What Kind of Lawyer Do You Want to Be?
“Informed consent.” “Do no harm.” These ethical concepts are integral to contemporary legal ethics and practice. But how easy are they to attain?
Here in the United States, there seem to be, generally speaking, two types of attorneys, at least when it comes to trial work and divorce. The oldest, most traditional kind of divorce lawyer is the paternalistic type. Just like Dad in the old TV show, Father Knows Best, he is the legal authority who believes that he knows best what is best for his clients. He has the education and the experience, and he makes the critical choices.
My divorce lawyer in 1989 was this kind of attorney. When I told him I wanted a divorce, despite that I was a practicing attorney, too, his reaction was “Fine. I’ll file the petition.” No informed discussion of choices, no shared decision making. It wasn’t until I questioned his choice of process (“What? I have to go to court to get divorced? I didn’t have to go to court to married!”), that he even mentioned mediation. And a collaborative approach wasn’t even on his radar.
This is the lawyer who dons his armor, mounts his white steed, and charges off to court to “win the day.” Hopefully. And, in the process, he destroys any possibility of an amicable post-divorce relationship between his client and the “opposing party,” no matter who “wins.” So “do no harm” is not high on his list of priorities.
As lawyering has matured, however, it is apparent that this is not really what most people today want in their legal counsel. We want information and control. As a result, we seem to have developed a newer, better model of lawyer, one who informs the client of all the pertinent information bearing on the situation and discusses all of the possible outcomes that each decision might engender. Then we wait for the client’s decision.
Being the informative lawyer can have its drawbacks, too, though, especially if we get caught up in using legal jargon. The informed public, with access to the internet, wants more than information and control; we also want guidance. So the newly emerging counsel spices the information he provides, the cold, hard facts, the descriptions of other divorces and the results in those cases of certain decisions, with the meaning behind the facts. And the best way to convey what the information means is to tell your client what it means to you! “I’m worried that your wife might overreact if we do that.” “I think that your best choice might be this because of that.” “I’m concerned that that might be misconstrued.” “I would be unhappy if he did that to me.” By including this type of interpretive information, you are both conveying the meaning behind the facts, as well as the fact that you are on his team, that you care about him, and that you are pulling for him.
The collaborative lawyer is the epitome of this type of attorney, one who counsels and advises, but who allows his client to make the decisions that matter most to him and to his family. How does he know what matters most? This counselor first helps the client determine what he wants.
This isn’t always easy. Sometimes he accomplishes this with the help of a trained collaborative facilitator or a financial professional, depending on the nature of the client’s concerns. These lawyers and professionals will ask their clients “What is most important to you? What are your concerns? What worries you? What are you long-term goals? What do you want your life, your kids’ lives, to look like five years from now?”
It is with that information, that the attorney can then best advise his client how to achieve those priorities.
Palliative caregivers use a strategy that works well for collaborative divorce professionals, as well. “Ask, tell, ask.” Ask what your client wants to hear, then tell him, then ask if he understood what you conveyed. This method increases the chances that the information or advice that you provide will land on receptive ears. This model requires active listening, is client-centered, fosters self-assessment skills, increases accountability, gives us insight into our client’s perceptions, and encourages professionals to provide specific feedback to our clients. This approach is not only beneficial during the collaborative process, but it is a good skill for clients to learn and to use going forward in their communications with others.
The days when clients just want their legal counsel to tell them what to do without their input are past. Today’s clients want attorneys who share information so that they can, together, make informed decisions. Collaborative attorneys are trained in these communication skills, and they provide clients with more informed control over their divorce process, and in turn, over their lives post-divorce.
This is the kind of lawyer I aspire to be, someone who gives my clients what they really need and want.