Notes 1-65
[1] Concern for the problems and expense of the divorce system has caused an increasing number of parties to attempt to navigate the process without the assistance of a lawyer. See Bruce D. Sales et al., Self-Representation in Divorce Cases, 1993 ABA Standing Comm. on Delivery of Legal. Serv. 34 (study of Maricopa County (Phoenix) Arizona found in 1990 that no lawyer was involved in 52% of divorce cases, and at least one party represented herself or himself in about 90% of divorce cases). The study followed a similar study of Maricopa County divorces that found pro se representation in the period 1980-85 rose from 24% to 47%. Stephen R. Cox & Mark Dwyer, A Report on Self-Help Law: Its Many Perspectives, 1987 ABA Special Comm. On Delivery of Leg. Serv. 34. See also Robert B. Yegge, Divorce Litigants Without Lawyers, 28 Fam. L.Q. 407 (1994); Responding to the Needs of the Self- Represented Divorce Litigant, 1994 ABA Standing Comm. on the Delivery of Legal Serv. 5.
[2] Under ABA Code of Professional Responsibility (CPR) DR 7-101 (originally enacted in 1969), an attorney was instructed to represent a client “zealously.” Although Canon 7 of the CPR required zealous representation to be “within the bounds of the law,” commentators, supported by disciplinary cases, noted that some attorneys appeared to equate “zealousness” with “overzealousness.” Also noted was the “lack of fit between ‘zealousness’ and the proper quality of representation in non-adversarial situations, such as office counselling.” Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 1.3.101, at p.70 (2d ed. 1990). The ABA Model Rules of Professional Conduct (RPC) (1983) eliminated the term “zealously,” referring instead to “competence” (RPC 1.1) and “reasonable diligence and promptness” (RPC 1.3).
[3] RPC, Scope section.
[4] See, e.g., Martin v. Northwest Washington Legal Services, 43 Wn.App. 405, 717 P.2d 779 (1986) (Lawyer and firm found to be negligent, giving rise to viable malpractice claim, in failing to inquire about, discuss, or seek division of client’s husband’s military pension; expert testimony and affidavits established the duty of a reasonably competent attorney to make such an inquiry into division of military pension in a dissolution case where the attorney was on notice that one of the parties was a member of the Armed Services).
[5] RPC 1.1
[6] See, e.g., In re Yetman, 552 A.2d 121 (N.J. 1989) (failure of lawyer who had no experience in estate matters to refer complex matter to another lawyer violated the lawyer’s duty of competence; once it became clear that a case the attorney originally thought was simple became more complicated, case should have been turned over to new counsel).
[7] See Goals 2.4 and 4.6 as to the issue of the client's refusal to give consent or inability to pay for costs. Nothing in this Comment should be construed to require the attorney to advance costs.
[8] RPC 2.1.
[9] ABA Comment, RPC 2.1.
[10]RPC 1.2. See also ABA Comment to Rule 1.2: “[A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. . . . The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.”
[11]See ABA Comment to RPC 2.1: “Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; . . . Where consultation with a professional in another field is something a competent lawyer would recommend, the lawyer should make such a recommendation.” For example, it may be appropriate for a professional with counseling training to deal with custody or visitation issues, whereas a financial expert might be needed to deal with division of property questions.
[12] See Jessica Pearson & Nancy Thoennes, The Benefits Outweigh the Costs in Divorce Mediation: Readings, at p.94 (ABA 1985) (“[S]uccessful mediation clients are less likely to report problems with their court orders and more likely to report that their spouses are in total compliance”). See also Daniel J. Guffman, For Better or Worse, Till ADR Do Us Part: Using Antenuptial Agreements to Compel Alternatives to Traditional Adversarial Litigation, 12 Ohio St. J. on Disp. Resol. 175 (1996).
[13] There is substantial evidence of the destructive effect of divorce conflict on the children. See, e.g., Paul Amato, Life-span Adjustment of Children to Their Parents’ Divorce, in 4 The Future of Children: Children and Divorce (David & Lucille Packard Found. 1994); Johnston, J.R. Kine & J.M. Tschann, Ongoing Postdivorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 Amer. J. of Orthopsych. 576-592 (1989); L.A. Kurdek & B.Berg, Correlates of Children’s Adjustment to Their Parents’ Divorces, in Children and Divorce (Kurdek ed. 1983); R. Emery, Interparental Conflict and the Children of Discord and Divorce, 92 Psych. Bull. 310-330 (1982). In addition, divorce litigation has an adverse effect on the parental relationship. See J. Kelly & M.A. Duryee, Women’s and Men’s Views of Mediation in Voluntary and Mandatory Settings, 30 Fam. and Conciliation Ct. Rev. 43-49 (1992); J.B. Kelly, L. Gigy & S. Hausman, Mediated and Adversarial Divorce: Initial Findings From a Longitudinal Study, in Folberg & A. Milne (eds.), Divorce Mediation: Theory and Practice (N.Y. 1988).
