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For those who consistently encounter the disintegration of once loving relationships and who witness the bitter battle over children � family lawyers � defining the client is not as simple as one may think. Primarily, the rules of legal ethics require that legal practitioners act as advisers, advocates and a representative to the court for our client’s needs and interests. However, being a matrimonial attorney often seems to encompass more than just providing the client with legal advice. What today’s family lawyers are discovering is that the person sitting in the chair across from their desk is not the only person to whom they are giving counsel and support. Lawyers today are supporting the family unit rather than just the party whose name is on the retainer. In The Divorce Workbook: A Guide for Kids and Families(Waterfront Books, 1992), a book co-authored by a child psychologist, a child psychiatrist and a psychoeducational consultant, one child writes this about divorce: “Divorce feels awful, like your parents are shutting you down and not loving you . . . when they tell you they’re getting divorced, it feels like your heart shatters.” The question is: Are we, as family law practitioners, violating our ethical rules of advocacy and representation by considering the needs, desires and emotions of our client’s children in the scope of representing our client? How much consideration can we, if indeed we can at all, give to the children of our clients? Over and Above The American Academy of Matrimonial Lawyers has focused strongly on incorporating the needs of client’s children into everyday practice. The mission statement of the academy reads, “to encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law, to the end that the welfare of the family and society be preserved.” See American Academy of Matrimonial Lawyers, Bounds of Advocacy: Goals for Family Lawyers, November 2000, available at http://www.aaml.org/BoundsofAdvocacy/BoundsofAdvocacy.htm . To that end, the academy developed the Bounds of Advocacy, which serve as a guide to matrimonial lawyers presented with moral and ethical concerns during the course of representing a client. On the academy Web site, the Preliminary Statement to the Bounds of Advocacy states, “It is difficult for matrimonial lawyers to represent the interests of their clients without addressing the interests of other family members. . . . In addition, many matrimonial lawyers believe themselves obligated to consider the best interests of children, regardless of which family member they represent. . . . The client’s best interests include the well being of children, family peace, and economic stability.” As such, the November 2000 revisions to the original 1987 version of the Bounds of Advocacy include an entire section on children and the family lawyer’s obligation to those children. Goal 6.1 states, “An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.” The commentary to the goal goes on to discuss how a lawyer’s behavior and a client’s wishes directly impact the welfare of the children involved. It advises that matrimonial lawyers should encourage their clients to remember that while divorce and custody litigation is temporary, that family relationships last forever. It further advises that family lawyers and clients should work together collaboratively in order to reduce friction, increase communication and keep the best interests of the children at the forefront of their dissolution. The academy cautions, however, that the Bounds of Advocacy “aspires to a level of practice above the minimum established in the RPC,” and that the individual state requirements for ethics and the individual state court rules control the required level of practice for lawyers. Rules of Professional Conduct When focusing on the required standards of practice for lawyers in relation to the above question, the first set of ethical rules to come to the forefront of the mind involves conflicts of interest. Lawyers need to be careful that their representation of current clients does not conflict with their representation of other current clients or even with their representation of former clients. In New Jersey, there are four separate rules, and extensive commentary on each of these rules, on the topic of conflicts of interest. However, upon careful examination, none of these rules (nor the commentary to the rules) seem to suggest that a lawyer would be violating ethical cannons by taking a client’s children into consideration when advising that client on the best course of action. In fact, New Jersey Rule of Professional Conduct 2.1 states that when “representing a client, a lawyer must exercise independent professional judgment and render candid advice.” The rule goes on to add that the “lawyer may refer not only to law but to other considerations, such as moral, economic, social and political facts, that may be relevant to the client’s situation.” What best to serve as the “other considerations” contemplated by the rule than the impact of divorce litigation, dissolution matters or custody disputes on the client’s children? Court Rules New Jersey Court Rules also play an important part for lawyers when evaluating their ability to incorporate the needs and interests of a client’s child or children into their representation. R. 5:8A, titled “Appointment of Counsel for Child,” specifically states “The appointment of counsel should occur when the trial court concludes that a child’s best interest is not being sufficient protected by the attorneys for the parties.” As 5:8B, titled “Appointment of A Guardian ad Litem,” reads, “In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interest of the child or children if the circumstances warrant such an appointment.” It is arguable that these rules impose a duty, both explicitly (R. 5:8A) and implicitly (R. 5:8B), to consider how the choices made during the course of representation impacts the children involved. If the court, of its own accord, can appoint a law guardian because the attorneys representing the parents advise their clients to act in a manner inconsistent with what the court believes is in the child or children’s best interest, isn’t it then incumbent on the parents’ attorneys to advise their clients to act in a manner that incorporates the child’s needs? As the New Jersey Professional Rules of Conduct and Court Rules seem to provide no conflict for lawyers in considering the needs and interests of their client’s children, and in fact seem to encourage widening the focus of family lawyers to include these issues, the question then shifts to what exactly the impacts of divorce and custody litigation are. Damage to Children and Families Today’s family lawyer has the opportunity to be more informed about the nonlegal effects of court proceedings on a family than ever before. The wealth of information available for attorneys to review regarding the impact of their professional work on the client base they serve can, at times, be overwhelming. However, the benefit that family attorneys can gain from familiarizing themselves with the information is priceless. A 1991 study done by Richard Wolman and Keith Taylor, “Psychological Effects of Custody Disputes on Children,” 9 BEHAV. SCI. & L., 399, 406-08 (1991), delivered the harsh but not surprising news that the psychological impacts of divorce on children can be strong enough that the children require some form of therapy five years after the litigation has ended. The authors of the study theorize that while the family suffers emotionally at the time of divorce as a natural behavioral reaction, the culture of litigation exacerbates that suffering and causes what could be permanent damage to the children involved. See also, Marsha Kline Pruett and Tamara D. Jackson, “The Lawyer’s Role During the Divorce Process: Perceptions of Parents, Their Young Children, and Their Attorneys,” 33 FAMILY LAW QUARTERLY 2, 283, 285 (Summer 1999) (citing Wolman and Taylor). Parents, and to some extent attorneys, often forget the impact that the litigation has on the smallest members of the family unit. They naturally assume that it is the adults who will bear the burden of such decisions, both emotionally and financially, since they are the parties most directly involved in the process. How then do matrimonial proceedings serve to psychologically damage children? When relationships have deteriorated to the point where parents are both seeking counsel and looking to end their partnership for good, chances are that negative feelings already exist between them and have permeated the family dynamic. Their retention of counsel and the subsequent legal proceedings that take place often serve to exacerbate this existing negativity. A 1998 survey conducted by Marsha Kline Pruett and Kyle Pruett through the Family Services Unit of the Connecticut Superior Court, “The Culture of Litigation: Impact of Divorcing Parents and Children,” found that 71 percent of the participants involved found that the legal system pushed their already existing feelings of anger and hostility to extremes. The widespread consensus among the participants was that attorneys contributed to parent rivalry and conflict by suggesting that the divorcing spouses do not communicate directly, but instead should communicate solely through their attorneys. Often the parents involved found it increasingly difficult to co-parent their children as the level of hostility increased and the communication decreased. While 25 percent of the participants involved in the study noted that they did not feel the legal process inflamed their existing conflict, they also expressed that the legal process did nothing to help it, and that relief only came when the process itself was over and the divorce or custody dispute was finalized. Children involved in the study voiced similar impressions of the role their parents’ attorneys took on. The children interviewed frequently saw the attorneys as people who were responsible for breaking up their family and permanently damaging the relationship between their parents. Many times lawyers were described as villains, pirates or wolves that scared little children. While many of the direct comments relating to the role of the attorneys seemed to merely echo the commentary of the parents themselves, the children involved in the study provided keen insight into how a family is affected emotionally and how family lawyers factor into that effect. One child involved in the study insightfully noted, “I talked to one [an attorney] once and I thought she listened, but all she did was talk of the money, not me.” Despite these views, the attorneys who participated in the survey saw