Divorce Lawyers' Obligation to Children

Assume you represent 'Lynne Allen' in negotiations that are about to be concluded by the signing of a divorce settlement agreement, currently in draft. Lynne and her soon-to-be ex-husband David have a tense personal relationship, but close parental relationships with their 7-year-old daughter Jane, who is in a fragile emotional state because of divorce-related conflict and problems in school. Lynne and David's draft agreement gives Lynne primary legal and physical custody of Jane. Neither has raised the issue of what happens if the primary custodial parent wants to relocate. Under the governing law of your state, unless the settlement agreement specifically states otherwise, the primary custodial parent is presumed to be able to move to another state for a promotion or unique job opportunity. To defeat the move, the nonprimary residential parent has to show that the move will cause serious harm to the child(ren).

Yesterday, Lynne told you that she has accepted a unique job opportunity at a radio station that will dramatically enhance her career. Her new job will, however, require her to move to another state shortly after the settlement agreement is signed and she plans to take Jane with her. Lynne tells you that she has told no one else about her plans to relocate. She also asks that you not tell David's lawyer because she is fearful it will 'blow the agreement apart.' She has also not discussed her plans to move with Jane for fear she will tell David.

Lynne is coming to your office later in the day. What are you ethically obligated to tell her about her plans to move, the relocation's relationship to Jane's best interests, and your obligations to disclose her plans to David's counsel?

The Child's Best Interests

The problem illustrates a core dilemma for divorce lawyers ' they represent parents, but children like Jane are dramatically impacted by their parents' disputes about custody, visitation and child support. A spouse who is desperate to escape a marriage may not think clearly about what is in his or her children's best interests and may formulate plans accordingly.

In this case, Lynne's lawyer, of course, has to tell her that the agreement as drafted likely gives her the legal right to relocate without David's consent or advance knowledge. However, disclosure of Lynne's intention to move to David and his lawyer is almost surely in Jane's best interests. Relocation will take Jane away from familiar school, friends and community, and needs to be carefully planned by both parents to provide stability and support to an already-fragile child. Relocation will likely have a major impact on David's relationship with Jane, especially if not managed carefully. Finally, David is likely to perceive Lynne's relocation as a hostile act leading to long-term antagonism, conflict and litigation between them and Jane is likely to be caught in the middle.

The Model Rules

Whatever the effect on Jane's best interests, the American Bar Associa-tion's Model Rules of Professional Conduct 2004 state that Lynne's lawyer must abide by Lynne's decision not to disclose her intention to relocate. (New York, of course, does not follow the Model Rules format using instead the format of disciplinary rules and ethical considerations. New York State BarR Ass'n, The Lawyer's Code of Prof'l Responsibility (2005). This short column does not permit analysis of similarities and differences between the two on the problems described here. It suffices to note the author's belief that the outcome is the same.) Rule 1.6 (a) prohibits a lawyer from revealing client confidences unless the client gives informed consent to the disclosure. Rule 1.6 (b) allows (but does not require) a lawyer to disclose client confidences under extraordinarily exigent circumstances such as the lawyer having a reasonable belief the disclosure is necessary to prevent death or substantial bodily harm, to prevent serious financial fraud, or to comply with a court order. None of these circumstances exist here.

What about the ongoing divorce settlement negotiations now in their final stages? Model Rule 4.1 prohibits lawyers from making 'a false statement of material fact or law to a third person' or 'fail[ing] to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.' Rule 4.1 is, however, not applicable. Lynne's counsel hasn't made any representation to David's counsel, false or otherwise, about Lynne's intention to relocate and David's counsel hasn't asked. Furthermore, Lynne's relocation is not a criminal or fraudulent act. In general terms, lawyers seem to interpret Rule 4.1 to mean only that they cannot affirmatively lie on behalf of a client in a negotiation. Folberg, J, et al.: Resolving Disputes: Theory, Practice, and the Law. 165-166 (2005). The rule generally does not require disclosure of a fact during negotiations unless asked, even if an underlying assumption of the negotiations (here, Lynne's intention to remain in the area after the agreement is signed) materially changes.

