Ethical and moral considerations of
lawyer-client relations in family law

"The Role of the Lawyer in Relation to the Client: Boss, Humble Servant or Dr. Phil?," a recent CLE program sponsored by the Center for Continuing Legal Education and the Section of Family Law, raised a series of hypothetical situations relating to custody, divorce and spousal finances. What ethical and moral considerations should be taken into account with respect to a client's instructions when there is strong emotional overlay? How does a lawyer deal with a client's rights regarding decisions that affect representation? And what are the rights and responsibilities of a lawyer when the client has instructed you to "keep quiet" about certain information?

What should a lawyer do if a client admits that he really doesn't want custody of the child, he just wants to hurt his spouse, posed moderator Lewis Becker, professor at Villanova University School of Law. Panelist Sheryl A. Shaughnessy, a sole practitioner in Fairfield, Conn., listed some of the Model Rules that come into play in such a circumstance. Specifically, Shaughnessy mentioned Rule 3.1 of the ABA Model Rules, dealing with meritorious claims and contentions; and Rule 4.4, dealing with respect for the rights of third persons. Further, Shaughnessy stated that the Section of Family Law Civility Standards [PDF] is relevant in its seventh commentary, "Where a client wishes to pursue a claim or motion for purely hostile or vindictive purposes, explain to the client the reasons why the client should not do so."

In response to the same hypothetical, Tulsa-based lawyer David Tracy urged lawyers to "confront the situation directly." Aside from the specific rules, Shaughnessy urged lawyers not to "lose sight of the child" involved.

"You don't know what you don't know," said up Dianna J. Gould-Saltman, in response to Becker's outlining of a second hypothetical regarding a client who seems on edge and indecisive but where "the representation . . . has not been adversely affected." You don't necessarily know if representation has been affected, continued Gould-Saltman. If a client seems distracted or edgy, you may want to put more in writing to help assure that your client is able to make an informed decision.

Debate ensued as to whether a lawyer should advise counseling in the event that custody was an issue, whether such counseling would be helpful or a detriment in proceedings, and — finally — whether such a referral could be construed as work product and not have to be revealed.

Additional scenarios discussed during the program centered on mandatory versus discretionary disclosure and "reasonable belief" in instances of a client's revelation of behavior, such as secreted funds, or potential behavior, such as a threat of harm to the ex-spouse. The table of contents [PDF] and an exerpt [PDF] are posted. The entire materials from the program are available from the ABA Webstore.

Back to top