Untying the Knots in Clients’ Lives
Lisa Shapson, The Legal Intelligencer (online)
As the city prepared for Pope Francis’ arrival last month, I had the opportunity to take my daughters to the “mother church of the Archdiocese of Philadelphia,” the Cathedral Basilica of Saints Peter and Paul. A grotto in honor of Mary, Undoer of Knots, had been set up next to
the basilica for visitors to write prayers or wishes on a ribbon and affix them to the grotto by knot, with the hope that Francis would bless them during his visit, which he did, and that Mary will answer those pleas.
Although raised Catholic, I have to confess that I had never heard of Mary referred to as the undoer or untier of knots and could not help but think that all lawyers are charged with the service of undoing the knots people have encountered in their lives so that they can move on more peacefully. And, although I had heard of weddings often referred to as “tying the knot,” I still don’t know the origin, which various sites on Google credit to the Irish, the Romans and even 19th-century sailors. What I do know is that family law attorneys are required to undo knots that are more important to our clients than other types of legal entanglements because they involve families, homes and, oftentimes, children, which are the things that matter most. It is always important to remember–no matter how many times we, as lawyers, have walked clients through divorce–that the process may be that client’s first time. We have an unwritten duty to help each client through the process as gently as we handled our first case and even more so when handling a client’s subsequent divorce, which can be extra painful especially if the same parties remarried.
The first step in every divorce, or any family law case for that matter, is to find out if the client has spoken to the other party and whether certain issues are already agreed upon. The second is to find out if the other party is represented by counsel. Unless the opposing party is proceeding pro se, attorneys are not permitted to have any direct communication with that party without his or her attorney’s consent, according to the Pennsylvania Rules of Professional Conduct. And, when dealing with a pro se party, the lawyer must make it clear to the opponent that he or she is not their attorney. The middle and last steps are to help clients resolve their differences as quickly and amicably as possible. These may be the most difficult steps because clients are too emotionally attached to the issue(s) that led them to you. The best family law practitioners are able to remain completely detached and focus on and guide the parties to a fair resolution.
But Rule 4.3 creates a level of trickiness when trying to settle divorce cases. It is often difficult when you are the only attorney at the settlement conference to suggest an equitable distribution scheme without giving the opponent legal advice or educating him or her on the elements of divorce law. I do not recommend meeting the opponent until a property settlement agreement has been drafted, approved by your client and sent to him or her for review. If the opponent has questions as to why a settlement scheme was offered and he or she believes that the most efficient way to get those questions answered is a face-to-face meeting, then perhaps a meeting with the opponent and your client will help resolve the case. Our job is to tread lightly and keep the meeting focused on untying knots as opposed to creating more. If the meeting does turn unproductive or get too detailed, you need to remember to advise the opponent to secure independent counsel as suggested in Rule 4.3(b). If the opponent does not wish to retain counsel, you may want to limit your communications to written only, or suggest that the parties talk directly about settlement.
I started with the pope and so I will close with him. In his Sept. 26 evening speech on the Ben Franklin Parkway, Francis stated: “In the family, sometimes there is fighting. The husband argues with the wife; they get upset with each other, or children get upset with their parents. May I offer a bit of advice: never end the day without making peace in the family. In the family the day cannot end in fighting.” While the job of family law attorneys is to help divorcing families divide and move on, which generally cannot be conquered in a day, it doesn’t hurt to keep the pope’s advice in mind and to remind clients that compromise, not litigation, is the quickest road to peace.
Reprinted with permission from the OCTOBER 15, 2015 issue of THE LEGAL INTELLIGENCER (online). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.
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