The Lawyers Role in Family Dissolution Ethical and Practical Concerns
Family Law Context Important • Volatile and emotional atmosphere. • Difficult for family lawyers to represent the interests of their clients without addressing the interests of other family members. • The parties in family disputes may interact for many years to come. • Should family lawyers be obligated to consider the best interests of children, regardless of which family member they represent?
Zealous Advocate Model • Only job is to win • However, the emphasis on zealous representation of individual clients used in criminal and some civil cases is seldom appropriate in family law matters. • Public opinion increasingly supports other models of practice and methods of conflict resolution.
Counseling Model • Counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family • Sometimes referred to as "constructive advocacy" • Includes consideration of all available means of settling disputes. • Family lawyers should recognize the effect that their words and actions have on their clients’ attitudes about the justice system, not just on the "legal outcome" of their cases. • As a counselor, the lawyer encourages problem solving by the client.
Professional and Ethical Standards • Minimal Ethical Standards: • ABA Model Code of Professional Responsibility • ABA Model Rules of Professional Conduct • Florida Rules of Professional Conduct • Aspirational Standards (higher level of conduct): • AAML Bounds of Advocacy (Specific to Family Law) • Florida Family Law Bounds of Advocacy (Adapted from AAML Bounds)
Minimal Standards - Competence • RULE 4-1.1 COMPETENCEA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Comment to Rule • In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include • The relative complexity and specialized nature of the matter • The lawyer's general experience • The lawyer's training and experience in the field in question • The preparation and study the lawyer is able to give the matter • Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
Preparation • Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. • It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence. • The lawyer should consult with the client about the degree of thoroughness and the level of preparation required as well as the estimated costs involved under the circumstances.
Maintaining Competence • To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.
Lawyer’s vs Client’s Role • RULE 4-1.2 OBJECTIVES AND SCOPE OF REPRESENTATION(a) Lawyer to Abide by Client's Decisions. A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to subdivisions (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to make or accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
Comment to Rule • [A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
Duty to Advise • RULE 4-1.4 COMMUNICATION(a) Informing Client of Status of Representation. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Comment to Rule • The client should have sufficient information to participate intelligently in decisions concerning 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. • For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party, and take other reasonable steps that permit the client to make a decision regarding a serious offer from another party.
Limitations on Contingent Fees RULE 4-1.5(f) FEES AND COSTS FOR LEGAL SERVICES(3) A lawyer shall not enter into an arrangement for, charge, or collect: • (A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.
Comment to Rule • In domestic relations cases, fees that include a bonus provision or additional fee to be determined at a later time and based on results obtained have been held to be impermissible contingency fees and therefore subject to restitution and disciplinary sanction as elsewhere stated in these Rules Regulating The Florida Bar. • Note: Many other states expressly permit fee bonuses for “results obtained.”
Protecting Confidential Information • RULE 4-1.6 CONFIDENTIALITY OF INFORMATION(a) Consent Required to Reveal Information. A lawyer shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client consents after disclosure to the client.
Exceptions – Must Reveal • (b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:(1) to prevent a client from committing a crime; or(2) to prevent a death or substantial bodily harm to another.
Exceptions – May Reveal (c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:(1) to serve the client's interest unless it is information the client specifically requires not to be disclosed;(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or(5) to comply with the Rules of Professional Conduct.
Conflict of Interest • RULE 4-1.7 CONFLICT OF INTEREST; GENERAL RULE(a) Representing Adverse Interests. A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:(1) the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client; and(2) each client consents after consultation.
Comment to Rule • Subdivision (a) prohibits representation of opposing parties in litigation. • This rule prohibits a lawyer from representing both parties in a divorce action.
Aspirational Standards – Florida Family Law Bounds of Advocacy • In 2002, Caroline Black, then Chair of the Family Law Section of The Florida Bar, and Chair-Elect Richard West, appointed a committee to review the Bounds of Advocacy of the AAML and to adapt them to Florida practice for the guidance of family lawyers in our state. • The committee reviewed, modified, and adapted the AAML Bounds of Advocacy to conform to Florida law and practice. • Full text of Bounds of Advocacy available on course Web site.
Professional Cooperation and Administration of Justice • 1.1 - An attorney should strive to lower the emotional level of family disputes by treating counsel and the parties with respect. • 1.2 - An attorney should stipulate to undisputed relevant matters. • 1.3 - An attorney should not deceive or intentionally mislead other counsel. • 1.4 - An attorney should neither overstate the authority to settle nor represent that the attorney has authority that the client has not granted. • 1.5 - An attorney should not induce or rely on a mistake by other counsel as to agreed on matters to obtain an unfair benefit for the client.
