Often my family court clients complain that I am not “taking [their] side” because I fuss at them regarding their behaviors. These clients are accurate in their assessment. This is especially true when my client is involved in a domestic case in which the contested issues involve a great deal of judicial discretion–typically child custody and alimony. My belief is that it’s my job to fuss at my clients so that the family court judge won’t have to.
For clients seeking custody, there are myriad changeable behaviors that can cause them to do better–or worse–in custody litigation and ultimately at trial. “Immoral” sexual conduct (however the court is currently defining that term), substance abuse issues, and untreated or improperly treated mental health problems are frequent factors in custody determinations. There are numerous other behavioral issues that a client can change and that can greatly impact custody determinations. Obtaining suitable housing to raise children (while understanding that clients must live within their budget); exhibiting a cooperative versus a confrontational attitude towards the other parent; making sure the children’s medical, education and social needs are taken care of; demonstrating a commitment to parenting (while understanding that most clients need employment to pay their ongoing expenses and are entitled to some life outside of raising children): all are behaviors or actions a client can change that increases (or decreases) the likelihood of success in custody cases. Even such simple things as stopping smoking or committing to a better diet and regular exercise can affect custody. In alimony cases, sexual conduct, modesty in budgeting, and diligence in seeking and maintaining gainful employment can greatly affect the ultimate alimony award.
When I observe clients engaging in behaviors or actions that decrease the likelihood of success in achieving their goals, or when I note behaviors or actions that clients could start doing to increase that likelihood of success, I believe it’s professional duty, as a “counselor at law,” to let these clients know what they might do to strengthen their chance of success. Since humans have a tendency to resist change, especially change they don’t want to make, clients don’t like hearing these suggestions and often need to be reminded or slightly nudged towards making suggested (sometimes necessary) changes. A substance abusing client is not going to get custody and it’s malpractice to let such clients think otherwise. Thus, I fuss at many of my clients; and they know it and rarely like it.
On the other hand, it’s been years since a client of mine has been admonished by a family court judge for a behavior or action that I hadn’t warned would cause that client trouble. Still, my clients are frequently admonished by family court judges for engaging in behaviors or actions that I had warned would cause them problems in family court. Almost always this admonishment comes directly before my client hears a ruling in which the clients’ goals are not achieved. While I could take a certain smug satisfaction in hearing my clients get the same lecture from a family court judge that I had previously given, their sudden epiphanies that my warning was prescient and that my fussing had been with the goal of helping them achieve their goals give me no pleasure. As an attorney, my pleasure comes from helping my client achieve their goals: losing is never satisfying.
So clients who wonder why their family court attorney is fussing at them: it is because their attorney is not merely an advocate but a counselor at law. And any family court client who is never fussed at by his or her attorney is either the perfect client–since I’m not a perfect attorney, I have no hope of being retained by perfect clients–or is not being given proper guidance.
Good family court attorneys fuss at their clients so that the family court judge won’t.
Greg, there is a huge difference between fussing and either counseling or advising. Counseling and advising are the professional service of the lawyer for the client’s benefit while fussing is the lawyer acting as a schoolyard vigilante or bully for the benefit of his or her own ego. I have done both and understand the difference.
Tom:
I wouldn’t dispute there’s a difference between “counseling” a client and “fussing at” a client (I do both). I would dispute that “fussing at” a client is synonymous with bullying.
I always start my advice to a client by counseling that client. I might initially tell an adulterous client seeking custody something like, “you may not think it’s a big issue, since you’re separated, that you are engaging in open adultery, but it’s a big issue to a family court judge, who will consider that behavior very immoral and may deny you custody on that basis. I suggest you terminate that relationship until I can get you divorced or custody is resolved.”
Sometimes that is all the advice my client needs to change his or her behavior. However, the next time I see that client I will enquire about the adulterous relationship. If that client indicates the relationship continues, I might advise, “I understand this relationship is important to you but it has seriously negative consequences for your custody case. If you want to maximize your chance of success, you need to end that relationship.”
If the behavior still continues, my advise might edge into fussing: “You are paying me good money to help you obtain custody of your children. You are doing things that greatly reduce the chance of that happening. The court will see this as you valuing your relationship with your paramour over your relationship with your children. That’s counterproductive. I suggest you end the relationship or change your custody goals.”
No one likes that third round of advice but I’d feel like I was doing a disservice to my client if I didn’t offer it. Bullying would be telling my client, “end your adultery or I am going to move to be relieved as your counseling.” The only time I threaten to seek to terminate the attorney-client relationship over client behavior is when it involves the client’s behavior toward me or my staff.
would i be to collect child supportm, my child is mine from a previous relationship, my husband has been raising my son since he just turnd two n has provided for said child in everyway a natural father would but never adopted him.