On several occasions, I have been the incoming attorney where the client did not trust the attorney they initially retained, because they felt that attorney was in bed with their ex’s attorney, so to speak.
They had observed the two attorneys — opposing counsel to one another on the given case — engage in overly friendly behavior and banter in the court hallways and overheard their attorney cutting deals and verbally committing to settlement agreements to the opposing counsel that they had not spoken about with them (their own client) previously. In one particular case, the client overheard her attorney agreeing to have her pay a sizable amount in maintenance without first discussing it with her (this was before the new maintenance legislation was passed); in another case, the client overheard his attorney agreeing to give the wife full custody with limited visitation to him (the father) where the client was a very hands-on and involved father and wanted a 50/50 custody split.
These observations breed distrust, as the client feels that their attorney is not advocating for them. They feel their attorney is in cahoots with opposing counsel and is more interested in their relationship with opposing counsel than with them, the client, thereby selling them down the river in the process.
It is important for attorneys to have a positive rapport with one another, but there is a fine professional balance.
The relatively small pond of attorneys specializing in matrimonial and divorce law can often feel confined and incestuous. The attorneys tend to see each other frequently (for example, in court, at continuing legal education programs, and they are often repeat opposing counsel to one another). They are familiar with and often respect each other’s work.
A friendly professional relationship between your lawyer and opposing counsel can benefit you, because it can help the case proceed more smoothly and quickly. For example, if your lawyer is friendly with opposing counsel, opposing counsel will be more likely to extend professional courtesies when they are requested and less likely to argue over points of minutiae that are vacuous holes of time and money. A friendly professional relationship generally also involves mutual respect for the other person’s skills and professionalism. A lawyer who is respected by his/her colleagues can be a more effective advocate for you.
There are best practices attorneys should follow to foster the client’s security and confidence in them and the progress of the case. Foremost are the needs for transparency and honest, clear, open communication.
Before agreeing to a deal on your behalf, your lawyer should discuss with you the goals of the representation, the scope of his/her authority to reach an agreement on your behalf, and the specific details and ramifications of any particular piecemeal or global settlement.
While your lawyer should advocate zealously on your behalf — both in negotiations and when arguing to the court — keep in mind that it’s also part of his/her job to advise you about the realistic chances of achieving your goals in light of the governing law. Although clients do not always welcome this kind of information, if your objectives are realistic, your lawyer may be able to help you resolve the case more quickly than if your objectives are unrealistic. Having realistic goals can also help minimize the emotional turmoil that can accompany divorce.
To ensure transparency, your lawyer should regularly update you and accurately report to you about what is going on in your case. You should be copied on all written communications.
Sometimes, the assigned judge will ask the lawyers to come up to the bench or into the judge’s chambers without their clients. Because transparency is extremely important, your lawyer should ask the judge if you can be present. If your lawyer can’t say something in front of you, he/she shouldn’t say it at all.
Feel free to contact The Law and Mediation Offices of Cheryl Stein with any questions.