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.