Show and Tell: Do You Really Have to Disclose Everything to Your Attorney?

We understand. Nobody wants to sit down with a total stranger and admit all the things that are quite personal to you, especially when you are facing a family crisis.  But remember your conversation with your attorney is privileged. That means you can’t be forced to testify about what you said or the advice your attorney gave you. For better or worse, North Carolina still uses marital fault in certain cases. This may include adultery, substance abuse, domestic violence or other things that might happen when you “hit rock bottom.” There are also secrets that could jeopardize your case, not to mention your credibility as a witness if you end up in court.

We need to know everything for several reasons. One is that we can try to mitigate the damage (i.e., reduce he bad consequences) by advising you how to begin correcting the problem or at least building a better track record. Another reason is that the other parent or your ex will already know way more about the unflattering information than you may think.  This means your ex will tell his or her attorney. If that happens, everyone knows about the compromising position you may find yourself in except the only person who is able to help you maneuver it, your attorney. When the other attorney walks up to you in court and asks you to explain that certain photo, text or other evidence, be ready.

Why Can’t We Use the Same Attorney If We Both Agree?

This is a question I often hear during consultations. The potential client may say they agree on everything and don’t want to pay for a second attorney. Depending on the circumstances, there are at least two main reasons a family law attorney usually can’t take a case for both parties.

One reason is that representing both clients is a conflict of interest, or it creates the appearance of one. Another reason is that sifting through the case with an attorney uncovers a number of important issues that weren’t discussed between the parties.

What Is a Conflict of Interest?

A conflict of interest means divided loyalty. An attorney is required to zealously represent a client and act only in the best interest of that client. When that best interest of one party differs from, or conflicts with, the best interest of the other party, an attorney must choose which person to represent. Even taking on responsibilities that limit an attorney’s ability to fully represent the client is a conflict. In most family law cases, one person’s best case scenario is the other person’s worst case scenario. For example, if one spouse is seeking alimony and the other spouse is trying to use legal defenses to avoid payment, there is a conflict of interest. The State Bar has strict rules about an attorney’s ability to represent more than one party so the lawyer’s responsibility is only to one. Even when parties are in agreement about the outcome of the case and want a separation agreement, there are negotiations after the other spouse gets a copy of it to review. Your attorney cannot answer legal questions by the other spouse or give any legal advice to your spouse. Your ex should choose an attorney to advise him or her about the case.

What Else Matters Beyond the Agreement We Have?

Clients tend to think that once they address child custody or support, the house they own, or the payment of certain bills, they are finished with the unpleasant task of legally wrapping up a separation. A client may be disappointed to discover there are numerous topics he or she did not discuss with their ex. Many clients don’t stop to consider the tax implications of their settlement, whether the money they exchange will be taxed as income or as a tax deduction, and whether the division of retirement assets will be subject to taxes and IRS penalties instead of simply being treated as a tax-free exchange of marital property. A court order is usually required to divide retirement assets the proper way, to avoid detrimental tax consequences. Even if the parties agree concerning alimony, it must be addressed properly to get tax benefits (or to avoid tax burdens).

Lots of Details

Clients look at the big picture of custody and visitation agreements. The devil is in the details. When they say they have already agreed to a custody schedule that gives each parent ½ of the Christmas, what does that mean? Do they mean December 24th and 25th every other year or did they assume the holiday was determined based on the school calendar, from the first day off until the day school starts? Does either parent intend to go out of town for Christmas and need to add specifics concerning the travel arrangements over state lines? Other typical problem issues include an “agreed upon” amount of child support. Parents might have an agreement that one pays for daycare while the other pays for health insurance. That tends to be unrelated to the way the state determines child support. Is there an argument that a bonus or commission should be included as income? What about extra-curricular expenses, sports and the payment of medical expenses not paid by insurance? Will there be out-of-state travel expenses by one parent? Should child support be calculated based on a shared visitation schedule or the more typical visitation schedule? And yes, you pay your attorney to be a pessimist, which usually means making sure things are handled properly at the beginning of your case after your attorney gives you legal advice. The decisions will be yours to make, but don’t assume you’ve reached an agreement until you know all the questions have been asked.

My Ex Is Using the Attorney That I’m Paying For?!

The Attorney Client Relationship

Clients can be resentful that their attorney is wasting time dealing with the pro se person. In most family law cases, each person has an attorney. When the other person is pro se, Latin for representing himself or herself, lawyers aren’t working for the pro se person and charging you for it as clients sometimes think. That is prohibited. An attorney may represent only one person in a family law case, such as a divorce or child custody case. Failure to do that is usually a conflict of interest. That means what is good for one person might be a bad thing for the other person. For example, if one spouse gets alimony that’s a good thing for him or her, but it is might be a bad thing for the other spouse. The lawyer has to choose one person or the other as a client.

What’s Different?

If your ex had an attorney, your attorney would have to talk with the other about settlement, discovery (documents, etc.), trial matters, and logistics of court events such as depositions. In other words, your attorney would still be taking time to talk with the other attorney. It doesn’t always take more time than it would to negotiate with an attorney. In fact, some people without attorneys are anxious to get down to business instead of posturing the way other attorneys will because they want to avoid court.

The Law and Equality

The law requires everyone to be treated in the same way, regardless of whether they have an attorney or not. The same deadlines, rules, laws and other requirements apply to both sides. In the eyes of the law, people shouldn’t be penalized if they cannot afford an attorney. But the judge is still bound by the law. Judges have to walk a fine line in these cases. Attorneys also have to be very careful when communicating with a pro se person. We certainly can’t give them legal advice but sometimes we do explain the reasons why the offer we are making on behalf of our client is a good one. Depending on the circumstances, the attorney will tell the pro se person that he or should talk with an attorney.