[14] See Stephen C. Bowman, Idaho’s Decision on Divorce Mediation, 26 Idaho L. Rev. 547, 549-550 (1989/1990): “Compliance with child support orders has been shown to be fifty percent higher when achieved through voluntary agreement rather than when court-ordered.” (Citing William A. Waddell, Improving Child Support Payments, 8 Mediation Quarterly 57, 63 (Sept. 1985)). See also Howard Irving & Michael Benjamin, Family Mediation: Contemporary Issues (Sage Publ. 1995) (“Common sense suggest that such satisfaction (with mediation processes) should be related to greater compliance with the terms of the agreement, as it was in a number of studies (Bahr, 1981; Emery & Wyer, 1987); Irving & Benjamin, 1992; Johnson et al., 1985; Person & Thoennes, 1985; Waldron et al. 1984)”).
[15] See, e.g., Matter of Knobel, 699 N.E.2d 1142, 1145 (Ind. 1998) (“By failing to explain the status of his clients’ representations to them so that they could make informed decisions, the respondent violated [Ind.] Prof.Cond.R. 1.4(b)”).
[16] ABA Comment, RPC 1.4.
[17] RPC 1.4(a).
[18] See, e.g., Matter of Knobel, 699 N.E.2d 1142, 1145 (Ind. 1998) (“We find that the respondent violated Ind. Professional Conduct Rule 1.4(a) by failing to keep his clients informed about the status of their [marital] actions and by failing to respond to their requests for information”).
[19] RPC 2.1. See In re Marriage of Bonds, 71 Cal.App.4th 290, 83 Cal.Rptr.2d 783, 810 (1999) (stressing the importance of independent consultation and advice regarding prenuptial agreement because “the heightened emotions and optimism which often precede marriage may hinder people from considering what may be in their long-term best interests. After all, marriage itself has been referred to as the ‘triumph of hope over experience’.”), review granted and opinion superseded by 981 P.2d 40, 87 Cal.Rptr.2d 410 (1999); In re Foran, 67 Wash.App.2d 242, 834 P.2d 1081 (1992) (“A client is not well served by an unenforceable contract. Marital tranquility is not achieved by a contract which is economically unfair or achieved by unfair means”).
[20] CPR, EC 7-7.
[21] RPC 1.2(a).
[22] ABA Comment, RPC 1.2.
[23] See RPC 1.14 and ABA Comment. Under RPC 1.14(b), “[a] lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.” But cf. RPC 1.14(a) providing that the lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” See also ABA Comment to RPC 1.14: “In many circumstances, however, appointment of a legal representative may be expensive or traumatic for the client.” And, the matrimonial lawyer must always be certain that the client’s best interests, rather than the lawyer’s personal moral or religious views, motivate the lawyer’s conduct.
[24] ABA Comment, RPC 1.14.
[25] See, e.g., Crenshaw v. Crenshaw, 646 So.2d 661 (Ala. 1994) (attorney-client privilege does not exist when client to attorney communications are made in the presence of a third party whose presence is not necessary for successful communication between the attorney and the client).
[26] See, e.g., Dietz v. Doe, 131 Wash.2d 835, 850, 935 P.2d 611, 619 (1997) (“Waiver may occur when the communication is made in the presence of third persons on the theory that such circumstances are inconsistent with the notion that the communication was ever intended to be confidential”); State v. Post, 32 Ohio St. 3d 380, 513 N.E.2d 754 (1987) (client’s disclosure to third party of communications made pursuant to attorney-client privilege breaches confidentiality underlying privilege and constitutes waiver).
[27] RPC 1.8(f). Accord, DR 5-107(A)(1).
[28] See RPC 2.1 and Comment. See also Samuel M. Davis, The Role of Attorney in Child Advocacy, 32 U. Louisville J. Fam. L. 817, 829 (1994) (“In the attorney’s role as counselor, the attorney is in a position to advise and help the child to understand not only what the child’s choices are but also the potential consequences of those choices”); Robyn Marie-Lyon, Speaking for a Child: The Role of Independent Counsel for Minors, 75 Calif. L. Rev. 681, 695 (1987); Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Fordham L. Rev. 1655, 1691 (1996) (“When the attorney perceives the client as competent and she values client autonomy, she should treat the child as she would an adult and advise the child fully and candidly about her case. The lawyer should not manipulate or coerce the child into choosing a particular course of action or usurp the client’s decision-making authority. . . . Additionally, the attorney should acknowledge her responsibility to counsel the child about non-legal matters and should make the client aware of other professional treatment services.”).
[29] RPC 1.2(c).
[30] RPC 1.2(a). See ABA Comment: “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.”
