The Lawyer's Role during the Divorce Process: Perceptions of Parents, Their Young Children, and Their Attorneys

Family Law Quarterly

Volumn 33, Issue 2, 1999, Pages 283-310

  Pruett, Marsha Kline ^a   Jackson, Tamara D ^a  

^a NONE

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EID: 0033468717     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (32)

1. Marsha Kline Pruett, Divorce in Legal Context: Outcomes for Children, in 13(1) CONN. FAM. LAW. 1 (1998). The research project report was conducted by Marsha Kline Pruett and Kyle Pruett with the support of the Smith-Richardson Foundation, Inc., and is on file at the Foundation.
2. See generally Mary F. Whiteside, An Integrative Review of the Literature Pertinent to Custody for Children Five Years of Age and Younger 20-29 (Sept. 1996) (on file with the Judicial Council of California Administrative Office of the Courts). In general, young children are highly dependent on the adults around them and have immature abilities to understand and cope with family stressors. Furthermore, divorcing families with young children face special and significant challenges and risks. Parents in these families tend to be younger, less educated, and have lower incomes. Also, the children spend more hours in day care (which may be of less than optimal quality), and are less likely to be cared for by their father when their mother is away.
3. See Whiteside, supra note 2, at 20. In a Canadian study that is the largest to date, with a sample size of 23,000 families, one in five 10-11 year olds saw their parents separate before age five. See Elaine Carey, Divorce Hitting Children Younger, TORONTO STAR, June 3, 1998, at 1.
4. See Charlene E. Depner, Karen Cannata, & Isolina Ricci, Report 4: Mediated Agreements on Child Custody and Visitation: 1991 California Family Court Services Snapshot Study, 33 FAM. & CONCIL. CTS. REV. 87, 91 (1995). In California, children between ages 1 to 9, with a median age of 7, are more highly represented among court mediation families than in the general population.
5. See generally AUSTIN SARAT & WILLIAM L.F. FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS (1995), for a thorough discussion of the issues involved, derived from fieldwork notes of actual conferences between divorce attorneys and their clients. The authors point out that because the practice of law requires lawyers to deal with clients in emotional turmoil who may be difficult to manage and satisfy, the practice of divorce law is as distressing for most lawyers as it is for their clients.
6. Austin Sarat & William L.F. Felstiner, Law and Strategy in the Divorce Lawyer's Office, 20 L. & SOC'Y REV. 93, 131 (1986). The authors argue that People in the midst of divorce frequently feel a reduced sense of control over their lives . . . When lawyers then introduce clients to an uncontrollable and unpredictable legal system, their sense of reduced control over their lives may become even stronger. They are, in essence, further threatened by a system that they had expected would reintroduce structure and predictability into their lives. See generally Sam Margulies & Anya Luchow, Litigation, Mediation, and the Psychology of Divorce, 20 J. PSYCHIATRY & L. 483 (1992) (argues that the adversarial system is not a neutral field, but is in fact, the primary source of the family pathology that flows from divorce, augmenting conflict by interfering with adaptive behaviors of individuals and families).
7. See Richard Wolman & Keith Taylor, Psychological Effects of Custody Disputes on Children, 9 BEHAV. SCI. & L. 399, 406-08 (1991).
8. Id. at 407. Parent-child role reversal is a psychological term used to denote a family dynamic in which normative psychological and practical boundaries between parents and children erode, with the result being that children take on parental roles such as disciplining, comforting, and nurturing their siblings and/or parents. Parents, meanwhile, abdicate their responsibilities in this regard, often to an oldest child. Such children often manifest symptoms of pseudo-maturity and precocious social behavior inside and outside of the family.
9. Graham Sayyman & R. Vanessa Sayyman, The Adversarial Legal Process and Divorce: Negative Effects Upon the Psychological Adjustment of Children, 12 J. DIV. 329, 330 (1989).
