Preliminary Statement
The primary purpose of the Bounds of Advocacy: Goals for Family Lawyers is to guide matrimonial lawyers confronting moral and ethical problems. Existing codes often do not provide adequate guidance to the matrimonial lawyer. The ABA’s Model Rules of Professional Conduct (“RPC”) are addressed to all lawyers, regardless of the nature of their practices. This generally means that, with rare exceptions, issues relevant only to a specific area of practice cannot be dealt with in detail or cannot be addressed at all. Many Fellows of the American Academy of Matrimonial Lawyers have encountered instances where the RPC provided insufficient, or even undesirable, guidance. Most attorneys—and presumably all Academy Fellows—are able to distinguish “black” (unethical or illegal conduct) from “white” (ethical and proper practice). These Goals are therefore directed primarily to the “gray” zone where even experienced, knowledgeable matrimonial lawyers might have concerns, and constitute an effort to provide clear, specific guidelines in areas most important to matrimonial lawyers.
Conduct permitted by the RPC cannot form the basis for state bar or court discipline. Hence, the Goals here established for matrimonial lawyers use the terms “should” and “should not,” rather than “must,” “shall,” “must not” and “shall not.” Because the Bounds of Advocacy aspires to a level of practice above the minimum established in the RPC, it is inappropriate to use the Goals to define the level of conduct required of lawyers for purposes of malpractice liability or state bar discipline.
Some Goals elaborate upon RPC rules or relate those Rules to issues confronting matrimonial lawyers. Each Goal is followed by a Comment. The Comments are intended to explain, provide examples of conduct addressed and, in some instances, suggest limitations of the application of the Goal.
Few human problems are as emotional, complicated or seem so important as those problems people bring to matrimonial lawyers. The break-up of a marriage will be felt not only by the couple but also by other family members and often by friends and others with personal or business relationships with the parties. The problems and expense of the divorce system can be daunting.[1]
Family law disputes occur in a volatile and emotional atmosphere. It is difficult for matrimonial lawyers to represent the interests of their clients without addressing the interests of other family members. Unlike most other concluded disputes in which the parties may harbor substantial animosity without practical effect, the parties in matrimonial disputes may interact for years to come. In addition, many matrimonial lawyers believe themselves obligated to consider the best interests of children, regardless of which family member they represent. A 1988 survey of Academy Fellows indicated that the harm done to children in an acrimonious family dispute was seen as the most significant problem for which there is insufficient guidance in existing ethical codes.
The matrimonial lawyer serves many functions. Often the appropriate role is to be a skilled litigator, the person who can help clients achieve their goals in court or in arbitration. The lawyer has always had additional roles as well. The matrimonial lawyer’s job includes discussing with the client the available personal and financial choices that must be made. Many lawyers now serve as mediators or represent clients in mediation. Others represent clients in arbitration, or serve as neutral arbitrators.
Litigation demands some of the lawyer’s very highest skills, those traditionally associated with effective courtroom advocacy. These Bounds of Advocacy reflect the availability of additional ways to resolve disputes. When litigation is employed, the matrimonial lawyer should conduct it constructively because the parties to a matrimonial case will often find it necessary to interact with each other for years after they leave the courtroom. Advocacy skills may also be used to the client’s advantage in arbitration or mediation. An effective advocate’s stock in trade is the power to persuade.
The traditional view of the matrimonial lawyer (a view still held by many practitioners) is of the “zealous advocate” whose only job is to win.[2] However, the emphasis on zealous representation of individual clients in criminal and some civil cases is not always appropriate in family law matters. Public opinion (both within and outside the AAML) has increasingly supported other models of lawyering and goals of conflict resolution in appropriate cases. A counseling, problem-solving approach for people in need of help in resolving difficult issues and conflicts within the family is one model; this is sometimes referred to as “constructive advocacy.” Mediation and arbitration offer alternative models. Mediation is a method of resolving disputes in which a trusted neutral attempts to facilitate a compromise between the parties. Arbitration involves the hiring of a respected neutral to hear both sides, then make a decision that will resolve the controversy.
Matrimonial lawyers should recognize the effect that their words and actions have on their client’s attitudes about the justice system, not just on the “legal outcome” of their cases. As a counselor, a problem-solving lawyer encourages problem solving in the client. Effective advocacy for a client means considering with the client what is in the client’s best interests and determining the most effective means to achieve that result. The client’s best interests include the well being of children, family peace, and economic stability. Clients look to attorneys’ words and deeds for how they should behave while involved with the legal system. Even when involved in a highly contested matter, divorce attorneys should strive to promote civility and good behavior by the client towards the parties, the lawyers and the court.
In recent years, an increasing number of individual lawyers and associations have observed a widening gap between the minimum level of ethical conduct mandated by the RPC and the much greater level of professionalism to which all attorneys should aspire. Some attorneys have ignored the caveat that the Rules do not "exhaust the moral and ethical considerations" that characterize the practice of law at the highest level.[3] Local and state bar associations, along with a number of state and federal courts, have adopted codes of professionalism attempting to raise the level of practice above the ethical minimum necessary to avoid discipline.
These Bounds reaffirm the attorney's obligation to competently represent individual clients. These Bounds also promote a problem-solving approach that considers the client’s children and family as well. In addition, they encourage efforts to reduce the cost, delay and emotional trauma and urge interaction between parties and attorneys on a more reasoned, cooperative level.
In drafting these Bounds of Advocacy, the Committee observed a number of conventions:
(1) Whenever the Goals or comments refer to “an attorney,” “lawyer” or “matrimonial lawyer,” the reference is to an attorney practicing family law, exclusively or in an individual case. This area of practice is described in many ways, including “divorce,” “domestic relations” and “family law.” In the absence of a universally accepted designation, the choice was the term used by the AAML — “matrimonial law.”
(2) The conduct of attorneys, in general, is covered in the RPC or CPR. Therefore, an effort was made to avoid repetition of rules and principles already addressed in the CPR and RPC. For example, the basic conflicts of interest requirements are addressed in the CPR and RPC. These Bounds address only those conflicts where additional guidance was deemed desirable, or where the RPC and CPR do not adequately address the unique requirements of family law practice. For that reason these Bounds do not address the matrimonial lawyer’s obligation of honesty and candor in dealing with the Court since that obligation is adequately covered by other bodies of law.
(3) Citation to legal authority has been kept to a minimum. However, to indicate the basis and provide some support for the Goals and Comments, some footnotes have been added to this version of the Bounds of Advocacy. Where it is appropriate to cite an official code, references are to the ABA Model Rules of Professional Conduct. It is recognized that some jurisdictions retained the Code of Professional Responsibility and others significantly amended the ABA Model RPC. Other states retained the CPR format with amendments to comport with the substance of the RPC. And the ABA may soon adopt amendments to the Model RPC. In all situations, attorneys should consult the applicable code in their jurisdictions, along with relevant statutory and case law.
(4) The fact that some clients, lawyers and judges are women and some are men is reflected in these Bounds. References to gender have been eliminated where possible. In those instances where elimination of gender-specific pronouns would be unduly awkward, sometimes the masculine and sometimes the feminine is used.