December 1997

Ethics And The Law
Ethics and The Family Law Lawyer

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Family law lawyers have chosen one of the most rewarding, difficult and frustrating areas of practice. They daily serve clients struggling with raw and volatile emotions, helping them resolve crucial legal problems such as marriage dissolutions, spousal and domestic violence, child custody, visitation rights and support payments (or, more often, the lack thereof). They are front line providers to the public of access to justice, assuring that through law "the dignity of the individual attain[s] respect and protection." They are, unfortunately, more likely than other lawyers, however, to have disciplinary grievances filed against them, receiving about one in every four or five grievances filed. This article suggests some ways to serve family law clients and lessen the likelihood of grievances being filed. While this article is directed to family law lawyers, it may also apply to others, particularly those with volume law practices.

Introduction

The high percentage of grievances filed against family law lawyers does not mean they are more unethical than other lawyers. Rather, it reflects the fact that many problems of the average legal consumer involve family law issues. It reflects that family law practice involves constant dealing with often legally-unsophisticated persons coping with highly emotional issues who often cannot afford, or can barely afford, legal services. It also reflects the often "volume" nature of the practice, serving clients who can afford only the briefest consultation with lawyers, and who thus must often deal with nonlawyer support staff, and yet who often demand "full service" legal representation.

Communication Problems

Family law clients often complain that their lawyers do not communicate with them, by not responding to telephone calls or letters, by ignoring information provided by them, by not explaining legal proceedings or documents, by not keeping them informed about the status of their cases, or by not providing them the information they need to make informed decisions. Failing to communicate violates Rule 1.4 of the Rules of Professional Conduct ("RPCs").

The solution to noncommunication is simple: communicate. The implementation of the solution, however, is much more difficult, since lack of communication involves both the procedure and the substance of communication. Procedurally, a low-income or underage family-law client may move frequently, may be wary of leaving forwarding addresses or telephone numbers, or may not have ready access to a telephone or to voice mail, so that even if you do try to communicate, you may be unsuccessful. If your support staff cannot communicate with the client on your behalf, and the size of the matter does not justify an individually crafted letter, you may want to mail a simple form to your client telling them you tried to communicate (state the dates and times you tried), and asking them to call you at a specified date and time. If the matter is urgent, state that on the form. Then put a copy of the form in your client file and put the date and time on your calendar and be available to take the call. If the client does not call you at that time, try calling the client and again document your attempt. This way the client must take some responsibility for communication and, if a grievance is filed against you, you have proof that you made reasonable efforts to communicate.

Substantive communication for family law lawyers can be more difficult because it may involve complex legal concepts and often arises in emotionally charged contexts. Your client frequently may not understand references to legal terminology such as depositions, interrogatories, restraining orders, interim relief and the like. Thus you need to communicate simply and translate your thoughts into everyday language. Often this takes considerable time. You must be prepared to spend that time yourself, or through your staff. If you do not, you are inviting a grievance. In the family law context, your duty to communicate may be further complicated by your client's inability to make adequately considered decisions due to an impairment, such as being a minor or suffering from a mental disability, or perhaps merely because of the highly emotional context of many family law problems. RPC 1.13 requires you in these cases to try to maintain as normal a client-lawyer relationship as is possible. If you believe your client cannot adequately act in his or her own interests, however, you may seek appointment of a guardian.

Communication is also required to allow the client to decide, under RPC 1.2, the scope of your representation. Many family law clients cannot afford traditional full-service legal representation from you and need to be informed of alternatives, such as unbundled legal services. While these clients often want or need considerable hand-holding, you may not be able to provide this at a low cost. Thus, you and your client need to discuss this when you undertake and agree on the scope of your representation. Doing so will enable you to defend and even avoid grievances later alleging you were expected to do something which you never thought you had agreed to do.

