The Role of Attorneys in Collaborative Divorce

August 15, 2014

One of many myths about lawyers is that in all professional circumstances they are called to be “zealous advocates” for their clients, which is typically interpreted to mean that the lawyer is to fight for what the client perceives his or her rights to be in legal dispute.

The truth is that the zealous assertion of a client’s position is in fact the lawyer’s job IF the client has hired the lawyer to represent him or her in what the Tennessee Rules of Professional Conduct refer to as the “adversary system.”  What many lawyers and lay people seem to miss is that the Rules of Professional Conduct say that “as a representative of clients, a lawyer performs various functions” depending on the particular context of a given case.

The Rules go on to talk about what a lawyer does in his or her capacity as an advisor who helps clients understand their legal rights and obligations in a particular context; as a negotiator who seeks a positive result for the client “consistent with requirements of honest dealings with others;” as well as an evaluator and an advocate.   In sum, the Rules talk in terms of attorneys playing a variety of roles, and the particular hat a lawyer is called to wear in a case depends on the particular context he or or she is in, as well as the scope of the lawyer’s representation of the client.

Collaborative Divorce is an alternative dispute resolution process that divorcing parties can voluntarily choose to access if they so desire.  The process is aimed at helping families move through divorce in a respectful, non-adversarial way.  By definition, there are no contested court hearings in collaborative divorce where the attorney would be called on to zealously assert his or her client’s position in an adversarial court hearing.  Therefore, if a client hires a lawyer to represent him or her in a collaborative divorce, the client knows (and should be clearly informed by the lawyer before the lawyer is hired) not to expect his or her lawyer to zealously advocate for his or her position in an adversarial system because collaborative divorce is, by design, not an adversarial system.

In initial consultations, lawyers should clearly make potential clients aware of the option of doing their divorce through the adversarial system as a litigated, contested divorce if that approach works better for the client and his or her goals.  If the lawyer with whom the client is meeting does litigation work him or herself, the parties can talk about what the lawyer’s role will be in the context of litigation.  If the lawyer does not represent clients in contested cases, he or she should refer the client to another competent lawyer to represent the client in litigation.

But it important to understand that all family lawyers need not play all of the roles that are available for family lawyers to play.  For example, some attorneys find the competitive, strategic arguing of legal positions in the courtroom to be energizing, while others find it frustrating and draining.  Other attorneys enjoy guiding couples in the same room through difficult, heated discussions about finances or parenting, while other attorneys are not interested in or skilled around managing that sort of interpersonal conflict.  It is simply a matter of different preferences and different skill sets.

In sum, potential divorce clients should be informed when they hire a lawyer what that lawyer’s style of representation tends to be and how the lawyer intends to conduct him or herself professionally in the case – which hat the lawyer typically wears in divorce cases.  If the client chooses on the front end to pursue a collaborative divorce, the client is acknowledging that his or her lawyer will primarily be working in the advisor and negotiator capacities and the client should therefore not be disappointed to find the lawyer not engaging in positional, adversarial types of behaviors that would be appropriate if the parties were in litigation and the lawyer were functioning primarily as an advocate.

Family law attorneys need not be all things to all people.  But they should inform clients of what they will and will not be doing in their professional roles as divorce attorneys so that the client can decide if the lawyer’s style is a good fit for what the client is trying to accomplish.

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