete Wright:
Okay. I think that's important to know. I think that's useful to know.
Seth Nelson:
Anything you say to a paralegal, to a legal assistant, to the receptionist, is all covered under attorney-client privilege. So if I'm in a meeting with my client and I have the brand new receptionist, day one, in that meeting, all protected under attorney-client privilege. Great question.
Pete Wright:
So let's go back to that first call. What do you need to do, as a potential client, to prepare to call your attorney? And what should you expect on that call?
Seth Nelson:
The very first thing you should expect is for them to put you on hold to run a conflict check.
Pete Wright:
Okay.
Seth Nelson:
Whoever you're talking to first, you need to understand that if they're doing what they need to do that they're going to say, "Please give me your full name and give me your spouses or soon to be, or your ex, whoever it is, the opposing party's full name. Let me run a conflict check, because I need to make sure that my law partner did not talk to them at any time." And sometimes it comes back and all I can say is "I'm sorry, I have a conflict. I can't talk to you about this case. Well, what do you mean you have a conflict? What does that mean? I'm sorry. I'm not allowed to talk to you about this case. I really apologize, but I have a conflict. Well, can you give me some names of some lawyers then that I can call? I'm sorry, I can't." Because now that would be helping the other side.
Pete Wright:
Yeah. Right.
Seth Nelson:
Now, and let's be very clear, I am taking this to the letter of the law, so to speak. The potential client that called me first did not hire me. I didn't charge them. I didn't earn a penny. I gave my time for free, and now I sound like a jerk. "I can't help you. I'm sorry." I feel badly as a person, but... So that's the first thing you should expect.
Pete Wright:
Well, and because the assumption is if I'm on the phone with you and you tell me I can't talk to you about this case, that may be the first time I'm hearing this is a case. What does that even mean?
Seth Nelson:
That's right. That's right. And that just rolled off my tongue.
Pete Wright:
Right.
Seth Nelson:
So what that means is you're calling me about a legal problem and we call that a case or a matter. That's our shorthand for it. So be prepared in the first call no matter who's answering to be put on hold, Which is not what you want when you call the law office. You're looking to call a lawyer. Then the second thing you should expect is a process of "How do I get past the conflict check to talk to the lawyer? What is that law firm going to ask me to do? Are they going to put me right through? Are they going to say I need to schedule it? Are there forms that I need to fill out before they will talk to me? We need to have expectations that the law firm, or the lawyer, is going to expect things from me, the potential client." Okay?
So be prepared for that. They might ask you some basic questions. "When were you married? How many kids? Are you employed? How much do you make? What about your spouse? How much do they make? What are some of your assets or your net worth?" Some lawyers are trying to do that to be like, "Can you afford me?" Some lawyers are doing that so when we have the initial conversation, I have some basic information so I can give you some legal advice and counsel that is right on point to your case as opposed to broad generalities.
Pete Wright:
Okay. One of the things, we've talked about conflict checking in the past, and you said some people actually go through the process of calling good lawyers to make sure that their conflict checked out.
Seth Nelson:
Yeah.
Pete Wright:
Is that, as a strategy, is that something that can be addressed through the courts? Do you get your judge friend to weigh in on when you suspect this is happening, or is it just part of the process?
Seth Nelson:
Yes, it's a strategy. No, there's nothing the judge can do about it, and it's used every single day.
Pete Wright:
Oh. Well that sounds horrible.
Seth Nelson:
Well, when you're in a business, no matter what business is, I should say an industry, people know the good doctors and bad doctors. People know the good lawyers and bad lawyers. People in the plumbing industry know the good plumbers and bad plumbers. So I have clients that will call me and say, "Who do I need to conflict out?" And I'm like, "Well, there's a list that I have of lawyers that I believe are not good lawyers that are going to try to create problems, not solve problems, that are going to be difficult and argue about every little thing, that are going to draw the case out and cost the clients more money." And I don't want them on the other side and I don't view them as good lawyers. So I'll tell my client, "Call them. Conflict them out."
Pete Wright:
Interesting.
Seth Nelson:
But then I will say, if you're not happy with me and you want a good lawyer, I've got the names of three, four, five, six lawyers that you can call to interview, and if you have a better attorney-client relationship, you feel a better jive with them, it just clicks better for you, hire them. Because this relationship is so important. But then I'm giving out names of good lawyers and I'm like, "You might not want to conflict all of them out because you want your spouse to hire someone good, with someone good on the other side because then we will both work to get your case resolved. And if not, we'll try to limit the fees and costs." You guys, the clients can't get in the way of that, but you actually want your opposing counsels to have a good relationship. It's better for you.
Pete Wright:
Well, that's a really interesting thing, and the way you put it is, is I think compelling. It's this idea that having a good lawyer on the other side does not explicitly mean you have a super aggressive lawyer or a lawyer that... You have a lawyer who has the best interests of the dissolution of your marriage in mind.
Seth Nelson:
Right. Now they have to zealously advocate for you under the professional responsibility rules, what we're required to do. But sometimes it is not in your client's best interest to go argue over every little thing.