their role from a different perspective � as the heroes of the situation. Most lawyers blamed the other counsel for causing any of the conflict. Nearly two-thirds of the attorneys involved had criticisms about the system itself and its impact on families. Often the comments focused on the needs of the families and the inability of the system to provide for those needs. Despite these comments however, most attorneys felt no responsibility for their role in the failure of the “system” and felt satisfied scrutinizing it and passing the responsibility of its failings to other members. Moreover, 32 percent of the attorneys surveyed felt that the system worked for divorcing families, and that it was a “necessary evil.” Family lawyers should familiarize themselves with the way parents and children perceive them and attempt to reinvent their role to minimize the emotional impact of the process on families, specifically the children. However, this must be accomplished without compromising our duty to advocate for our client’s best interest. How then can it be done? An Interdisciplinary Approach All of the parents, children and attorneys involved with the Pruett study gave the researchers some suggestions on improving the system and a lawyer’s role within the system. Parents often suggested that the adversary system be modified and that more mediation type models be set up to lessen the hostility the parties are exposed to. Other suggestions included the notion that lawyers should be trained in other areas of the law, including psychology, specifically child psychology and development. Some of the more far-reaching solutions included the reduction of paperwork (such as the elimination of discovery) and the establishment of some independent monitoring system to check on the attorneys and their handling of each case. The suggestions made by the children involved were more simplistic in nature, but perhaps provided more insight than the more constructive proposals given by their parents. Most of the commentary focused around their needs for lawyers to concentrate more on attempting to keep the relationship between their parents friendly, rather than isolating the parties from each other and leaving the children to suffer the fallout. One child said that in an ideal world the lawyers and judges would make their parents get along because ” . . . I’m too little, I can’t.” The child further encouraged that the lawyers and judges do something to resolve these emotionally draining situations quickly, asking, “ If they can’t [get along], then don’t stretch it out, please.” The legal system itself is already beginning to respond to the types of suggestions that the parents and children made. The current culture in the Family Part of the New Jersey Superior Court is one that is turning its eyes towards mediation, negotiation and resolution rather than one that continues to foster conflict and litigation. The referrals of cases to custody mediation in accordance with New Jersey Court Rule 1:4-5 is a breakthrough. It provides a system that potentially fails its participants with a more sensitive and realistic approach to divorce and custody proceedings. However, state- and court-engineered programs are not enough to rely on when considering the special legal needs of families and children in crisis. Lawyers themselves have to take on the responsibility of educating themselves regarding different methods of operation for the practice of family law that takes into consideration the emotional state of the parties involved. Collaboration Required Family lawyers are good at finding outside resources for their clients. Frequently, these outside resources appear in the form of experts. Financial experts, such as accountants and business evaluators as well as mental health experts, including psychologists, psychiatrists and custody evaluators, all play an important role in the standard dissolution/custody proceeding. Clients hire these professionals and use their expertise in helping them build their case. The enlistment of the specialists is very familiar practice for attorneys. In 2000, the American Bar Association and The Johnson Foundation co-sponsored a conference on how to reform the legal system to protect children from the high-conflict custody cases that have done the most psychological, economic and emotional damage. One of the most important things to consider is how, as lawyers, we can educate ourselves and become more sensitive to the issues surrounding the nonlegal aspects of divorce. The three areas of criticism and suggested revisions focused on the mental health experts, the lawyers and the court system as separate branches of power working both independently and co-dependently to move families in conflict through a divorce and custody case. The conference goals aimed to produce the following: � mental health experts who take a more proactive role in developing a community that is able to sufficiently meet the needs of separating, never married, and divorcing families; � lawyers who work collaboratively with parents, mental health professionals and the court to facilitate voluntary agreements and reduce conflict; and � a court system that works in a timely fashion to resolve disputes and to foster healthier relationships between the parties and their children. Specifically, the preamble to the conference publication