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| AMERICAN ACADEMY OF MATRIMONIAL LAWYERS To encourage the study, improve the practice, Bounds of Advocacy Goals for Family Lawyers Preface The idea for the Bounds of Advocacy was conceived in November 1987 by James T. Friedman of Chicago, Illinois, then President of the American Academy of Matrimonial Lawyers. The original Bounds of Advocacy was then drafted, discussed, debated and approved during the terms of former Presidents Friedman, Leonard L. Loeb of Wisconsin, Donn C. Fullenweider of Texas and Sanford S. Dranoff of New York. After ten years, new ethical issues have arisen. With the idea of addressing new concerns and updating the original report, Presidents George S. Stern of Georgia and Miriam E. Mason of Florida jointly appointed our Committee. The Committee wishes to thank all of these presidents for their encouragement and support during the lengthy process of developing the Original Bounds of Advocacy and in producing this revision. The majority of the Committee that drafted these revisions consists of the same Fellows who wrote the original version, with the continued assistance of the same Reporter. This revision is offered to ensure that the aspirational goals of the AAML continue to respond to changes in society and the various court systems and approaches to family law matters. Had any of us not served on this committee, this work would be different. Special praise is due Steve Sessums, our chair. Steve’s dedication to the project never flagged. His uncanny ability to help our disparate group find consensus continues to amaze. A special acknowledgement is due Rob Aronson, our representative from academia. Rob contributed the knowledge of an ethics expert and the perspective of someone who has not practiced divorce law. He admirably performed the daunting task of finding logic in, and adding structure to, our often random ideas. The committee thanks the Academy for giving us another opportunity to ponder and discuss problems important to our clients and us. This project was challenging, enlightening, and, at times, humbling. This publication, we hope, will serve to advance the debate about what we, as family lawyers, do. November, 2000 Stephen Sessums, Chair, Tampa, Florida Preliminary Statement The primary purpose of the Bounds of Advocacy: Goals for Family Lawyers is to guide matrimonial lawyers confronting moral and ethical problems. Existing codes often do not provide adequate guidance to the matrimonial lawyer. The ABA’s Model Rules of Professional Conduct (RPC) are addressed to all lawyers, regardless of the nature of their practices. This generally means that, with rare exceptions, issues relevant only to a specific area of practice cannot be dealt with in detail or cannot be addressed at all. Many Fellows of the American Academy of Matrimonial Lawyers have encountered instances where the RPC provided insufficient, or even undesirable, guidance. Most attorneysand presumably all Academy Fellowsare able to distinguish black (unethical or illegal conduct) from white (ethical and proper practice). These Goals are therefore directed primarily to the gray zone where even experienced, knowledgeable matrimonial lawyers might have concerns, and constitute an effort to provide clear, specific guidelines in areas most important to matrimonial lawyers. Conduct permitted by the RPC cannot form the basis for state bar or court discipline. Hence, the Goals here established for matrimonial lawyers use the terms should and should not, rather than must, shall, must not and shall not. Because the Bounds of Advocacy aspires to a level of practice above the minimum established in the RPC, it is inappropriate to use the Goals to define the level of conduct required of lawyers for purposes of malpractice liability or state bar discipline. Some Goals elaborate upon RPC rules or relate those Rules to issues confronting matrimonial lawyers. Each Goal is followed by a Comment. The Comments are intended to explain, provide examples of conduct addressed and, in some instances, suggest limitations of the application of the Goal. Few human problems are as emotional, complicated or seem so important as those problems people bring to matrimonial lawyers. The break-up of a marriage will be felt not only by the couple but also by other family members and often by friends and others with personal or business relationships with the parties. The problems and expense of the divorce system can be daunting.[1] Family law disputes occur in a volatile and emotional atmosphere. It is difficult for matrimonial lawyers to represent the interests of their clients without addressing the interests of other family members. Unlike most other concluded disputes in which the parties may harbor substantial animosity without practical effect, the parties in matrimonial disputes may interact for years to come. In addition, many matrimonial lawyers believe themselves obligated to consider the best interests of children, regardless of which family member they represent. A 1988 survey of Academy Fellows indicated that the harm done to children in an acrimonious family dispute was seen as the most significant problem for which there is insufficient guidance in existing ethical codes. The matrimonial lawyer serves many functions. Often the appropriate role is to be a skilled litigator, the person who can help clients achieve their goals in court or in arbitration. The lawyer has always had additional roles as well. The matrimonial lawyer’s job includes discussing with the client the available personal and financial choices that must be made. Many lawyers now serve as mediators or represent clients in mediation. Others represent clients in arbitration, or serve as neutral arbitrators. Litigation demands some of the lawyer’s very highest skills, those traditionally associated with effective courtroom advocacy. These Bounds of Advocacy reflect the availability of additional ways to resolve disputes. When litigation is employed, the matrimonial lawyer should conduct it constructively because the parties to a matrimonial case will often find it necessary to interact with each other for years after they leave the courtroom. Advocacy skills may also be used to the client’s advantage in arbitration or mediation. An effective advocate’s stock in trade is the power to persuade. The traditional view of the matrimonial lawyer (a view still held by many practitioners) is of the zealous advocate whose only job is to win.[2] However, the emphasis on zealous representation of individual clients in criminal and some civil cases is not always appropriate in family law matters. Public opinion (both within and outside the AAML) has increasingly supported other models of lawyering and goals of conflict resolution in appropriate cases. A counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family is one model; this is sometimes referred to as constructive advocacy. Mediation and arbitration offer alternative models. Mediation is a method of resolving disputes in which a trusted neutral attempts to facilitate a compromise between the parties. Arbitration involves the hiring of a respected neutral to hear both sides, then make a decision that will resolve the controversy. Matrimonial lawyers should recognize the effect that their words and actions have on their client’s attitudes about the justice system, not just on the legal outcome of their cases. As a counselor, a problem-solving lawyer encourages problem solving in the client. Effective advocacy for a client means considering with the client what is in the client’s best interests and determining the most effective means to achieve that result. The client’s best interests include the well being of children, family peace, and economic stability. Clients look to attorneys’ words and deeds for how they should behave while involved with the legal system. Even when involved in a highly contested matter, divorce attorneys should strive to promote civility and good behavior by the client towards the parties, the lawyers and the court. In recent years, an increasing number of individual lawyers and associations have observed a widening gap between the minimum level of ethical conduct mandated by the RPC and the much greater level of professionalism to which all attorneys should aspire. Some attorneys have ignored the caveat that the Rules do not "exhaust the moral and ethical considerations" that characterize the practice of law at the highest level.[3] Local and state bar associations, along with a number of state and federal courts, have adopted codes of professionalism attempting to raise the level of practice above the ethical minimum necessary to avoid discipline. These Bounds reaffirm the attorney's obligation to competently represent individual clients. These Bounds also promote a problem-solving approach that considers the client’s children and family as well. In addition, they encourage efforts to reduce the cost, delay and emotional trauma and urge interaction between parties and attorneys on a more reasoned, cooperative level.
In drafting these Bounds of Advocacy, the Committee observed a number of conventions: (1) Whenever the Goals or comments refer to an attorney, lawyer or matrimonial lawyer, the reference is to an attorney practicing family law, exclusively or in an individual case. This area of practice is described in many ways, including divorce, domestic relations and family law. In the absence of a universally accepted designation, the choice was the term used by the AAML matrimonial law. (2) The conduct of attorneys, in general, is covered in the RPC or CPR. Therefore, an effort was made to avoid repetition of rules and principles already addressed in the CPR and RPC. For example, the basic conflicts of interest requirements are addressed in the CPR and RPC. These Bounds address only those conflicts where additional guidance was deemed desirable, or where the RPC and CPR do not adequately address the unique requirements of family law practice. For that reason these Bounds do not address the matrimonial lawyer’s obligation of honesty and candor in dealing with the Court since that obligation is adequately covered by other bodies of law. (3) Citation to legal authority has been kept to a minimum. However, to indicate the basis and provide some support for the Goals and Comments, some footnotes have been added to this version of the Bounds of Advocacy. Where it is appropriate to cite an official code, references are to the ABA Model Rules of Professional Conduct. It is recognized that some jurisdictions retained the Code of Professional Responsibility and others significantly amended the ABA Model RPC. Other states retained the CPR format with amendments to comport with the substance of the RPC. And the ABA may soon adopt amendments to the Model RPC. In all situations, attorneys should consult the applicable code in their jurisdictions, along with relevant statutory and case law. (4) The fact that some clients, lawyers and judges are women and some are men is reflected in these Bounds. References to gender have been eliminated where possible. In those instances where elimination of gender-specific pronouns would be unduly awkward, sometimes the masculine and sometimes the feminine is used.
