The Ethical Practice of Family Law

The Family Law Courts in South Carolina and throughout the United States are places where personal family tragedies are on full public display. Attorneys who practice Family Law, and the Bar Associations that license them, are accountable for the damage that is being done to the families in our communities.

Domestic relations attorneys will justify and dismiss their harmful litigious behavior against innocent families in our communities involved in the divorce process by saying that they are simply “zealously representing their client” as is required by our Rules of Professional Conduct.  But the South Carolina Rules of Professional Conduct say nothing about “zealously representing our clients”!

Rule 1.3 states that Attorneys are required to “…act with reasonable diligence and promptness in representing a client”.  SC R A CT RULE 407 RPC Rule  1.3

The official commentary to Rule 1.3 says that an attorney shall “… take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client”.  SC R A CT RULE 407 RPC Rule 1.3

It is clear, then, that the legal actions we take on behalf of a client must not only be lawful, they must also be ethical. In fact, attorney’s are specifically advised that they are not bound to “press for every advantage”.  When Rule 1.3 is read in conjunction with the official commentary it is very clear that lawyers are required to balance their efforts in seeking a legal victory with sound ethics.  Then what is Ethics?

The New Oxford American Dictionary defines Ethics as:

  1. [ usu. treated as pl. ] moral principles that govern a person’s or group’s behavior: Judeo-Christian ethics.  • the moral correctness of specified conduct: the ethics of euthanasia.
  2. [ usu. treated as sing. ] the branch of knowledge that deals with moral principles.

Theologian Russell D. Moore, Dean of the School of Theology at The Southern Baptist Theological Seminary, states that Christian Ethics is very simply “…how we imitate Christ, how we live the life of Christ out”.

In his book, Ethics for the New Millennium, His Holiness the Dalai Lama states that religion is not even necessary for us to live an ethical life. He teaches that we behave ethically if at the very least we do no harm to other sentient beings.  All the better if we can take an active role to help relieve the suffering of others.

If we are concerned about the Ethical Practice of Family Law then we must balance our desire to win a legal case with the sound practice of Ethics.  We can use the life of Jesus, if we are Christian, as a measure to determine if our actions are in accord with His teachings. A Christian may want to ask “what would Jesus do” before filing the lawsuit, scheduling a deposition, or demanding that certain sensitive information be produced.   

If we are not religious, as the Dalai Lama suggests, perhaps we should determine if our legal actions will result in harm or suffering to anyone involved in the case before we embark on a particular course of action. Will my questions at trial or deposition result in needless emotional suffering to a litigant, will my request for information result in wasteful expenditures of money to the family?

Here are a few “real life” examples of what I am talking about:

I am representing a husband in a case where both husband and his wife are in their mid 60’s and acquired a 5 million dollar estate during their marriage.  This is more than enough money for each to live out their lives very comfortably.  Wife’s attorney has been relentlessly litigating this matter for over 1 1/2 years (to his great financial gain) trying to get Wife more.  I often wonder if this attorney, who claims to be a devout Christian, has ever checked to see if his behavior is in accord with the teachings of Jesus.  This family, who was getting along reasonably well up until the litigation began, has become hopelessly  fractured. They can no longer communicate as a family or be together for family gatherings.

A few years back a family law attorney in Charleston, also a “devoutly religious” person, was relentlessly litigating a custody case against an unrepresented father.  Father could not afford an attorney and did not know how to defend himself.  As you can imagine, things did not go well and the judge ruled that he was not able to have any visitation with his son, who was 15, except under the most severe, and costly (i.e. therapeutic visitation), terms.  Father could not afford the cost of supervision, so he could not visit with his son (nor did he have any visitation during the 2 1/2 years of litigation). This attorney bragged to me after the judges ruling about what a great legal victory he had scored. 6 months later this man’s son committed suicide.  I am curious if a different result would have been obtained if this attorney sought guidance from his religion and contemplated the best course of action for all involved, as opposed to gaining a great legal victory.

We need to consider if the benefit of seeking 3 or 4 additional overnight visitations per month on the behalf of the non custodial parent, or a 10% swing in division of marital assets, will outweigh the financial loss and personal suffering to all of the litigants, and advise our clients accordingly.  If we counsel our clients in this regard, it may result in less legal fees to our law firms, (I don’t remember Jesus ever teaching about our right to collect large legal fees from families suffering personal tragedies), but it will very likely result less suffering to the families in our communities.

If we balance the ethics of our actions against our intended legal procedures, as the Rules of Professional Conduct require, we will be providing a much greater service to our community.  Will attorneys have less money? Probably not.  Will we all live in a more rational and peaceful community? Absolutely.




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