Clients often have a very short time, usually a matter of days, to decide whether to move to revise or reconsider an order. If you do not prepare them in advance for this, they will likely complain that you did not communicate with them and that they could not make the informed decision to which they are entitled. To avoid this, explain procedures to them in advance, have them present at the hearing, and immediately on receipt provide them copies of the order and advise them of their options. Then document your actions.

RPC 2.1 requires you to render candid advice and exercise independent professional judgment on behalf of your client. Equally important for family law lawyers, RPC 2.1 specifically authorizes you in rendering advice to "refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation." Often in the family law context, what is legal may not necessarily be what is best for your client or your client's children. For example, aggressive litigation tactics may seriously harm your client's ability to relate to his or her children and to work with his or her ex-spouse in the best interests of their children. RPC 2.1 allows you to freely explore these issues with your client.

Diligence

RPC 1.3 requires you to act with "reasonable diligence and promptness" in representing your client. Clients and lawyers define "diligence" very differently, and inevitably the client's definition of when a matter should be accomplished is far shorter than the lawyer's. It is your responsibility to educate your client about the practical realities of litigation and moving cases forward, and about the many tasks you may be undertaking on their behalf of which they may be unaware. If you do not, your client will assume you are doing nothing and will likely file a grievance. Similarly, when the court renders an oral decision on a matter, such as child support, you should promptly (preferably immediately) follow up with the written order so that your client will immediately benefit from the order, such as payment of increased support, or enforcement by contempt, or simply knowing the matter is final.

Supervising Staff

Family law lawyers frequently rely heavily on support staff since many clients would otherwise be unable to afford legal assistance unless fees are kept lower by using nonlawyer assistants. RPC 5.3 requires you to supervise your nonlawyer staff to assure that their conduct is compatible with your obligations as a lawyer. RPC 5.4 prohibits you from assisting nonlawyers to engage in the unauthorized practice of law.

Your staff must fully understand your ethical obligations to the client, especially if they will deal frequently with your clients. They must be trained not to reveal confidences and secrets of your clients, and not to give legal advice. When you first meet with your client, you should explain, preferably with your staff present, that your staff are bound to honor such confidences and secrets and that they may not give legal advice, even in emergency situations. As a corollary, your staff must know how to contact you in emergencies so that you can respond to your clients' needs. You should also train your staff to document conversations with your clients so that when you examine a file you can immediately tell its status.

Fees

Since fees are at the root of many grievances against family law lawyers, it is crucial to use written fee agreements and to take the time to personally discuss it with the client. RPC 1.5(d)(1) prohibits contingent fees in pre-dissolution domestic relations matters, but permits them in post-dissolution matters. See WSBA Formal Opinion 75 (1960) (although the contingent fee rate therein would likely raise problems today.) The agreement should discuss the relationship of fees due under it and any court-ordered fees, explaining that court-ordered fees may be less than those set out in the fee agreement, but that the client generally is still obligated to pay the fees under the agreement. It should also clearly state to whom court-ordered fees belong when received. Unless stated to the contrary in the fee agreement, they will generally belong to the client. See WSBA Informal Opinion 88-1. Depending on the terms of your fee agreement, you may generally bill your client for time spent on their matters by your paralegal staff. Your bill for such services should clearly reflect the time they spent at their lower billing rate, not at your billing rate. "Initial switching" is unethical.

It is important to bill clients on a regular and frequent basis. By doing so you can identify fee problems early and, if appropriate, withdraw from representation before you are trapped in a money-losing representation. If you have not been paid your fees and are considering suing to collect them, remember that at least half of such suits result in malpractice claims and many also result in bar grievances. Generally, you would do better to lick your financial wounds and get on with your life. If you haven't been paid and decide to withdraw, generally you cannot hold on to the client file if the client needs it; see RPC 1.15(d) and WSBA Formal Opinion 181. Don't rely on technical arguments that you may have a lien — life is too short to engage in fights over files. If you plan on withdrawing for nonpayment of fees, comply with RPC 1.15(d) and do it early enough not to endanger your client's interests. Don't be afraid to lose unpaid fees by withdrawing early, since it is better than being locked into the representation by waiting too long and then losing a lot more of your time and money.

