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Bar News - November 18, 2011

Family Law: The Parties are Divorcing, not the Lawyers: Resurrecting Civility as not a Lost Art Between Divorce Lawyers


R. James Steiner
The practice of law can be rewarding; it can also be frustrating when one has to deal with unnecessary combativeness from an opposing counsel. With some lawyers you can hold a discussion in the hallway as mediation unfolds, and both get on the same page. At the same time you can appreciate each other, respectfully, as advocates for a client. A wrinkle here or there can be handled without great difficulty. In my experience, even with disparate positions, a lawyer able to communicate effectively, able to listen to the other attorney, and to keep things civil, is more effective in resolving disputes.

A Massachusetts lawyer friend, in assisting me with New Hampshire cases, commented that he sees civility in New Hampshire that does not exist in his Massachusetts practice. He explains that the lack of civility in Massachusetts practice arises from the fact that counsel likely will never see each other again. In New Hampshire that is simply not true. We remain a Bar where attorneys routinely see opposing counsel in any number of cases over a matter of just a couple of years. It is a good idea to think actively about civility and to incorporate it into your practice.

The NH Bar Association adopted Litigation Guidelines in 1999. They can be found on the NH Bar website, under "for Members" and then "Law Practice Tips and Resources." Section 4 addresses "Communications with Adversaries" and provides a reasonable standard all lawyers should aspire to abide by in dealing with one another. To save you the exercise with your mouse, they are listed below:
A. Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.

B. Letters should not be written to ascribe to one’s adversary a position he or she has not taken or to create "a record" of events that have not occurred.

C. Letters intended only to make a record should be used sparingly and only when thought to be necessary under the circumstances.

D. Unless specifically permitted or invited by the court, letters between counsel should not be sent to judges.

E. Counsel should not lightly seek court sanctions.

New Hampshire Bar Association Litigation Guidelines
, The New Hampshire Bar Association Board of Governors (December 2, 1999).

Similarly, the State Bar of California, in 2007, adopted a specific section of its guidelines directed to divorce lawyers, providing as follows:

Provision for Family Law Practitioners

In addition to other applicable Sections of these Guidelines, in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind.

For example:
a. An attorney should discourage and should not abet vindictive conduct.

b. An attorney should treat all participants with courtesy and respect in order to minimize the emotional intensity of a family dispute.

c. An attorney representing a parent should consider the welfare of a minor child and seek to minimize the adverse impact of the family law proceeding on the child.

California Attorney Guidelines of Civility and Professionalism
, The State Bar of California Board of Governors (July 20, 2007).

Civility means showing respect towards others. It is not a weakness. Indeed, in the chess game of litigating a divorce, the attorney’s civility can assist parties in reaching results. Most often, clients are caught up in the emotional upheaval divorce brings to their lives. Being civil to the other attorney likely allows for a broader, more informal, discussion regarding issues and perhaps earlier resolution of contested issues.

To be civil, genuinely, one cannot elect to be civil only to those who show civility in return. If both counsel engage in tension-filled exchanges, the pending divorce issues become secondary to the bantering and crowing of the attorneys. The likelihood of concluding an agreement, or respectfully disagreeing on issues to present to the court, is lost in a hailstorm of verbal battle. It is also draining and most often does little to assist the client. Worse yet, it adds time and expense without the client being able to see any benefit.

Stress can fuel a lack of civility. Many lawyers involved in divorce vicariously live the stress their clients suffer as a result of a pending divorce. It is important to show a client compassion for the very real trauma brought about by divorce. At the same time, it is important not to adapt the client’s stress as your own in dealings with counsel for the other party.

It can be contagious to be civil, even when facing someone who stakes out rudeness and hostility as their method of communicating. Indeed, I am aware of two scenarios where being civil yielded new clients. One client had a developing relationship with a party, and they later married. He did not like the approach taken by his own former counsel or that of his future wife’s counsel. When he later needed legal help he called the lawyer who appeared reasonable, who happened to be representing his future wife’s spouse. The other case concerned a party referred by a former opposing party. The message delivered was the opposing party would never recommend his former counsel but would recommend the attorney who opposed him. Thus, civility can also be a marketing tool!

There is an adage that it takes more muscles to smile than to frown. Be strong, be civil. Enjoy your clients, opposing counsel and the practice of law by having a reputation as one who is considered reasonable and civil in discussions between counsel.

R. James Steiner, of the Steiner Law Office in Concord, has been a NH Bar member since 1987.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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