Dear tomtgs,
Please bear with me as I answer your question in three parts. The
first part is simply a discussion of the forms of divorce mediation,
which I hope you will find helpful. You can skip over it if you are
not interested. The second part addresses your first question, about
the ethics of your attorney's meeting with your wife. There is a
possibility of an ethical violation in that meeting, but probably not
of your attorney's duties to you. The third part addresses the courses
of action you may wish to consider. I suggest you speak with your
attorney and try to work things out before choosing a more drastic
course of action.
I. About Divorce Mediation
A. The Types of Divorce Mediation
Divorce mediation is usually offered in one of three forms:
- "Evaluative Mediation" - a form of arbitration. The mediator listens
to the parties discuss their case, entertains evidence about the value
of property, and makes a recommendation as to what he believes would
be an appropriate settlement.
- "Facilitative Mediation" - The mediator listens to the parties, and
tries to guide them to forming their own resolution to their case. The
goal is to achieve a settlement that leaves both parties at least
satisfied, if not happy, with the outcome. Also, it has been asserted
that where the parties negotiate their own settlement agreement, they
are much more likely to adhere to its terms. This means that there may
be less acrimony following the divorce than with a litigated case.
- "Hybrid" Mediation - The mediator starts in the facilitative mode,
until the parties reach an impasse, and then resolves any remaining
issues in an evaluative mode.
Another form of mediation is "transformative" mediation, which is
similar to facilitative mediation but is focused on "empowering" the
parties.
An overview of the forms of mediation, and their relative advantages
and disadvantages, can be found on the Mediation Training &
Consultation Institute's website:
http://learn2mediate.com/resources/nafcm.php
B. Why a Lawyer Might Want to Speak to the Other Party
The closer a mediation gets to the facilitative model, the more
important it is for a lawyer to have an idea of the needs and desires
of the other party. The reason for this is twofold. First, a lawyer in
a facilitative mediation needs to help her client understand his legal
rights, and the probable outcome of the case both through the
mediation and litigation processes. Second, the lawyer must also help
guide her client toward a realistic perspective on the probable
outcome of the case.
For example, if both parties in a divorce want to keep the marital
home, one of the parties will either have to be convinced to surrender
the marital home to the other, or mediation will fail. If mediation
fails, a court will either award the house to one party, or will order
the house sold and the equity divided between the parties. A lawyer
will often have a good idea of what a judge in her jurisdiction is
likely to do, if this sort of issue is litigated, and may be inclined
to urge a client she believes would ultimately lose the house to
instead negotiate to give his wife the house in return for a more
favorable resolution of other issues. For mediation to work, one party
must change his or her mind about the house.
When the opportunity arises to find out if the other party really
wants the house, or if she is pressing the issue in order to try to
gain advantage on other issues, a lawyer would find it difficult to
decline the opportunity. That type of information will help her gauge
her client's options, and help her guide him toward making offers and
demands that are likely to result in settlement, as opposed to
impasse.
II. Is It Unethical For Your Attorney To Meet With Your Wife Without
Your Knowledge?
With regard to your first question, "Is it unethical conduct for my
attorney to meet with my wife without my knowledge?", the short answer
is "no" - your attorney isn't ethically prohibited from speaking to an
opposing party, even if it is your wife in a divorce case. At the same
time, if your wife is represented by attorney, your lawyer should not
meet with her outside the presence of her attorney unless her attorney
has authorized the meeting. If she knew your wife to be represented by
counsel and met with her without permission from your wife's counsel,
the violation would be of your lawyer's duties to your wife, not her
duties to you.
A. The Ethical Rules
The ethics rules for the Tennessee Bar Association are available on
its website:
http://www.tba.org/ethics/index.html
Ethical Rule 4.2 reads:
----------------------
Communication with a Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.
http://www.tba.org/ethics/rule4.2.html
-----------------------
Even if your wife doesn't have her own attorney, your lawyer is also
barred by Ethical Rule 4.3 ("Dealing with an unrepresented person")
from concealing her interest in the litigation, or giving your wife
legal advice.
http://www.tba.org/ethics/rule4.3.html
B. Your Lawyer's Duties to Keep You Informed
As outlined in the first part of this answer, there are good reasons
for a lawyer in a divorce mediation to wish to speak with the other
party. In the situation you describe, a mediation, the other party
will be the best source of information about her own desired outcome
for the litigation, and her reactions to any offers you or your
attorney have made.
