Two Divorce Lawyers Watch "Divorce": Ep. 5

What the show gets right and wrong about divorce in New York

by Marcy Katz and Tom Kretchmar

The fifth episode of “Divorce” picks up where episode four left off: in the rec room-chic home office of a local trust and estates lawyer named Gerald Watkins Mayfield, who pitches his ability to handle Robert’s divorce with the nonsensical faux-maxim “basically, it’s all law.” Robert’s discomfort with Mayfield’s credentials is palpable but he agrees to hire him anyway, at least in part due to Mayfield’s assurances that he’s more inexpensive than Manhattan counsel. At the close of their meeting Mayfield consults his wife’s kitchen timer — which serves double duty as his billing clock — and tells Robert that he owes him for one hour’s worth of work, preferably in cash.

This was surprising: it’s clearly a consultation, and generally speaking, divorce lawyers charge a flat rate for those, regardless of how long it lasts. A consultation is an essential step in retaining a divorce lawyer: after passing the lawyer’s conflict check, a potential client will visit the lawyer to talk about what’s been going on before formally retaining the lawyer. The “conflict check” is an internal process where the lawyer confirms that the potential client’s spouse has never met with their firm before. If they have, it would present a conflict of interest barred by various ethics rules, and it would prevent the attorney and the prospective client from meeting or discussing the case any further.

Mayfield also should have presented Robert with a “statement of client’s rights and responsibilities.” New York law requires divorce attorneys to provide this document to all potential clients; it’s a recitation of various protections that a client is entitled to with respect to billing and case management. Although it exists to protect the potential client, it catches some people off guard. Understandably, some people worry that they’re being asked to sign some type of contract before they’ve even really spoken with the lawyer. That’s not what’s going on; it’s not a contract. The signature line is merely an acknowledgement confirming that “yes, I was given this piece of paper telling me that I have certain special protections.”

After the consultation, if the client chooses to hire (“retain”) the lawyer, a retainer agreement will be prepared and executed. This is the actual contract that sets forth the nature of the relationship and the details of the fee arrangement. After Robert hires him, Mayfield gets to work right away, disastrously: he tries calling Robert later that night and accidentally dials the Dufresne’s home line, thereby revealing to Frances, by way of caller I.D. and a bumbling series of lies, that Robert has abandoned mediation and retained counsel.

Frances wastes no time setting up a consult with high-powered Manhattan counsel: Max Brodkin, a matrimonial specialist with all the experience, resources and success that Mayfield lacks. Although Brodkin dishes up some platitudes of his own (“With me, you get a partner; we walk through this together… your problems are my problems”), we admired the preliminary integrity we perceived in his conversation with Frances. Brodkin encourages Frances to take pen to paper, on her own time, writing out the stream of consciousness details that she’s started to ramble about during the consult meeting. Although an uninformed cynic might argue that Brodkin was just rushing Frances through the consultation meeting (since, in all likelihood, their consultation meeting was a flat rate rather than on the clock) we don’t think that’s what was happening at all.

Instead, Brodkin was engaging in some excellent and routine client management, for Frances’s benefit: all too often, matrimonial law clients will spend surprisingly substantial amounts of time talking to their attorneys about issues that are not particularly relevant to the divorce action, racking up hundreds (and cumulatively thousands) of dollars in fees that could have been avoided if the client had found a more efficient and concise way of presenting and refining those issues and anecdotes. Brodkin realizes that Frances has a lot that she wants to talk about (such as her refusal to ever fake an orgasm) and that she has no real sense, yet, of what’s relevant and not. He knows that everyone will be better off if he can get her to organize her thoughts on her own time, off his clock, rather than wading through them in his office, brainstorm-style. This is an essential part of a successful relationship between a divorce lawyer and client: efficient use of everyone’s time.

Over dinner with his friend Nick, Robert learns that Frances has retained Brodkin, and that that Mayfield is no match for Brodkin’s talents. Robert, already furious about the phone call slip-up, promptly fires Mayfield after dinner. Robert upgrades his counsel that same evening, in a late night meeting in Manhattan, with a farcical shark of an attorney named Tony Silvercreek — a man described later, by Francis’s friend Dallas, as “one of the most ruthless, disgusting, go-for-blood lawyers in divorce.”

During their midnight meeting, Silvercreek talks a nasty game, ostentatiously drinks decanted whiskey, and bullies Robert into retaining him. Immediately afterwards, Silvercreek calls Frances on her cell phone to introduce himself and antagonize her. Although everything about Silvercreek’s character is ridiculous, this phone call was especially egregious. Since Silvercreek knows that Frances is represented by Brodkin (Robert would have surely told him this during the consultation meeting), his behavior directly violates Rule 4.2(a) of the New York Rules of Professional Conduct, which prohibits a lawyer from directly contacting an opposing client when that lawyer knows that he or she has a lawyer. Any lawyer who makes a phone call like Silvercreek’s can expect to have a disciplinary complaint filed in connection therewith immediately afterwards.

Unlike the Mayfield and Brodkin consultations, we don’t see Robert and Silvercreek discuss billing rates, or Robert’s ability to afford his services. Nonetheless, it’s likely that Silvercreek advised Robert of one of the most important rights a spouse with less financial wherewithal has under New York divorce law: the right to have a court force the other, more-monied spouse to contribute to the cost of the lesser-monied spouse’s legal fees.

Many people are shocked when they learn that this right exists, because it doesn’t seem to make intuitive sense that someone should have to fund the legal expenses of their adversary. However, as a matter of public policy New York State has adopted the position that in matrimonial litigation, the playing field should be leveled, so to speak, so that both spouses have a legitimate ability to prosecute their case. For this to happen, the lesser-monied spouse petitions the court for an official order. That same petition — which is actually called a “motion” or “order to show cause” in divorce lingo — frequently asks for other financial awards, such as temporary spousal support and temporary child support, if applicable.

Silvercreek already seems to be aware that Frances is the more-monied spouse (he observes, as we have in our previous commentaries, that Robert, rather than Frances, is likely to be the spousal support recipient in this case), so even if we didn’t witness it first-hand, it’s likely that Silvercreek has also advised Robert that he can expect to have Frances contribute towards the cost of his legal expenses in this action. Given that episode five also reveals that Frances has moved forward with the opening of her art gallery, she may end up in a pretty serious cash crunch long before the Dufresnes’ divorce is finalized or, for that matter, even meaningfully begun.