November 2000 

A View Of Family Attorney Ethics

By Ellen Dresselhuis

"little worthwhile service is provided by lawyers who simply spew out their client's positions"

Little in the practice of Family Law is more frustrating than to have an attorney representing the opposition who is nothing but a wind-up mimic (parrot) of the irrational positions taken by your client's estranged spouse. In my opinion a lawyer who advocates for his client by simply spouting his/her angry rhetoric is of about as much use in the proceedings as a wind-up toy that plays by the turning of the key.

We've all met them. Your client's exspouse (or hoped soon to be exspouse) has hired W.E. Eausay (a/k/a Whatever You Say) as his attorney. "Whatever's" idea of advocacy is to spew forth, often loudly, as his positions in the case all the venomous opinions, fury, and frustration his or her client has laid out. If the client insists that he earned his pension, his wife had nothing to do with it, and he damned well isn't going to share it with her, Mr. What Ever Eausay will vehemently argue this position until Mr. Client's assets are gone, or the court makes a contrary decision, leaving "Whatever" to protest that "he tried, but the judge just couldn't see what was right and just." Does the client buy that? I wonder. The question arises, is it advocacy to act solely as a mouthpiece? Or is it a more appropriate role for the attorney to advise the client what can and can't be done under the law? Is there a reason some lawyers are called counselors?

I suggest that little worthwhile service is provided by lawyers who simply spew out their client's positions, especially when they do so in the same emotional tone as the client would use. I assume the lawyer who does this is putting on a show for his client, but I doubt the client is as impressed with the effort as the lawyer is. If counsel can't find a persuasive way of putting the issues, is he really doing what he's paid for?

I suggest that a lawyer's chief value to a client is in helping accomplish the client's reasonable goals in the legal proceeding. Some reasonable goals to be identified in my opinion are:

• Understand the parties' real agenda. This may not be what they are saying, but some underlying emotional agenda that may be totally opposite of what is being said. For example, it's not unusual to find that in spite of the anger and vituperative rhetoric, one or both parties really don't want to get divorced. If that's the underlying issue and it is understood properly, it should help with your recommendations and approach to the case. And it doesn't hurt to communicate that information to the other attorney -- unless the other attorney is also a wind-up toy.
  
• Communicate to your client what his or her legal obligations are in the situation. This presupposes that you know the law, which is unfortunately not always the case. If the court has ordered that he pay child support, you insist that he must do so. If the court has determined that her spouse is a better parent -- at least at this time -- you need to help your client with resources and suggestions to improve her parenting and/or her relationship with her children, as they deserve the best from even the noncustodial parent. When you chorus your client's frustration at the court's decision, whine about the unfair judge and generally play sore loser, you waste energy; in many cases and more importantly, you facilitate more emotional distress for children.
  
• Help your client understand which of his issues, or the facts of his case, meet legal requirements and which do not have significant bearing on the issues at all. That's not to say that you won't let your client tell her story as she wishes, but she ought to know how that will "play" to the court. If you don't have a realistic view of how the theme will be accepted in the process, you need to learn. If your grounding in the law is not solid, you'll have difficulty standing firm with your client in these situations.
  
• Finally, it is a mistake to mislead a client, knowingly or otherwise, to believe she will win when the facts will not meet the legal minimum for the outcome she is requesting. A lawyer needs to be able to assess the facts objectively from both sides of the case in order to present a balanced opinion to the client. The seemingly primrose path begun with the "of course, I'll get you custody," is in fact a thorny path, full of prickles and frustrations.

ELLEN DRESSELHUIS is a sole practitioner in New Hope and has been practicing in family law since 1968. She is a graduate of William Mitchell College of Law.

"is it advocacy to act solely as a mouthpiece?"