August 2017 - Breaking Up is Hard to Do: Promoting Civility and Professionalism Among Divorce Attorneys

by Nicole Nuzzo

Today’s family law attorneys face the emotional challenges recognized by both the legislature and courts, coupled with impacted courtrooms and clients who expect nearly immediate responses to email and telephone calls. To manage all of this effectively, it is necessary for practitioners to lead by example by promoting professionalism and civility in divorce litigation. Taking small steps toward achieving this goal could save clients from sanctions, help justify fees as “reasonable,” and avoid an attorney’s having to explain in a malpractice claim why his or her conduct resulted in an outrageous sanction award.

In most cases, allegations of “fault” in divorce are irrelevant and play no role in dissolution proceedings. See Cal. Fam. Code § 2335. In fact, evidence of specific acts of misconduct are inadmissible in dissolution proceedings unless otherwise provided by statute. Id. The state legislature adopted the “no fault” divorce scheme in 1969, recognizing the acrimonious and adversarial nature of divorce proceedings. In re Marriage of Walton, 28 Cal. App. 3d 108, n.2 (1972) (citing In re Marriage of McKim, 6 Cal. 3d 673, 679-80 (1972)).

The state’s goal is to eliminate the adversarial nature of family law proceedings and to ensure cooperation among the parties during the litigation process. Irrespective of the experience of the litigator or the nature of the issues at hand, a certain minimum level of professionalism, cooperation, and civility is mandated by the Family Code to promote settlement of family law litigation and to reduce costs. “Hide the ball” tactics and “sharp practices” are discouraged. See Cal. Fam. Code § 271; Cal. Fam. Code § 2100; In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1537 (2011).

With emotions of anger, hurt, and fear running high, the Lamoreaux Justice Center is filled with couples who once promised “until death do us part” but now find themselves at the mercy of the public court system. They will sit on opposite sides of a courtroom (when time permits) with their respective lawyers unraveling the history of their property holdings and parental responsibilities. With the nature of the proceedings recognized by both the legislature and court, the mindset of divorce litigants can sometimes run afoul of the definitions of professionalism or civility.

For this reason, it is important for family law litigators to review and become familiar with the California State Bar Civility and Professionalism Guidelines (the Civility Guidelines) and Orange County Bar Association Civility Guidelines. Failure, on the part of an attorney, to adhere to these guidelines may not in and of itself result in attorney discipline. However, failure to adhere to these guidelines may result in sanctions against a client, reduced need-based attorney fee awards, and notification to the State Bar, among other things. See Cal. Atty. Guidelines of Civility & Professionalism, http://www.calbar.ca.gov/Portals /0/documents/ethics/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf (June 14, 2017, 10:32 PST); see OCBA Civility Guidelines, http://www.ocbar.org/Portals/0/pdf/news/2017/civility_guidelines.pdf; Cal. Fam. Code § 271; Cal. Fam Code § 2100; Cal. Fam. Code § 2030; see also Marriage of Davenport, 194 Cal. App. 4th at 1537.

Failure to Engage in Meet-and-Confer Efforts Before Litigating May Result in Sanctions

According to the Civility Guidelines, an attorney should, among other things, “attempt to evaluate a matter objectively and to de-escalate any controversy or dispute in an effort to resolve or limit the controversy or dispute.” Civility Guidelines § 13 (emphasis added).

The Rules of Court mandate that all parties and attorneys “meet and confer” in person or via telephone prior to a hearing relating to a Request for Order. During this time, the rules require that counsel make a good faith attempt to settle the contested issues. Cal. R. Ct. 5.98.

If all family law counsel committed to adhering not only to the voluntary Civility Guidelines but also to Rule 5.98, matters could be objectively reviewed, discussed, de-escalated, and perhaps even resolved, prior to hearing. Of course, this would require civility, preparation, and client control on the part of the family law litigator. The small step of setting a meeting with the other side to review all evidence and analyze all issues objectively can make a substantial difference in the reduction of stress and costs associated with divorce.

