I am sure that every lawyer out there, divorce lawyer and non-divorce lawyer alike has had a prospective client in their office who was expressing positions that were off the wall and virtually impossible to attain. For most lawyers, including us, it is a no brainer. You counsel the client appropriately and let he or she know that their position is likely not sustainable. For others, either because a lack of knowledge, lack of ethics, or the desire (or need) to make every last penny, or perhaps a combination of these reasons, they tell the client what they want to hear. Perhaps it is the classic angel and devil on your shoulder – though for some, there is no doubt that he is going to tell the client what he wants to hear and do whatever the client wants him to do. “Sure we can get you sole custody and supervised visitation.” “You don’t want to pay alimony – no problem.” “You don’t think you should have to divide the value of your business, I agree.”
I am not talking about esoteric issues, difficult but not impossible positions (provided that the client is counseled as such), attempts to make new law that are in good faith and based upon law and/or fact. I am talking about the pure bad faith position that has no chance of winning because it is based upon neither law nor facts nor anything. We are talking about conduct that could get a client or lawyer sanctioned, similar to that in Robert Epstein’s blog post from yesterday about the meddlesome family members driving the litigation.
I have recently had an adversary raise a conflict issue, that (1) his predecessor in the case refused to raise because it was not his client’s conflict; and (2) where he could not ever actually articulate what the conflict was. Rather, the attorney filed the motion anyway because his client wanted it filed, to avoid his client suing him for malpractice. In other words, he promised his client he would file the motion and was doing so, not because it was proper, but to protect his own (not the client’s) interests.
In another matter, an attorney got into an ostensibly settled case and his first letter admitted that while he didn’t have the file, when he got it, he was going to serve a discovery deficiency letter (even though his predecessor felt discovery was complete), not knowing whether there was a deficiency. Clearly, to get the client, he promised a course of action not knowing and perhaps even though he knew it was not necessary.
At lunch today, I ran into a colleague that advised me that not only did an adversary file an application that had no legal or factual basis because that is what his client wanted him to do, but he also filed it on an emergent basis at a time where he knew his adversary was going to be on vacation.
On more than one occasion, I have been the second attorney in to a case where a reasonable client who didn’t know better, was promised an unreasonable result, and was disappointed by how the case was going. The unreasonable client is shopping for someone to deliver the undeliverable. The reasonable client just wants to hear it straight and move on from the debacle created but the unattainable promise made to get the client to retain.
As this is a referral business, the attorney who makes unattainable promises will not get referrals from disappointed clients. There is a difference between getting a reputation for being a hard negotiator or taking difficult positions, and doing anything just because the client wants it. The attorney who takes impossible if not unethical positions just to mollify a client will get a bad reputation with the judiciary and other lawyers, and eventually potential clients will find out too (though water finds its level and he will get other clients knowing he is willing to do the client’s bidding). They may also get sanctioned and have ethics complaints filed against them as noted in the blog post referenced above.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.
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