Boundaries of the Divorce Lawyer's Role

Author(s): BRUCE W. CALLNER

Source: Family Law Quarterly, Vol. 10, No. 4 (Winter 1977), pp. 389-398
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/25739164
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Boundaries of the
Divorce Lawyer's Role
BRUCE W. CALLNER*

Introduction
Amidst the efforts to reform divorce law and practice, members of
the legal and non-legal community have called upon practitioners
to take an expanded counseling role. Emphasis has been placed on
working with the client's emotional response to divorce and the
marriage itself, rather than simply utilizing legal expertise to
terminate the marriage.
Fortunately, the marriage counseling function of the divorce
lawyer has been recognized and encouraged. Unfortunately, the
boundaries of this function await exact definition. If not sharply
defined this expanded role, though well-intended, can erode the
foundation of legal counseling, client self-determination, and the
legal orientation of the lawyer's counseling efforts. Realistic limits
and role definition for the divorce lawyer are needed if client's
problems are to be handled in an efficient and effective manner.
The functions of a legal counselor can be divided into two main
areas: (1) facilitating the client's decision-making process and, (2)
acting on the decision itself.

The Nature of Decision-Making

A schematic analysis of the decision-making process crystalizes
what, at first impression, appears to be a nebulous procedure.

Member, Georgia Bar.

389

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390 Family Law Quarterly, Volume X, Number 4, Winter 1977

Understanding the nature of decision-making can aid the coun

selor in focusing upon those factors which have produced the
client's ultimate decision. The following schematic representation
places the counselor in a position to aid his client constructively in
reaching a rational, relevant decision, particularly if his client's
previous consideration of the problem has been inadequate or if the
client has reached his decision through an evaluation of irrelevant
factors. Furthermore, aware of his influence and control over the
client's behavior, the counselor will be in a clearer position to avoid
participation as the decision maker himself.
The decision-making process is normally conceptualized into six
sequential phases: (1) identification of the problem; (2) obtaining
the necessary information essential to the problem's solution; (3)
creation of possible alternative solutions; (4) evaluation of the
probable outcome of each alternative solution; (5) selection of one
of the alternative solutions; and (6) performance of the selected
alternative.1
A lawyer is generally consulted at the fifth stage of the decision
making process, the point at which alternative solutions to the
marital problems are being selected. Obviously, foremost in the
client's mind is the alternative of divorce. But there is rarely a
complete consideration of the prerequisite stages by the client
before arriving at this point.
Ordinarily, the counselor first obtains factual information from
which he will determine the true nature of the problem. He will
then advise his client on the available alternatives and their
probable outcomes. More often than not, he will also make a rec
ommendation. The influence of the attorney is pervasive and, all
too frequently, his advice will constitute the decision itself.2 Finally,
the counselor will implement the decision.
Where, in the scheme of events, did the client affect the decision
making process? His contribution has simply been to provide the
factual basis upon which the attorney's recommendations have
been based. The client's major decision has been to approach a

1. Brim, Jr., Glass, Lavin & Goodman, Personality and Decision Processes 9
(1962).
2. Siegel, New Challenges to the Family Law Practitioner, 6 U.C.D.L. Rev. 371, 375
(1973).

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 Boundaries of the Divorce Lawyer s Role 391

legal counselor for advice, and more often than not he will proceed
on the counselor's recommendation.
Of course, the client's participation in each phase of the deci
sion-making process will differ to some degree in each case, but the
general format of the attorney's recommendation will constitute the
decision itself. The significance of the attorney's influence on the
decisions of his clients cannot be understated. Almost everything a
lawyer says and does has a profound influence on the behavior of
his client.
The question will always be one of degree: did the counselor serve merely to
provide the conditions under which the client could make his own decision, or
did he go further and interfere with that decision?3

The Code of Professional Responsibility implies the philosophy

of client self-determination by mandating that decision-making is
the province of the client.4 The ultimate decisions are to be those of
the client and not of the attorney.
The role of the legal counselor is to aid his client in the resolution
of problems which he has chosen to bring to the counselor's atten
tion. The attorney must avoid the hidden problem of making the
client's decisions by proferring a recommendation. The schematic
outline can facilitate client self-determination by providing a logical
progression of problem analysis to which the attorney may refer
when aiding his client to reach the most beneficial solution
possible.
[T]he ideal function of the counselor is achieved when he simply supplies the
conditions under which a client may make his own decision and minimizes
his (the counselor's) own participation in the process. Antithetically, the
relationship is perverted when the counselor?overtly or covertly?affects
the client's choice of conduct.5

Limiting the Expanding Role of the Attorney

Once the client has made a decision the lawyer is faced with
executing his client's desires. This is generally not difficult in the
area of law, but the client's needs often extend beyond this limited
warehouse of remedies. Supportive counseling and psychological

3. Cihlar, Client Self-Determination: Intervention or Interference?, 14 St. Louis U.L.J.

604, 622 (1970).
4. ABA, Code of Professional Responsibility EC 7-7 (hereinafter referred to as the Code).
5. Cihlar, supra note 3, at 605.

