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Divorce and Family Lawyers Who LIE - EQUANIMITY and DIVORCE PRACTICE

Divorce Lawyers Who Lie

Some lawyers, like some people, lie to the Court - particularly in the more contentious of family law cases where emotions run highest. Our culture (and our lower natures) places so much value upon our sense of being entitled to getting what we want, regardless whether it is earned or deserved or the suffering it inflicts upon others when it is not, that otherwise decent, moral people disconnect from their sworn oaths, and more. I often remind my clients that while the judicial system aspires to do justice, the adversarial system only has enough time and resources to devote in any given case to approximate the appearance of justice. For those people who face dishonest lawyers, I apologize and sympathize deeply with your predicament. These men and women seem to forget that real people are involved and that outcomes ruin not on the lives of the parties themselves, but also their children. This of course models behaviors that will repeat - often for generations. I will speculate that lawyers who lie learned the related behaviors from trauma within their own families of origin.

Fortunately it is a rare event in my experience. Most attorneys are honest and ethical, at least in my small community. In 30 years of practice I can count the times that opposing counsel themselves submitted perjured testimony to a Judge. These attorneys became so personally aligned with their clients, or so egotistically challenged, that boundaries evaporated and they became willing to say anything.

There are also a middle category of divorce attorneys whose advocacy style relies upon disinformation but not necessarily outright misrepresentation. It is not uncommon to hear some story or event postured in ways that the lawyer knows are untrue and go beyond a lawyer's ethical obligation to paint his client in a favorable light. Whole stories can even be spun out and laid out before a judicial officer under the guise of "argument" even though no evidence supports the argument, and it is inflammatory, painful to listen to, and without foundation. I believe that why the public, and other lawyers and bench officers, most hold family law attorneys in lowered esteem is because such behaviors are so common among the legal brothers and sisters that it is considered as natural and even humorous. This style of practice exists in a zone of greyishness, one that is reinforced by the conditioning that lawyers receive early on and may be compounded by their own personal histories.

While the latter situations are unfortunate, they occur frequently enough that I've grown desensitized to them. Unfortunately, judges - who can't necessarily discern truth any faster than the rest of us, especially with their limited time and resources - often decline to control these situations. The California Family Code does not provide clear direction or remedies that are efficient and not cumbersome.

This is why I advocate an amendment to Family Code section 271 or a parallel statute authorizing sanctions awards directly against attorneys, and not just their clients, under circumstances and for lawyer conduct that we really could categorize easily since the legal bunch can list it easily. Caselaw is divided whether the existing section covers attorneys themselves for their own misconduct. If attorneys are not personally responsible for their actions under the umbrella of "zealous representation" then training the public to curb their attack dogs will take forever and not be successful.

Lawyers accusing lawyers of unethical behavior is painful and unseemly and this discussion is uncomfortable for lawyers. The dangers in making attorney misconduct directly sanctionable in family law cases include adding another layer where potential manipulative name-calling abuses can occur and even more court time can be consumed. But if we agree attorney misconduct should be deterred, and that the costs to clients and court that they case are equally or more substantial, how else might we achieve this? If lawyers cannot be held accountable, even as their clients may find up footing the consequences as illustrated in the Davenport decision, then we must expect more of the same.

Equanimity is difficult in such circumstances. Adversarial litigation brings the worst out of some people. Many lawyers fit that profile - and certainly many clients lost in the land of relationship end are in a deep destructive trance where the perceived benefits of the ends justify the means. Hell, we all fit that profile from time to time. Unfortunately, those ends never are grounded in anything but illusion.

"All creatures desire peace and happiness" - as your relationship ends, protect yourself but be strong and be whole.



Comments

Glad to see this issue addressed. Lawyer-to-lawyer and lawyer-to-court dishonesty is, in theory and practice, kept in check by the threat of attorney fee sanctions. Take the conduct described in Davenport, and then take away the threat of sanctions. Without the threat of sanctions, what percentage of family law attorneys would engage in Davenport-like conduct? Imagine that scenario, and you have the day-to-day life of a pro per facing a spouse with an attorney. The check and balance of sanctions is gone.