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 counsel before submitting them to the court. When submitted, other counsel should promptly communicate approval or objections.
Comment
Proposed orders following a hearing should generally be submitted at the earliest practicable time.
7.13 An attorney should not seek an ex parte order without prior notice to other counsel except in exigent circumstances.
Comment
There are few things more damaging to a client's confidence in his lawyer, or to relationships between lawyers, than for a party to be served with an ex parte order about which his lawyer knows nothing.[93] Even where there are exigent circumstances (substantial physical or financial risk to the client), or where local rules permit ex parte proceedings, notice to, or the appearance of, other counsel usually will not be able to prevent appropriate relief from issuing.
7.14 An attorney should not attempt to gain advantage by delay in the service of filed pleadings or correspondence upon other counsel.
Comment
When pleadings or correspondence are mailed or delivered to the court, copies should normally be transmitted on the same day and in the same manner to all other counsel of record. An identical method need not be employed, so long as delivery on the same day will be achieved. For example, if the court is one block from counsel's office and opposing counsel's office is 50 miles away, it would be acceptable to hand deliver a document to the court and to fax it to counsel so that it arrived on the same day.