[31] See RPC 3.6 and Comment.
[32] See RPC 3.6(c), providing that a lawyer “may make a statement a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.” See also Cal. St. RPC Rule 5-120.
[33] ABA CPR Ethical Consideration 5-1 provides:
The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the loyalty to his client.
[34] RPC 1.7(b).
[35] See generally Kristi Saylors, Conflicts of Interest in Family Law, 28 Fam. L.Q. 451 (1994).
[36] ABA Comment to RPC 1.7. For example, an attorney representing a husband with respect to his corporation would be precluded from representing his wife against him in an unrelated dissolution of marriage or custody proceeding.
[37] However, the ABA Comment to Rule 2.2 states:
In considering whether to act as intermediary between clients, a lawyer should be mindful that if the intermediation fails the result can be additional cost, embarrassment and recrimination. In some situations the risk of failure is so great that intermediation is plainly impossible. For example, a lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious negotiations. More generally, if the relationship between the parties has already assumed definite antagonism, the possibility that the clients’ interests can be adjusted by intermediation ordinarily is not very good.
Rule 2.2 does not apply to a lawyer acting as arbitrator or mediator between or among parties who are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of both parties.
[38] See, e.g., Walden v. Hoke, 189 W.Va. 222, 227, 429 S.E.2d 504, 509 (1993)(unethical for lawyer to represent husband and wife at any stage of separation and divorce proceeding, even if simple or uncontested and with full disclosure and informed consent); Board of Bar Overseers of the Bar v. Dineen, 500 A.2d 262 (Maine 1985).
[39] This Goal does not apply in adoption proceedings or other matters where the spouses’ positions are not adverse.
[40] Cf. RPC 2.2 (permitting intermediation between two clients only under extremely narrow circumstances that would not include a dispute between two family members).
[41] See Walden v. Hoke, 189 W.Va. 222, 228, 429 S.E.2d 504, 510 (1993) (regardless of how simple, amicable, and uncontested the divorce may be, the preparation of documents for the opposing party raises the possibility of prejudice and presents the appearance of impropriety).
[42] See RPC 4.3.
[43] See ABA Comment, RPC 4.3 (“During the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.”). Accord, DR 7-104(A)(2). See Pa. Bar Op. 96-145 (1996) (lawyer representing wife in divorce action may comply with unrepresented husband’s request for a meeting to review financial information; but lawyer must not state or imply that she is disinterested, give legal advice to the husband, and must correct any misunderstanding husband may have about her role in the negotiation).
[44] To an increasing degree, states have adopted specific limitations on attorney-client sexual relations. See, e.g., Calif. RPC Rule 3-120 (1998); Florida RPC Rule 4-8.4(i) (1998); Minn. RPC Rule 1.8(k) (1998); Wisc. RPC SCR 20:1.8(k)(2) (1998). In addition, a number of state court decisions have found that an attorney’s sexual relations with a client constitutes “moral turpitude,” justifying the imposition of disciplinary sanctions despite the absence of an express rule banning such conduct. See, e.g., Matter of DiSandro, 680 A.2d 73, 75 (R.I. 1996); People v. Good, 893 P.2d 101, 103 (Colo. 1995) (“Because the lawyer stands in a fiduciary relationship with the client, an unsolicited sexual advance by the lawyer debases the essence of the lawyer-client relationship”); In re Heard, 136 Wash.2d 405, 963 P.2d 818 (1998). See Jennifer Tuggle Crabtree, Comment, Does Consent Matter? Relationships Between Divorce Attorneys and Clients, 23 J. Legal. Prof. 221 (1999).
[45] Matrimonial lawyers and clients would normally enter into a mutually executed fee agreement. However, some attorney-client relationships would justify the attorney’s drafting a letter confirming an oral agreement. Such a confirming letter would be permissible under this Goal, provided that the client indicates approval in writing.
[46] When appropriate, this information might include the fact that total fees and costs cannot be predicted. RPC 1.5(a) provides that the factors in determining a reasonable fee include:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
[47] See RPC 1.5(b). According to the Comment to RPC 1.5:
It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding.
[48] See, e.g., Calif. Bus. & Prof. Code § 6148(a) (requiring that the fee agreement be in writing whenever it is reasonably foreseeable that the total expense to the client will exceed $1000); D.C. RPC 1.5(b) (“When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation”); N.J. RPC 1.5(b); DeGraaf v. Fusco, 660 A.2d 9 (N.J. Super. Ct., App. Div. 1995) (error not to instruct jury that Rule 1.5(b) requires lawyers to put fee agreement in writing). Conn. RPC 1.5(b) (fee agreement, including substantial detail concerning the scope of the matter and client responsibility for costs and expenses, must be in writing); Alaska Ethics Op. 95-4 (1995) (written statement of costs required); Cf. Kaplan v. Pavalon & Gifford, 806 F.Supp. 192 (N.D. Ill. 1992), aff’d 12 F.3d 87 (7th Cir. 1993) (fee-sharing agreement void because not reduced to writing). See generally, Lawrence A. Dubin, Client Beware: The Need for a Mandatory Written Fee Agreeement Rule, 51 Okla. L. Rev. 93 (1998).
