Attorney Ethics and Divorce: What to Know
Lawyers are legally required to follow certain rules of conduct, with divorce cases even having their own set of rules for what is considered ethical behavior. When hiring an attorney, it is important to know that specific rules govern his or her conduct, and there are actions you can take if you suspect an attorney has behaved unethically.
Every attorney is subject to the rules of the state bar association of the state they practice in. The state, and not the federal government, governs legal ethics. Therefore, by taking that state’s bar exam, attorneys agree to answer to the state’s laws.
While what constitutes ethical behavior may vary from state to state, the American Bar Association (ABA) has many suggestions. The ABA cannot directly govern legal ethics, but its suggested practices have been frequently used in trials and lawsuits. It is important to know exactly what constitutes ethical behavior in your state. You can find out by visiting this page on the ABA website. The ABA resource website has a catalogue of Ethics by State. Another great resource is your state’s state bar website, where you can find details on professional conduct in your state.
General Rules of Conduct
While each state has different laws regarding ethics, there are some that all states have in common:
A lawyer owes his or her client or prospective client undivided loyalty and confidentiality.
Lawyers are forbidden from making false statements. They are not to lie to you, or misrepresent their services, fees, or other matters.
A lawyer cannot falsify evidence, or suggest a witness testify falsely.
A lawyer cannot obstruct another party’s access to evidence. Attorneys cannot conceal a document or other material that can be used as evidence.
Rules of Conduct for Divorce Cases
Common conduct codes from the ABA that refer directly to divorce case include fairness to the opposing party and avoiding conflicts of interest.
Attorneys are not to allude to matters that they do not believe are relevant to the case. An example of this would be using one spouse’s desire to go back to school to argue that they are unfit to have custody of the child.
As another part of fairness, lawyers are not to use personal facts they may know from the other party to discredit them, unless they are called upon as a witness.
A lawyer cannot represent a client if the representation involves a current conflict of interest. (Such as representing both parties in a divorce if both clients do not agree to it).
A lawyer has duties to former clients, and cannot serve a new client if the new client’s interests are in direct conflict with the previous interest of the former client. If an attorney represented you in a child custody battle last year, this year he or she cannot represent your spouse in a custody battle.
While some ethical matters are very straight forward, others are more complicated. For example, you know it is a violation of ethics if you find that your attorney was talking about your private matters with your spouse. But what if he or she has not updated you on your divorce case in months? That can be classified as neglect, and you can ask your lawyer for a letter explaining this apparent lack of action. If your attorney does not respond in a timely manner, you may want to submit a complaint to the State Board Attorney Disciplinary Boards.
Violations of Rules of Conduct
In the case of a seeming violation of ethics, you can submit a complaint to the Attorney Disciplinary Boards in your state. The disciplinary procedure varies slightly from state to state.
For example, in Pennsylvania all complaints must be in writing and signed by the complainant. The complaint should be submitted within four years of the event. All complaints are received and investigated by the Pennsylvania Office of Disciplinary Counsel.
You can file a complaint online in many states, such as in Washington State.
In Virginia, the Virginia State Bar (VSB) determines whether or not a legal ethics rule was violated, and then imposes an appropriate discipline on the lawyer in question. Once you send in a complaint, the VSB investigates the complaint.
It may take several months for the Bar to investigate your complaint. Possible outcomes include the lawyer receiving a private reprimand for less serious rule violations, a public reprimand, a suspension during which that lawyer cannot practice, or in the most severe cases, the attorney’s license can be revoked.
Ultimately, an attorney is bound by the State Bar Association’s ethics code, and by his or her own code of ethics. While it is possible to file a complaint, or even a lawsuit, against a lawyer you feel has wronged you, it is not easy. If possible, it is better to know your rights starting out, know what to expect from your attorney, and protect yourself through knowledge.