Same Rules as Everyone Else But . . .

Attorneys have specific things they need to prove in court, based on what the law requires in each situation. But in court, judges sometimes give pro se people a little leeway when they testify and present their side of the case because if they were held to a strict standard they probably wouldn’t be able to say much at all. More often than not, the pro se person usually just wants the judge to hear what they want and why they want it. In a democracy, it is important for all citizens to have the right to their day in court. It’s especially important for parents who are in child custody cases to be heard because the judge must award child custody to one or both parents based on what the judge believes is in the child’s best interest, regardless of whether the parent is represented by an attorney.

Is My Attorney Friends with My Ex’s Attorney?

When I was a law student, I remember tagging along with my mentor for a trial and being shocked that he was talking and joking with the attorney who represented the opposing party before court. In my mind, court was a war and the opposing party was the enemy. It wasn’t until I began trying cases myself that I had a context for that event. Lawyers by definition are zealous advocates for clients. However, clients sometimes think that means an attorney must be rude, loud and hostile. When I became a lawyer, I realized that is not the case. In fact, cordial relationships can benefit both parties.
Professional Relationships
As “officers of the court” attorneys are expected to have a respect for everyone, including the opposing party. Professional relationships among attorneys are often long-term. A trend for attorneys is to choose an area of law to concentrate in, or even become a board certified specialist, as I am. As a consequence, more attorneys practice only family law, spending years or even decades litigating or negotiating cases with each other. And a smart attorney makes efforts to keep a cordial relationship with his or her colleagues.
But more to our point, attorneys who are professional and have a basic level of respect tend to cooperate when it is necessary, even though they are deeply divided on the disputed issue. They return calls to each other and try to determine whether there are issues that can be resolved outside of the courtroom. They can actually have conversations about the case instead of just “performing” in court. A frank conversation before the trial could lead to a stipulation to certain things, for example, giving the judge a written agreement saying they agree to those things. Such an agreement might reduce a three day trial to two days, benefiting both parties.
On the other hand, the attorneys lacking a cordial professional relationship with colleagues tend to be the same ones who drive up billable time with big displays of bravado even when doing so isn’t really necessary. That often translates into a long, hard and expensive road. When that type of attorney is in a case, I can tell my client to count on the case costing twice as much what it should cost.  There are cases that absolutely have to be litigated tooth and nail. But that doesn’t mean the lawyers have to needlessly inflame an already tense family situations, especially when children are involved. Seeing your attorney shake hands with the other attorney, or make small talk, is not a bad thing.

Is Your Attorney Listening?

The trail of emotional destruction that follows the breakup can be immense and long-lasting. Being distressed and angry is completely normal. In fact, as I tell people who end up at my office during a consult, you wouldn’t be normal if you weren’t! Family disputes are painful. Depression is common when people suffer a breakup, especially when the relationship lasted for a long time or when there are children.

Does the Attorney Get It?

When you begin working with your attorney, it may seem he or she isn’t very sympathetic to what feels like the end of your entire life as you know it. Although we want the same goal as you, we have to take a very different approach to arrive there. As an attorney, I’m constantly thinking of how a judge would analyze the case if and when we go to court. The judge is a stranger, a third-party neutral who comes to court with certain expectations about how things are done. The judge first sees each party as a clean slate and doesn’t necessarily think the opposing party has done anything “bad” although you see it differently. Your attorney has to first analyze your case objectively the way the judge will perceive it in order to properly advise you and prepare for court. We’re zealous advocates but we are wise to focus on the substance of your case, and not just the drama your ex created, that may come out in the closing argument. We have to pace ourselves to let the judge see the facts before we make the closing argument because the judge must rule based on the facts. We bide our time, so don’t be surprised if we don’t seem to “get it” until we reach the courtroom. It is against this background that your attorney is working.

Our Job as Attorneys

Every client needs moral support, especially from friends and family. Clients also need to vent, which can be a good thing. However, good attorneys try to guard against using a client’s resources and money by spending substantial time addressing the need to vent or have moral support. We have feelings too, sometimes the very same outrage about your ex or the attorney that you have. But as attorneys, we can’t let ourselves focus on that (or on our egos). We need to keep boundaries in place to properly do our job. An emotional attorney makes things personal, creating hurdles and obstacles, fanning the flames that are already there. This makes it harder to resolve a case outside of court, and more expensive. Believe me, once the process is underway, your attorney probably knows what a jerk your ex can be. But he or she must analyze your legal situation, which may have very little to do with how you feel at all. Unless you are in the midst of a custody case, your case may be purely about dollars and cents, like a business transaction.

What Do You Need to Do?

We are sympathetic to your personal life, but we have to help you recognize you may benefit from talking with a trained professional to help you move past intense anger, loneliness and sadness. Judges consider it a positive thing when a person seeks help, especially when there are children in the family. We aren’t trained to properly assist clients with addressing those feelings. Plus, your attorney’s shoulder is too expensive to cry on, especially because your insurance won’t cover it. The best thing attorneys can do when these issues arise is to refer a client to a counselor or other trained professional to assist with working through these feelings. Even people who lack insurance can seek help, sometimes on a sliding fee scale, such as the East Carolina University Family Therapy Clinic. A client should always talk to his or her attorney when there is a concern about these matters.