Attorney as Counselor and Advocate A person comes to a matrimonial lawyer with human problems that have legal aspects. Problems arising from the breakup of a family are particularly emotional and affect the family. The matrimonial lawyer’s role spans a spectrum of services, from counseling to litigation. Choices include mediation, arbitration and other problem–solving methods. The matrimonial lawyer’s approach to resolving problems is crucial to the future health of the family. The matrimonial lawyer has a critical, demanding counseling role in addressing these problems. Just as a physician diagnoses the causes of the patient’s pain and counsels the patient about a variety of treatments before undertaking surgery, the matrimonial lawyer serves an analogous role. These AAML Bounds of Advocacy reflect a shift toward the role of constructive advocacy, a counseling, problem–solving approach for a family member in need of assistance in resolving difficult issues and conflicts within the family.
1. Competence and Advice
1.1 An attorney is responsible for the competent handling of all aspects of a representation, no matter how complex.
Comment Matrimonial matters almost always involve issues beyond questions of divorce, custody and support, such as property, tax, corporations, trusts and estates, bankruptcy, and pensions. All matrimonial lawyers should possess enough knowledge to recognize the existence of potential issues in the myriad legal areas relevant to the representation.[4] That knowledge is not limited to legal information. For example, custody and visitation cases require knowledge of child development and, at times, understanding of mental and emotional disorders.
An attorney may properly undertake a matter for which he lacks the necessary experience or expertise if "in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client."[5] Proper handling might include engaging (with the client's consent) persons knowledgeable in other fields to assist in gathering the knowledge and information necessary to represent the client effectively.[6] An attorney who cannot obtain competence through reasonable study and preparation should seek to withdraw or, with the client's consent, associate with or recommend a more expert lawyer.[7]
1.2 An attorney should advise the client of the emotional and economic impact of divorce and explore the feasibility of reconciliation.
Comment The divorce process can exact a heavy economic and emotional toll. The decision to divorce should never be made casually. An attorney should discuss reconciliation and whether the client has considered marriage counseling or therapy. If the client exhibits uncertainty or ambivalence, the lawyer should assist in obtaining help.
A lawyer's role in family matters is to act as a counselor and advisor as well as an advocate. The RPC specifically permit the lawyer to address moral, economic, social and political factors, which may be relevant to the client's situation.[8] Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.[9] Although few attorneys are qualified to do psychological counseling, a discussion of the emotional and monetary repercussions of divorce is appropriate.
If the client wishes to reconcile, the matrimonial lawyer should attempt to mitigate litigation-related activities that might prejudice the effectiveness of counseling and marital harmony. It is important, however, for the attorney to be mindful that a breathing spell afforded by counseling could harm the client’s interests. The other spouse may take advantage of the delay for financial or other advantage. The lawyer should warn the client of these risks and recommend precautions to protect the client in the interim.
1.3 An attorney should refuse to assist in vindictive conduct and should strive to lower the emotional level of a family dispute by treating all other participants with respect.
Comment Some clients expect and want the matrimonial lawyer to reflect the highly emotional, vengeful personal relationship between spouses. The attorney should counsel the client that discourteous and retaliatory conduct is inappropriate and counterproductive, that measures of respect are consistent with competent and ethical representation of the client, and that it is unprofessional for the attorney to act otherwise.
Although the client has the right to determine the objectives of representation, after consulting with the client the attorney may limit the objectives and the means by which the objectives are to be pursued.[10] The matrimonial lawyer should make every effort to lower the emotional level of the interaction among parties and counsel. Some dissension and bad feelings can be avoided by a frank discussion with the client at the outset of how the attorney handles cases, including what the attorney will and will not do regarding vindictive conduct or actions likely to adversely affect the children's interests. If the client is unwilling to accept the attorney’s limitations on objectives or means, the attorney should decline the representation.
1.4 An attorney should be knowledgeable about different ways to resolve marital disputes, including negotiation, mediation, arbitration and litigation.
Comment Many clients favor a problem-solving model over litigation. It is essential that matrimonial lawyers have sufficient knowledge about alternative dispute resolution to understand the advantages and disadvantages for a particular client and to counsel the client appropriately concerning the particular dispute resolution mechanism selected.[11] For example, an attorney who represents a client in mediation should understand the differences between the traditional litigation role and the role of the consulting attorney in mediation.
Effective litigation skills are essential to the problemsolving process, regardless of whether a particular dispute is finally resolved through litigation, mediation or arbitration.
1.5 An attorney should attempt to resolve matrimonial disputes by agreement and should consider alternative means of achieving resolution.
Comment The litigation process is expensive and emotionally draining. Settlement may not be appropriate or workable in some cases due to the nature of the dispute or the animosity of the parties. Litigation is the best course in those cases.
In matrimonial matters, a cooperative resolution of disputes is highly desirable. Matrimonial law is not a matter of winning or losing. At its best, matrimonial law should result in disputes being resolved fairly for all parties, including children. Major tasks of the matrimonial lawyer include helping the client develop realistic objectives and attempting to attain them with the least injury to the family. The vast majority of cases should be resolved by lawyers negotiating settlements on behalf of their clients.
Parties are more likely to abide by their own promises than by an outcome imposed on them by a court.[12] When resolution requires complex trade-offs, the parties may be better able than the court to forge a resolution that addresses their individual values and needs. An agreement that meets the reasonable objectives of the parties maximizes their autonomy and their own priorities. A court-imposed resolution may, instead, maximize legal principles that may seem arbitrary or unfair within the context of the parties’ family. An agreement may establish a positive tone for continuing post-divorce family relations by avoiding the animosity and pain of court battles.[13] It may also be less costly financially than a litigated outcome. Parents who litigate their custody disputes are much more likely to believe that the process had a detrimental effect on relations with the divorcing spouse than parents whose custody or support disputes are settled.[14] These issues should be discussed with the client.
A settlement may be achieved by negotiation between the lawyers (either with or without the parties being present), by mediation, or by the parties themselves with advice and information from their lawyers. The matrimonial lawyer’s task includes informing the client about the availability and nature of mediation or other alternatives to traditional negotiation or litigation.
2. Communication and Decision Making Responsibility
In no area of law is the relationship of trust between attorney and client more important than in matrimonial law. Clients come to matrimonial lawyers when there is a significant problem in the family relationship. Emotions often render rational decision-making difficult. Clients seek the advice and judgment of their matrimonial attorneys, even about non-legal matters. Therefore, issues of communication and decision-making in the attorney-client relationship arise frequently.
2.1 An attorney should accord clients respect.
Comment One predicate to a successful attorney-client relationship is the attorney's treating the client with respect. This attitude should also be conveyed to the attorney’s staff.
Courts sometimes seek meetings in chambers with counsel in the absence of the parties. If the proposed chambers conference relates to the substantive settlement of issues in the case, counsel should ask if the client may participate in the conference, but if the local rule, practice, custom or habit is to have such conferences without the client present, counsel may participate in such a conference and advocate the client’s interests.
2.2 An attorney should provide sufficient information to permit the client to make informed decisions.
Comment The client should have sufficient information to participate intelligently in deciding the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Clients vary in their ability and willingness to participate in decision-making. Regardless of the extent of participation, they are entitled to be fully informed. Failure of the attorney to provide complete information may result in criticism, disciplinary action, or a lawsuit.[15] Although relevant information should be conveyed promptly, in rare instances, "a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication."[16]
A difficult question is whether the matrimonial lawyer should provide, either voluntarily or upon request, a negative opinion of opposing counsel, the judge, or the law. For example, should the client be told that a case is assigned to a judge who has demonstrated prejudice against men or women or who has difficulty with complex tax or financial issues, or that the other lawyer seems incapable of settlement and invariably ends up in difficult trials? Although lawyers must use their best judgment in individual cases, some general guidelines are: (1) do not lie or in any way tell the client less than the whole truth; (2) answer specific questions ("If we go to court, how is the judge likely to rule? or "What are the risks?") as diplomatically but as completely as possible; (3) do not criticize the court, opposing counsel, or the system unless necessary for the client to make informed decisions or to understand delays or the necessity of responding to conduct of the court or opposing counsel. Unnecessary criticism of the court, the legal system or opposing counsel undermines the effectiveness and enforceability of judgments and harms the reputation of all lawyers and judges.
Lawyers who are unwilling to give a client bad news or a realistic assessment of the case may create other problems. It is important to maintain a proper balance between accurately advising the client and avoiding unnecessary criticism of other participants in the process.
