Complex and high-asset divorce cases can provide intellectually and financially rewarding work; however, they can also present a number of ethical issues.
By Tina Shadix Roddenbery, Family Lawyer
Attorneys need to manage the unique financial and other aspects of complex and high-asset divorce cases to ensure they’re providing skillful, effective representation. These cases can involve legal work that’s both intellectually and financially rewarding; they can also, however, potentially present a number of ethical issues.
Several of the Georgia Rules of Professional Conduct, issued by the State Bar of Georgia, offer valuable guidance on appropriate attorney conduct in matters that involve significant property, investments, and other elements.
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Rule 1.1, for example, addresses one of the most important considerations in complex and high-asset divorce cases—making sure you possess the knowledge required to perform the work, which can touch on business valuation, corporate structures, and trust and tax law.
If you don’t have the necessary experience, the rule states you shouldn’t agree to represent a client without including another attorney who is qualified to assist you.
In addition to competency, the Rules of Professional Conduct outline a number of other standards that can help attorneys provide effective, ethical representation – which include:
Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer
Basic premise: Clients – not attorneys – determine the purpose of the legal representation – but not necessarily what actions are used to reach the desired outcome.
Attorneys are required to consult with clients and listen to their suggested means to achieve an outcome. Attorneys can only agree to settle a matter if the client has implicitly authorized the attorney to; in criminal cases, clients decide what plea will be entered and whether they will testify.
The rule clarifies that while a lawyer can provide counsel or assistance to help a client determine the validity, scope, meaning or application of the law in relation to the client’s proposed course of conduct, and can discuss any legal consequences that may be involved, attorney’s should not abdicate the means used to achieve the goals. Further attorneys should not advise clients to engage in any conduct they know is criminal or fraudulent.
Maximum violation penalty: Disbarment.
Ethical considerations: The client has the authority to determine what purpose legal representation will serve (within limits imposed by law and the lawyer’s professional obligations); however, if you disagree about what means should be used to accomplish the client’s objective, discussions about who ultimately decides what tactics should be handled sensitively. You don’t want to suggest you’re not passionately advocating for the client; but you also don’t want the way you conduct the case to negatively impact the court’s ruling.
Rule 1.3: Diligence
Basic premise: Lawyers need to act promptly and with reasonable diligence, and not willfully abandon or disregard a legal matter that’s been entrusted to them – unless they have just cause – when representing clients.
Maximum violation penalty: Disbarment.
Ethical considerations: Attorneys need to advocate for a client’s interests and take whatever lawful and ethical measures are needed to vindicate the client’s cause or endeavor—but they have some discretion to determine the means by which a matter should be pursued. They aren’t required to press for every advantage a client could attain, and don’t have to use offensive tactics or treat the parties involved in the legal process rudely or disrespectfully.
Rule 1.3 also advises attorneys to avoid taking on more work than they can competently complete. Large matters can involve a significant number of documents, which you’re obligated to organize and process competently and diligently. Employing a system that allows you to track and access materials can be crucial. If you find you’re not able to adequately meet document or other caseload needs, bring in help.
Rule 1.4: Communication
Basic premise: Lawyers need to inform clients of any decision or circumstance that requires their consent in a timely manner – and thoroughly explain the situation so the client can make informed decisions.
Attorneys also need to provide status updates on matters and notify clients about any limitations if the lawyer knows the client expects assistance that isn’t permitted by the Rules of Professional Conduct or a specific law.
Maximum violation penalty: A public reprimand.
Ethical considerations: Lawyers need to speak to clients and secure their consent before taking action, unless prior discussions have determined what specific action the client wants the lawyer to take.
For example, an attorney who receives an offer of settlement from opposing counsel in a civil controversy or a proffered plea bargain in a criminal case needs to promptly inform her client about what it involves – unless the client has previously indicated the proposal will be acceptable or unacceptable or authorized the attorney to accept or to reject the offer.
In some circumstances, such as a trial where an immediate decision must be made, the lawyer may need to act without prior consultation; in those instances, he must nonetheless act reasonably to inform clients about actions he has taken on their behalf. Best practice is to require written confirmation of authority prior to acting.
Rule 1.5: Fees
Basic premise: Charge reasonable fees, and provide written documentation to let clients know what representation includes and what the fees and any other expenses will be – before or within a reasonable timeframe after you’ve begun representation – unless the client is someone you regularly represent for a pre-determined basis or rate.
A number of factors can play into the amount you collect from clients – such as:
The time, labor and skill level needed to perform a legal service;- The novelty/difficulty of the questions that are involved;
- The experience, reputation, and ability of the lawyer or lawyers performing the services;
- What other attorneys in the area charge for similar services;
- The likelihood of accepting the work will preclude you being able to take on other work;
- The amount of money the matter involves and the results that are obtained;
- Time limitations the client or circumstance has imposed;
- The nature and length of your professional relationship with the client; and
- Whether the fee is fixed or contingent.
The time, labor and skill level needed to perform a legal service;Maximum violation penalty: A public reprimand.
Ethical considerations: Rule 1.5 also states attorneys can’t enter into an arrangement intending to charge or collect a fee in a domestic relations matter that’s dependent upon the attorney securing a divorce or a certain amount of alimony, support or a property settlement.
Always have a written fee agreement detailing your fee contract.
If a fee that is contingent on the outcome of the matter is used, attorneys should, in writing, state how it will be determined, other expenses that will be deducted from the recovery, and whether they’ll be deducted before or after the fee has been calculated.
After a contingent matter has been concluded, lawyers should provide clients with a written statement that outlines the outcome; if more than one lawyer worked on the matter, what fee each will receive and other relevant information.
