The Lawyer’s Job

” But the job of a lawyer rendering advice is not to seek to satisfy the client’s wishes, but it is to inform the client, as objectively as possible, what the law requires or permits and make every effort to ensure compliance. I think that is a lawyer’s duty whoever the client is, a public official or a private enterprise, and however anxious the lawyer is to please the client, the advice should be informed, honest, and as objective as possible. It should not depend on the client’s desires or even on a view as to the desirability of the end sought.”

Nicholas deB. Katzenbach, Esq. (Former Attorney General of the United States). Remarks at the Opening Session of the 2009 American Law Institute, upon Receiving the Judge Friendly Medal.

Nothing Personal

Lex just met a former public defender who recently became a family lawyer. She formerly handled death penalty cases. Life or death stuff. And what she told me was interesting. The practice of family law was similar to criminal law; but the major difference was that the family lawyers are much more contentious and tend to personalize things (present company excluded, of course).

Why is that? Is there something inherent in the practice that makes many lawyers personalize their client’s angst? Or is the type of person who is attracted to this practice prone to this, oftentimes, anti-social behavior?

Maybe the marketplace promotes this behavior. If we get reputations as bellicose warriors, willing to take extreme positions for the sake of “justice”, we will be rewarded with a full book of business (but who really wants that business).

For whatever reason, divorce lawyers do tend to personally download the conflict way too often. It is unhealthy for the client,  the family, the legal system, and for the lawyer. While sometimes it is hard not to get angry with despicable behavior, periodic reality checks are necessary to maintain objectivity. If everyone is a villain–nobody is.  

Do your job and then go home and hug your spouse and  kids. A better way to practice.

A Noble Profession

Lincoln

“True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures—unless as amateurs for our own amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”     

 John W. Davis, Address at 75th Anniversary Proceedings of the Association of the Bar of the City of New York (March 16, 1946).

Compassionate Advocacy

Compassion contemplates concern for another’s suffering, accompanied by a subsequent need to alleviate the suffering. Compassionate family law advocacy requires both a concern with a client’s pain, coupled with appropriate action to address and help reduce that pain.  To be an effective and compassionate advocate, it is not enough to simply feel the client’s pain– no matter how well intended.  Legal  judgment, skill and firm action are all necessary to be a compassionate advocate.

Some  believe that  in order to be  a compassionate lawyer, caring about  clients is enough. They conclude the mission is accomplished simply by being a good listener and sincerely sympathizing with their plight.  True compassion, however, requires both the heart and the head.  True compassion is not passive.

On the other hand, there is another contingent of lawyer who thinks compassion is unnecessary; that acting on the particular dilemma is the only duty. They believe  that  being superb legal technicians excuse their humanity. And there are those lawyers that  actually exploit their clients emotions as a source of profit, excusing  their profiteering with the excuse,  “that’s what they want me to do.”

None of these views of the practice are compassionate advocacy or effective lawyering for that matter. As Karl Llewellyn observed,

“Compassion without technique is a mess; and technique without compassion is a menace.” 

Lawyers must work to understand their clients, and only then take the appropriate action to address the problem. In family law, the grief, anger, fear, and pain must be appreciated in order to effectively advocate. But then we need to take action–in a logical and reasonable way– to help address the pain.  Neither a passive do nothing attitude, nor angry advocacy that mirrors the client’s pain, serve the client, or the legal system at large for that matter.

As family lawyers we have a sacred trust. We bear our client’s burdens. People trust us with their children’s lives and their financial futures. We must understand the human condition and remember our own humanity, neither succumbing to  cynicism nor impotence.

