A few days ago, one of my esteemed colleagues commented on the role of a family law attorney by stating that it is our job to “stay neutral” and to not pass judgment on our clients. He asserted that he chooses to “not blindly accept allegations of one angry parent against the other” because, in his lengthy career as a lawyer he has learned that “mudslinging is all too common in our business.”
My gut reaction to the comment that a lawyer’s job is to “stay neutral” was to think “no it’s not – that’s the judge’s job!” Yet, I found myself agreeing that attorneys should not “pass judgment” on our clients and certainly we should “not blindly accept allegations.” Indeed, there is a Michigan court rule [MCR 2.114 (C)(D) and (E)] that prohibits us from doing so by providing that attorneys must sign every document being filed with the court and that the signature certifies that the attorney has read the document and believes after reasonable inquiry that the assertions in the document are true. The rule goes on to describe the penalties the court may impose if it is determined that an attorney signed a document that was filed in court but which was untrue where the attorney failed to make a reasonable inquiry.
Of course, what constitutes a “reasonable inquiry” is not defined, but I certainly do not recommend filing documents with the court that contain allegations that cannot be supported, at a minimum, by my client’s detailed testimony, and hopefully more. For example, if my client alleges that his/her spouse emptied a bank account in violation of a court order, I would expect a bank statement or other bank document showing the withdrawal(s) would be available to support the allegation. I also require my clients to sign all documents that I file with the court that contain factual allegations because I cannot know what happened, I can only know what my client tells me happened.
This brings me back to my esteemed colleague’s statements. My description of an attorney’s role in a family law case is quite different than his. I believe my duty to my client is to both provide a reality check and to advocate. It is not my job to stay neutral. Rather, it is my job to work for the best possible outcome I can assist my client in achieving within the parameters of Michigan family law. Having said that, it is also my job to ask a lot of penetrating questions when my client makes allegations against the other side. My intent is not to test my client’s truthfulness. Rather, it is to test the “provability” of my client’s allegations in court. In fact, unless and until I learn a client has outright lied to me (and I cannot recall the last time that happened), it’s my job to assume my client is telling the truth. If I decline to raise an issue for my client in court, or I counsel my client that the issue is likely to either lose or backfire, it is based on my determination that the issue is not supported by sufficient provable evidence or that the issue is irrelevant. That’s the reality check I owe my clients.
I have also learned, after decades of practice experience, to remember that each party to the case will view the facts differently, and not unexpectedly, will differ as to those facts. The old saying is true, it takes two to tango (The exception would be domestic violence; it emphatically does not take two to make an abuser). I have yet to see the case where one side is always right and good and the other side always bad and evil. Good and bad, right and evil are not the issues here. All of us – including my clients – are human, and in the case of divorce and custody battles, circumstances tend to bring out the worst in humans. I still owe my clients zealous advocacy!
That is why one of the most important functions I perform for my clients is to remain emotionally detached, and perhaps this is what my colleague meant when he said lawyers have to remain neutral. No, we do not. But we do need to keep our wits about us, and make recommendations to our clients based on reason and law, not emotional reaction to the allegedly bad and evil other side. I explain to my clients that if, as their lawyer I am simply going to step into the clients’ shoes and feel what they feel and act as they act, I will be completely ineffective, and they will save lots of money by simply representing themselves.
Almost to a person, my clients have appreciated candid analysis of the problems and issues they present to me. They know I will be straight-forward and tell them what the need to hear, not what they want to hear. In the end, I can advocate effectively without judging my clients’ propensity for accurate reporting simply by doing my job professionally. And that’s what every family law client deserves: reality check and advocacy.