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 392 Family Law Quarterly, Volume X, Number 4, Winter 1977

counseling are often necessary, as well as marriage counseling, if

the alternative selected is reconciliation.
The divorce lawyer's role is obviously something more than to
serve merely as an instrument of the law. The limits of the lawyer's
extra-legal role need to be sharply defined if the integrity of the
legal profession is to be maintained and if client problems are to be
dealt with effectively. In no other area are lawyers more frequently
consulted by clients seeking advice on matters having little or
nothing to do with the law itself. The difficulties of divorce are
largely social rather than legal, and matrimonial clients confront
the lawyer with psychological, social and economic as well as legal
problems. The Code expressly recognizes the fact that lawyers will
necessarily have to deal with clients who call upon them to assume
various counseling roles,6 but it gives no guidelines on the permis
sible dimensions of extra-legal counseling services.
The legal counselor should attempt to insure, as much as pos
sible, that he understands the true desires of his client before imple
menting a selected alternative solution. In fulfilling this function
the attorney will necessarily engage in some form of marriage coun
seling.
It is impossible to make a wise decision about terminating a marriage until
an individual knows what part of his difficulties are internal and what part
are in the spouse; which problems are curable and which are not.7

The lawyer has the responsibility of directing the client's analysis of

his marital problems so that the client himself may accurately
determine if there are real or merely apparent incompatibilities
between himself and his spouse.8 To this extent every matrimonial
lawyer engages in marriage counseling.
Many members of the bar would like to provide more exten
sive marriage counseling services. The convenience to the lawyer
who also engages in marriage counseling does not counterbalance
the multitude of tangential problems. The lawyer's aid in helping
his client proceed through the sequential decision-making process

6. ABA, supra note 4, at Preamble.

1. Zacher, The Professional Responsibility of the Lawyer in Divorce, 27 Missouri L. Rev.
466, 472 (1962).
8. Ard, Jr., The A-B-C of Marriage Counseling, 2 Rational Living 10 (1973); Ellis, The
Nature of Disturbed Marital Interaction, 1 Rational Living 22 (1966).

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 Boundaries of the Divorce Lawyer s Role 393

is essentially psychological. Special talents are required for this

limited form of marriage counseling, as special talents are required
of every lawyer who decides to handle domestic relations cases.9
However, the counseling skills necessary in the latter area can be
developed from the experience gained in the daily practice of law.
Much more is required if one is to hold himself out as a profes
sional marriage or psychological counselor. The difficulties of
doing so are prohibitive.
Essentially, there are four major obstacles confronting the
lawyer who desires to engage simultaneously in full-fledged mar
riage or psychological counseling: (1) inadequate training in
psychology; (2) the inability to counsel both spouses; (3) the dif
ficulty of practicing law and another profession concurrently; and
(4) the antipathetic roles of advocate and counselor.

Professional Competence
Unquestionably, the legal practitioner is to be competent in the
exercise of his professional duties.
This competence . . . involves more than an ability to use the skills and tools
of the profession. . . .The professions are separated from other crafts or skills
simply in this: that the professional sees his client as a whole human being
and relates his services to the total human need of his client.10

Unless the attorney has extensive psychological training and

clinical experience, he should not attempt to engage in intensive
marriage counseling. He is a counselor at law and not a marriage
counselor. There is a substantial difference. The counseling skills
required of a lawyer and of a psychologist are not identical. Coun
selors of these two so-called "helping" professions help in different
ways. The client of the psychologist receives directions on how to
help himself: the performance is by the client himself. On the other
hand, the client of the lawyer is presented with a selection of alter
native solutions: the performance is by the lawyer. It is one thing to
tell a person what you can do for him, and quite another to tell him
what he can do for himself.
The role of a lawyer should not be diluted with excessive non
legal responsibilities.

