Dick Price, a collaborative divorce lawyer, authored a nice blog concerning mean lawyers. It caused me to reflect upon comments that my clients have made throughout the years. I remember one individual who was upset that her lawyer was friends with opposing counsel because she thought he would not fight as hard for her if he liked the other attorney.
While we don’t believe that collaborative law is an effective means of handling divorce (and we have taken some flak for our comments that collaborative law is akin to “get naked, jump in a pile, eat potluck and sign agreements mutually beneficial to everyone”), we certainly do not believe an attorney should be a “mean divorce lawyer.” We also think you can help your client more if opposing counsel have a good relationship!
Price makes some excellent observations that being mean can be illegal, unethical, further poison your relationship with your spouse or ex-spouse, cost more and hurt your chances of achieving your desired goals.
Moreover, in North Carolina an improper motive is sanctionable. Under Rule 11 of North Carolina’s Rules of Civil Procedure:
“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”
So to add to Price’s perspective, I offer the following:
(1) Being a good lawyer may appear mean—When we represent a defendant who is being sued for spousal support, sometimes the best defense is a good offense. While it is upsetting to the parties, the defense may require evidence that the other spouse was unfaithful or committed other marital misconduct. Often, eliciting this type of evidence will appear mean to the other side because it is hurtful even though it is merely a proper defense. There are numerous other examples such as conducting discovery, filing pre-trial motions, etc. Aggressive litigation may simply appear “mean” when it is in fact good lawyering. There is nothing wrong with fighting hard for your client and being a strong advocate.
(2) Unprofessional behavior is never acceptable—Even when the parties are at odds, the attorneys should behave professionally. Ideally, the parties should too. This is why we encourage mediation and settlement if possible. When children are involved, the stakes are that much greater and behavior of the parties should not affect the kids.
(3) Don’t forget the Judge—While we may not always agree with the judge’s decision, they often see what is happening in a case and put appropriate orders in place to deal with improper behavior and/or ignore inappropriate remarks. I have had some cases where my client was upset with the closing argument of opposing counsel. Arguments are not evidence and where the argument does not match the evidence, judges usually and appropriately ignore it.
(4) Opposing counsel should be treated with respect—An attorney should foster a good relationship with opposing counsel. In fact, the NC Bar’s rules of professional conduct require it! “Although a matter is hotly contested by the parties, a lawyer should treat opposing counsel with courtesy and respect. The legal dispute of the client must never become the lawyer’s personal dispute with opposing counsel. A lawyer, moreover, should provide zealous but honorable representation without resorting to unfair or offensive tactics. The legal system provides a civilized mechanism for resolving disputes, but only if the lawyers themselves behave with dignity. A lawyer’s word to another lawyer should be the lawyer’s bond. As professional colleagues, lawyers should encourage and counsel new lawyers by providing advice and mentoring; foster civility among members of the bar by acceding to reasonable requests that do not prejudice the interests of the client; and counsel and assist peers who fail to fulfill their professional duties because of substance abuse, depression, or other personal difficulties.”
(5) Communication and transparency—Ask questions throughout the litigation so that you fully understand why your attorney is taking certain actions.
In conclusion, being a mean divorce lawyer simply to be mean is in my opinion, unethical. Putting up a fierce fight which to a lay person may appear mean is not unethical but often simply good lawyering. Ideally, an attorney who is an aggressive litigator will best advance your case. Members of the bar are required to work together as officers of the Court.
Some of the most rewarding cases are those in which the attorneys respectfully disagree about the facts and the law but over coffee prepare a pre-trial order that outlines the scope of battle. We try our case and fight as hard as possible for our client, the judge makes his or her decision and return to the office to draw orders and we prepare appeals. However, for the client it is always better if they can reach a mutually satisfactory settlement with the opposing party.