All lawyers have tough, demanding jobs, but no lawyer can really say that their job is tough until they take on a family law case. Well, at least that’s how family lawyers see things. What makes family law so tough is not the law, really, but the issues our clients are faced with and which we are oftentimes forced to resolve. “Who is going to get the house? Will I receive enough support to keep the house? Is the house going to go into foreclosure? Where will our children live? When will our children see the other parent? Why won’t the other parent pay me child support? Will I be allowed to move with my children to another state?”
Family lawyers can easily find themselves entangled in the web of emotions that is a divorce, and enthralled in the minutia of their clients’ daily lives. It is easy to become emotional about our clients and their causes, but there is a fine line between the zealous advocate and the emotional advocate. As lawyers, we need to remember where to draw that line so that we remain zealous without becoming a third-party emotional basket case.
That being said, it constantly surprises me how many of my fellow colleagues get too wrapped up in being an emotional advocate, not only failing to effectively advocate for their client, but also subjecting their own emotions upon their adversary. What kind of assistance are you giving your client who is engaged in an adversarial action with his or her former spouse if you have started your own adversarial action against that spouse’s lawyer? It sounds ridiculous, but it happens across many areas of practice. Article II of the Pennsylvania Code of Civility (204 PA. CODE CH 99.3) states, “A lawyer should act in a manner consistent with the fair, efficient and humane system of justice and treat all participants in the legal process in a civil, professional, and courteous manner at all times. These principles apply to the lawyer’s conduct in the courtroom, in office practice and in the course of litigation.”
Have you ever been at a settlement conference or in court when your adversary’s argument became less legal and more emotional? Emotional advocacy is not only unprofessional and unproductive, but creates an awkward situation for both you and your client because, out of professional courtesy, you are forced to calm down your emotional adversary. When I found myself in this situation — as the “calmer downer,” of course — my client asked me whose side I was on. I had to explain to my client that I was merely exhibiting professional courtesy. But, of course, the client saw it as professional conspiracy, as if I had suddenly crossed the battlefield line by being nice to the other side. Clients do pay attention. The last thing they want to pay for is extra time caused by their own attorney. Taking the high road does pay off; the nicest compliment to your professionalism is a referral from your client’s adversary.
In general, there seems to be a lack of professionalism and common courtesy among lawyers, including family lawyers. When did lawyers start arguing the merits of cases to judges via letter, or, better yet, by letter on which their adversary was never copied? In recent years, I have noticed a trend where it is not only common to request a continuance from the court that includes a simple reason for the request, but also includes that attorney’s arguments for the underlying case. There is no procedure that allows for arguing the merits of a case via faxed letter. This unprofessionalism becomes more inflated when the other side is not copied on the “argumentative letter,” offering no opportunity to respond. Rule of Professional Conduct 3.5, Impartiality and Decorum of the Tribunal at (1)(b), states, “A lawyer shall not communicate ex parte with such a person [the tribunal] during the proceeding.” Obviously, a letter to the court that the other side is not copied on is an ex parte communication. You wouldn’t believe how many lawyers skip this important step, providing the world with written proof of the faux pas. My all-time favorite is when the letter falsely states that the other side does not object when they never knew of the request, and clearly can’t learn about it because they were never provided with a copy. Pennsylvania Rule of Professional Conduct 3.3, Candor Toward the Tribunal at (a)(1), states, “A lawyer shall not knowingly: make a false statement of material fact or law to a tribunal.” Thankfully, many of our family court judges and masters do contact the other side when they see that a letter has been sent ex parte.
One of the platforms of the 2013 chancellor of the Philadelphia Bar Association, Kathleen Wilkinson, is for lawyers to renew their commitment to civility and professionalism. She quoted from George Washington’s Rules of Civility & Decent Behaviour in Company and Conversation: “Every action done in company ought to be with some sign of respect to those that are present.”
So, attention all lawyers — especially family lawyers (yes, I know your job is more demanding and tougher than other legal jobs) — do not make that job any harder by acting unprofessionally toward your adversary. Both you and your adversary have an important job to do: unravel and effectively resolve the emotional and financial situations of your clients. Don’t create a new one by failing to keep your own emotions in check. While your job as a lawyer is tough, truthfully, we can do better.
Lisa Shapson is a family law attorney with Berner Klaw & Watson and co-chairs the divorce/equitable distribution committee of the Philadelphia Bar Association’s Family Law Section.