Advocates of this approach to divorce litigation have called for the creation of a uniform ethical requirement that all attorneys in divorce proceedings be mandated to inform their clients about alternative dispute resolution. See Thomas D. Vu, Student Note: Going to Court as a Last Resort: Establishing a Duty for Attorneys in Divorce Proceedings to Discuss Alternative Dispute Resolution with Their Clients, 47 Fam. Ct. Rev. 586, 587 (2009).

The California legislature has mandated the “meet and confer” effort, and has permitted the court to sanction a party for failure to engage in the procedure. See Cal. R. Ct. 5.98, 5.14(c).

It is clearly in everyone’s best interest, including attorneys, clients, and the court, to schedule “meet and confer” meetings when you are prepared and ready to resolve the outstanding dispute based on an objective view of the facts. Failure to do so can escalate an already adversarial relationship among divorcing couples and prolong litigation in direct contravention of the state’s public policy in favor of resolving disputes expeditiously.

If counsel attempts to evaluate the matter at hand by reviewing documents and objectively attempting to de-escalate a controversy or dispute, the requirements of the Civility Guidelines would be met, as would the directives indicated in the Rules of Court.

Saving clients from sanctions for failure to meet and confer and from incurring attorney’s fees associated with preparing for litigation is undoubtedly in the clients’ best interest. Moreover, resolving a dispute through mediation and negotiation will likely reduce tension in the case and aid the impacted public court system faced with substantial caseloads and limited resources. See Jeffrey Elkins v. Superior Court, 63 Cal. Rptr. 3d 483, 486 (2007) (recognizing impacted courtroom caseloads and limited resources while encouraging case management).

Failure to Treat Counsel With Respect May Result in Sanctions

According to the California Civility Guidelines, an attorney should not make degrading comments toward others, including comments regarding a person’s ethics, morals, integrity, or intelligence. Counsel should refrain from engaging in ad hominem attacks on adverse counsel. Cal. Atty. Guidelines of Civility & Professionalism, § 4.

Had Wife’s attorney in In re Marriage of Davenport, 194 Cal. App. 4th at 1537, adhered to these voluntary guidelines, perhaps his client, a divorce litigant, would not have been ordered to pay Husband over $400,000 in attorney’s fees and sanctions caused in part by her lawyer’s conduct. The lawyer’s actions, in the court’s view, failed to promote settlement and the policy of the law.

Among other things, failure to meet and confer regarding discovery, failure to engage the assistance of a court-appointed case manager, and abusive, rude, and hostile communications with adverse counsel, all caused a thirty-five page register of actions and ultimately, the sanction and fee order. Id. at 1514-15. Comments from counsel such as this is the “pot calling the kettle black,” “once again you offer the same tired, old, and shopworn excuse,” and “talk is cheap, actions speak louder than words” all led to the court’s order against Wife. Id. at 1535.

While priding oneself on zealously advocating on behalf of clients is commendable, this goal can be met while also ensuring professionalism and civility among counsel. Id. at 1537. Note that the state’s guidelines extend the obligation to be civil and courteous to all persons involved in the controversy. Civility Guidelines § 4. This presumably includes comments regarding the adverse party in a family law action. Therefore, counsel should refrain from making unnecessary personal attacks against an adverse spouse unless those characteristics are at issue in the matter.

While the Civility Guidelines have been deemed voluntary in nature, family law counsel should be mindful of the professional and civil mandates of the Family Code and relevant case law, along with the effect of counsel’s failure to adhere to the same.

Failure to Act Professionally May Result in the Reduction of a Need-Based Fee Award

Likewise, with respect to discovery, again, the Civility Guidelines encourage all counsel to act courteously. According to the Guidelines, an attorney should not use discovery to harass an opposing counsel or to delay resolution of a dispute. Counsel also should not request documents unless they are reasonably needed to prosecute or defend an action. Civility Guidelines § 9.