noted that the ultimate goal of the legal system as it relates to family law should be to empower families and to aid them in restructuring their lives by making the tools necessary to achieve this goal available to families. The preamble stated that the key players in divorce and custody cases must “remain sensitive to the need to encourage cooperative parents to resolve their disputes and not burden them with unnecessary intervention” and “should provide information to parents about the legal process, the availability of conflict-reducing dispute resolution mechanisms, and the harm caused to children by parental conflict.” See American Bar Association Family Law Section and The Johnson Foundation, “High Conflict Custody Cases: Reforming the System for Children-Conference Report and Action Plain,” 34, FAMILY LAW QUARTELY 4, 589, Winter 2001. Basic Client Practice While an interdisciplinary approach to the global practice of family law may be the key to unlocking a lawyer’s perspective regarding the resources available to them, changes can be made in an attorney’s basic client practice to encompass the increasing non-legal needs of the family. Lawyers often consider other professionals as resources for their clients. What family lawyers forget is that these experts can be resources for them on issues unrelated to a specific client’s case. These experts can act as consultants on general issues and can educate attorneys about the emotional and financial constraints litigation places on families and the impact that those constraints have on the respective members of those families. Investing time and even a little bit of money sitting down with a mental health expert or a financial expert and having them explain to you their goals and their perspectives as they relate to divorce and custody can be invaluable experiences. To make your family law practice more sensitive to the nonlegal issues that arise when relationships disintegrate, implementing these simple but effective tools for everyday practice include the following: � Keep a list of mental health experts for client referrals. You can have two lists. One list can be of forensic experts, who will see your client and evaluate them for the purposes of the litigation itself. The second list, however, is strictly for the client. This list will contain the names of therapists that the client will use to help them find emotional and psychological stability. These experts will help the client manage the emotional impact of divorce and custody disputes both on themselves and on their children. Keep a list of financial experts for client referrals. Clients often find themselves in financial distress before or during the litigation process. Having an accountant or a financial planner available can help minimize the stress the client experiences, which minimizes the tension and negativity in the household. The client will be less burdened and the client’s children will sense their parent is less stressed. � Handouts. Giving clients something to read is always a good suggestion. Keep a list of preferred reading materials on the issue of divorce and its impact on families and children. This list can be gathered from the footnotes of law review articles, legal magazines, and so on. Your mental health experts can make suggestions as well. Referring the client even to short portions or excerpts of these materials can be particularly helpful in giving a snapshot of what each client can begin to do to minimize the harm done to themselves and their children. � Support group referrals. Keep a running list of support groups in the area so you can refer your clients to help them connect with people currently engaged in the litigation process or those who have been through it and survived. Often, all your clients need is a shoulder (a nonbillable shoulder) to lean on. Education, participation and implementation are the critical triad for a lawyer when thinking about their “client” in family proceedings. First, legal education and additional training sends lawyers on the road to being familiar with nonlegal impacts of divorce and custody disputes. Second, lawyers must participate in bringing the legal community and the mental health community to a more collaborative understanding about families and their needs at such a time of crisis. Last but not least, lawyers must implement what they have learned in their everyday practice and remember that families do not consist of one person, but of several people. While the adult may be the client sitting in your office, he or she may be the parent of a child or children sitting at home. Even though your client’s decisions may affect those children in ways that you cannot always understand, you can help to control the negative impacts on them. RPC 4.4, titled “Respect for Rights of Third Persons,” is an excellent premise for family lawyers to draw on when a new client with children walks through the door asking for counsel. The rule reads, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such third person.” Think twice about the phrase “no substantial purpose” when planning a case strategy and figuring out means to further that strategy. Somewhere, a child will be grateful for that second thought. The author is an associate at Lesnevich & Marzano-Lesnevich of River Edge.

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