Pete Wright:
Okay. All right, so we're back to building this relationship. That first call we've got, you're on hold because you're being conflict checked. You're getting that initial bit of information. When do you feel... What's the next step in this initial meet cute?
Seth Nelson:
The next step that I always ask is what is your goal for this conversation? The initial call. Over 90% of my potential clients cannot answer that question.
Pete Wright:
Okay. How so? To me, it seems like I'd be making some assumptions.
Seth Nelson:
You're calling a divorce attorney. What's your goal for the very first conversation?
Pete Wright:
I would assume that if I'm calling a divorce attorney about the subject of divorce, let's make that explicit.
Seth Nelson:
Good call.
Pete Wright:
That I am interested in potentially hiring the attorney, and I want to learn about the attorney, the way they practice, and find out if we'd be a good fit.
Seth Nelson:
That is very logical.
Pete Wright:
And probably wrong.
Seth Nelson:
Great question. And that's what people should be doing.
Pete Wright:
Oh, okay.
Seth Nelson:
If they're ready to hire someone. Maybe they're not. Maybe they're just like, "I just want information." But most people are stressed, and they've just been served with divorce papers, or they're dealing with a domestic violence issue, or they just cannot take, cannot take another holiday season with his in-laws and the way that he treats her or the kids or whatever, and been told in fight after fight after fight, "I'm going to leave you and I'm going to kick you out of this house and you're going to be homeless and I'm going to take the kids from you," year after year after year.
So the first call and I say what's your goal out of this initial consultation? They say, "I want to keep the house. I want to make sure that I have the kids the majority of the time. I cannot afford to live on it, so I don't know how much alimony I'm going to get. I need to get alimony. And I think he's got a whole bunch of debt that I don't know about, and there's no way I'm going to be able to pay for it and that's what I need out of this." And I'm like, "Slow down."
Pete Wright:
So 90% of the calls that you get for those initial calls are people who are already down the road in their heads on their divorce.
Seth Nelson:
They are worried about the ultimate outcome, and that's what they're trying to talk to me about in the very first conversation.
Pete Wright:
I can understand that. I can understand that.
Seth Nelson:
And I'm like, "None of that is going to happen in this phone call. None of that is going to happen in this first meeting. What I can do for you is give you information. With the limited information that you're going to give me in this 30 minute conversation, and me to take that information, do a legal analysis, come up with a legal opinion, and give you legal advice, that is subject to change, because the information that you give me might not be as accurate as you think it is. You just said there's a bunch of debt that I don't know about, that's going to impact the division of assets and debt, so if we don't know the exact numbers. So there's a lot of information missing, but I can start giving you an outline. I can start talking to you about substantive areas of the law and how that might impact your case."
Pete Wright:
Would you ever be willing to give me a sense of timeline, how long might it take to get from where we are on an initial call to the things I'm interested in talking about?
Seth Nelson:
Absolutely.
Pete Wright:
Okay.
Seth Nelson:
We will talk about some of those things during that initial call because you'll say, "I want to keep the house." And so when I go past parenting plan, and remember first call, PEACE, parenting plan, equitable distribution, the division of assets and debts, alimony, child support, everything else, P-E-A-C-E. That's our outline. So once I know, okay, no kids, great, we're not talking about a parenting plan. Let's get to assets and debts. In this new now hypothetical client different than the one that was worried about not seeing her kids says, "A stay-at-home mom for 20 years. The kids are out of the house. We have no minor children and I don't know anything about my assets or debts.
I don't know anything about the money. I know I swipe my credit card and it doesn't get declined, but I think we make a lot of money because we have a lot of stuff, but I don't know if it's debt or not and I really want to keep the house and I don't have a job and I know I can't afford the mortgage, and I know we have a mortgage, but I don't know how much it is a month. So now we got to start breaking that down, and I'll be like, "Okay, slow down. How do we get that information? Let me give you some hypothetical scenarios."and I'm going to explain the concept of equitable distribution in that very first conversation. Because their pressure point, that's what they're worried about.
And then I'm going to explain how alimony works and give some basic information on that. Then I'm going to skip over C because there's no child support. Then I'm going to get to E, Everything Else, attorney's fees, cost in the process. And so, on your first call, one of your questions you should be asking is "How much will this cost and how long will it take? How much will this cost and how long will it take?" Your lawyer or potential lawyer or the one you're talking to, that attorney-client relationship has been established, should not have a good answer to that question
Pete Wright:
Because you don't have enough information.
Seth Nelson:
You don't have enough information. They should be able to tell you, "Generally speaking, cases take from six months to 18 months. They'll range from 5,000 to a hundred thousand. But from what you're describing to me, it should be in this range, assuming everything goes great. But if I get a bad lawyer on the other side, that's going to run up a fee and argue about everything, that's a problem."
Pete Wright:
Or if we find something substantive that we did not know existed at the time of that conversation.
Seth Nelson:
Right.
Pete Wright:
When you start talking about hidden debts, finances that we don't really understand, that feels to me like a potential red flag.