The ethical rules, particularly Rule 1.4 governing communication
between attorney and client, require attorneys to keep their clients
informed about significant developments in a case, but that does not
reach the level of asking for permission to interview witnesses or to
take an opportunity to speak with the other party. Instead, that
relates to significant issues, such as the commencement of litigation,
and relation of settlement offers. The interviewing of witnesses is a
routine part of preparation for any form of litigation or formal
dispute resolution. As the notes to Rule 1.4 indicate, "Where many
routine matters are involved, a system of limited or occasional
reporting may be arranged with the client."
http://www.tba.org/ethics/rule1.4.html
In other words, your attorney should be keeping you appraised of the
status of your case, and about what she has learned from the witnesses
she has interviewed (including your wife), but doesn't have to ask
your permission before engaging in routine activities. Please also
note that this process does not have to be one of formally debriefing
the client on all of the details of the case - even if clients wanted
that level of detail, many would be unhappy to be billed for it. If
your attorney isn't giving you the level of detail you desire or
require, you should take the initiative and ask for additional
information.
C. Your Attorney's Action May Benefit You.
In litigation, most lawyers desire to speak with the opposing party.
As mentioned above, this is the best way of finding out what the
opposing party wants, and what they think of any offers made to date.
Ordinarily, such meetings are not possible, except with the permission
of opposing counsel, who insists upon being present during any
conversation. When opposing counsel is present, it can be difficult or
impossible to get the key information that will help with the case.
III. What Course of Action Should I Take?
The answer to your question ultimately depends upon your ability to
restore an atmosphere of trust between yourself and your attorney. A
brief overview of considerations for clients in hiring and resolving
disputes with lawyers can be found on the Expertlaw website:
http://www.expertlaw.com/library/pubarticles/howtohire.html
A. Should You Confront Her?
Yes - by all means. This is the only way you will be able to end the
suspicion and get your attorney-client relationship back on track.
Thus, you should set up a meeting with your lawyer, to get an update
on the status of your case and to discuss your concerns. If you don't
feel you will be able to articulate your concerns in person, for
whatever, reason, type them up in advance of the meeting so you can
either read them or present them to her in the form of a letter.
Listen carefully to your attorney's answers, and ask any follow-up
questions you need answered to put your concerns to rest. It may be
that after such a meeting, you find that your attorney very much has
your best interests at heart, and that your confidence in her is
restored.
Please note that you should avoid being accusatorial or
confrontational in such contact. That can be damaging to the
attorney-client relationship. Instead, be inquisitive and polite. You
can get the information you believe by stating, "I noticed that you
met with my wife the other day. I was wondering why you chose to speak
to her, and what she said."
B. Should I Fire Her?
You should not fire your lawyer before you try to find out what
happened and why. Otherwise, you risk firing a lawyer who knows a lot
about your case, and who has your best interests at heart, and having
to pay another attorney to learn your case from scratch. Additionally,
changing attorneys can cause a delay in the resolution of your case.
If you find that you truly cannot establish a relationship of trust
with your attorney, even after all of your questions are answered, you
may wish to consider changing attorneys. You had the wisdom to
anticipate that doing so may cause problems for your case.
C. How Might Hiring a New Lawyer Affect My Case?
Changing lawyers during the course of litigation has been compared to
changing horses in midstream. As a case nears its ultimate resolution,
changing lawyers becomes more difficult, costly, and potentially
damaging to your case. Thus, the best time to change lawyers is before
anything material has occurred on a case, and the worst time is
typically during a trial.
When a new lawyer enters a case, that lawyer must both learn
everything about your case and everything that has happened during the
course of any prior litigation or mediation proceedings. In other
words, in addition to paying any amount owed to your first lawyer, you
have to pay your new lawyer to learn what your current attorney
already knows. Nolo provides an online guide to "The Financial Reality
of Changing Lawyers":
http://www.nolo.com/lawstore/products/product.cfm/objectID/D3CB5928-6D90-43BB-96D74AE27A747B8F/sampleChapter/4
If your lawyer has good rapport with the mediator or the trial judge,
by firing your lawyer you may also give the mediator or judge the
impression that you are unreasonable. This is not always fair, but it
happens, and it can hurt your ability to get the desired outcome.
Particularly in litigation or evaluative mediation, the judge or
mediator may favor the party deemed most reasonable, particularly in
relation to child custody.
Changing lawyers can also delay the outcome of a case, as hearings or
mediation sessions may have to be adjourned so that the lawyer has an
opportunity to learn the case, and reach a starting point for
negotiations with opposing counsel.
Another issue is that some lawyers will decline to take a case where
they believe that a client has unreasonably fired another lawyer.
If you do decide to change lawyers, the Knoxville Bar Association has
prepared a short guide to the steps involved:
http://www.knoxbar.org/Law_Line/T1_1004.html
Additional Links:
The Knoxville Bar Association presents on its website a guide to
Tennessee family law:
http://www.knoxbar.org/Law_Line/T8.html
Research Strategy:
In addition to my own experience handling divorce cases, I utilized
the following Google searches:
Tennessee Bar Ethics
://www.google.com/search?q=Tennessee+Bar+Ethics
Changing Lawyers
://www.google.com/search?q=Changing+Lawyers
Evaluative Mediation Divorce
://www.google.com/search?q=Evaluative+Mediation+Divorce
I hope you find this helpful,
- expertlaw |
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