I have just gotten back from a Continuing Legal Education class to help satisfy my requirements for ethics credits. The title of the class was How to Be a Happy, Healthy and Ethical Lawyer. It helped reacquaint me with the some of the Rules of Professional Conduct to which all attorneys are subjected. It occurs to me to be both a helpful and interesting aspect of the legal profession that clients rarely are exposed to.
Attorneys have acquired a bad reputation, and are often subjected to vitriol masked as humor. While some attorneys may deserve such derogation for the things they have done that harm clients, these kinds of misconduct are set forth in the Rules of Professional Conduct that are carefully enforced by the Lawyers Board of Professional Responsibility. It should not surprise you that the overwhelming majority of lawyers are able to conduct their practice of law without incurring any misconduct citations.
My correct title as a legal professional is Attorney and Counselor at Law. I, for one, have personally identified more closely with the role of Counselor at Law than I do with the role of Attorney at Law.
This is what Rule 2.1 has to say about the role of Counselor:
2.1 Advisor In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. In rendering advice, a lawyer may refer not only to the
the law but also to other considerations such as moral, economic, social, and political
factors, that may be relevant to the client’s situation.
In my practice of collaborative law, most of the advice and counseling I provide lies in these other matters more so than it does with the law itself. There are reasons for this. The law is an esoteric thing that is a strange mixture of various aspects.
Statutory Law – is the law enacted by our State of Minnesota legislature
and/or the Congress of the United States in Washington D. C. The nature of statutory law is
such that it is an ever expanding morass of laws and regulations that are created, amended
and/or repealed during nearly every legislative session.
Case Law – is the law that is the interpretation of statutory law by state
and federal district courts, state appellate courts, and/or supreme courts.
Rules of Courts – are administrative regulations that govern the procedural
requirements for filing matters, scheduling hearings on motions, obtaining disclosure of
information through discovery, presenting information at trial, and filing for and conducting
appeals of orders by the lower courts.
All of these aspects of the law contribute to what is blandly referred to as the law. When you bring your case into the traditional practice of adversarial law, all of these aspects of the law may directly and indirectly apply to your particular case.
However, when parties elect to enter into principled negotiations, the application of these laws can change significantly. The law as practiced before the courts, directly applies to the rights, duties and obligations of the parties, but also applies to the inherent power of the court itself, the judge who presides over your case, and how they can and must conduct your affairs.
Parties who elect to have their affairs resolved by a judge give up a great deal of control over the entire process. The law, as described above, provides the structure for how your matters may be addressed. When you elect to work within a process that helps you reach an agreement, the court may, and most often approves your agreement, even when it might vary from the strict application of that big collective law.
When you stipulate to fixing the terms of your divorce, you are initially bound by your agreement to each other. Once that agreement is submitted to the court and adopted as a final judgment and decree you are then ordered by the court to honor those terms. A failure to do so now becomes a violation of the order of the court, and that breach can be enforced directly by the court.
To have a court approve your agreements that go beyond the letter of the law, the court must determine that each party had advice of counsel. Each party declares that they have been advised as to the affect of their agreements, and they court may then adopt that as your final agreement. You choose the certainty of your agreement over the uncertainty of an order that might be made by a judge.
The advice of counsel often has more to do with assisting each client in understanding the ramifications of the many different options that may be discussed, and deciding how best to shape requests for settlement. When each party is able to have a role in the agreement reached, there is most often a strong sense of comfort with the final terms. The possibility of either party needing to appeal a result reached by mutual agreement is greatly diminished.
Your attorney is your ally in this process. Your attorney is able to support you during the divorce process far beyond the simple letter of the law.Tagged with: collaborative divorce process • collaborative process