What about the lawyer's duty to promote the child's best interests? Quite simply, Lynne's lawyer does not have one. As stated by a distinguished commentator, Professor Linda Elrod of Washburn Law School:

The Model Rules of Professional Conduct contemplate adversarial proceedings. Zealous representation of a client in a custody dispute is complicated by the fact that the end result (residential placement) will have profound consequences on a third party ' the child. The Model Rules of Professional Responsibility do not specifically address the duty of a lawyer for a parent to not harm the child. Rule 2.1 requires a lawyer to exercise independent professional judgment and render candid advice and Rule 1.4(b) suggests that the lawyer explain 'a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' Although these can be read as requiring the lawyer to inform the client as to why the lawyer believes the client's course of conduct is not in the client's best interests, the rules do not specifically require a lawyer to consider the child's interest. Elrod, LD: A Minnesota Comparative Family Law Symposium: Reforming the System to Protect Children in High Custody Cases. 28 WM. MITCHELL L. REV. 495, 539 (2001).

Cases in which a parent or child have brought suit against a divorce lawyer for malpractice support Professor Elrod's analysis. See, eg, Strait v. Kennedy, 13 P.3d 671 (Wash. Ct. App. 2000); Rhode v. Adams, 957 P.2d 1124 (Mt. 1998); Lamare v. Basbanes, 636 N.E.2d 218 (Mass. 1994). Their rationale is that the parent's lawyer would not be able to represent his or her client effectively if required to advocate for another party ' the child ' with adverse interests. The child can be represented by a guardian ad litem so that his or her best interests are protected.

Conclusion

The policy that litigation must come to an end also supports the 'no duty to the child' conclusion. Courts fear that recognizing a duty for a divorce lawyer to consider the child's best interests will encourage repetitive re-litigation of the same facts and bitterness underlying custody disputes. There is already enough of that in modern divorce practice.

Andrew Schepard is a professor of law and director, Center for Children, Families and the Law, Hofstra University School of Law. Rebecca Miller, Hofstra Law School class of 2007, and Melissa Lombreglia, Hofstra Law School class of 2008, helped research this article, which first appeared in the New York Law Journal, a sister publication of this newsletter.

Do divorce lawyers have an obligation to disclose client confidences when it is in the best interests of the client's child to do so?

The short answer of the rules of professional responsibility is 'no' because a 'yes' answer is deemed to be fundamentally inconsistent with the premises of the adversary system in which the divorce lawyer functions. The longer answer is that the rules encourage ' but do not require ' a divorce lawyer to counsel the client to authorize the disclosure because it is in the best interests of both parent and child.

The Ethical Dilemma

Assume you represent 'Lynne Allen' in negotiations that are about to be concluded by the signing of a divorce settlement agreement, currently in draft. Lynne and her soon-to-be ex-husband David have a tense personal relationship, but close parental relationships with their 7-year-old daughter Jane, who is in a fragile emotional state because of divorce-related conflict and problems in school. Lynne and David's draft agreement gives Lynne primary legal and physical custody of Jane. Neither has raised the issue of what happens if the primary custodial parent wants to relocate. Under the governing law of your state, unless the settlement agreement specifically states otherwise, the primary custodial parent is presumed to be able to move to another state for a promotion or unique job opportunity. To defeat the move, the nonprimary residential parent has to show that the move will cause serious harm to the child(ren).

Yesterday, Lynne told you that she has accepted a unique job opportunity at a radio station that will dramatically enhance her career. Her new job will, however, require her to move to another state shortly after the settlement agreement is signed and she plans to take Jane with her. Lynne tells you that she has told no one else about her plans to relocate. She also asks that you not tell David's lawyer because she is fearful it will 'blow the agreement apart.' She has also not discussed her plans to move with Jane for fear she will tell David.

Lynne is coming to your office later in the day. What are you ethically obligated to tell her about her plans to move, the relocation's relationship to Jane's best interests, and your obligations to disclose her plans to David's counsel?

The Child's Best Interests

The problem illustrates a core dilemma for divorce lawyers ' they represent parents, but children like Jane are dramatically impacted by their parents' disputes about custody, visitation and child support. A spouse who is desperate to escape a marriage may not think clearly about what is in his or her children's best interests and may formulate plans accordingly.

