NBI Seminar: Ethics
As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “Ethics.”
The client/lawyer relationship in a family case is unlike that relationship in any other case. A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life. A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these. When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life. As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.
There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case. Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider. For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value. Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse. Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).
Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues. A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms. The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items. Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.
Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation. Understandably, clients become extremely emotional when dealing with the custody of their children. Sometimes clients simply cannot accept that the other parent has entered into a new relationship. Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have. Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent. It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view. The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client. It often takes more than mere legal analysis to help a client recognize what is best for his children.
Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes. A child will take with him for the rest of his life how his parents interacted with him and with one another. Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely. So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.
Attendance at Client Conferences by Friends or Family of Client
The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies. Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality. Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.
As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?
As a threshold matter, the client must grant permission for anyone to be present at any conference. The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege. The other factors listed above are tactical in nature. Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting. Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence. Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child. The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves. As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.
Finally, a person who finds himself in a custody case is often in a compromised position in his life. In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child. Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support. While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties. It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren. An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants. Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.
An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client. This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.
The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client. Obviously there are no contingency in custody matters either.
Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.
Communication With Adverse Party
Communication with an adverse party, if represented, is like any other sort of case. Communication ought to be timely, civil, and professional. When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues. While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests). As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.
Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party. It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party. A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters. It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client. So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney. The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment. Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client. Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.
Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed. As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.
Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board. All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct. The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.
When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board. Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline. As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.
The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation. This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.
In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.
The potential discipline an attorney could receive is either private or public. Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment. A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management. A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.
A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline. Public discipline is typically imposed after a hearing. Public discipline can only be imposed by the Supreme Court of Pennsylvania. If an attorney is disbarred, the attorney cannot practice law at all in any way. A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar. Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential. Another public discipline is suspension. While suspended, an attorney cannot practice law. Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply. Finally, an attorney may be publicly censured.
The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.
As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision. Instead, the Counsel allows for an internal review process which can be requested by a Complainant. If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.
It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.
- Resources to Consider:
- R.P.C. 1.1;
- R.P.C. 1.2;
- R.P.C. 1.3;
- R.P.C. 1.4;
- R.P.C. 1.5;
- R.P.C. 1.6;
- R.P.C. 1.7;
- R.P.C. 1.8;
- R.P.C. 1.9;
- R.P.C. 1.10;
- R.P.C. 1.16;
- R.P.C. 2.1;
- R.P.C. 3.4;