2.3 An attorney should keep the client informed of developments in the representation and promptly respond to communications from the client.
Comment The duty of keeping the client reasonably informed and promptly complying with reasonable requests for information[17] includes the attorney or a staff member promptly responding to telephone calls, normally by the end of the next business day. The attorney should routinely: send the client a copy of all pleadings and correspondence, except in unusual circumstances; provide notice before incurring any major costs; provide notice of any calendar changes, scheduled court appearances, and discovery proceedings; communicate all settlement offers, no matter how trivial or facetious; advise of major changes in the law affecting the proceedings; and provide reports of major changes in case strategy.
Frequent communication with the client on important matters (1) empowers the client, (2) satisfies the client’s need for information about the progress of the case, (3) helps build a positive attorney-client relationship, and (4) helps the client understand the amount and nature of the work the attorney is performing, thereby reducing concern that nothing is happening and that the attorney’s fees are not being earned.[18] While the attorney should understand that a pending divorce is usually the most important matter in the life of the client, the client should understand that a successful lawyer has many clients, all of whom believe their case to be the most important.
2.4 An attorney should share decision-making responsibility with the client, but should not abdicate responsibility for the propriety of the objectives sought or the means employed to achieve those objectives.
Comment The conduct and resolution of a divorce case may require making many decisions, from the most mundane (which word to use in a letter) to the most significant (whether to litigate or accept a proposed settlement). During the course of the representation, decision-making authority may reside with the client, the attorney, or both.
It is appropriate as part of the lawyer’s counseling function to assist the client in reframing the client’s objectives when to do so would be in the client’s best interests. A lawyer may counsel a client not only as to the law, but also as to "other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."[19]
Thus, although the lawyer is entitled to make "decisions not affecting the merits of the cause or substantially prejudicing the rights of a client,"[20] the attorney and client should jointly make significant choices, such as whether to file a costly motion of uncertain success, or whether to retain certain experts. Even when the client has ultimate decision-making authority, the attorney should provide counsel and advice.
The attorney must abide by the client's decisions as to the objectives of the representation, subject to the rules of ethics or other law.[21] Further, the lawyer should consult with the client as to the means by which those objectives are to be pursued. "In questions of means, the lawyer should assume responsibility for technical and legal tactical issues" (e.g., choosing forum, type of pleadings, or judicial remedy), "but should defer to the client regarding expenses to be incurred and concern for third persons who might be adversely affected."[22]
Examples:
1. The client insists that the real problem in the marriage was his mother-in-law and asks the matrimonial lawyer to bring that to the court's attention during the trial. The lawyer knows that the facts, which seem so important to the client, are irrelevant under the rules of the forum and counter-productive at trial. The lawyer must rely on her judgment and explain to the client why this is not an appropriate, let alone persuasive, argument. The risk is that the client, unhappy with the ultimate result, may claim that if the lawyer used the argument the client wished, the case would have been won. That is a risk inherent in the practice of law.
2. In a jurisdiction where the wife has a claim for maintenance which the lawyer believes will succeed, the husband offers to pay a larger share of the assets if the wife will waive the right to maintenance, which, under local law, will terminate at the death of either party or at the wife’s remarriage. If the client stays unmarried, she will benefit far more from maintenance than the additional assets. Which should she accept? The matrimonial lawyer's role is to educate the client and allow her to make the choice.
3. The guilt-ridden husband offers the wife virtually all of the assets and a support order that will leave him all but penniless. The wife tells her attorney to draft the appropriate documents to finalize his offer. The wife’s attorney should fully inform her of the risks of such a one-sided settlement (continual post-judgment litigation, practical unenforceability). If the client insists on a settlement posture that the attorney believes clearly unrealistic, she should put her advice in writing and may, if she chooses, then carry out the client's instructions. The lawyer representing the husband should try to persuade his client to offer less. If the husband insists, the lawyer should consider: (1) putting in writing all of the reasons why the husband's offer is very detrimental to him and that the attorney strongly advises against it; (2) advising that the client obtain the advice of another lawyer, a counselor, or a responsible friend or family member; and (3) withdrawing.
2.5 When the client's decision-making ability appears to be impaired, the attorney should try to protect the client from the harmful effects of the impairment.
Comment The economic and emotional turmoil caused by marital disputes often affects a client's ability to make rational decisions in his own best interest. The lawyer who reasonably believes the client to be incompetent should seek appointment of a guardian.[23] A client who is not incompetent, but whose ability to make reasonable decisions is impaired, creates difficult problems for the lawyer.
A client may be impaired although not incompetent as a result of substance abuse or another physical or psychological condition. A lawyer with reasonable cause to believe that the client’s impairment will interfere with the representation should send the client for evaluation to determine whether the client is legally competent. The attorney may withdraw from the representation of a client who will not undergo the evaluation.
The lawyer is not compelled to follow irrational or potentially harmful directives of a client, particularly one who is distraught or impaired, even if the client is legally competent. The lawyer should oppose any client’s illegal or improper decision (I don’t care what the court says, I won’t pay her a cent). The attorney should attempt to dissuade the client before accepting any clearly detrimental decision. The attorney should consider consulting others who might have a stabilizing influence on the client such as the client’s therapist, doctor or clergy. It would normally be improper for the attorney to seek appointment of a guardian in such a situation because to do so may be expensive, traumatic and adversely affect the client’s interest.[24]
When rejection of the attorney's advice is likely to adversely affect the client's interests, the attorney should document both the advice and the client's refusal to follow it. Such documentation emphasizes the risk to the client and protects the attorney from subsequent allegations of complicity in the conduct or failure to properly advise the client of the risks involved. In appropriate cases, the attorney may withdraw from representation.
2.6 An attorney should not permit a client's relatives, friends, lovers, employers, or other third persons to interfere with the representation, affect the attorney's independent professional judgment, or, except with the client's express consent, make decisions affecting the representation.
Comment Third persons often try to play a part in matrimonial cases. Frequently, the client asks that one or more of these people be present at conferences and consulted about major decisions. The potential conflicts are exacerbated when the third person is paying expenses or the attorney's fee. Neither payment of litigation expenses nor sincere concern about the welfare of the client makes those third persons clients. To the extent specifically authorized by the client, the lawyer may discuss choices with third parties, provided all concerned are aware that such discussions may waive any attorney-client privilege.[25] While it is important for persons going through a divorce to receive advice and support from those they trust, the client, with the advice of the attorney, should make the decisions by which the client must ultimately live.
Both the client and the person paying for the representation must be informed at the outset that nothing related by the client in confidence will be disclosed without the client’s consent. The duty to protect confidential information also requires that the attorney raise the issue of the effect on confidentiality of the parents, friends, lovers, children or employers’ being present. Usually, the presence of a third person not necessary to the rendition of legal services waives the attorney-client privilege.[26] For this and other reasons, an attorney should discourage family members and other third persons from participating in client conferences. In addition to the potential loss of confidentiality, a more accurate account of the client’s desires and best interests can usually be obtained when no third persons are present.
Examples:
1. An attorney represents an elderly woman. The son of the client, who is paying the attorney’s fee, instructs the attorney to establish a trust to manage the client's assets. The attorney must ignore the son's request and explain the attorney's obligation to act only as requested by the client. In addition to acting only after consultation with and consent by the client, the attorney may not accept payment from the son unless he can avoid interference with the client-lawyer relationship and preserve the confidentiality of communications with the client.[27] Even if the son's wishes are not necessarily adverse to the client's interests, the attorney must assure that he has independently determined the best course for the client. The client should be directed to make her own decisions regarding the representation whenever possible.
2. The minor daughter of an old friend asks the lawyer to find a jurisdiction that will allow her to marry without parental consent. The lawyer is personally convinced that the marriage will be disastrous for the daughter and feels strong obligations to her parents to prevent her from doing something foolish. Under current ethical rules, as well as under these Bounds, the lawyer may not inform the parents or act in any way contrary to the client’s stated desires. However, it is appropriate for the lawyer to point out practical, moral, and other non-legal considerations and to attempt to convince the child that the proposed course of action is not in her best interests.[28] It is also appropriate for the lawyer to decline to represent the child or provide the information.
2.7 An attorney should not allow personal, moral or religious beliefs to diminish loyalty to the client or usurp the client's right to make decisions concerning the objectives of representation.