Seth Nelson:
That's right. And do we have to hire a forensic accountant to go look for that and to trace it? That's going to be an added expense. If you have kids, and there's psychological issues with one of the parents, and we have to hire a social investigation or do a psychological evaluation, the more experts you add on, the more cost there is. If you have a child with special needs, and you have to hire a therapist to come in and evaluate how the parents are dealing with special needs children, that's more experts, more money, more time.
Pete Wright:
Can I pivot just a little bit because I'm super curious about this. You've got a lot of great information for the first call. When I finish this call with you, what should I expect on the second call, as we wrap up this conversation today? What is the next thing you're going to ask me to do when I hang up the phone?
Seth Nelson:
At the end of the call I'm going to ask you, a lot of lawyers are bad at this. I'm going to just say, "Do you want to retain NLG to help you through this difficult time?"
Pete Wright:
Easy.
Seth Nelson:
And if the answer is yes, I'll say "We will get a fee agreement out to you within 24 hours. And once you pay the fee, the refundable retainer is how we do it, and you pay and you sign the fee agreement, this is the next step and our process starts. You're going to get an email from the paralegal giving you documents to start filling out. You're going to get an email from our schedule to get you on the calendar to come in and sit down with me for an hour or two, to go through your case and the dos and don'ts of what I need you to start doing now that you've retained us." And we're going to talk about that during season 10.
Pete Wright:
Great.
Seth Nelson:
So we're going to start going through your case and your process and getting the information in a methodical way, in a linear way, and there's going to be bumps in the road and things are going to come up, and we're going to have things that we didn't expect, but we're going to start. How do we communicate? Where do we communicate? So you should expect to get homework, but part of it too is coming in and sitting down so you understand it. And then we come up with a plan. And then every client's different. Are you overwhelmed by it? Do we need to schedule a time where you come in once a week for an hour so we can eat this elephant one bite at a time, or can we just give you the documents and you're going to get them to us?
Pete Wright:
Sure. I love this whole plan for season 10. We are going to be having a few guests throughout the season, but in general, bringing it back to the law this season, and we're talking specifically about the process of working with your attorney, I think it's going to be great. So don't forget, everybody, bring those questions, right? Bring those process questions, especially, as you're listening to this episode and you're thinking, "I don't understand this concept. Let us help you. Let's get these questions to Seth, and we're going to bring you some answers to hopefully clarify what can be complicated process of your divorce.
Seth Nelson:
Yeah. I'm so excited about this season, Pete, because we've gotten a lot of great questions about co-parenting and what is a guardian ad litem and a forensic accountant, and how do I write better text messages, and how do I approve my own communication? And part of this is so important on the attorney-client relationship, and we're now getting a lot of questions of, "I don't understand this legal term. What about jurisdiction?" And so we talked about it with the one who will not be named, our producer. And I hate to give him credit, but he goes, "I think we really need to dive back into the law."
Pete Wright:
Just reminds me that it might have been a mistake to bring him on, because that's an astute comment and it was probably too much.
Seth Nelson:
I know, but here was what I was thinking. He always has another motive.
Pete Wright:
For sure.
Seth Nelson:
Do you think he's preparing for a divorce? He's like, "I want to dig into the law."
Pete Wright:
Let me tell you, I know his wife and she would never let him leave.
Seth Nelson:
That's right. She would not. We might have to get her a criminal defense attorney, which we can do. I know some really good ones around the country.
Pete Wright:
You saw Misery. She's his number one fan.
Seth Nelson:
So okay, first phone call. Here's a little checklist. Have written down if need be, some basics. You should know some of this by heart. How long you've been married, dating your marriage, where you've lived for the last six months, and where have your kids lived for the last six months, as much about your finances as you know, without going crazy trying to find them, assets, debts, income. Okay? You should know the number of children you have.
Pete Wright:
Okay. Yeah. I'm hoping.
Seth Nelson:
Some easy ones there for you. And have a list of questions that you want answered, and make them bullet points. Okay?
Pete Wright:
Now you dropped the jurisdiction point earlier. This is pretty much standard, or is it jurisdictionally specific?
Seth Nelson:
No, this is when you're talking to any lawyer, you should be asking this. And I threw in some questions about where you've lived and for what reason. That's going to cover the jurisdiction when you're talking to your lawyer. That should spark them. Now, the other thing you should ask your lawyer is "What's the best way that I communicate with you and your office? How do I get a hold of you when I need you? And what can I do to be your best client?" You got to help your lawyer help you. Okay? Ask those questions.
Pete Wright:
I like that. I like that. We're going to make you a hero to your lawyer, first of all. That's our goal.
Seth Nelson:
They will keep your cost down.
Pete Wright:
There you go. Thank you again, Seth. Thank you everybody for downloading and listening to this show. Thank you to those who are showing up for the live stream. We love doing these live and we absolutely will take your questions. If you're on a platform that offers comments, as you're watching this thing, drop them in and they'll come to us as we're recording and we'll take them on live. So thank you, everybody. Here's to a great new season with a lot of great conversation to help you smooth your divorce. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, we'll see you next time right here on How to Split a Toaster, a Divorce Podcast about saving your relationships.
Outro:
How to Split A Toaster is part of the True Story FM Podcast Network, produced by Andy Nelson, music by T. Bless and the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law, with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