Compassionate Advocacy

Deposing the family czars

The Idaho Supreme Court recently issued a decision  that explores the role of familycourt. While generally unremarkable, the ruling is insightful in its examination of the limits of the court’s power. In Allbright v. Allbright, http://tinyurl.com/phk9tj, filed August 21, 2009, the Court reversed a trial court that held that a custodial parent could not relocate a distance that would interfere with the non- custodial parent’s parenting time. In  its ruling, the Idaho  high court mused on the role of  family court in resolving family disputes. Specifically it held that, ” a court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything the court believes is in the best interests of the child. The court’s authority comes from the Idaho code…”

Daily people bring their problems to the court, and the court responds with decisions on such matters as soccer camp vs. football camp, or whether junior should wear red pajamas versus blue ones. But family micromanagement is not what a court should do.  Family courts need to be more circumspect in the exercise of their powers, not becoming czars over  all domestic turmoil. Family courts, while unique in the subject matter they adjudicate, are nevertheless courts,  subject to definite statutory and jurisdictional limitations.  And frankly, if the courts refuse to adjudicate petty matters, maybe litigants will find a way of resolving these matters on their own, without the seductive need to “go to court…”

Who’s Your Daddy Redux

In 2004 Lex published an article in the Loyola University Chicago law Journal entitled, “Who’s Your Daddy? : An Analysis of Illinois’ Law of Parentage and the Meaning of Parenthood.” The premise of the article was a criticism of the Illinois statutory scheme that defined parenthood exclusively in genetic terms. In Illinois, paternity rights are absolute for a man who impregnates a woman, regardless of any competing circumstances.

At the same time, I successfully had the Illinois parentage act declared unconstitutional by a courageous Kane County trial Judge (In re John M) on the basis that the statute deprived families of due process rights by its exclusive reliance on a genetic based definition of parentage, regardless of the circumstances. In other words, if a child is born to an intact marriage, and the husband is not the bio-dad, should he automatically be denied the label of father in favor of the adulterous interloper? I argued, unsuccessfully before the Illinois Supreme Court, that a statutory scheme that did not consider the best interest of the child in determining parentage, denied that child their constitutional rights as well.

Recent events in the infamous California kidnapping remind me that the state needs to regulate parentage, considering the best interest of children. Why is it abhorrent to public policy to allow a trial judge to adjudicate parentage based upon the best interest of the child rather than relying exclusively on genetics? Should a sperm donor automatically be entitled to the rights of a father because of that genetic connection? Our society is rapidly moving away from a genetic based definition of parentage. Advances in assisted reproductive technology and non-traditional families have confused the simplistic notion of parentage exclusively based upon gametes.

As I argued five years ago in “Who’s Your Daddy”:  ”A parent-child relationship involves so much more than shared genes. The bond of the parent and child is built on love, patience, nurturing and the time spent helping a child develop and thrive. A policy that ignores this reality in favor of a sterile scientific certainty weakens this sacred and permanent bond, and devalues our society, which is based upon these relationships.”

In light of our legislature’s review of its family laws, it should relook at this issue and redefine parentage in child-centric terms. Parentage is too important to ignore the reality that sperm donation should not confer automatic rights of parentage, when it would be detrimental to a child.

D-Mail

Just as technology has changed society , it has significantly altered the divorce landscape. Divorce mail, or D-mail is a modern phenomenon in family court. More and more lawyers deal with the use and abuse of  technology. E-mail and text messaging , and other issues we didn’t confront, even 5 years ago, are becoming common.  And while before, parental access issues were limited to physical time spent, now an additional digital layer has been added. Is it appropriate for the children to text mom when they are in dad’s care?  Or vice versa?

Feuding parents  now frequently communicate via D-mail as opposed to telephone or face to face contact. Perhaps this is a good thing inasmuch as it limits acrimonious face to face contact.  But sometimes the communications are so obsessive and frequent they become near abusive.

And speaking of communication, spouses monitor each other’s e-mail communication if passwords or privacy controls are not used. To be allowed insight into a spouses private communications during a divorce is an unbelievable godsend for an angry, if not curious, soon to be ex-spouse.