Comment Attorneys would not be human without personal beliefs about issues affecting family law practice. No lawyer should be expected to ignore strongly held beliefs. But the matrimonial lawyer may only limit the objectives of the representation if the client consents after consultation.[29] The client even has the right to be consulted about the means by which the objectives are to be pursued, matters normally within the lawyer's discretion.[30] Therefore, the lawyer should withdraw from representation if personal, moral or religious beliefs are likely to cause the attorney to take actions that are not in the client's best interest. If there is any question as to the possible effect of those beliefs on the representation, the client should be consulted and consent obtained. See 2.4 & Comment.
2.8 An attorney should discourage the client from interfering in the spouse's effort to obtain effective representation.
Comment Clients who file or anticipate the filing of a divorce proceeding occasionally telephone or interview numerous attorneys as a means of denying their spouse access to effective representation. The attorney should discourage such practices, and should not assist the client, for example, by responding to the client's request for a list of matrimonial lawyers, if improper motives are suspected. When the client has already contacted other lawyers for the purpose of disqualifying them, the client's attorney should attempt to persuade the client to waive any conflict so created.
2.9 An attorney should not communicate with the media about an active case under most circumstances. An attorney should not communicate with the media about a case, a client or a former client without the client’s prior knowledge and consent, except in exigent circumstances when client consent is not obtainable.
Comment Statements to the media by an attorney representing a party in a family law matter may be inappropriate because family law matters tend to be private and intimate. They are not the business of anyone but the parties and their family. Public discussion of a case tends to obstruct settlement, cause embarrassment, diminish the opportunity for reconciliation and harm the family, especially the children. Statements to the media by an attorney representing a party in a matrimonial matter are also potentially improper because they tend to prejudice an adjudicative proceeding.[31]
An attorney’s desire to obtain publicity conflicts with the duty to the client. If contacted by the media, the attorney should respond by saying: I cannot give you information on that matter because it deals with the personal life of my client. The attorney, as an officer of the court, has duties to both the courts and the client. The parties, subject to order of the court, have a right to discuss their case if they so desire, despite the advice of their counsel. However, a lawyer’s statements may have the effect of influencing an adjudicative body presently sitting or to be convened in the future. An attorney may withdraw if the client disobeys instructions not to speak publicly about the case.
It is no excuse that the opposing party, his counsel or agents, first discussed the matter with the media. However, if necessary to mitigate recent adverse publicity, the attorney may make a statement required to protect the client’s legitimate interests. Any such statement should be limited to information essential to mitigate the recent adverse publicity.[32]
An attorney should never attempt to gain an advantage for the client by providing information to the media to embarrass or humiliate the opposing party or counsel.
3. Conflict of Interest
Conflict of interest dilutes a lawyer's loyalty to the client.[33] A lawyer's loyalty may be diluted by personal interests (financial security, prestige, and self-esteem) and interests of third persons (family, friends, business associates, employer, legal profession, and society as a whole). A conflict exists if the representation of a client "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."[34] The key to preventing unintentional violations of the conflict of interest rules lies in anticipating the possibility that a conflict situation will develop.
The influences that might dilute a matrimonial lawyer’s loyalty to a client are unlimited.[35] The interests of children, relatives, friends, lovers, employers and the opposing party, along with a perceived obligation to the court and the interest of society, may be compelling in a given case. In family law matters, where winning and losing in the traditional sense often lose their meaning, determination of the appropriate ethical conduct can be extremely difficult.
3.1 An attorney should not represent both husband and wife even if they do not wish to obtain independent representation.
Comment The temptation to represent potentially conflicting interests is particularly difficult to resist in family disputes. Often the attorney is the "family lawyer" and previously represented husband, wife, family corporations, and even the children.[36] Representing husband and wife as an intermediary is not totally prohibited by the RPC.[37] However, it is impossible for the attorney to provide impartial advice to both parties. Even a seemingly amicable separation or divorce may result in bitter litigation over financial matters or custody. A matrimonial lawyer should not attempt to represent both husband and wife, even with the consent of both.[38]
The attorney may be asked to represent family members in a non-litigation setting. If separation or divorce is foreseeable or if one of the parents desires defense to a charge of battery, the lawyer may see her role as counselor or negotiator for all concerned. This temptation should be resisted.[39]
Representation of both spouses should be distinguished, however, from mediation of a dispute where the attorney represents neither of the spouses.[40] See 8.1–8.4. While 8.4 permits the attorney-mediator to give advice that would enable the parties to make reasonably informed decisions, the mediator must remain impartial, indicate that the participants are free to reject the advice, and advise the participants that the mediator represents neither of them, so they should seek independent legal advice.
Because the attorney-mediator represents neither party, the attorney-mediator may not appear in court on behalf of either. It is the consensus of Academy members, however, that an attorney-mediator who has assisted the participants in reaching a mutually determined agreement, may appear in court on behalf of the agreement, solely for the purpose of filing it. Any of the parties may be represented by counsel of their choice at such a proceeding.
3.2 An attorney should not advise an unrepresented party.[41]
Comment Once it becomes apparent that another party intends to proceed without a lawyer, the attorney should, at the earliest opportunity, inform the other party in writing as follows:[42] 1. I am your spouse’s lawyer. 2. I do not and will not represent you. 3. I will at all times look out for your spouse’s interests, not yours. 4. Any statements I make to you about this case should be taken by you as negotiation or argument on behalf of your spouse and not as advice to you as to your best interest. 5. I urge you to obtain your own lawyer.[43]
3.3 An attorney should not simultaneously represent both a client and a person with whom the client is sexually involved.
Comment A matrimonial lawyer is often asked to represent a client and the client's lover. Joint representation may make it difficult to advise the client of the need to recover from the emotional trauma of divorce, the desirability of a prenuptial agreement, or the dangers of early remarriage. The testimony of either might be adverse to the other at deposition or trial. In addition, the client may desire to waive support payments because she believes she is going to marry her lover. The inherent conflicts in attempting to represent both the client and her lover render such representation improper. Even when the client's new partner is not represented by the attorney, but wishes to participate in consultations and other aspects of the representation, the attorney must be alert to the danger of the client’s undermining her own best interests in an effort to accommodate her new partner.
3.4 An attorney should not have a sexual relationship with a client, opposing counsel, or a judicial officer in the case during the time of the representation.
Comment Persons in need of a matrimonial lawyer are often in a highly vulnerable emotional state. Some degree of social contact (particularly if a social relationship existed prior to the events that occasioned the present representation) may be desirable, but a more intimate relationship may endanger both the client's welfare and the lawyer's objectivity.[44]
Attorneys are expected to maintain personal relationships with other attorneys, but must be sensitive to the threat to independent judgment and the appearance of impropriety when an intimate relationship exists with opposing counsel or other persons involved in the proceedings.
4. Fees
Many divorce clients have never before hired an attorney and are vulnerable because of fear and insecurity. Matrimonial lawyers and their clients may not have the long-standing relationship out of which business lawyers and their clients often evolve an understanding about fees.
It is not unusual for a party to a divorce to lack sufficient funds to pay an attorney. This lack of resources, various strictures against contingent fee contracts, the unwillingness of some courts to redress the economic imbalance between the parties with fee awards, and the tendency of overwrought clients to misunderstand the fee agreement or to blame their attorneys for undesirable results, can make payment extremely difficult.
These factors help to explain why the records of fee dispute committees indicate that the number of disputes arising from family law cases is several times greater than those from any other category. Thus, financial arrangements with clients should be clearly explained, agreed upon and documented.
4.1 Fee agreements should be in writing.[45]
Comment At the outset the matrimonial lawyer should tell the client the basis on which fees will be charged[46] and when and how the attorney expects to be paid.[47] In some jurisdictions, fee agreements must be in writing.[48] Written fee agreements should delineate the obligations of the attorney and the client. Agreements should specify the scope of the representation. Fee agreements should be presented in a manner that allows the client an opportunity to consider the terms, consult another attorney before signing and obtain answers to any questions to fully understand the agreement before entering into it. The written fee agreement should be entered into when the representation is initiated or as soon as possible thereafter.
Examples of Scope Provisions: a. Our representation will include advising, counseling, drafting, negotiating, investigating, analyzing and handling this family law matter to a final resolution, whether by negotiated settlement or, if necessary, by trial and adjudication by a court. Depending on the specifics of your case, its resolution may include: custody, visitation, and support of your children; classification of assets as "marital" or "non-marital;" the valuation and division of marital property; the determination of maintenance for you or for your spouse; and determining whether the attorney's fees and costs incurred may be shifted from you to your spouse, or vice versa.
b. Our representation will be limited to settlement or trial of the issue of ________. We have not agreed to undertake any appeal of any order entered.
c. Our representation will be limited to assisting in settlement through negotiation and mediation. If attempts at settlement are unsuccessful and litigation is instituted, our representation will cease. You agree to then retain trial counsel to represent you thereafter.