In this case, Lynne's lawyer, of course, has to tell her that the agreement as drafted likely gives her the legal right to relocate without David's consent or advance knowledge. However, disclosure of Lynne's intention to move to David and his lawyer is almost surely in Jane's best interests. Relocation will take Jane away from familiar school, friends and community, and needs to be carefully planned by both parents to provide stability and support to an already-fragile child. Relocation will likely have a major impact on David's relationship with Jane, especially if not managed carefully. Finally, David is likely to perceive Lynne's relocation as a hostile act leading to long-term antagonism, conflict and litigation between them and Jane is likely to be caught in the middle.

The Model Rules

Whatever the effect on Jane's best interests, the American Bar Associa-tion's Model Rules of Professional Conduct 2004 state that Lynne's lawyer must abide by Lynne's decision not to disclose her intention to relocate. (New York, of course, does not follow the Model Rules format using instead the format of disciplinary rules and ethical considerations. New York State BarR Ass'n, The Lawyer's Code of Prof'l Responsibility (2005). This short column does not permit analysis of similarities and differences between the two on the problems described here. It suffices to note the author's belief that the outcome is the same.) Rule 1.6 (a) prohibits a lawyer from revealing client confidences unless the client gives informed consent to the disclosure. Rule 1.6 (b) allows (but does not require) a lawyer to disclose client confidences under extraordinarily exigent circumstances such as the lawyer having a reasonable belief the disclosure is necessary to prevent death or substantial bodily harm, to prevent serious financial fraud, or to comply with a court order. None of these circumstances exist here.

What about the ongoing divorce settlement negotiations now in their final stages? Model Rule 4.1 prohibits lawyers from making 'a false statement of material fact or law to a third person' or 'fail[ing] to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.' Rule 4.1 is, however, not applicable. Lynne's counsel hasn't made any representation to David's counsel, false or otherwise, about Lynne's intention to relocate and David's counsel hasn't asked. Furthermore, Lynne's relocation is not a criminal or fraudulent act. In general terms, lawyers seem to interpret Rule 4.1 to mean only that they cannot affirmatively lie on behalf of a client in a negotiation. Folberg, J, et al.: Resolving Disputes: Theory, Practice, and the Law. 165-166 (2005). The rule generally does not require disclosure of a fact during negotiations unless asked, even if an underlying assumption of the negotiations (here, Lynne's intention to remain in the area after the agreement is signed) materially changes.

What about the lawyer's duty to promote the child's best interests? Quite simply, Lynne's lawyer does not have one. As stated by a distinguished commentator, Professor Linda Elrod of Washburn Law School:

The Model Rules of Professional Conduct contemplate adversarial proceedings. Zealous representation of a client in a custody dispute is complicated by the fact that the end result (residential placement) will have profound consequences on a third party ' the child. The Model Rules of Professional Responsibility do not specifically address the duty of a lawyer for a parent to not harm the child. Rule 2.1 requires a lawyer to exercise independent professional judgment and render candid advice and Rule 1.4(b) suggests that the lawyer explain 'a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.' Although these can be read as requiring the lawyer to inform the client as to why the lawyer believes the client's course of conduct is not in the client's best interests, the rules do not specifically require a lawyer to consider the child's interest. Elrod, LD: A Minnesota Comparative Family Law Symposium: Reforming the System to Protect Children in High Custody Cases. 28 WM. MITCHELL L. REV. 495, 539 (2001).

Cases in which a parent or child have brought suit against a divorce lawyer for malpractice support Professor Elrod's analysis. See, eg, Strait v. Kennedy , 13 P.3d 671 (Wash. Ct. App. 2000); Rhode v. Adams , 957 P.2d 1124 (Mt. 1998); Lamare v. Basbanes , 636 N.E.2d 218 (Mass. 1994). Their rationale is that the parent's lawyer would not be able to represent his or her client effectively if required to advocate for another party ' the child ' with adverse interests. The child can be represented by a guardian ad litem so that his or her best interests are protected.

Conclusion

The policy that litigation must come to an end also supports the 'no duty to the child' conclusion. Courts fear that recognizing a duty for a divorce lawyer to consider the child's best interests will encourage repetitive re-litigation of the same facts and bitterness underlying custody disputes. There is already enough of that in modern divorce practice.

Andrew Schepard is a professor of law and director, Center for Children, Families and the Law, Hofstra University School of Law. Rebecca Miller, Hofstra Law School class of 2007, and Melissa Lombreglia, Hofstra Law School class of 2008, helped research this article, which first appeared in the New York Law Journal, a sister publication of this newsletter.