10. Mediation has emerged as an increasingly popular alternative to the adversarial system. The mediation process facilitates the effectuation of a formal agreement in a non-adversarial atmosphere in which a neutral third party serves as the mediator expert. See, e.g., Peter A. Dillon & Robert E. Emery, Divorce Mediation and Resolution of Child Custody Disputes: Long-Term Effects, 66 AM. J. ORTHOPSYCHIATRY. 131 (1996); Joan B. Kelly, Parent Interactions After Divorce: Comparison of Mediated and Adversarial Divorce Processes, 9 BEHAV. SCI. & L. 387 (1991). Their research indicates that couples who mediated their agreements, as opposed to litigating them, reported less conflict during the divorce, more communication, more noncustodial parent-child contact, and a more positive attitude toward the ex-spouse up to two years after the agreement. See Joan B. Kelly, The Determination of Child Custody, 4 THE FUTURE OF CHILDREN: CHILDREN AND DIVORCE, 121, 135 (1994). Mediation provided by skilled practitioners has also been shown to be more cost-effective for families than litigation and results in greater compliance of child support payments. See also Jessica Pearson & Nancy Thoennes, Divorce Mediation: Reflections on a Decade of Research, in MEDIATION RESEARCH: THE PROCESS AND EFFECTIVENESS OF THIRD PARTY INTERVENTION 9-39 (K. Kressel & D. Pruitt eds. 1989). For a summary discussion, also see JANET R. JOHNSTON & VIVIENNE ROSEBY, IN THE NAME OF THE CHILD: A DEVELOPMENTAL APPROACH TO UNDERSTANDING AND HELPING CHILDREN OF CONFLICTED AND VIOLENT DIVORCE 230-31 (1997).
11. See JOHNSTON & ROSEBY, supra note 10, at 238-39.
12. See, e.g., Sarat & Felstiner, supra note 6, at 129 (ambivalence and feelings of uncertainty among divorce clients regarding their attorneys' intentions may be expressed by "resist[ing] recommendations that a lawyer believes are obviously in the client's interest. They may press lawyers to explain and justify advice given, actions taken, and results produced.").
13. Id. at 116. Typically in divorce cases, "Lawyers must help their clients view the emotional process of dissolving an intimate relationship in instrumental terms . . . . [L]awyers and clients struggle, although rarely explicitly, with the issue of what part of the client's personality is relevant to the legal process. Thus, the discussion of whether to fight or settle is more than a conversation about the most appropriate way to dispose of the case." See also John Griffiths, What Do Dutch Lawyers Actually Do in Divorce Cases?, in Sarat & Felstiner, supra note 5, at 5-6: "Lawyers worried about the emotional instability of their clients, and therefore about distortions introduced into client accounts," react in ways that sometimes cause them to appear "detached, disloyal, and callous" to their clients' situations.
14. See NATHAN M. CRYSTAL, AN INTRODUCTION OF PROFESSIONAL RESPONSIBILITY 21 (1998). Crystal explains, "Courts, disciplinary bodies, and scholars often state that lawyers have a fiduciary relationship with their clients. . . . Fiduciaries have special obligations to care for and to protect the interests of their beneficiaries or clients."
15. MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1 (1997) [hereinafter MODEL RULES] ("A lawyer shall exercise independent professional judgment and render candid advice.").
16. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-a, (1997) [hereinafter MODEL CODE] ("The advocate may urge any permissible construction of the law favorable to his client."); MODEL RULES, Rule 1.3 cmt. 1 ("A lawyer should act . . . with zeal in advocacy upon the client's behalf.").
17. MODEL RULES, Rule 1.2 (a) cmt. 1 ("A lawyer shall abide by a client's decisions concerning the objectives of representation. The client has ultimate authority to determine the purposes served by legal representation"); Rule 1.3 cmt. 1 ("A lawyer should act with commitment and dedication to the interests of the client").
18. William I. Weston, Ethics for the Family Law Practitioner, 28 TRIAL 18, 22 (1992). Weston discusses the importance of attorneys avoiding ethical violations by openly communicating with clients, establishing agreements, and exercising diligence. He also states that "the practitioner's attention to ethical matters will help the client deal with the trauma of dissolution."
19. MODEL CODE, EC 7-8 ("A lawyer should exert his best efforts to insure that decisions of his clients are made only after the client has been informed of relevant considerations."); MODEL RULES, Rule 1.4(b) cmt. 1 ("A client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so."); Forrest S. Mosten, The Lawyer's Role During Agreement Making, 11 AM. J. FAM. L. 13, 14 (1997) (specifically referring to the attorney's duty to advise clients going through the mediation process). See generally Joel S. Newman, Legal Advice Toward Illegal Ends, 28 U. RICH. L. REV. 287 (1994). Newman explores legal cases that highlight the potential conflict between ethics and substantive laws on regulating lawyer advice to clients.