Here, again, the state’s policy favors reducing the adversarial nature of family law disputes. If all parties to divorce litigation conducted discovery for the sole purpose of requesting information needed to objectively and reasonably analyze the case, the state’s policy in favor of reducing the adversarial nature of family law proceedings would be achievable. Family law counsel should avoid “hide the ball” tactics and encourage the free flow of relevant information. After all, “hide the ball” litigation tactics run afoul of a divorce litigant’s duty to disclose material facts and information needed for each party to have full and complete knowledge of the relevant underlying facts prior to final resolution of the matter. See Cal. Fam. Code § 2100.

In family law proceedings, a party may be ordered to pay the other party’s attorney’s fees and costs where there is a disparity in income or access to funds. See Cal. Fam. Code § 2030. However, the amount of attorney’s fees awarded must be limited to that which is reasonable. Id. If family law counsel complied with the Civility Guidelines, discovery would only be propounded regarding issues necessary to resolve the dispute. Engaging in fishing expeditions and prolonged discovery disputes not only violates the Civility Guidelines, but may also result in a reduced need-based fee award where counsel has engaged in discovery tactics not deemed “reasonably necessary” by the court. See id.

The inverse is also true for the in-spouse who maintains records and information necessary to resolve a dispute. If a significant amount of time and expense is expended to obtain documents and information needed for a spouse to make an informed decision regarding an issue prior to settlement and/or trial, counsel will likely have a hard time defending an attorney fee request by the other side on the basis that the fees incurred were unreasonable. Not only will need-based fee awards be hard to defend but the spouse whose conduct is unprofessional and uncivil will also very likely face a sanction award for failure to promote settlement and the policy of the law. See Cal. Fam. Code § 271.

With respect to discovery, acting civilly, professionally, and in accordance with the mandates of the Family Code could save clients from sanctions and the reduction in need-based fee awards. At the same time, counsel will be saved from having to answer to clients regarding exorbitant billing.

Failure to Act Professionally May Result in Notification to the State Bar

In the end, a court is required to report the issuance of judicial sanctions against an attorney to the State Bar (except regarding discovery or a sanction less than $1,000). Cal. Bus. & Prof. Code § 6086.7(a)(3). This mandate is limited to sanctions against an attorney. However, this does not prevent an aggrieved client who has been sanctioned due to a lawyer’s conduct from contacting the State Bar to file a complaint.

In 2014, Rule 9.4 of the California Rules of Court was adopted, adding civility to the newly admitted attorney oath such that now, newly admitted attorneys confirm that as officers of the court, they will strive always to conduct themselves with dignity, courtesy, and integrity. Cal. R. Ct. 9.04.

Counsel, experienced and new, should not take the Civility Guidelines lightly. While voluntary and idealistic in nature, commitment to these voluntary practices by encouraging parties to divorce their spouse with dignity and respect will very likely result in the ability to successfully resolve disputes in a more reasonable and timely manner.

The building blocks to successful family law advocacy may start in law school; however, the same should transcend into practice. Remember, the attorney in Davenport was a young lawyer, only barred a matter of months before engaging in the sharp practices that cost his client a substantial amount of money (and apparently, according to the case, the attorney’s position at a prestigious law firm). In re Marriage of Davenport, 194 Cal. App. 4th 1507 n.3.

The only way to ensure the professional and civil practice of family law is for each member of the bar to treat others as he or she wishes to be treated, while encouraging their clients to do the same. It is only then that new lawyers entering this profession will realize that such practices are necessary to make positive contributions to our clients’ issues. This starts with accepting that acting civilly does not weaken a client’s position. For additional tips on avoiding inadvertent incivility, counsel should review Mr. Garner’s article on why Nice Guys (and Women) Don’t Have to Finish Last. Scott B. Garner, Ethically Speaking: Civility Among Lawyers: Nice Guys Don’t Have to Finish Last, Orange County Lawyer, March 2016, at 46.

Nicole Nuzzo is an associate with Bremer Whyte Brown & O’Meara, LLP who is designated by the State Bar of California Board of Legal Specialization as a Certified Family Law Specialist. Nicole limits her practice to family law matters including divorce, custody, support, domestic violence, and property division issues. Nicole is a member of the OCBA Professionalism & Ethics Committee, and may be reached at nnuzzo@bremerwhyte.com.