A common complaint of clients who come to me looking for second opinions is not simply that their divorce lawyers don't respond to their calls but that they don't explain what is going on in their case in a manner that is understood by them.
Most of the time this is preventable. A divorce attorney merely needs to placehimself or herself in his client's position and then answer the questions he or she would want to know.
Yet some scenarios arise in divorce and other family law cases that are problematic for attorneys to explain to their clients.
Now you may be wondering, what kind of situation could possibly happen that an attorney couldn't explain to the client?
I'll give you the perfect hypothetical.
John Divorcex hires Attorney Robert Clements to represent him in his divorce. Sheila Divorcex hires Attorney Clara Barns to represent her in the divorce proceeding.
Attorney Clements files a Motion to get Emergency Placement of their minor daughter, Christine. Attorney Clement's motion points out that Sheila has constant and severe anxiety attacks which place her in a condition so that she cannot properly care for their daughter.
Shelia Divorcex is upset because even though she told her husband that Christine was better off with him, she doesn't want anything in writing in case she wants to change her mind. So when John hired an attorney to make sure things were done right for his daughter, Sheila went off the handle and hired her own attorney.
Attorneys are held to ethical requirements. Yet, there shouldn't be a problem as long as the attorneys reasonably work out an agreement for their clients.
Now imagine that Attorney Barns and Attorney Clements discuss a short term solution to the emergency motion. A solution is proposed by Attorney Barns. Attorney Clements brings the temporary solution to his client, discusses the pros and cons with Mr. Divorcex and the client approves it.
Attorney Clements confirms the agreement as outlined by Attorney Barns via a fax to her immediately after speaking with John Divorcex.
The next day Attorney Clements is out of the office.
However, it is not until Attorney Clements is able to check his voicemail later in the afternoon that he has a voicemail from Attorney Barns that she has a faxed proposal to him and it mentions a proposed change to the agreement. Attorney Clements believes the fax must be the proposed order with the terms that were agreed upon. Though Attorney Clements would not recommend the mentioned change to the agreement he would present it to his client. However Attorney Clements is not immediately concerned.
However, after reviewing additional voicemails, Attorney Clements discovers that Mrs. Divorcex is calling his client frantically, screaming at him, making strange demands, and becoming hysterical with him. John needs to hear from Attorney Clements as soon as possible.
Attorney Clements is completely puzzled by Sheila's calls to John and her demands. Attorney Clements tries to contact Attorney Barns on her cellular phone and leaves a voicemail when she doesn't pick up. Attorney Clements then calls Attorney Barns' office. Attorney Barns is out of the office. Her legal assistant reads the fax to Attorney Clements. The fax contains terms and conditions that were never presented to Attorney Clements or agreed upon by John Divorcex.
However, the fax explains Sheila's demands. Shiela Divorcex some how believes John is now reneging on an agreement that never existed.
* * * THE PROBLEM OUTLINED * * *
Attorney Clements must now call John back and explain to John what is happening. This is a greater difficulty than clients might understand.
As an attorney and officer of the Rhode Island Supreme Court, Attorney Clements has an obligation to keep his client informed. Generally speaking , Attorney Clements has an ethical obligation to avoid making statements that place Attorney Barns and the legal profession as a whole in a bad light.
Yet the occurrence gives strong indication of what occurred. Attorney Barns made an offer of temporary resolution which was accepted by Attorney Clement and his client.
Thereafter, Attorney Barns reneged on the accepted offer, unilaterally modified the offer and informed her client that the modified order was, in fact, an agreement.
This action, would be seen by most as disreputable and misleading. The attorney's actions have now caused additional and needless strife in a family matter as a result of Attorney Barns improper conduct.
* * * THE PROBLEM ITSELF * * *
Without placing Attorney Barns or the legal profession in a poor light or violating his professional and ethical obligations, how does Attorney Clements honestly explain to John Divorcex what has occurred here?
This problem strikes at the heart of a troublesome matter, that another attorney and officer of the court has failed to honor an offer made and accepted and has modified the agreement may have represented to her client that it was as in Attorney Barns modified terms.
What is the problem itself?
Dishonest and disreputable divorce attorneys unfortunately do exist. As a result, additional unnecessary conflict is generated by their conduct whether it be as some sort of twisted leveraging mechanism in the family law proceeding, or perhaps simply to create more controversy in order to drag out a case and earn more fees.
The result in this hypothetical is that the attorney's actions have inflicted undue harassment on Attorney Clement's client and undue anxiety and unrealistic expectations upon as a result of intentionally misinforming her own client.
In layman's terms the most basic and accurate explanation to John would be that Attorney Barns reneged on the agreement, changed it as she saw fit, and then lied to her client that Attorney Clement and John had agreed to the terms thereby causing Sheila to unnecessarily retaliate against John.
* * * TOO FREQUENT * * *
Regrettably this is not an isolated scenario in a family court case. There are those Rhode Island Divorce Attorneys who use unprincipled, unethical, and immoral tactics in divorces and other family court matters presumably without the slightest consideration for the damage they cause to the families themselves all on the basis of "winning the case for their client, regardless of the cost."
My hope for the future is that attorneys will someday shed the black eye our noble profession has developed in the public eye. Perhaps then, the public will once again see us as the defenders of the people.
Christopher A. Pearsall, Attorney-at-Law
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