20. William L. F. Felstiner & Austin Sarat, Enactments of Power; Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447, 1459 (1992) (Lawyers are responsible for "defining and identifying 'realistic' goals, and orienting and reconciling clients to the world of the legally possible.").
21. MODEL RULES, Rule 1.4 cmt. 2 ("Adequacy of communication depends in part on the kind of advice or assistance involved," including whether the case is being negotiated or litigated.). See also Crystal, supra note 14, at 62. Crystal discusses the need for attorneys to explicitly negotiate and establish agreement on "the matters for which they are agreeing to represent their client." See Linda J. Silberman, Professional Responsibility Problems of Divorce Mediation, 16 FAM. L.Q. 107, 116 (1982) (examines guidelines for negotiating attorney responsibilities for clients participating in mediation).
22. See Mosten, supra note 19, at 14 (clients are thus better prepared and more effective in negotiation sessions.). See also Peter Salem, Education for Divorcing Parents: A New Direction for Family Courts, 23 HOFSTRA L. REV. 837, 838 (1995), which discusses the benefits of parent education programs for divorcing families, for both parents and children.
23. MORTIMER D. SCHWARTZ, RICHARD C. WYDICK, & REX R. PERSCHBACHER, PROBLEMS IN LEGAL ETHICS 55 (4th ed. 1997). The attorney's oath states that one of the duties of an attorney is "not to encourage either the commencement or the continuation of an action or proceeding from any motive corrupt of passion or interest." See also CRYSTAL, supra note 14, at 81 (cases of attorneys disagreeing with a client's decision or claims of personal financial hardship alone should not impact the status of client representation); MODEL CODE, EC 5-1 ("Neither his personal interests . . . nor the desires of third persons should be permitted to dilute his loyalty. . .").
24. MODEL CODE, EC 5-2 ("A lawyer carefully should refrain from . . . assuming a position that would tend to make his judgment less protective of the interests of his client.").
25. See Penelope Eileen Bryan, Reclaiming Professionalism: The Lawyer's Role in Divorce Mediation, 28 FAM. L.Q. 177, 211 (1994).
26. MODEL CODE, EC 5-2, EC 5-3 (enumeration of particular interests that may affect a lawyer's judgment); Richard E. Crouch, Ethics Aspects of Family Law Practice: How Lawyers Can Avoid Disciplinary Proceedings, 25 TRIAL 63 (1989) (discusses importance of attorney diligence and competence in divorce matters because neglect of these ethical responsibilities "can result in fee awards and sanctions against the client, the attorney, or both"). See CRYSTAL, supra note 14, at 66 ("Lawyers may not counsel or assist [clients] to engage in conduct that the lawyer knows to be criminal, fraudulent, or in violation of a court order . . . [L]awyers who do so face . . . civil liability to the client . . . ."); Kristi N. Saylors, Conflicts of Interest in Family Law, 28 FAM. L.Q. 451, 463 (1994) (attorney-client sexual relations can hinder attorneys' ability to objectively represent clients).
27. See Pruett, supra note 1.
28. The Family Services Unit is a branch of the Connecticut Superior Court. Its "officers" have training in mental health fields. They provide assistance in negotiating financial issues, mediating custody and visitation disputes, and they conduct studies in contested custody and visitation cases.
29. See G. STEVEN, J. TAYLOR & ROBERT BOGDAN, INTRODUCTION TO QUALITATIVE RESEARCH METHODS 136-40 (3d ed. 1998), for a description of grounded theory approaches to working with qualitative data based on Glaser & Strauss' influential book on THE DISCOVERY OF GROUNDED THEORY (1967). This approach is a method for discovering propositions directly from data rather than from existing theoretical frameworks.
30. Id. at 138.
31. Id. at 138-39 (discusses steps in analytical induction and provides a representation of the authors' model of a grounded theory approach).
32. See generally DIANE MEDVED, THE CASE AGAINST DIVORCE (1989). Medved reviews a series of case reports and explores experiences within the divorce process from the perspectives of divorcing families as well as existing theoretical literature. See also Sarat & Felstiner, supra note 5, for a cogent analysis from lawyers' and clients' vantage points.