Not much has changed since the American Bar Association published its findings of what the public thinks of the legal field nineteen years ago, which noted that divorce attorneys are widely criticized for “exacerbating conflict.” Although most divorces merely require dividing property and creating a parenting plan, most cases are contentious and take over a year to finalize. Part of the problem is some family law attorneys mismanage their ethical obligations. If family law attorneys do a better job balancing their ethical responsibilities and refocus the goal of family law towards resolution instead of litigation, we will undoubtedly produce better outcomes for families and, in turn, improve the public’s perception of family law attorneys.
The Arizona Rules of Professional Conduct parse out our ethical responsibilities as a counselor and as an advocate under separate sections. However, this structural division does not mean our responsibilities are mutually exclusive. Rather, in family law it is especially critical for attorneys to both counsel clients and advocate for them.
Ethical Rule 2.1 captures our obligation as a “Counselor,” requiring a lawyer to give “candid advice” that “may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Comment 1 reminds us that “[l]egal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.”
Nevertheless, some family law attorneys seem to only focus on the “Advocate” portion of their ethical responsibility. Often these attorneys market themselves as “aggressive” or “assertive.” Even though Arizona does not apportion fault upon divorce, some divorce attorneys seem to take advantage of their client’s sense of betrayal by vilifying the opposing party.
We have all seen attorneys contort a parent’s social drinking into an argument they are alcoholic who is unfit to parent. Or try to weaponize a parent’s porn habit, despite the conduct occurring privately and the content not being paraphilic. Some attorneys even seek “strong admonishments” from the court to placate their client’s anger.
By “exacerbating the conflict” in this manner the attorneys are failing their clients by not providing them with the candid advice required under ER 2.1. While it is undeniable that divorcing is difficult and clients are often deeply hurt and upset, it does not follow that promoting anger is beneficial for the client. Family law attorneys should be advising their clients away from the anger fallacy as it is both mentally and fiscally beneficial.
When a client is clouded by anger, a divorce attorney should advise the client that anger diverts their thoughts away from the real issues – diving assets and agreeing to a parenting plan – and towards something in the past that can never be changed. Anger creates the illusion that progress will be made if their ex-spouse suffers, when, in reality, this does nothing to resolve the divorce. It is easy to believe that a wronged spouse’s best future involves some type of payback, since that future, unlike an independent future, is still intertwined with the other person. However, maintaining the desire for payback is like not divorcing at all, as the client keeps their ex-spouse at the center of their thoughts.
Family law attorneys may wish to remind their clients that there was something likable about their ex-spouse, and even if marriage is no longer possible or desirable, some other form of connection might still be, and might contribute to happiness. Or it might not. But the whole question cannot be considered if angry thoughts pollute the client’s mental landscape. It should also be stressed that anger almost always makes the relationship with the ex-spouse worse, which is particularly concerning if the couple has children to co-parent.
If the attorney is successful in counseling the client away from the anger fallacy, the client is capable of investing their energy on more industrious pursuits, like building their independent future, working on themselves, and tending to their children’s needs. Putting anger aside also affords the client the needed clarity to achieve an equitable settlement. Rather than “getting back” at their ex-spouse at trial, if we reframe “winning” in the family law context as collaboratively achieving an equitable settlement, then our clients and their families can focus on what is important — developing healthier parenting relationships and moving forward with their lives. It will also save the client time, frustration, and money.
While this recommendation is not a panacea, if we balance our ethical responsibilities and refocus the goal of family law towards resolution, we will produce better outcomes for families and improve the public’s perception of family law attorneys.