4.2 An attorney should provide periodic statements of fees and costs.
Comment When the fee arrangement is based on an hourly rate or similar arrangement, this information can be part of the necessary communications concerning the case addressed in 2.3 and Comment. The statement should be sufficiently detailed to apprise the client of the time and charges incurred.[49] In addition, the matrimonial lawyer should comply with fee regulations in the lawyer’s jurisdiction that may be more detailed or restrictive in requiring information about fees and costs.
4.3 All transactions in which an attorney obtains security for fees should be properly documented.[50]
Comment All security agreements should be arms-length transactions. When taking mortgages on real property from a client, the client should be independently represented. If an attorney takes personal property as security, it must be appraised, photographed and identified by a qualified appraiser to establish concretely its precise identity and value. The attorney should then secure it in a safe place (usually a safe deposit box) where there is no danger that it can be removed, substituted or lost.[51]
4.4 An attorney’s fee should be reasonable, based on appropriate factors, including those listed in RPC 1.5(a).
Comment Lawyers should charge reasonable fees for services performed pursuant to a valid fee agreement. Although the starting point in determining a reasonable fee is often the lawyer’s hourly rate multiplied by the hours spent on the case, a number of other factors may be relevant in determining an appropriate fee in a particular representation. RPC 1.5(a) lists many of those factors.
Clients, as consumers, should be able to negotiate fee agreements that best suit their needs and circumstances. In addition to fees based solely on hourly rate, a fee agreement may provide for a contingent fee, or one based on value, a specified result, or some combination of factors. No single factor is appropriate in all family law cases since both clients and the nature of the representations vary greatly. Therefore, it is important at the outset for the attorney to explain the factors to be used in determining the fee, provide the fee agreement in writing (see 4.1), and, particularly when factors in addition to the attorney’s hourly rate will be considered, afford the client an opportunity to obtain independent advice about the proposed fee arrangement.
Some jurisdictions have prohibited fees in domestic relations cases that were in any way based on the results obtained in the case, holding that such fees constituted contingent fees. Courts in other jurisdictions have held that the fact that an hourly fee is enhanced on the basis of results obtained does not necessarily make it a contingent fee.[52] This Goal would permit results fees. Under RPC 1.5(a), the factors to be considered in determining the reasonableness of a fee include the amount involved and the results obtained. A fee that is based on an hourly rate, but may be enhanced by a specified result is not the same as a traditional contingent fee, which provides that the attorney will receive a specified percentage of any recovery. If the client loses, the attorney receives no fee at all.
A fee based on the attorney’s usual hourly rate, but enhanced by achieving a specified result, may be justified in a given case by any combination of the following circumstances: the complexity of the case; the shortness of the time between the attorney’s retention and impending proceedings; the difficult, aggressive nature of the opposing party and counsel; a particular attorney’s unique ability to settle a case quickly and avoid lengthy and acrimonious trial proceedings; and a substantial risk that the representation will be unsuccessful due to unfavorable factual or legal context. A fee based in part on results obtained is permissible under this Goal so long as the specified result does not include obtaining a divorce, custody or visitation provisions, or the amount of alimony or child support awarded (see 4.5), and if the fee is: (1) reasonable under the circumstances; (2) in addition to the attorney’s usual hourly rate; (3) based on factors clearly stated in writing and provided to the client at the outset of the agreement; and (4) agreed to in writing by the client at the outset of the representation after full consultation and an opportunity to seek independent legal advice.
4.5 An attorney should not charge a fee the payment or amount of which is contingent upon: (i) obtaining a divorce; (ii) custody or visitation provisions; or (iii) the amount of alimony or child support awarded. An attorney may charge a contingent fee for all other matters, provided that: (a) the client is informed of the right to have the fee based on an hourly rate; and (b) the client is afforded an opportunity to seek independent legal advice concerning the desirability of the contingent fee arrangement.
Comment This Goal continues the absolute prohibition of fees contingent upon securing a divorce or a specified amount of alimony or child support, and makes clear that the prohibition includes custody or visitation proceedings. In other matters relating to a divorce, however, the policy bases for the prohibition do not apply. Therefore, this Goal provides that an attorney should be able to enter into a contingent fee agreement with an informed client who reasonably believes such an arrangement is in the client’s best interests.
Although attorneys and informed clients are generally able to determine that a contingent fee arrangement is more beneficial to the client than one based, for example, on an hourly rate, there has long been a total ban on contingent fees in domestic relations cases. The primary basis for the prohibition in divorce cases is that the arrangement would put strong economic pressure on the lawyer to assure that reconciliation did not occur.[53] In addition, the rationale that contingent fee arrangements are necessary in other civil cases to enable indigent litigants to obtain counsel is believed not to be applicable in divorce cases.[54] The spouse in possession of marital assets will usually have little difficulty in obtaining representation, while the other spouse is assumed to be protected by the court’s authority to compel the spouse with the greater assets to pay attorney’s fees.[55]
A third basis for the ban on contingent fees is that it may disrupt the pattern of wealth distribution that the court intended in making the award, unless the existence of the contingent fee is made known to the court in advance.[56] And, to the extent that the contingent fee applies to the amount of a property settlement and not to support or alimony, the attorney may be tempted to advocate more for the former, even if not in the best interests of the client and any children.[57]
At the same time, however, the complete ban on contingent fees at all stages of domestic relations cases,[58] particularly when interpreted strictly,[59] and coupled with decisions holding that fees based in any way on the results obtained in the case are prohibited contingent fees,[60] is unsupported by the above policies. Such a ban also undermines the freedom of attorneys and informed clients to enter into fee arrangements that best suit the nature of particular cases and the interests of both.
A contingent fee arrangement might be preferable to an hourly rate for some divorce clients. For example, although courts may have the power to compel the spouse with the greatest assets to pay attorney’s fees, they often do not do so. Therefore, if the client is unlikely to pay the attorney’s fee unless the client receives a substantial award, the client’s ability to obtain quality legal representation may be dependent upon the availability of a contingent fee agreement.
In addition, the amount of effort involved in a difficult case might result in an hourly fee that the client could only afford if he or she won. And yet, it is in just such a case that the client would need an experienced attorney, who would be unlikely to undertake a risky case, solely on the basis of the attorney’s hourly rate. At the same time, the client might be reluctant to commit to the attorney’s hourly rate in a complex and costly case, without a way of assuring there will be adequate funds from which to pay the fee.
Due to the prohibition on contingent fees (and cases holding a results fee to constitute a contingent fee), a lawyer may feel compelled to enter into an hourly fee arrangement with a client who subsequently loses the case after a substantial effort. The result in the case and the client’s inability to pay may cause the lawyer to feel compelled ethically to reduce the fee. Such a result would seem to be both ethical and desirable. It would also be indistinguishable as a matter of policy from a contingent fee agreed to at the outset of the attorney-client relationship.
For these reasons, this Goal limits the prohibition of contingent fees to those aspects of divorce cases supported by the historic policy bases. In other matters, informed clients should have the same ability to choose a contingent fee arrangement as clients in other civil matters. Jurisdictions that completely ban all contingent fees should be urged to adopt a rule similar to this Goal.
4.6 An attorney may withdraw from a case when the client fails to honor the fee agreement.
Comment The fee agreement should set forth the circumstances under which the matrimonial lawyer will be permitted to withdraw for non-payment. Before withdrawing, the attorney must take reasonable steps to avoid foreseeable prejudice to the rights of the client, allowing time for employment of other counsel, and delivering to the client papers and property to which the client is entitled.[61] However, the attorney should not seek to withdraw from a case on the eve of trial unless there was a clear prior understanding that withdrawal would result from non-payment.[62]
4.7 An attorney may properly take all steps necessary to effect collection, including mediation, arbitration or suit, from a client who fails to honor the fee agreement.[63]
Comment Lawyers are entitled to be paid reasonable fees for services performed pursuant to a valid fee agreement. Alternatives to litigation should be used unless they are unlikely to be effective.
5. Client Conduct
A client is entitled to know what laws govern divorce and the consequences of those laws on a dissolution of marriage. A matrimonial lawyer should advise a client about the repercussions of any matrimonial litigation, including factors that are likely to be considered in economic and custody determinations. However, the lawyer should avoid assisting the client in using the counseling process to engage in fraudulent conduct.
5.1 An attorney should not condone, assist, or encourage a client to transfer, hide, dissipate, or move assets to improperly defeat a spouse’s claim.