9. Etheridge, Family Law, 10 Georgia S.B.J. 55 (1973).

10. Zacher, supra note 7, at 478.

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394 Family Law Quarterly, Volume X, Number 4, Winter 1977

Only the attorney has the legal tools for the divorce. Only he can sharpen
those tools. There are other disciplines that can handle non-legal problems.
But only the lawyer can take legal action and bring the matter to the desired
human end.11

This does not mean that the lawyer should ignore the extra-legal
aspects of counseling. Quite the contrary; he should be attentive,
but keep the role of marriage counseling in perspective. It is a
corollary service, not the primary one. Referral is the answer here.

Inability to Counsel Both Spouses

Marriage counseling is, at best, ineffective when only one partner is
involved.
There is an old saying that it takes two to make an argument. But it is also
true that it takes two to make a discussion, to work out a solution to a prob
lem, to learn a workable compromise for a difficulty.12

The Code presents three insurmountable barriers to the attorney

who desires to counsel both spouses: (1) Canon 5 which prohibits
representing conflicting interests; (2) Canon 9 which mandates that
the counselor should avoid even the appearance of professional
impropriety; and (3) Canon 7 which restricts communications with
one of adverse interest to the counselor's client.
It is improper and unethical for an attorney to represent both
parties to a divorce. Such representation will expose the attorney to
liability and possible disciplinary action. The interests of the
partners to a troubled marriage differ, regardless of the protesta
tions to the contrary by the parties themselves. Situations in which
their interests are identical are so rare as to be considered excep
tional.13 The Code states that a lawyer should avoid representing
not only currently conflicting but even potentially conflicting in
terests.14 This directive would apply whether the lawyer is ap
proached by the spouses separately or simultaneously. He must
refuse to accept such employment by one or both.15 Partners of a
deteriorating marriage fall within the broad prohibition of conflict.
Numerous cases have held that an attorney who represents both

11. Deutsch, The Family Law Practitioner As Legal Psychiatric Worker, 48 Calif. S.B.J.
159, 200 (1973).
12. Ellis & Harper, Creative Marriage 59 (1969).
13. Walzer, The Role of the Lawyer in Divorce, 3 Family L.Q. 212, 217 (1969).
14. ABA, supra note 6, at EC 5-15; DR 5-105.
15. Id. at DR 5-105(A), (B).

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 Boundaries of the Divorce Lawyers Role 395

parties in a matrimonial action should be disbarred, suspended, or

censured for representing conflicting interests.16
Regardless of the true degree of conflicting interests the attorney
creates the appearance of professional impropriety simply by coun
seling both sides of a marital conflict. Such conduct appears to
violate the provisions of the Code. However, this is not to say that
the lawyer cannot work with the unrepresented spouse to achieve a
negotiated settlement. When engaged in this activity, the lawyer is
charged to advise the unrepresented spouse of his or her right to
seek other counsel and must clearly identify the fact that he repre
sents only one party.
Finally, legal counseling with the spouse of his client constitutes
a violation of the Code for the matrimonial lawyer if that spouse
is not represented by a lawyer.17 If the spouse of his client is repre
sented by a lawyer, the counselor may communicate directly with
such spouse provided he (the counselor) has the permission of
opposing counsel.18 Such permission is highly unlikely, however,
considering the adversary nature of marital proceedings.
Since there are no exceptions to the Code's prohibitions, mar
riage counseling of both spouses is a high risk activity.

Simultaneously Practicing Law and

Another Profession
Providing in-depth marriage counseling services concurrently with
the practice of law has been prohibited by the Standing Committee
on Professional Ethics.19 The only fee that may be charged for
providing such services is a legal fee. Although it is now settled that
a lawyer may concurrently practice law and another profession or
business, marriage counseling has been consistently prohibited on
the ground that it is so closely related to the practice of law that
marriage counseling by an attorney constitutes the practice of law.
Additionally, potential conflict of interests problems continue to
create formidable obstacles.

16. Annot., 17 A.L.R. 3d 835, ? 7 at 844 (1968).

17. ABA, supra note 6, at DR 7-104(A) (2).
18. Id. at DR 7-104(A)(l).
19. ABA, Comm. on Professional Ethics, Informal Opinions, No. 41 (unpublished); No.
537 (1962); Standing Comm. on Professional Responsibility, Informal Opinions, No. 1248
(1972).