…continued • 1.6 - An attorney who receives materials that appear to be confidential should refrain from reviewing the materials and return them to the sender. • 1.7 - An attorney may use materials intentionally sent from an unknown or unauthorized source unless the materials appear to be privileged, confidential, or improperly obtained. • 1.8 - 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. • 1.9 - An attorney should grant to other counsel reasonable extensions of time that will not have a material, adverse effect on the legitimate interest of the client. • 1.10 - An attorney should clear times with other counsel and cooperate in scheduling hearings and depositions.
…and • 1.11 - An attorney should provide notice of cancellation of depositions and hearings at the earliest possible time. • 1.12 - An attorney should promptly submit proposed orders to other counsel before submitting them to the court. When received, other counsel should promptly communicate approval or objections. • 1.13 - An attorney should not seek an ex parte order without prior notice to other counsel, except in exigent circumstances. • 1.14 - An attorney should not attempt to gain advantage by delay in the service of filed pleadings or correspondence on other counsel.
Competence and Advice • 2.1 - An attorney is responsible for the competent handling of all aspects of a representation, no matter how complex.
Comment to Rule • Family law matters almost always involve issues beyond questions of dissolution of marriage, parental responsibility, and support, such as property, tax, business entities, trusts and estates, bankruptcy, and pensions. • All family lawyers should possess enough knowledge to recognize the existence of potential issues in the myriad legal areas relevant to the representation. • That knowledge is not limited to legal information. Children’s issues require knowledge of child development and, at times, understanding of mental and emotional disorders. • A family lawyer should also be familiar with the dynamics of domestic violence and alcohol and chemical dependence as well as appropriate intervention for families that experience these issues.
Encourage Reconciliation • 2.2 - An attorney should advise the client of the emotional and economic impact of restructuring family relationships and explore the possibility of reconciliation.
Comment to Rule • The divorce process can exact a heavy economic and emotional toll. The decision to dissolve a marriage should never be made casually. An attorney should discuss reconciliation and whether the client has considered counseling or therapy. • A lawyer's role in family matters is to act as a counselor and advisor, as well as an advocate. • The Rules of Professional Conduct specifically permit the lawyer to address moral, economic, social, and political factors, that may be relevant to the client's situation.
Reduce level of hostility • 2.3 - An attorney should refuse to participate in vindictive conduct and should strive to lower the emotional level of a family dispute by treating all other participants with respect.
Comment to Rule • Some clients expect and want the family lawyer to reflect the highly emotional and vengeful personal feelings between the parties. • The attorney should counsel the client that discourteous and retaliatory conduct is inappropriate, unprofessional and counterproductive. • Respect is consistent with competent and ethical representation. It is unprofessional for the attorney to act otherwise.
Avoiding unnecessary litigation • 2.4 - An attorney should know about different methods of dispute resolution.
Comment to Rule • Many clients favor a problem-solving model over litigation. • It is essential that family lawyers have sufficient knowledge about 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.
Conveying Information to the Client • 3.2 - An attorney must provide sufficient information to permit the client to make informed decisions.
Comment to Rule • The lawyer should explain the matter to the extent necessary to permit the client to make informed decisions. • 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. • The client should receive from the attorney a copy of every pleading, motion, and item of correspondence.
Relationships with Clients and Others • 4.4 - An attorney should not have a sexual relationship with a client, opposing counsel, or a judicial officer assigned to the case during the time of the representation.
Comment to Rule • Persons in need of a family 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. • These risks, present in all lawyer-client sexual relations, are particularly serious in family law matters. • Note: Both Florida’s rule and the ABA’s model rule permit lawyers to continue in non-exploitive preexisting sexual relations with clients.
Legal Malpractice Concerns • Errors of judgment not generally actionable • Failure to advise of uncertainty in law may be actionable • Failure to conduct discovery before trial or advising to settle generally actionable, unless expressly waived in writing by client
Most Important Malpractice Trap? • Failing to communicate with clients • Clients will forgive almost any failing, including losing on important issues, if you keep them informed of the progress of the case • How? • Send client copies of everything that comes in or goes out on their case • Return their telephone calls promptly (same day or next day) • Let them know each month how much they owe in fees
Closing Thoughts • Family Lawyers Lament • Difficult but rewarding area that requires special skills, temperament, and empathy.