ACCESS TO JUSTICE

During a recent airing of “San Diego Living”, Board-Certified Family Law Specialist attorney Garrison “Bud” Klueck appeared to talk about people’s ability to access competent legal representation and how the amount of attorney’s fees and the way they are charged affect such access.

QUESTION: Our Board-Certified Family Law Specialist attorney Bud Klueck is here. Bud says he wants to talk about “access to justice”. Bud, what does “access to justice” mean to you?

ATTORNEY KLUECK’S ANSWER: At a minimum it means having the “keys to the courthouse door", but it's more than that. It involves whether you will be walking through the courthouse door with somebody by your side who knows what they're doing, can help you and will defend you -- in other words, a competent, aggressive, experienced attorney. On a more meaningful level, access to justice asks whether you have affordable access to an attorney to represent you and to defend you. This is particularly true if the other side has an attorney. In a very practical and meaningful way, it will be almost impossible for you to receive justice unless you have somebody to fight on your side and to seek justice on your behalf.

QUESTION: Okay you convinced us. We are all sure that it’s better to have a competent attorney with you if you’re going to court. But how can people get affordable attorneys so they can have access to justice?

ATTORNEY KLUECK’S ANSWER: Like I always say, the two favorite words of attorneys are not "pay me," but -- "it depends." When it comes to considerations of access to justice, how the person going to court obtains an attorney and for how much depends on what kind of a case it is. If you have been accused of a crime, the court can appoint an attorney for you and you will not ordinarily have to pay for that attorney at that time. We know this for certain because we all remember from the Miranda warnings, that we have heard hundreds of times in cop show scripts, "you have a right to an attorney, if you cannot afford an attorney, one will be appointed for you." These types of attorneys are ordinarily called Public Defenders. Although you have a right to have these attorneys appointed to defend you, and you will not have to pay any money immediately, you ordinarily have to pay back the state for part or all of their costs. A second kind of case is what is known as a "civil case." These are cases for money damages. For example, if someone hits you with their car and injures you, you would sue them for money damages. Ordinarily, you do not pay for your attorney up front. The attorneys receive their compensation by receiving a percentage of the damage award or settlement. However, in the kind of law that I do, family law, the person needing an attorney ordinarily pays that attorney out of their pocket and the costs ordinarily start at the beginning of the case.

QUESTION: How are the payments in a family law case arranged?

ATTORNEY KLUECK’S ANSWER: There are two components or parts to how family lawyers get compensated, the Retainer and the periodic payments. The retainer is what is paid up front to create a professional relationship between the attorney and the client. It is paid at the beginning of the relationship kind of like a "down payment." The periodic payments, as the term suggests, are the payments that are made every so often as the case progresses. Because those are the only two elements of the financial relationship between the attorney and the client, the attorney or the law firm's policy and attitudes towards retainers and periodic payments will determine whether that attorney or that firm makes access to justice easier, harder or practically speaking, impossible.

QUESTION: How these financial considerations affect a person’s access to justice?

ATTORNEY KLUECK’S ANSWER: Well pretty obviously, if you cannot afford to pay the attorney at the very threshold of your relationship, that attorney is not going to be representing you and will not be around to help give you access to justice. In my firm's view, the method that most attorneys and law firms demand for a retainer is not consistent with permitting most middle-class people to have access to justice. The size of the retainer is often a very high barrier which serves to kind of "lock the courthouse door" on them. Our approach to retainers is materially different than many or most law firms of a similar level of professional competence and sophistication. Our approach is different in two important ways. The first is flexibility and the second is size.

QUESTION: Why don't you tell us how other firms handle retainers and then contrast the way your firm handles them?

ATTORNEY KLUECK’S ANSWER: To begin with, when you are talking about attorneys, and
possibly other professionals like doctors, CPAs or dentists, you always need to compare "apples to apples." That is, attorney compensation rates are generally closely tied to their level of experience and their professional credentials. For example, I have been practicing since 1987 -- a total of 21 going on 22 years. The most important credential that attorneys can get is to have the state bar acknowledge you as a Board-Certified Specialist. As I have remarked before, Board-Certified Specialists represent only about 2% or 3% of the attorneys licensed in California. That is, 97% or 98% of licensed attorneys are Not Board-Certified Specialists. So when you are talking about attorney compensation rates, you would have to compare a Board-Certified Specialist, with about 15, 20 or 25 years of experience, with the rates of other, similarly situated attorneys with similar amounts of experience.
Those types of attorneys generally set their retainers rather high, at $5,000, $7,500 or $10,000. Those retainers generally do not change from case-to-case no matter how complex or simple the matter is. We are different. To begin with, our retainers are flexible and vary depending on the complexity of the matter we are being retained to handle. More importantly, our retainers generally are somewhat smaller than our peers--the similarly-situated attorneys.

QUESTION: You take smaller retainers? Does that mean you are willing to accept less compensation to handle a case?

ATTORNEY KLUECK’S ANSWER: Not really. We just believe strongly that those high retainers represent a high barrier to access to justice. To ask the client to come up with that much money, at the very threshold of the case, represents a huge burden and a real barrier to their finding quality and experienced representation. What we do instead is to set a lower retainer but require all of our clients pay each month for one hour of my time, at a minimum. The hoped-for effect is that, over time, both our office and the high-retainer attorneys will be paid the same. We just spread the payments out. It's kind of like layaway or time payments. There is a scene in the classic movie "It's a Wonderful Life" where the evil and rich Mr. Potter gets into an argument with the hero George Bailey. In the time period depicted, the twenties, paying for things over time was a reasonably new concept to the American economy. The evil Mr. Potter argued that people needed to save up enough money to buy a house outright while Jimmy Stewart, playing George Bailey, thought that people should be able to get a mortgage and to pay for the house over time. Our office operates similarly. We lower the initial high barrier, by lowering the retainer, and spreading the payments over time. Thus, permitting access to justice.

QUESTION: Are you comfortable discussing what kind of money we are talking about here?

ATTORNEY KLUECK’S ANSWER: Yes and no. As you might imagine, I am not willing, and it would be unprofessional for me, to discuss my finances in detail on the public airwaves. Viewers, or their friends, relatives, co-workers or associates would have to call our office to set up a free one-half-hour appointment to discuss financial issues with our office. What I am comfortable saying is that typically our retainers are a four-figure number where the first digit is not a five or a seven but a two. Of course our retainers vary with the complexity of the case, but usually they are two-thousand something, not five thousand or ten-thousand. Again, for any more details the potential client would have to set up an appointment. However, I will add that retainers are different if you are hiring us to file a motion for you as opposed to a divorce. The retainer for a motion is generally substantially less. It is all about trying to provide folks with access to justice.

QUESTION: If you want access to justice, call Bud for any family-law-related case or topic. You should contact Bud in the firm's main office in La Mesa, near San Diego State, or any of the four satellite offices around the County - La Jolla, North County, downtown or South Bay. Just call the number (619) 448-6500 or go to the website directly at www.familylawsandiego.com or through the San Diego 6 website.

Access to Justice – Great topic, Bud, as usual.