October 28, 2014

Who knows best?

173836369In a previous post, I discussed an attorney whose actions “on behalf” of her client arguably put the attorney rather than the client at the center of the dissolution proceedings. About a week after posting that blog entry, I received a response from the attorney to terms of settlement that I had floated on behalf of my client (Husband). Central to Husband’s desires were a relatively equal parenting plan that maximized his time with his son and minimized a child support obligation that he could ill afford. Because Husband made less than half what Wife did, and because the couple spent a significant amount on childcare for their toddler, parenting time of less than 45.1% threatened to saddle Husband with a monthly support bill that was going to eat up a good chunk of his disposable income. Wife, from whom Husband was parting relatively amicably, appeared (from conversations with Husband) to understand this, and appeared to be willing to split parenting time and/or the child support obligation in such a way as to reduce the financial impact of the settlement on Husband.

So when the opposing attorney countered our terms with a proposal that gave Husband parenting time on Wednesday nights and every other weekend, and played the “Husband has an alcohol problem” card to boot, I was disappointed, though not entirely surprised.

What did surprise me was when, after I forwarded Husband these terms and counseled him not to let the lawyer’s demands and allegations get him down, Husband called me almost immediately and reported that Wife was livid at her attorney for putting forward a proposal that (as it turns out) Wife had not approved, and that Wife was apparently seeking alternate representation. In addition, Husband had it from Wife that, when she confronted the attorney about the unauthorized settlement terms, the attorney told Wife that the offer was in her best interests and that Wife needed to look out for what was best for her.

Overlooking the obvious ethical issues these facts present, I would like to focus instead on the “attorney knows best” aspect of the situation. Aside from confirming my impression that this attorney had been proceeding in such a way to put herself rather than her client at the center of the proceedings, the attorney’s actions fly in the face of the entire rationale behind methods of alternative dispute resolution, like Collaborative Practice. ADR, as ordered by the courts, is a judicial acknowledgment that the parties, and not a judge, are in the best position to solve their problems and to know what is best for them. For an attorney to behave as this one did merely substitutes the attorney for a judge in the court-centered process model, and denies the parties control over their own solutions. Certainly, attorneys may have a knowledge of the law that the parties lack, but that doesn’t mean that there is any excuse for an attorney substituting her own judgment for the parties’ when it comes to hashing out a compromise over a divorce. That is sheer legal hubris. The law should be there to aid the parties in coming to an agreement that is best for the parties; it is not a tool that a wayward attorney should wield in order to do what the attorney happens to believe is best for her client.

Collaborative Practice, and other forms of ADR, put the parties back at the center of the process, and put the lawyers in their proper place as the parties’ facilitators. Not all cases can be resolved through ADR, but even where it does not succeed in bringing the parties together, ADR should reflect the parties’, and not the attorneys’, will.


Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at https://www.lindawray.com/CM/AttorneyBios/JoshuaGitelson.asp.

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