How Many Clients Does It Take to Make a Divorce?

No, this is not a “change the light bulb” joke. It's an attempt to look at the role of the lawyer in a divorce case — and it's about time we looked at our role.

In general, the respect for lawyers in America floats somewhere in rank between tax collector and garbage collector. The rank of the divorce lawyer is somewhat lower than that. Why is that?

The image of lawyers — especially divorce lawyers — has no relationship to what we actually do. When you think about our real role in providing classes of services to our clients, it is truly extraordinary. We are litigators, mediators, arbitrators, negotiators, advisors, hand-holders, contract drafters and closers. We are shoulders to lean on; people to complain to and people to confide in. We can read tax returns; cross examine psychologists; understand business appraisals; and are experts in the rules of evidence. In short, we are full-fledged members of the legal profession. So why, then, don't we get any respect?

Remain Objective

As one judge recently remarked, “Why can't you domestic relations lawyers be more civil?” It is obvious that divorce and custody cases are fraught with emotion. It is tough enough to deal with the client's emotions, but when the lawyer becomes emotional as well, the case takes on a life of its own. While we as lawyers must be zealous advocates, following the Code of Professional Conduct, we must never become personally involved. The Rules of Professional Conduct say, in pertinent part: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” What is the relationship between a lawyer becoming emotionally involved and professionalism? When lawyers become emotionally involved in their cases, the image of the professional is lost.

To Settle or Not to Settle

In general, what should the role of counsel be in any family law litigation? When the client indicates a desire to settle the case, for example, should counsel discourage this? Rule 1.4 (b) of the Code provides that: “A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.”

Obviously, the answer to whether counsel should discourage settlement depends on when a settlement effort is to be made. If it is before discovery, the answer would probably be yes. Under Rule 1.4, can the client really make an informed decision about a share of an estate about which he or she has no knowledge? If, on the other hand, the parties are about to go to trial and the client wants to settle, isn't this the time to allow that to happen?

The simple fact is that when the case ends, so does the relationship between counsel and client. The relationship between husband and wife, while now ex-husband and ex-wife, continues. To push two parties who think they can resolve their differences and force them to litigate, potentially destroying their ability to parent their children in the future, may not be the appropriate way to be “more civil.”

How to Be 'More Civil'

When the parties meet to negotiate a settlement, having one lawyer attack the other client is not living up to this ideal. As lawyers we must remember, this is not our life. The husband did not leave us, nor did the wife cheat on us. The fact is, these people did these things to each other. It is our job to be stay cool-headed and enable them to negotiate their case like a business deal and then move on with their lives. They will then be free either to go out and get remarried or continue to parent their children together in the best possible way. It is, therefore, inappropriate for counsel to attack the other client in a meeting. While in a courtroom it may be appropriate to question the spouse about his or her behavior during the marriage, no lawyer can stand by while his or her client is being attacked in a four-way meeting called for the purpose of settlement. In addition, making ad hominem remarks to the other lawyer while the parties are together may feel good at the time, but clients do not want to pay fees to watch their lawyers fight with each other while their clock is running. It demeans us as professionals.

When Not to Settle

What, on the other hand, are the pitfalls of discouraging a settlement? The first potential pitfall is the Canons of Ethics that require zealous representation. Rule 3.2 of the Code of Professional responsibility requires that: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

Be Cost-Efficient

Zealous representation does not necessarily mean, however, that we push our clients into constant litigation. What it does mean is to get them the best possible result with the least possible pain. Running up legal fees by pushing clients into more and more litigation is not zealous representation.

The second biggest complaint about lawyers is that we overcharge and take too big a percentage of the marital pot. Preparing a case properly for litigation enables a case to settle. To prepare properly requires time and, accordingly, the expenditure of legal fees. However, we, as lawyers, must look at the overall asset pool and determine that we will not take too large a percentage of it. Counsel must explain to the client the costs of preparation as well as the potential litigation costs. There is a law of diminishing return in everything, especially in a divorce action. It is up to us to advise the client of the pitfalls of resolution and the pitfalls of litigation.

Don't Forget to Communicate

The third biggest area of disputes between clients and their lawyers concerns the problem with communication. Rule 1.4 (a) states: “A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.” It is our job to communicate all possible offers from the other side and allow the client to determine his or her own course. It is frustrating for a client to know that his or her life is going forward in someone else's hands and not be kept appraised of its direction. While we should give our clients advice, it is not up to us to bludgeon them into taking it. It is a lawyer's duty to act as an adviser but, ultimately, the decision of whether to accept an offer is a business decision for the client. They are the ones who have to live with the result. We go on to the next case.

It is time for us to approach our job as lawyers, advisors and counselors and not to substitute our feelings for those of our clients.