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396 Family Law Quarterly, Volume X, Number 4. Winter 1977

Most compelling, however, is the Committee's opinion that to

practice law and concurrently engage in a different profession,
in accordance with the Canons is so difficult that suspicions of unethical
conduct are almost inevitable. For that reason alone, it is our opinion that
only a very few lawyers will expose themselves to such suspicions on the part
of their brother lawyers and the public.20

Advocate v. Counselor
The lawyer is the champion of his client. His duty is to represent his
client zealously. Advocating the position of one partner in a marital
dispute is inconsistent with the goals of marriage counseling, i.e.,
marital harmony and cooperative effort.
When two lawyers are pitted against each other and engaged in legal combat
on behalf of their clients, matrimonial problems obviously are not being
solved.21

This is not to say that the roles of marriage counselor and lawyer
are necessarily inimical. They are, in fact, somewhat complemen
tary. With the possible exceptions of therapeutic separation
agreements,22 conciliatory efforts and "blueprint" marriages,23 the
alternatives available for direct action by the attorney are geared
toward the termination of the marital relationship.
It is the attorney's warehouse of remedies, and not his advocate
role alone, which conflicts with his counseling role. Marriage coun
seling by the attorney is not the remedy to the high rate of divorce.
That remedy is to be found in the legislature, the manufacturer of
his legal tools. Marriage counseling by the attorney does not fill the
void of limited legal alternatives.

Defining the Role of the Attorney

Lawyers are directed to avoid the infliction of needless harm.24 How
can the lawyer insure that the decisions of his client are the most
appropriate alternatives available? The simple answer is that he
cannot.

20. ABA, Comm. on Professional Ethics, Informal Opinions, No. 775 (1965).
21. Kahn & Kahn, The Divorce Lawyer's Casebook 73 (1972).
22. Kohut, Therapeutic Separation Agreements, 51 A.B.A.J. 756 (1965); Kohut,
Therapeutic Family Law 85 (1968).
23. Crenshaw, A Blueprint for Marriage: Psychology and the Law Join Forces, 48
A.B.A.J. 125 (1962).
24. ABA, supra note 6, at EC 7-10.

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 Boundaries of the Divorce Lawyers Role 397

The lawyer's responsibility is to insure, as much as possible, that

decisions made are those of his client which are reached after con
scientious and deliberate employment of each phase of the decision
making process. In fulfilling this responsibility, the lawyer will
necessarily engage in some form of marriage counseling.
The schematic outline of the decision-making process defines the
parameters within which marriage counseling is to be performed by
the attorney. The point at which an alternative solution has been
selected marks the point of termination for the attorney's marriage
counseling efforts. If the alternative is legal in nature, the
attorney's function is then to pursue the client's legal claim. If non
legal, his function is referral to a competent professional.25
No lawyer, or other professional, can insure that the correct
alternative has been selected. The measure of a decision's "correct
ness" can, unfortunately, only be made after the decision has been
executed. Although divorce is often an incorrect alternative, so may
be not terminating the marital relationship.
Matrimonial lawyers should be encouraged to become familiar
with the nature of marital disharmony. However, marriage coun
seling should remain in the hands of qualified professionals. The
lawyer's professional responsibility and the client's self-determina
tion are preserved when the lawyer has made certain the decision
making process has been thoroughly employed and that referral,
when appropriate, has been made to the most competent profes
sional available.

Conclusion
Legal practitioners must be willing to accept the limits of their
professional expertise. With a broadly based background, lawyers
sometimes look to the law for the resolution of all problems. The
answer is not always there.
Although lawyers need not be callous or unaware of the extra
legal aspects of marital disharmony, they must keep in mind that
their primary function is to advise on the state of the law as it is

25. Deutsch, supra note 11; Isaac, The Family Lawyer and Extra-Legal Resources, 1
Family L.Q. 13 (1967); Robbins, The Lawyer and Marriage Counseling, 46 Mich. S.BJ.
27, 30 (1967).

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 398 Family Law Quarterly, Volume X, Number 4, Winter 1977

applicable to the particular problem presented by the client.

Referral to the disciplines primarily concerned with the extra-legal
aspects of marital controversies should be encouraged. It is as
much a part of law practice as the execution of legal decisions and
lawyers must learn to do it with great skill.
The attorney-client relationship does not magically end upon
referral. The attorney's responsibility continues until the client's
problem has been solved either within or without the legal system of
remedies. Resolution of the client's problem is the goal. The attor
ney should recognize that he cannot always achieve it by himself.

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