Game On – Higher Professionalism in 2020

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A judge assigned to a family law calendar in Maricopa County recently remarked that he and his judicial brethren notice that the lawyers practicing family law behave badly toward each other, much worse than what the judges have experienced in civil and criminal assignments. Unfortunately, most of us have litigated against lawyers in family law cases who are consistently abrasive, discourteous and combative.

Particularly in the early years of my practice, I had occasions where it was challenging not to be hijacked by a client’s need for retribution, or to project their anger. But now, after 37 years of practice, I have learned that behaving in a way that contributes to a more adversarial process and relationship with opposing counsel is not just personally debilitating, more importantly it does not serve my client’s best interests, or their children’s.

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All of us in the family law community, including judges, lawyers, and the people we serve, should insist upon, and be committed to, a higher standard of professionalism.

This year I have the privilege and honor of serving as Chair of the Executive Council of the Family Law Section of the State Bar of Arizona. One of our goals this year is to lead the charge towards a higher standard of professionalism in the practice. We are hoping to generate broad support for this effort and this article is the first step towards moving in the right direction. There are a variety of actions we can take to move towards that goal.

We should avoid engaging in behavior that is offensive and demeaning. This is particularly challenging when applied to our communications. We should recognize that all our communications should be thoughtfully designed to achieve some result. For example, years ago, in a case where I was representing the stay-at-home spouse of a physician, I wrote a letter that pointedly criticized the physician for his parenting skills, or lack thereof. Shortly after I sent the letter, the physician’s lawyer called me to talk about some of the issues in the case, including our request for a significant amount of temporary spousal maintenance. In our call, he reflected that I had asked his client to agree to pay quite a bit of money to mine and to also be responsible for certain other financial obligations, and he asked if I thought that my harsh letter would make it more likely that his client would be willing to make those commitments voluntarily. Of course, the answer is obvious. By sending the harsh letter, not only did I make it more likely that his client would be uncooperative, I had also made his lawyer’s job of convincing him to volunteer a reasonable amount of temporary spousal maintenance more difficult. Upon reflection, while my client may have been pleased to read the letter that projected her feelings, it was counterproductive to the result that I was trying to achieve. I would have been much better off to explain to my client that it would serve her interests better to stay focused on the goal. Negotiating reasonable, if not generous, temporary orders was less likely to be achieved by sending communications that personally attacked her soon-to-be ex-spouse.

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We should not engage in activity that facilitates a more volatile, hostile and emotional atmosphere. A lawyer I greatly respect once reflected that the adversarial process in a contested divorce can resemble a war. But at the end of our family law “wars”, with blood on the battlefield and losses of people and treasure, we expect the combatants to walk off together, holding hands, to effectively co-parent. We should reflect on that sentiment and recognize the negative, long-term impact protracted litigation has on all the family members, especially the children.

We are planning a state bar sponsored program focused on guiding lawyers to more effectively represent and advocate for their clients while maintaining the highest standards of professionalism. When you receive the information about the program, I hope you will be compelled to participate and encourage others to do so.

Let’s work on building a culture that steers us all towards a higher level of professionalism. When we change the culture, all of us in family law community, and especially our clients, will experience less suffering and we will have more satisfaction in the practice of family law. Mitchell Reichman 

OAS

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