In just over a week, the American Bar Association holds it’s annual meeting. This year it will be held in San Francisco. It is a time for leaders in all legal areas to come together, share ideas and learn from each other.
At the meeting, I will have the good fortune of being sworn in as the Chair Elect of the Family Law Section of the American Bar Association. It will truly be a privilege to serve. I have been fortunate to have had some wonderful mentors during my career, and each, without fail, have encouraged bar participation. In 1997 I served as Chair of the Family Law Section of the Atlanta Bar Association and I also will soon serve as Chair of the Family Law Section of the Georgia Bar Association.
While some may think this takes away from my practice of law, the opposite is true. My practice, including every member of our firm benefits from the leadership roles and active participation in which I, my partners and our associates engage.
Attending scores of legal education seminars each year and maintaining relationships with the finest lawyers and judges in the country keeps us all on the cutting edge. If there is a new idea, trend or significant case, we are giving ourselves every opportunity to learn about it first.
While in San Francisco, I fully intend to take advantage of everything the ABA has to offer. From Hot Tips in Family Law, to programs on presentation techniques for the courtroom, I plan to soak in as much as I can. The nice thing is, most of the other lawyers there too are similarly motivated and that is exciting. I look forward to learning from my peers and returning to Atlanta with at least a few pearls of wisdom, learned, borrowed or stolen from some of the best legal minds our country has to offer.
Why would an attorney withdraw from representing a client? There are many reasons limited only by the number of reasons relationships go sour. Yes, sometimes the dispute is over money. The client may not be paying the fee originally agreed to, or in the manner and time desired. But often that is not the reason. Unfortunately, that reason gets all of the attention, because it is the best way to protect the client. In other words, if a lawyer withdraws from a case, isn’t it better for the world, and the court to believe that it was a simple dispute about money, instead of one of the many other reasons? What other reasons? How about a client that refuses to tell the truth? Or a client who curses at an attorney or his or her staff. In these types of situations, a professional attorney will not disclose why they are withdrawing because to do so would create a negative impact on the client’s case. For instance, if it is a custody dispute and the client is accused of not being able to cooperate with his or her spouse, wouldn’t it severely hurt the client’s case if the lawyer’s grounds for withdrawal were “non-cooperation of client”?
Sometime lawyers become the “fall guy(s)”. That is okay. If my client’s spouse wishes to hate me instead of their spouse, that is probably better for their children. Even if I am urging my client to cooperate, the other side often thinks I am telling my client not to cooperate. But if I set the record straight, my client, and maybe the children, may suffer. So who will know when a lawyer is telling his or her client to do the right thing? The lawyer and the client. And if the client doesn’t follow the lawyer’s advice, or doesn’t cooperate with the attorney, the lawyer will often withdraw from representation. Hopefully this is a last resort, but no client should be forced to work with a lawyer they do not want to work with, and vice versa. This also then frees the lawyer to devote more time to the clients who he or she works well with and for and who deserve nothing but the full attention of, and best and undistracted efforts of their lawyer.
As attorneys, our roles are varied and unique depending on the situation. But it has always been interesting to me that attorneys are often referred to as “counselors”.
The recent case involving Lindsay Lohan is illustrative of my point. After her sentence was determined, she hired well known attorney Robert Shapiro. While the sentence had already been meted out, surely there was something he could do for her? Many opined that he would rush in and save her from serving time in jail. But in my opinion, based on the very limited information I have via the press, it seems he was truly hired as a “counselor” at law. His credibility together with his personal history (he lost a son to issues similar to the ones Ms. Lohan is dealing with) made him the perfect candidate to assist Ms. Lohan with a more holistic approach. I believe he tried to discuss with her an overall, long term solution as a good lawyer should.
Perhaps nowhere is the phrase “Attorney and Counselor at Law” more appropriate than in family law. It is interesting that the Merriam-Webster OnLine dictionary defines the term “Counselor at Law” as: “a person who gives advice or counseling-marriage counselor”. Interesting that “marriage counselor” is right there in their first definition.
In most other types of lawsuits, clients can discuss their case with their spouse, their family and their friends. But in family law cases, like divorce, the parties cannot confide in their spouse (who is the opposing party) and they often do not discuss the details with family members for many reasons, including embarrassment. This puts the family law attorney in the unique position of attorney and valued confidant. And it is an obligation of supreme importance. Should a lawyer file every motion he or she can think of, just because he or she can? The interesting part of family law is finding out what the client’s ultimate goal is, and figuring out the best way to get there. Sometimes the answer is through a trial, but often, as discussed in a previous blog entry, mediation and alternative dispute resolution is best.
The field of family law is not one of “fill in the blanks” and there is no such thing as a “cookie cutter” divorce. Each situation must be evaluated on it’s own with consideration given to all the moving parts: relationships with and between their children, their family members, business partners and geographical considerations in case one party wants to “move back home” where his or her parents are. A good divorce lawyer will know how to listen very carefully. Our job is not to get what we think the client wants, but to actually learn what the client wants and to be sure we are achieving their goals, not ours. The case and the result are the client’s to live with and we must do our very best to help them achieve their goals and put them in position to move forward once their case is over.
[youtube]http://www.youtube.com/watch?v=HaZP92d4kk8&feature=player_embedded[/youtube]I recently served as a mediator for a contested divorce case. Each side was well represented and prepared. But it still was a difficult situation. While the details of the case including whether it or did or did not settle are confidential, I am confident the process was beneficial. I enjoy serving as a mediator and do it three or four times each year. As an advocate, when representing someone going through a divorce or family law matter, I am probably involved in ten or twelve additional mediations per year.
After a full day of mediation, parties often realize that failure to reach resolution only ensures more attorneys fees, more stress and delayed closure. Spending time together, even if separated during the day, allows the professionals and the parties to focus on resolution. Smaller areas of disagreement succumb to discussion of the larger issues. Having a neutral third party (mediator) often helps refocus everyone on total resolution which often means foregoing minor goals.
Family Law mediation and resolution is a complicated process. Rarely does anyone get all they want. But if the goal is closure, finality, cessation of fees and hostility, it can be accomplished. Why, because those goals are worthy of significant concession on lesser matters.
There will always be cases where settlement is impossible, but as a lawyer and mediator, if everyone has really given settlement a good try, litigating the case is much easier on the conscience. Litigating without giving your best to get it resolved short of trial is, in my opinion, a shame. But once all efforts at settlement have been exhausted, then we are of course left with the remaining alternative of presenting the strongest case we can to the court. A well presented case can achieve good results, but if if we can achieve those results via settlement, even better (and usually less expensive) for our clients.