[49] See, e.g., In re Marriage of Pitulla, 491 N.E.2d 90 (Ill.App. 1986) (client entitled to evidentiary hearing concerning portion of dissolution judgment requiring payment of attorney’s fees; court noted that client’s repeated requests for itemization of fees had been denied by attorney, and the court held that the client’s right to know services lawyer performed and time spent on the case is implied in every lawyer-client contract).
[50] As stated in the Comment to RPC 1.5: “A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer’s special knowledge of the value of the property.” Some jurisdictions do not permit an attorney to take a security interest in a client’s property. In those jurisdictions that do permit such a security interest, the attorney should be sensitive to the need of the client for use of the property involved. In matrimonial law matters where marital property is the subject of litigation, the potential for conflict is increased.
[51]See RPC 1.15.
[52] See, e.g., Head v. Head, 66 Md.App. 655, 505 A.2d 868 (1986) (fee based in part on results obtained and not on percentage of any amount recovered or saved was not contingent); In re Marriage of Malec, 205 Ill.App.3d 273, 287-88, 562 N.E.2d 1010, 150 Ill.Dec. 207 (1990) (consideration of results achieved does not necessarily make fee agreement contingent).
[53] Charles Wolfram, Modern Legal Ethics § 9.4.4, at p.539 (West 1986) (citing cases).
[54] Id. At p.540, citing McDearmon v. Gordon & Gremillion, 247 Ark. 318, 445 S.W.2d 488 (1969).
[55] See, e.g., Pfohl v. Pfohl, 345 So.2d 371 (Fla. Ct. App. 1977) (wife ordered to pay $30,000 for husband’s attorney’s fees in dissolution action where wife had over $4 million in assets compared to husband’s $200,000); Finley v. Finley, 422 N.E.2d 289 (Ind. Ct. App. 1981) (husband ordered to pay $350,000 in wife’s attorney’s fees); Werk v. Werk, 416 So.2d 483 (Fla. Ct. App. 1982) (order for wife to pay $10,000 in fees to husband’s attorney affirmed where husband had been excluded from business and home owned by wife so that he was without income or support). See generally Wenona Y. Whitfield, Where the Wind Blows: Fee Shifting in Domestic Relations Cases, 14 Fla. St. U. L. Rev. 811-813 (1987) (collecting cases).
[56] Wolfram, supra note 53, at p.540.
[57] See, e.g., Levine v. Levine, 206 Misc. 884, 135 N.Y.S.2d 304 (1954).
[58] See RPC 1.5(d)(1).
[59] See, e.g., Fletcher v. Fletcher, 227 Ill.App.3d 194, 591 N.E.2d 91, 93, 169 Ill.Dec. 211 (1992) (“Contingent fees are not allowed in dissolution cases when contingent upon obtaining the dissolution or based upon the financial aspects of the dissolution”); Licciardi v. Collins, 180 Ill.App.3d 1051, 1061, 536 N.E.2d 840, 847-848, 129 Ill.Dec. 790, 797 (1989) (illegal contingent fee agreement in a dissolution case bars recovery even under a theory of quantum meruit): “[W]e believe the public policy behind the rule so important that, as long as an attorney’s services are employed with respect to the division of marital property, the rule bars contingent fees therefor whether or not a judgment of dissolution has or has not been entered when the attorney is retained.”
[60] See, e.g., In re Marriage of Malec, 205 Ill.App.3d 273, 562 N.E.2d 1010, 150 Ill.Dec. 207 (1990) (agreement in which client offered to pay $1,000,000 if certain results were obtained held to be illegal contingent fee agreement).
[61]See RPC 1.16(d).
[62]RPC 1.16(b) provides that a lawyer may withdraw if she can do so “without material adverse effect on the interests of the client, or if: . . . (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”
[63] It should be noted that states vary concerning the circumstances in which a lawsuit will be permitted. Thus, for example, a lawsuit to obtain fees would be invalid in California unless the client first had an opportunity to arbitrate.
[64] RPC 1.2(d).
[65] Such conduct may also constitute a fraud upon the client’s children. See, e.g., In re Shaeffer, 824 S.W.2d 1 (Mo. 1992) (attorney’s representation of a marital dissolution client’s girlfriend in a “friendly suit” against the client for the purpose of transferring money from the client to the girlfriend without the knowledge of the client’s adult children found to be prejudicial to the administration of justice and reflect adversely on attorney’s fitness to practice law).