Comment It is improper for an attorney to "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client . . . ."[64] Whether the client proposes opening a secret out-of-state bank account, moving assets to an offshore trust, or having a family member hold sums of cash for the purpose of concealment, the advice to the client must be the same: "Don't do it." A client’s efforts, outside the presence of his or her spouse, to transfer assets beyond the reach of the court may indicate an improper motive. The attorney should suggest including the spouse in the discussions. Refusal by the client may well indicate an improper purpose, which the attorney should refuse to assist.
Hiding assets to defeat a spouse’s claim is a fraud upon the client's spouse and likely to result in a fraud upon the court.[65] The client must also be advised not to conceal data about property, fail to furnish relevant documents, insist on placing unrealistic values on properties in, or omit assets from, sworn financial statements.
On the other hand, "[t]here is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity."[66] It may sometimes be difficult to determine whether a client's questions concerning legal aspects of predivorce planning are asked to facilitate an improper purpose. Although the attorney should initially give the client the benefit of any doubt, later discovery of improper conduct mandates that the attorney cease such assistance and may require withdrawal from representation.[67]
5.2 An attorney should advise the client of the potential effect of the client's conduct on a child custody dispute.
Comment Predivorce conduct of the parents may significantly affect custody decisions, as well as the children’s adjustment to the divorce itself. The client is entitled to advice where there is a custody issue. Conduct conforming to such advice often will benefit both the children and the client's spouse, independent of any custody dispute. Suggesting that the client spend more time with the child and consult, from time to time with the child's doctor, teacher, and babysitter, is appropriate. It is also proper to describe the potential harmful consequences to the children (and to the client legally) of prematurely introducing the children to a new romantic partner, substance abuse, abusive or derogatory behavior toward the other parent, or other inappropriate behavior.
Predivorce planning is an ideal opportunity to advise the client on ways to make the divorce transition easier for the children. For example, the lawyer might describe ways for the parents in concert to inform the children of the divorce and to reassure the children that both parents will always be there for them. The lawyer might describe programs available in the client’s community to aid both parents and children in adjusting to divorce. Most important, predivorce planning is an opportunity to orient the client toward consideration of the children’s needs first and toward the desirability of working out a cooperative parenting plan.
The lawyer should describe how mediation of child custody disputes might assist in effecting a cooperative parenting plan. It is appropriate to tell the client that children suffer from parental conflict and that a child custody dispute involving the searching inquiry of a custody evaluation and rigors of a trial is likely to be harmful to every member of the family.
The lawyer should consider whether the custody claim will be made in good faith. If not, the lawyer should advise the client of the harmful consequences of a meritless custody claim to the client, the child, and the client's spouse.[68] If the client persists in demanding advice to build a spurious custody case or to use a custody claim as a bargaining chip or as a means of inflicting revenge (see 6.2 and Comment), the lawyer should withdraw.[69]
6. Children
One of the most troubling issues in family law is determining a lawyer’s obligations to children. The lawyer must competently represent the interests of the client, but not at the expense of the children. The parents’ fiduciary obligations for the well being of a child provide a basis for the attorney’s consideration of the child’s best interests consistent with traditional advocacy and client loyalty principles. It is accepted doctrine that the attorney for a trustee or other fiduciary has an ethical obligation to the beneficiaries to whom the fiduciary’s obligations run.[70] Statutory and decisional law in most jurisdictions imposes a fiduciary duty on parents to act in their child’s best interests. [71] For this analysis to be of benefit to practitioners, however, a clearer mandate must be adopted as part of the ethical code or its official interpretations.
6.1 An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.
Comment Although the substantive law in most jurisdictions concerning custody, abuse and termination of parental rights is premised upon the "best interests of the child," the ethical codes provide little (or contradictory) guidance for an attorney whose client's expressed wishes, interests or conduct are in direct conflict with the well-being of children. This Goal emphasizes that the welfare of each family member is interrelated.
Matrimonial lawyers should counsel parties to examine their wishes in light of the needs and interests of the children and the relationship to other family members. In so doing, the matrimonial lawyer is not only advising the client to adhere to applicable substantive law, but is also reminding the client that the family relationship continues.
Parents owe a continuing fiduciary duty toward each other,[72] as well as toward their children, to serve their children’s best interests. In many instances, parents should subordinate their own interests to those of their children. Matrimonial lawyers and parents alike should collaboratively seek parenting arrangements that eliminate fractious contact between parents, minimize transition or transportation difficulties and preserve stability for the children.
Children do not benefit from involvement in their parents’ divorce. The attorney should warn the client against leaving papers from the attorney out where children can read them and to avoid talking about the case when children can overhear.
If the parents are in conflict and disagree about custody and other parenting issues, the attorney should consider, with the cooperation of the other parent’s attorney, sending the parties to a neutral mental health professional who is a family therapist. The goal of this referral is to resolve their disputes through counseling with the help of that mental health professional. The referring agreement should include confidentiality for all contacts with the therapist and exclusion of that therapist as a witness in the divorce case.
The attorney should discourage the client and refuse to participate in multiple psychological evaluations of children for the purpose of finding an expert who will testify in their favor. Repeated psychological evaluations of children are contrary to the children’s best interest.[73]
6.2 An attorney should not permit a client to contest child custody, contact or access for either financial leverage or vindictiveness.
Comment Tactics oriented toward asserting custody rights as leverage toward attaining some other, usually financial, goal are destructive. The matrimonial lawyer should counsel against, and refuse to assist, such conduct. Proper consideration for the welfare of the children requires that they not be used as pawns in the divorce process. Thus, for example, in states where child support is determined partly on the basis of the amount of time a parent spends with the child, the lawyers should negotiate parenting issues based solely on considerations related to the child, then negotiate child support based on financial considerations. If despite the attorney’s advice the client persists, the attorney should seek to withdraw.
6.3 When issues in a representation affect the welfare of a minor child, an attorney should not initiate communication with the child, except in the presence of the child’s lawyer or guardian ad litem, with court permission, or as necessary to verify facts in motions and pleadings.
Comment Issues affecting a child’s welfare may arise before, during, and after legal proceedings. There is a risk of harm to the child from an attorney’s contacts and attempts to involve the child in the proceedings. Advice to or manipulation of the child by a parent’s lawyer has no place in the lawyer’s efforts on behalf of the parent. Information properly to be obtained from a child regarding the parents and the parents’ disputes should be obtained under circumstances that protect the child’s best interests.[74]
6.4 An attorney should not bring a child to court or call a child as a witness without full discussion with the client and a reasonable belief that it is in the best interests of the child.[75]
Comment Taking sides against either parent in a legal proceeding imposes a large emotional burden on a child. Some children do not want to express a preference in child custody disputes; they want their parents to resolve the issue without calling them. Other children want their views expressed, and their views may be highly relevant to the outcome of the dispute. All participants in a family law proceeding (including attorneys for all parties, any party’s therapist, child custody evaluator, and the judge) should strive to permit a child’s views and information to be expressed in a manner that least exposes the child to the rigors of the courtroom. The attorney should weigh carefully the risks and benefits to the child of testifying, including consulting with appropriate experts as to the potential for harm.
Where a child’s information is material on an issue other than custody, counsel should explore whether the same information can be introduced from another source, rendering the child’s testimony cumulative and unnecessary.
6.5 An attorney should disclose information relating to a client or former client to the extent the lawyer reasonably believes necessary to prevent substantial physical or sexual abuse of a child.
Comment Under current RPC 1.6(b)(1), an attorney may reveal information reasonably believed necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.[76] Many states permit the attorney to reveal the intention of the client to commit any crime and the information necessary to prevent it. The rules do not appear to address, however, revelation of conduct that may be severely detrimental to the well being of the child, but is not criminal. Also, while engaged in efforts on the client's behalf, the matrimonial lawyer may become convinced that the client or a person with whom the client has a relationship has abused one of the children. Under traditional analysis in most jurisdictions, the attorney should refuse to assist the client. The attorney may withdraw if the client will not be adversely affected and the court grants any required permission. Disclosure of risk to a child based on past abuse would not be permitted under this analysis, however.
