Competence and Advice
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.