No, this is not a “change the light bulb” joke. It's an attempt to look at the role of the lawyer in a divorce case — and it's about time we looked at our role.

In general, the respect for lawyers in America floats somewhere in rank between tax collector and garbage collector. The rank of the divorce lawyer is somewhat lower than that. Why is that?

The image of lawyers — especially divorce lawyers — has no relationship to what we actually do. When you think about our real role in providing classes of services to our clients, it is truly extraordinary. We are litigators, mediators, arbitrators, negotiators, advisors, hand-holders, contract drafters and closers. We are shoulders to lean on; people to complain to and people to confide in. We can read tax returns; cross examine psychologists; understand business appraisals; and are experts in the rules of evidence. In short, we are full-fledged members of the legal profession. So why, then, don't we get any respect?

Remain Objective

As one judge recently remarked, “Why can't you domestic relations lawyers be more civil?” It is obvious that divorce and custody cases are fraught with emotion. It is tough enough to deal with the client's emotions, but when the lawyer becomes emotional as well, the case takes on a life of its own. While we as lawyers must be zealous advocates, following the Code of Professional Conduct, we must never become personally involved. The Rules of Professional Conduct say, in pertinent part: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” What is the relationship between a lawyer becoming emotionally involved and professionalism? When lawyers become emotionally involved in their cases, the image of the professional is lost.

To Settle or Not to Settle

In general, what should the role of counsel be in any family law litigation? When the client indicates a desire to settle the case, for example, should counsel discourage this? Rule 1.4 (b) of the Code provides that: “A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.”

Obviously, the answer to whether counsel should discourage settlement depends on when a settlement effort is to be made. If it is before discovery, the answer would probably be yes. Under Rule 1.4, can the client really make an informed decision about a share of an estate about which he or she has no knowledge? If, on the other hand, the parties are about to go to trial and the client wants to settle, isn't this the time to allow that to happen?

The simple fact is that when the case ends, so does the relationship between counsel and client. The relationship between husband and wife, while now ex-husband and ex-wife, continues. To push two parties who think they can resolve their differences and force them to litigate, potentially destroying their ability to parent their children in the future, may not be the appropriate way to be “more civil.”

How to Be 'More Civil'

When the parties meet to negotiate a settlement, having one lawyer attack the other client is not living up to this ideal. As lawyers we must remember, this is not our life. The husband did not leave us, nor did the wife cheat on us. The fact is, these people did these things to each other. It is our job to be stay cool-headed and enable them to negotiate their case like a business deal and then move on with their lives. They will then be free either to go out and get remarried or continue to parent their children together in the best possible way. It is, therefore, inappropriate for counsel to attack the other client in a meeting. While in a courtroom it may be appropriate to question the spouse about his or her behavior during the marriage, no lawyer can stand by while his or her client is being attacked in a four-way meeting called for the purpose of settlement. In addition, making ad hominem remarks to the other lawyer while the parties are together may feel good at the time, but clients do not want to pay fees to watch their lawyers fight with each other while their clock is running. It demeans us as professionals.

When Not to Settle

What, on the other hand, are the pitfalls of discouraging a settlement? The first potential pitfall is the Canons of Ethics that require zealous representation. Rule 3.2 of the Code of Professional responsibility requires that: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

Be Cost-Efficient

Zealous representation does not necessarily mean, however, that we push our clients into constant litigation. What it does mean is to get them the best possible result with the least possible pain. Running up legal fees by pushing clients into more and more litigation is not zealous representation.

The second biggest complaint about lawyers is that we overcharge and take too big a percentage of the marital pot. Preparing a case properly for litigation enables a case to settle. To prepare properly requires time and, accordingly, the expenditure of legal fees. However, we, as lawyers, must look at the overall asset pool and determine that we will not take too large a percentage of it. Counsel must explain to the client the costs of preparation as well as the potential litigation costs. There is a law of diminishing return in everything, especially in a divorce action. It is up to us to advise the client of the pitfalls of resolution and the pitfalls of litigation.

Don't Forget to Communicate

The third biggest area of disputes between clients and their lawyers concerns the problem with communication. Rule 1.4 (a) states: “A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.” It is our job to communicate all possible offers from the other side and allow the client to determine his or her own course. It is frustrating for a client to know that his or her life is going forward in someone else's hands and not be kept appraised of its direction. While we should give our clients advice, it is not up to us to bludgeon them into taking it. It is a lawyer's duty to act as an adviser but, ultimately, the decision of whether to accept an offer is a business decision for the client. They are the ones who have to live with the result. We go on to the next case.

It is time for us to approach our job as lawyers, advisors and counselors and not to substitute our feelings for those of our clients.