Notwithstanding the importance of the attorney-client privilege, the obligation of the matrimonial lawyer to consider the welfare of children, coupled with the client’s lack of any legitimate interest in preventing his attorney from revealing information to protect the children from likely physical abuse, requires disclosure of a substantial risk of abuse and the information necessary to prevent it. If the client insists on seeking custody or unsupervised visitation, even without the attorney's assistance, the attorney should report specific knowledge of child abuse to the authorities for the protection of the child.[77]
As stated in the Comment to the ABA Ethics 2000 Commission’s proposed revision of RPC 1.6(b)(1): Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. However, to the extent a lawyer is required or permitted to disclose a client's purposes, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Substantial bodily harm includes life-threatening or debilitating injuries and illnesses and the consequences of child sexual abuse. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.[78]
It may also be appropriate to seek the appointment of a guardian ad litem or attorney for the child or children.[79] The entire thrust of the family law system is intended to make the child's well-being the highest priority. The vindictiveness of a parent, the ineffective legal representation of the spouse, or the failure of the court to perceive on its own the need to protect the child's interests do not justify an attorney’s failure to act. However, even the appointment of a guardian or lawyer for the child is insufficient if the matrimonial lawyer is aware of physical abuse or similarly extreme parental deficiency. Nor would withdrawal (even if permitted) solve the problem if the attorney is convinced that the child will suffer adverse treatment by the client.
6.6 An attorney should not make or assist a client in making an allegation of child abuse unless there is a reasonable basis and evidence to believe it is true.
Comment An attorney who is made aware of abuse by a party (or someone closely associated with a party) is permitted, if not obligated, to provide that information during divorce or custody proceedings (see 6.5). While reporting the existence of child abuse is crucial, however, a claim that a parent has abused a child is ugly and leads to the most unpleasant and harmful litigation in the field of family law. Such claims draw the child into testing or some other form of examination, which itself may be traumatic. The harm to both the accusing and accused parent will almost always be very great.
Desperate or angry spouses sometimes cannot resist the temptation to use such a strong weapon as an abuse charge. Use of such charges to obtain an unfair advantage in the dispute is inexcusable. If a client insists on making such a claim that the lawyer believes unjustified, the lawyer should withdraw from further representation. The lawyer should use all available information and resources including evaluation by a doctor, therapist, or other health professional to be sure there is a reasonable basis and substantial supporting evidence for such a charge. Even when the allegation is believed to be justified, it should be made in a manner least harmful to any children and least likely to inflame the dispute.
7. Professional Cooperation and the Administration of Justice
Candor, courtesy and cooperation are especially important in matrimonial matters where a high emotional level can engulf the attorneys, the court and the parties. Allowing the adverse emotional climate to infect the relations between the attorneys and parties inevitably harms everyone, including the clients, their children and other family members. Although lawyers cannot ensure that justice is achieved, they can help facilitate the administration of justice.
Combative, discourteous, abrasive, "hard ball" conduct by matrimonial lawyers is inconsistent with both their obligation to effectively represent their clients and their role as problem-solvers. Good matrimonial lawyers can be cordial and friendly without diminishing effective advocacy on behalf of their clients. In fact, candor, courtesy and cooperation: (1) facilitate faster, less costly and mutually-accepted resolution of disputes; (2) reduce stress for lawyers, staff and clients; (3) reduce waste of judicial time; and (4) generate respect for the court system, the individual attorney and the profession as a whole.
7.1 An attorney should strive to lower the emotional level of marital disputes by treating counsel and the parties with respect.
Comment Some clients expect and want the matrimonial lawyer to reflect the highly emotional, vengeful relationship between the spouses. The attorney should explain to the client that discourteous or uncivil conduct is inappropriate and counterproductive, that measures of respect are consistent with competent and ethical representation of the client, and that it is unprofessional for the attorney to act otherwise.
Ideally, the relationship between counsel is that of colleagues using constructive problem-solving techniques to settle their respective clients’ disputes consistent with the realistic objectives of each client. Examples of appropriate measures of respect include: cooperating with voluntary or court-mandated mediation; meeting with opposing counsel to reduce issues and facilitate settlement; promptly answering phone calls and correspondence; advising opposing counsel at the earliest possible time of any perceived conflict of interest; and refraining from attacking, demeaning or disparaging other counsel, the court or other parties.
The attorney should make sure that no long-standing adversarial relationship with or a personal feeling toward another attorney interferes with negotiations, the level of professionalism maintained, or effective representation of the client. Although it may be difficult to be courteous and cooperative when opposed by an overzealous lawyer, an attorney should not react in kind to unprofessional conduct. Pointing out the unprofessional conduct and requesting that it cease is appropriate.
7.2 An attorney should stipulate to undisputed relevant matters, unless inconsistent with the client’s legitimate interests. If the client’s permission is required, the attorney should encourage the client to stipulate to undisputed matters.
Comment The attorneys' stipulation to undisputed matters avoids unnecessary inconvenience and wasted court time. The attorney seeking a stipulation should do so in writing, attempting to state the true agreement of the parties. Other counsel should promptly indicate whether or not the stipulation is acceptable.
7.3 An attorney should not deceive or intentionally mislead other counsel.
Comment Attorneys should be able to rely on statements by other counsel. They should be able to assume that the matrimonial lawyer will correct any misimpression caused by an inaccurate or misleading prior statement by counsel or her client. Although an attorney must maintain the client’s confidences, the duty of confidentiality does not require the attorney to deceive, or permit the client to deceive, other counsel.[80] When another party or counsel specifically requests information which the attorney is not required to provide and which the attorney has been instructed to withhold or which may be detrimental to the client's interests, the attorney should refuse to provide the information, rather than mislead opposing counsel.
Examples: 1. The matrimonial lawyer is approached by opposing counsel, who asks: "Although my client realizes there is no hope for reconciliation, he is desperate to know whether his wife is seeing another man. Is she?" The attorney knows that the wife has been having an affair. It would be proper for the attorney to indicate an unwillingness or inability to answer that question, but it would be improper either to suggest that the client has not had an affair, or to tell opposing counsel lurid details on the condition that they not be disclosed.[81]
2. The attorney believes that the opposing party has engaged in activity that the party would not want made public. It is improper to bluff the other side into settlement by hinting that the matrimonial lawyer will use damaging evidence of the conduct if that evidence does not exist. It is also improper to threaten public disclosure if the evidence exists, but would likely be inadmissible or irrelevant at trial.
7.4 An attorney should neither overstate the authority to settle nor represent that the attorney has authority that the client has not granted.
Comment In either case presented in the Goal, the attorney has improperly induced reliance by other counsel that could damage the attorney-client relationship. A matrimonial lawyer who is uncertain of his authority or simply does not believe that other counsel is entitled to know such information should either truthfully disclose his uncertainty, or state that he is unwilling or unable to respond at all.
7.5 An attorney should not induce or rely on a mistake by counsel as to agreed upon matters to obtain an unfair benefit for the client.
Comment The need for trust between attorneys, even those representing opposing sides in a dispute, requires more than simply avoiding fraudulent and intentionally deceitful conduct. Misunderstandings should be corrected and not relied upon in the hope that they will benefit the client. Thus, for example, the attorney reducing an oral agreement to writing not only should avoid misstating the understanding, but should correct inadvertent errors by other counsel that are inconsistent with prior understandings or agreements. Whether or not conduct or statements by counsel that are not necessarily in her client's best interests should be corrected may not always be clear and will depend on the particular facts of a case. The crucial consideration should be whether the attorney induced the misunderstanding or is aware that other counsel's statements do not accurately reflect any prior agreement. It is thus unlikely that tactical, evidentiary or legal errors made by opposing counsel at trial require correction.[82]
Examples:
1. In an effort to compromise a dispute over maintenance (alimony), the parties agree that payments be made that are deductible by the husband and taxable to the wife. While reviewing the agreement, the attorney for the wife realizes that the language will not create the tax consequences both sides had assumed and will, in fact, benefit his client because the payments will be treated neither as deductible alimony to the husband nor taxable to the wife. The matrimonial lawyer should disclose this discovery to opposing counsel.
If, however, counsel's mistake goes to a matter not discussed and agreed upon either explicitly or implicitly, the obligation to the client precludes disclosure of the mistake without the client's permission. Thus, if alimony was agreed upon without any discussion of tax consequences, the wife's lawyer would not be obligated to provide the language necessary to make payments tax deductible by the husband and includable by the wife.
2. The lawyer for the wife prepares a stipulation erroneously providing for the termination of maintenance upon the remarriage of either party. If the husband asks his attorney if it is really true that by his remarriage he can terminate his liability to pay any further maintenance, the attorney should correct the mistake in the stipulation or a judgment entered upon it. The lawyer should bring it to the attention of opposing counsel.[83]
7.6 An attorney who receives materials that appear to be confidential should refrain from reviewing the materials and return them to the sender, as soon as it becomes clear they were inadvertently sent to the receiving lawyer,.