Candor

Candor towards the court and others is important in family law practice because of the volume of work and the nature of the practice. The court and others have to be able to trust you as an officer of the court. RPCs 3.3, 3.4, 4.1, and 8.4(c & d) set out some of your ethical requirements of candor.

In family law it is not unusual to deal with unrepresented parties. You and your staff should be very careful in doing so, taking particular care not to mislead them. See RPC 4.3. Affidavits and declarations, extensively used in family-law practice, should be what they purport to be and signatures thereon should be authentic. A declaration is false, for example, if it bears a signature which purports to be your client's signature but is not, even if your client agrees with the substance of the document. Orders signed by others and provided to you for submission ex parte should not be modified by you without the express consent of the others.

Conflicts of Interest

You need a careful conflicts-of-interest checking system to assure that you are not undertaking a representation that may conflict with existing clients. Every family law lawyer has probably been asked at some time to represent both parties to a "friendly" or uncontested divorce. Do not do it. The conflicts are real and irreconcilable. While you may be able to act as an intermediary between the two parties under RPC 2.2, the situation is fraught with dangers with the possibility of grievances against you by both parties. If you do undertake it, make it clear to both parties that you are acting solely as an intermediary, comply strictly with RPC 2.2, and, if the intermediation is not successful, do not represent either party in any subsequent proceedings.

Since family law clients typically have few available resources, lawyers are at risk whether they will ever be paid unless they are paid in advance. RPC 1.8(j) generally prohibits you from securing or obtaining payment of your fees by acquiring a proprietary interest in the cause of action; since in a dissolution substantially all marital property is subject to court division, you generally may not secure payment of your fee by acquiring an interest in the marital house or other property.

Don't Embrace Opportunities
(Your Client)

There is no provision in the RPCs explicitly prohibiting having sex with clients. Nor is there an RPC provision explicitly prohibiting tickling them, ridiculing them, tarring and feathering them, or murdering them. The WSBA Office of Disciplinary Counsel takes the position, however, as do many courts and bar associations, that maintaining a sexual relationship with a client, particularly a family law client, even where the relationship is allegedly "consensual," is generally prohibited. The issue is at present being litigated.

Sex-with-client situations nearly always involve a male lawyer and a female client. There appear to be inherent conflicts prohibited by RPCs 1.7 and 1.8 in that the lawyer knows the client's often precarious and vulnerable emotional and financial status and uses that knowledge to the disadvantage of the client. This is true even where the client may be the one initiating the relationship. It is highly questionable whether a lawyer engaged in and pursuing a sexual relationship with a client can give that client truly independent and candid legal advice as required under RPC 2.1. It is also questionable whether a lawyer having sex with his clients satisfies RPC 1.3, which requires a lawyer, as far as reasonably possible, to maintain a "normal" client-lawyer relationship with any client whose ability to make adequately considered decisions in connection with the representation is impaired. Having sex with clients is not yet part of maintaining a "normal" client-lawyer relationship. Substantially all other professions ban sexual relationships between lawyers and clients.

Conclusion

As a family law lawyer you have a very difficult task. To lessen the chance of grievances, you should communicate well and simply, act diligently and explain timing to your client, carefully train and supervise your staff, bill fairly and frequently, be candid with others, and avoid conflicts of interest (including sex with your clients). You also need to take care of yourself since your work can be highly emotionally charged and draining. Emotional burnout is a possibility, grievances a statistical probability, unpaid fees a certainty. Your role as a lawyer is not to make a good living for yourself, but to make living good for your clients, to see that through law "the dignity of the individual attain[s] respect and protection." By doing so you make a crucial difference in the lives of your clients, providing them access to justice and demonstrating that the profession of law is in fact a noble one.