In the realm of divorce law, navigating contentious cases often requires a delicate balance of advocacy and objectivity.
As lawyers, our primary duty is to serve the best interests of our clients, even when that means transferring the case to another lawyer.
One of the most challenging cases is when the hostility is not only between the divorcing spouses, but also their lawyers. There are many reasons for why this occurs. Lawyers are human and feel emotions. Lawyers, like everyone else, have positive and negative experiences with other lawyers.
In my case, some of my best friends are lawyers that I met on cases, and we remain very close and have been for many years. But there are also lawyers that I have met over the years that have treated me poorly, been rude to me or my staff, or have made it their mission to place the ‘win of a case’ over the importance of civility and collegiality. Everybody, lawyers included, have a limit on how much they can tolerate.
There are cases where Spouse A hires Lawyer A, and Spouse B hires Lawyer B. In some cases, Spouse B hires their lawyer because of the known acrimony between the lawyers and, in some cases, they do so unknowingly. Either way, when this occurs, and the two lawyers know that their past history will stand in the way of negotiation, compromise and resolution. They face an ethical dilemma, should they make full disclosure to the client and resign?
Whether the factual issues and legal principles are simple or complex, solvable or contested, the clash of personalities between these two opponents will not bode well for the case or the clients. Their personal history has the potential to lead to unnecessary and protracted litigation, and legal advice and guidance that is influenced by a personal vendetta. In their mind, each lawyer may feel perfectly justified, if not mandated, to serve as a forceful advocate for their client and label the other lawyer’s position or conduct as so unreasonable that it requires a strong counter-offensive. When this occurs, what then follows is prolonged conflict, high costs and inordinate delays in resolution.
Recognizing when to step down from a divorce case requires an honest assessment of several factors such as:
1. Client’s Best Interest: Ultimately, the paramount consideration is the welfare of the client. If continuing the representation risks prolonging the divorce process unnecessarily, increasing legal fees or exacerbating conflict, stepping down may be in the client’s best interest.
2. Stalled Negotiations: When negotiations cannot occur or reach an impasse prematurely due to the adversarial relationship between the lawyers, withdrawing from the case can remove the real barrier to progress and permit a case to settle sooner.
3. Ethical Considerations: Ethical rules mandate that lawyers act in the best interests of their clients and promote the efficient and fair administration of justice. Judges hate to be school-yard monitors having to end spats between lawyers on a case. When judges observe lawyers sniping at each other in open court or in written communications, the judges generally frown on both lawyers. So if continued involvement of such feuding lawyers compromises their ability to objectively manage a case, withdrawal may be necessary.
Resigning from a case does not signify abandoning a client, but rather recognizing when another, new lawyer might better serve their interests. It can pave the way for fresh perspectives and renewed negotiations that prioritize constructive dialogue over entrenched positions.
In the practice of divorce law, there are typical reasons for dissent. But when the cause of the brick wall separating the problem from the solution is the past grievance between the two lawyers, the right thing to do is to remove that barrier and withdraw.
While zealous advocacy is integral to legal practice, when the ongoing conflict between lawyers impedes the possibility of a fair and timely resolution for the clients, divorce lawyers must demonstrate selflessness, integrity and candour, and transfer the case to a more suitable fit for the client. Doing so is the mark of a great lawyer.
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