Comment There are many circumstances in which an attorney receives materials that were inadvertently sent by another attorney or party. Such instances have been increasing due to the use of e-mail, the ability to send simultaneous faxes to multiple persons, and the sheer volume of materials provided through discovery in complex cases. If the materials are not harmful or confidential, no issue is raised. If, however, the materials were not intended to be provided and contain confidential information, the temptation to use them to the client’s benefit is great.
The courts’ and ethics committees’ treatment of inadvertent disclosure of confidential materials is not uniform. Some courts have followed the ABA Standing Committee approach (below) that the materials should be returned unread. Other courts have taken the position that any unforced disclosure of attorney-client privileged communications destroys confidentiality and terminates the privilege, not only for the communications disclosed, but also for all related communications.[84]
A number of courts have taken an intermediate approach, holding that the right of receiving counsel to make use of inadvertently sent materials depends on a number of factors. For example, one court indicated that it would look to five factors in determining whether a document had lost its privilege: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (3) any delay and measures taken to rectify the disclosures; (5) whether the overriding interests of justice would be served by relieving the party of its error.[85]
Regardless of how courts might resolve the issue of the extent to which voluntary (though unintended) disclosure waives confidentiality for purposes of attorney-client privilege, the ethical issue concerning the proper conduct of the receiving attorney remains. This Goal is consistent with ABA Formal Opinions in providing that once the inadvertence is discovered, the receiving attorney should not further examine the materials and should return them to the sending lawyer.[86]
In providing that the receiving lawyer was ethically obligated to return inadvertently sent confidential materials, the ABA Committee relied on the following factors: (i) the importance the Model Rules give to maintaining client confidentiality, (ii) the law governing waiver of the attorney-client privilege, (iii) the law governing missent property, (iv) the similarity between the circumstances here addressed and other conduct the profession universally condemns, and (v) the receiving lawyer’s obligations to his client.
This Goal is also consistent with 7.5 that an attorney should not rely on a mistake by opposing counsel, but should instead correct inadvertent errors. And, since the decision whether to rely on inadvertent errors by another counsel is one of means, the error is appropriate for correction between the lawyers without client consultation.[87]
Examples 1. The wife’s lawyer receives an e-mail addressed to the husband from the husband’s lawyer. In many cases that would be sufficient to indicate that the wife’s lawyer was an unintended recipient. If, however, the receiving lawyer has a reasonable basis to believe a copy was intended for him, he may read the message unless and until it becomes evident that the message was unintentionally sent to him.
2. The lawyer for the husband has sought discovery of numerous documents from the wife relating to issues in the case. In response to the document request, the wife’s attorney sends over ten large boxes of materials. While reviewing the documents, the husband’s lawyer discovers in a seemingly unrelated file, a letter from the wife’s attorney to the wife that begins: As to your question about your use of drugs prior to your marriage to Husband . . . . Unless the husband’s lawyer has a reasonable basis to believe the letter was provided intentionally, was relevant, and was not otherwise confidential, the lawyer should stop reading and return the letter to the wife’s attorney.
7.7 An attorney may use materials intentionally sent from an unknown or unauthorized source unless the materials appear to be confidential. Confidential materials should be deposited with the court and a ruling sought.
Comment Attorneys occasionally receive papers from outside of the expected sources. Such materials may have been sent anonymously. The materials should be treated differently depending on both their source (if known) and apparent nature.
Clearly confidential or privileged material, regardless of the sender, should be returned to the other lawyer, preferably unread. If the materials are the subject of a proper discovery request but were improperly withheld, the receiving lawyer should deposit them with the court and seek a ruling as to their proper disposition.[88]
Documents not clearly confidential may be used by the receiving attorney. For example, a lawyer receiving an unmarked envelope containing statements of undisclosed accounts in the name of the other party may use the materials. A receiving lawyer who believes the materials were intentionally withheld from a response to a proper discovery request should report the fraud to the court.
7.8 An attorney should cooperate in the exchange of information and documents. An attorney should not use the discovery process for delay or harassment, or engage in obstructionist tactics.
Comment As a basic rule of courtesy and cooperation, attorneys should try to conduct all discovery by agreement, never using the discovery process to harass other counsel or their clients. This principle applies both to attorneys attempting to obtain discovery and to those from whom discovery is sought.[89] The discovery rules are designed to eliminate or reduce unfair surprise, excessive delay and expense, unnecessary and futile litigation, and the emotional and financial cost of extended and overly adversarial litigation. In addition, pretrial discovery often results in settlements more beneficial than protracted litigation. In no area of the law are these benefits more important than in matrimonial law, where the necessity of future dealings between the parties and the interest in protecting the emotional and psychological stability of children necessitate avoiding unnecessary litigation and acrimony. It is in the interest of all parties (including the client) to assist, rather than resist, legitimate discovery.
Consistent with this view of discovery in family law cases as information gathering rather than as adversarial weapon, a number of jurisdictions have now adopted codes of professional courtesy and have imposed mandatory disclosure requirements on all divorcing spouses.[90] In many states the fiduciary responsibility for interspousal disclosure is confirmed explicitly by statute, rule, or in approved discovery request forms.[91]
It is in the interest of all counsel and the parties to avoid improper tactics. In a misguided effort to advance the interests of their clients, attorneys may be tempted to wear down the opposing party or counsel by means of oppressive hardball discovery tactics. These tactics do not advance the legitimate interests of clients and are clearly improper. Improper discovery conduct under this Goal includes: avoidance of compliance with discovery through overly narrow construction of interrogatories or requests for production; objection to discovery without good faith basis; improper assertion of privilege; production of documents in a manner designed to hide or obscure the existence of particular documents; direction to parties and witnesses not to respond to deposition questions without adequate justification; requests for unnecessary information that does not bear on the issues in the case; and requests for sanctions before making a good faith effort to resolve legitimate discovery disputes.
Counsel’s behavior during depositions is as important as behavior before the court. Because most cases are settled rather than tried to a court, the deposition process may be a party’s only measure of acceptable behavior when solving the problems of the parties, currently and in the future. Attorneys therefore should conduct themselves in deposition with the same courtesy and respect for the legal process as is expected in court. For example, they should not conduct examinations or engage in other behavior that is purposely offensive, demeaning, harassing, intimidating, or that unnecessarily invades the privacy of anyone. Attorneys should attempt to minimize arguments during deposition, and if sensitive or controversial matters are to be the subject of deposition questioning, when not contrary to the client’s interests, the deposing attorney should consider discussing such matters in advance to reach any appropriate agreements.
With the focus of discovery being the legitimate pursuit of information rather than strategic confrontation, attorneys should not coach deponents by objecting, commenting, or otherwise acting in a manner that suggests a particular answer to a question, or object for the purpose of disrupting or distracting the questioner or witness. Objections should only be made in the manner and on grounds provided by applicable court rules. Attorneys should not intentionally misstate facts, prior statements or testimony. Such conduct increases the animosity without legitimate purpose.
Although not required under this Goal, the Fellows of the Academy believe that a mandatory disclosure provision would best promote the cooperative, problem-solving approach of the Bounds of Advocacy. Therefore, the Academy recommends adoption in each state of a mandatory discovery provision.[92]
7.9 An attorney should grant to other counsel reasonable extensions of time that will not have a material, adverse effect on the legitimate interests of the client.
Comment The attorney should attempt to accommodate counsel who, because of schedule, personal considerations, or heavy workload, requests additional time to prepare a response or comply with a legal requirement. Such accommodations save the time and expense of unnecessary motions and hearings. No lawyer should request an extension of time to obtain an unfair advantage.
7.10 An attorney should clear times with other counsel and cooperate in scheduling hearings and depositions.
Comment Good faith attempts by attorneys to avoid scheduling conflicts tend to avoid unnecessary delays, expense to clients and stress to attorneys and their staff. In return, other counsel should confirm the availability of the suggested time within a reasonable period and should indicate conflicts or unavailability only when necessary. As prior consultation concerning scheduling is a courtesy measure, it is proper to schedule hearings or depositions without agreement if other counsel fails or refuses to respond promptly to the time offered, raises unreasonable calendar conflicts or objections, or persistently fails to comply with this Goal.
7.11 An attorney should provide notice of cancellation of depositions and hearings at the earliest possible time.
Comment Adherence to this Goal will avoid unnecessary travel, expense and expenditure of time by other counsel, and will also free time for the court for other matters. The same principles apply to all scheduled meetings, conferences and production sessions with other counsel.
7.12 An attorney should submit proposed orders promptly to other |