Continuing with last week’s blog theme, wherein I discussed the perils of dealing with an opposing party in a post-divorce matter where he believes that he got a “bad deal” in the prior divorce proceeding, today’s topic focuses on the lawyer who essentially morphs into his client during the course of a matter to the point where the litigant cannot do anything without the lawyer saying “yay” or “nay.”  Ultimately, it seems that the case is settled with the lawyer, rather than with the party, herself.  These situations can prove extremely frustrating, and very costly, as the lawyer will do everything he can to stand in the way of the parties making progress or getting along if it means that it is not what he would have done or how he would have acted.

Consistent with that notion, and the emotions at play in a divorce, some divorce lawyers seem to prey on the emotions of clients, and, as a result, ultimately take cases to, or close to a trial.  The emotions become that of the lawyer, who then ultimately controls the case until he is ready to bring it to a conclusion.

Eric Solotoff previously blogged about the perils of lawyers writing emails for their clients, which is really the perfect example of the lawyer becoming the litigant.  All of a sudden, the emails are clearly written by someone else, in a manner geared for litigation, and, all of a sudden, the party/parent is no longer acting in that role.  There is simply no way that two people can co-parent together or move towards a settlement if every communication between the parties is crafted by a lawyer.

Similarly, I was recently involved in a matter where the parties directly agreed, without lawyer involvement, to a certain parenting time schedule for the children.  The issues were not complicated and, together as parents, the parties worked it out on their own.  I provided my recommendation to my client on the terms, and let him go from there, since it is ultimately his life and his choice.  Notably, the other party’s lawyer was not involved in the agreement, and did not know that it had been made until after it was done.  Once he learned about it though, he did everything he could to undo its terms because it was not something that he agreed with – aside from the fact that his client was willingly on board.  The result?  Greater counsel fees, more acrimony, and more litigation.

I have also been involved in matters where it is clear that my adversary has a personal vendetta against my client, thereby impeding any chance at resolution.  In those situations, the matter is not likely to settle until the other lawyer has overcome his personal issues towards my client and determined that he is ready to allow the case to settle.  Those cases, sadly, becomes less about finding a common ground and less about the parties’ goals.  Instead, it becomes more about the lawyers.  This, undoubtedly, benefits no one involved.

Finally, it is always interesting when an adversary takes a position on his client’s behalf by using the phrase “we” or “us”, rather than “my client.”  This is another telltale sign that the lawyer has become the litigant, since ultimately the client has to make his or her own decision, and should be guided and advised, rather than instructed.

Ultimately, while we cannot stop a lawyer from becoming a litigant, we can advise our clients as to what is really happening and how it may impact upon the long-term result of the case.  If anything, a proper fees application can address the issue, and, perhaps, hold the other attorney accountable for such conduct.  Until then, though, agreements are upended, frustrations mount, and acrimony increases unnecessarily.  Beware – the lawyer who becomes the litigant.