 Another implication is the evidentiary trail this digital communication leaves.  How many angry e-mails have been presented as evidence, whereas a couple of years ago an angry comment made in a phone call would have simply been denied. And what goodies are left on the home computer, to be nabbed by the aggrieved spouse’s forensic expert?

Not unlike  modern life in general, technology can either be a useful enhancement to the quality of our lives, or a torturous complication. Divorce is no different.

Does a parent’s duty of support include saving a child’s life?

This is an interesting post by Eugene Volokh,  from the “Volokh Conspiracy” Blog   http://volokh.com, that poses the question whether a parent should have a legal duty to contribute a kidney to a child. If we compel a parent to support a child in order  to economically sustain the child, isn’t it a reasonable extension to require a parent to make this sacrifice as well. And alternatively,  should a  parent be charged with neglect if they refuse to contribute a kidney to a child with an ascertainable need.  I suppose the arguments against this is the policy against violating the parents rights to their body, but isn’t a balancing test appropriate?  Again, like in so many instances in the area of family law, this question leads us to the ultimate question: how far should the law go in legislating morality?

 

“Should a Parent Be Required To Donate a Kidney to a Child Who Needs a Life-Saving Transplant?”
A commenter asked this as a rhetorical question, suggesting, I think, that the answer must obviously be “no.” But I don’t see why, assuming that we’re talking about a minor child of the parent. Parents are rightly seen as having duties to their children. These include the duties to work to support the child for 18 years (more controversially, that’s extended even beyond 18 years in many child support decisions, but for now I set that aside); to care for the child; to bear a post-viability fetus, at least absent some substantial threat to the mother’s life or health; and more.

Why wouldn’t this also extend to the obligation to provide a life-saving transplant, at least when the risk is as low (not zero, but very low) as it is for kidney transplants? You bring a child into the world, and you incur major obligations to it; why shouldn’t this be one of them?

Now I don’t ask these questions as rhetorical ones, since it’s possible that some distinctions can be drawn (or even that the existing obligations on parents are excessive, though I’m skeptical about that). Perhaps there is a dispositive difference between providing an organ and having to work for 18 years to support someone. (I agree there’s a difference, even an important one, but it’s just not clear to me that it should lead to a difference in result.) Perhaps there is something dispositively different between having to give a kidney forever, and having to provide one’s womb for several months; or perhaps women shouldn’t have to bear fetuses even post-viability; or perhaps women only have to bear fetuses post-viability because they knew of this obligation early on, and had an opportunity to avoid this by a pre-viability abortion. I haven’t thought about the matter deeply enough to have a well-worked out response to all these things.

But my intuition is that a legal duty to provide a kidney, given the very low risk that it involves, is well within the range of burdens that parents may rightly be required to bear; and at the very least we can’t just categorically exclude that possibility. I’d love to hear what others have to say.

Legislating Morality

This is an interesting discourse on the difficulty legislatures have balancing needs of the family against individual rights.  To what extent can public policy influence intimate relationships? And vice versa.

From Concurring Opinions Blog   http://www.concurringopinions.com.

Is Divorce Too Easy? Helping Marriages Survive Infidelity
posted by Solangel Maldonado
Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.

Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).

Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.

Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?

Parent Support?

As our society ages, should we explore the notion of parent support? Nobody questions mandatory child support (well a few perhaps), but does it make sense to compel senior support? Do we owe anything to our parents if they are aged and economically insecure?

One could argue that families have a duty to care for their own. Therefore, assuming a child has some ability to support a parent–and that parent has unmet financial needs, we should mandate contribution for their care. After all, that same parent may have been likewise compelled to support that child at some point in the past. The economic obligations should be reciprocal.

But does a child owe anything to a parent? (Probably some more than others!)  And if so, should the child’s recognition of a parent’s contributions be recognized, or compelled, through court ordered remuneration?

Perhaps this question becomes more timely as social security becomes overburdened, pension funds are failing and recent economic events have shaken our sense of economic security. Should the state’s recognition of a parent’s financial responsibilities to a child go both ways? Let’s start the debate.