Is Family Law Litigation Ethical?

Attorneys are subject to rules that set forth certain minimum standards of practice. These rules are called the Rules of Professional Conduct. A reading of these Rules strongly suggests that the vast majority of the litigation in our courts may be in clear violation violation to one of the main tenets of an attorney’s Code of Conduct. 

Domestic relations attorneys will often justify and dismiss their harmful litigious behavior against innocent families by saying that they are simply “zealously representing their client” as is required by our Rules of Professional Conduct.  The only problem is that 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.

So what is Ethics? Ethics, very simply stated, is about doing no harm.

A woman came to me recently who had been separated from her husband for one year. They had a small child and had been cooperatively raising this child on an equal basis and had agreed upon a division of property. In other words, the matter was settled but for a written agreement and court order approving it.

Husband hired an attorney to resolve the matter, the attorney filed a lawsuit alleging all kinds nasty things against Mom, and the parties were off to litigation. Mom was terribly distraught, both mom and dad had to borrow money from their parents to engage in the “litigation” over absolutely nothing. We were retained and forced the matter into mediation where the mediator assisted both parties in reaching the same resolution they had come to themselves prior to hiring lawyers.

We had another case recently where Mom and Dad were still living together, had two small children and had decided to end their marriage. Neither could afford to move out of the home, so no lawsuit could be filed on uncontested grounds. Mom retained an attorney to assist her in negotiating a separation. The attorney then filed a lawsuit against Dad alleging a fault based divorce on the grounds of habitual drunkennes, telling Mom that this was her only option since the parties were still living in the same home. One year later and at a cost of nearly $25,000 in combined legal and guardian fees (borrowed from their parents), and a great deal of emotional suffering on the part of both Mom and Dad, the matter went to mediaton and settled.

The attorney’s who filed these two cases were well within their legal rights as per our domestic relations law, but were the attorney’s actions in accord with an their ethical responsibility? The answer is no, and our courts need to stop permitting this kind of senseless litigious behavior that only benefits the attorney’s and court appointed guardians. The financial and emotional harm these attorney’s committed against innocent members of our community is clearly harmed both parties financilly and emotionally, and accomplished absolutely nothing.

In South Carolina, a person can not sue a doctor without first being required to attend some form of pre-litigation, non advesarial dispute resolution process like mediation. Why then should we be permitted to sue our spouses without first attending some form of alternative dispute resolution process?

The answer to this question rests with the South Carolina legislature. Some believe that our legislature needs to get to work with a “top to bottom” reform and modernization of our domestic relations laws. The impitus for reform can only come from the voters who are abused by the family law system, because it certainly won’t come from the lawyers who are profiting from the system or our paternalistic legislature, some of whom believe that women are “a lesser cut of meat”.

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