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]