Latest News 2017 April "Lawyer Paternalism" & How It Affects Your Case Long-Term

"Lawyer Paternalism" & How It Affects Your Case Long-Term

The foundation of empowerment, of exercising control of your destiny, is responsibility. Ownership. If you can't own your situation, then you can't really direct where it goes—and you become a victim of your circumstances. That's the argument behind Mark Baer's Huffington Post 2015 article about "lawyer paternalism" and its potentially destructive consequences.

Lawyer paternalism is the attitude that causes an attorney to make unilateral decisions regarding your case on your behalf—often to your advantage and for the good of your future. However, such unilateral decision-making has a problematic side-effect: it keeps clients from owning the results of their case. When it comes to divorce, owning the results is what allows clients to move forward constructively. Taking that away can render a family law case inhibitive and painful for years to come.

Here's what lawyer paternalism looks like:

  • Making decisions based on the attorney's needs
  • Rejecting the results of mediation based on the attorney's values
  • Imposition of the attorney's goals onto a situation that doesn't demand it

The thing is, a lot of people are looking for an attorney who will be paternalistic regarding their case. During divorce, a lot of people suffer from temporary incompetence—their emotional state renders them unable to make well-informed, positive decisions in their case. This is why people need divorce attorneys in the first place, but handing over control of the situation is not the answer.

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In 1981, Jerold Auerbach in an article published by New Republic wrote this: "The more control the attorney retains, the worse the client will feel" [emphasis added]. Even when temporarily incompetent, people need to know that they are the ones driving their own results. If they don't, they'll never be able to move forward.

When shopping around for a divorce attorney, clarify your own needs first. What are you looking for? Are you looking for someone to handle the entire situation while you run from it all? Or are you looking for someone to turn your goals and needs into a reality? Even if you feel like running away, the best thing you can do for your case is find an attorney who will struggle alongside you for your case—someone who will adapt their advocacy to your goals.

The last thing you want is a divorce result founded on another attorney's values. Even the most impartial attorney will have an opinion about what they think you need—you need a divorce lawyer who will separate their own outlook from the way they represent your case.

One of the ways you can find an attorney who fights for your goals is clarifying your goals in the first place. Figure out what you want and need—even if you have to use generalities at first. If an attorney offers you counsel about those goals, hear them out—but don't just let them steer the case. If they're a good attorney, they'll fight for your interests without fighting you. They'll offer their honest counsel and then should carry out the best way to fulfill your goals.

Final tip: be sure to take advantage of as many free consultations as you can. It's good to find an attorney whose values align with your own, and initial consultations are a great way to do that.