A fee generally can’t be divided between attorneys who aren’t in the same firm, unless the division is proportional to the services performed by each lawyer – or, by written agreement with the client, each lawyer assumes joint responsibility for the representation, and the client has been advised about what each attorney will receive, doesn’t object to them participating, and the total fee is reasonable.
In addition, if a relative or trust wishes to pay a client’s fees and litigation expenses, the client needs to give informed consent to the payment arrangement and must sign the fee agreement.
Rule 1.6: Confidentiality of Information
Basic premise: All information gained in a professional relationship with a client needs to remain confidential, including information the client has asked to be held inviolate, or if disclosing it would be embarrassing or likely detrimental to the client, unless informed consent is given.
Rule 1.6 also states confidentiality is to be maintained after the client-lawyer relationship has ended.
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Ethical considerations: Lawyers can reveal information in some circumstances, according to the rule, without being subjected to disciplinary proceedings – if an attorney believes it’s reasonably necessary, for instance, to avoid or prevent harm, serious injury, death, or substantial financial loss to someone due to client criminal conduct or third-party criminal conduct that clearly violates the law.
The rule notes, however, that attorneys can only use or disclose information if harm and loss have not yet occurred. A lawyer should, if possible, make a good faith effort to persuade the client not to take action, or try to warn the victim before disclosing information.
Attorneys may also face questions in complex, high-asset divorce cases about who is entitled to know certain information if a client’s extended family, corporate officers, trustees and other parties participate in decisions. To avoid confusion, define privilege and determine the best way to convey information to everyone involved early on in the case. Get any authority to share confidential information in writing.
Rule 1.7: Conflict of Interest: General Rule
Basic premise: A lawyer shouldn’t represent someone if it will present a significant risk to the lawyer’s responsibility to a current or former client – or if a third person will adversely affect the client’s representation.
There can be an exception to the rule if each affected client has given consent, in writing, provided client-informed consent isn’t prohibited by the rules of conduct or law, which may be an issue if the party that’s filed a claim against your client is also one of your clients, or circumstances would mean you likely wouldn’t be able to provide adequate representation to one or more of the affected clients.
Maximum violation penalty: Disbarment.
Ethical considerations: A lawyer’s personal or economic interests – and interests that relate to family members, corporate officers, trustees, and any other involved parties – shouldn’t have an adverse effect on client representation.
Similar reasoning applies if a source other than the client is paying you, which is permissible if the client is aware of it and gives informed consent, and the arrangement doesn’t compromise your loyalty to the client.
Rule 1.16: Declining or Terminating Representation
Basic premise: You shouldn’t agree to represent a client, and should withdraw from a matter, if representation would mean you would be in violation of the law or Georgia Rules of Professional Conduct – or if your physical or mental condition would impair your ability to provide representation or you’ve been discharged.
Unless a tribunal orders you to continue representing a client, you can withdraw from a matter, provided it won’t adversely affect the client’s interests, for several other reasons. You may be able to cease representation if, for example, a client insists on a course of action you believe is criminal or fraudulent; has used your services to perpetrate a crime or fraud; or insists on pursuing an objective you consider to be repugnant or imprudent.
A client failing to fulfill an obligation regarding your services can also be grounds for withdrawal, if you’ve given reasonable warning; or you can end the relationship if it will result in an unreasonable financial burden on your behalf, or if the client has made the work unreasonably difficult.
Maximum violation penalty: A public reprimand.
Ethical considerations: If withdrawal is allowed, you need to do it in a way that’s compliant with applicable laws and rules and protects the client’s interests – giving reasonable notice so that the client has enough time to obtain other counsel, surrendering papers and property the client is entitled to, and refunding any advance payment or fee that hasn’t been earned.
If you are withdrawing from a matter because a client is demanding you engage in conduct that’s illegal or violates Georgia’s Rules of Professional Conduct, document the situation by listing how the client is failing to fulfill his obligations in writing – preferably more than once.
Rule 2.1: Advisor
Basic premise: Lawyers need to exercise independent professional judgment and render candid advice when representing clients, even if clients may find it unpalatable.
Maximum violation penalty: Disbarment.
Ethical considerations: Purely technical legal advice may be of little value to clients – particularly when practical considerations, such as cost or the effect on other people, are significant factors in a matter. As a result, when rendering advice, a lawyer may want to refer to moral, economic, social, political and other elements, in addition to the law.
Family matters can involve problems which go beyond issues involving strictly legal questions such as psychiatry, clinical psychology or social work, and business matters can encompass issues with accounting or financial specialists’ competence. Lawyers should make a recommendation to consult with professionals in other fields when necessary – keeping in mind, however, that a lawyer’s best advice may end up involving a course of action that conflicts with experts’ recommendations.
It is also important to try to manage client expectations in complex and high-asset cases. Many high-wealth individuals employ professionals who are substantially supported by that client’s work and can, as a result, provide an immediate response to the client’s requests; and their responses may generally be agreeable to their client’s desires. You may strongly disagree with professionals’ opinion. It’s important to communicate information clearly – and be prepared to stand your ground, in case you get pushback on your recommendations.
Rule 3.1: Meritorious Claims and Contentions
Basic premise: Lawyers shouldn’t file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of their client when it’s obvious the action would merely harass or maliciously injure another party. Attorneys also shouldn’t advance a claim or defense that’s unwarranted under existing law, unless it can be supported by a good faith argument for an extension, modification or reversal of existing law.
Maximum violation penalty: A public reprimand.
Ethical considerations: You need to have legitimate reasoning that supports your position.
It isn’t ethically improper for a lawyer to file a lawsuit before complete factual support for the claim has been established – if the lawyer can conclude there is a reasonable possibility that facts supporting the cause of action can be established after the claim has been filed, and the rules of procedure don’t require the cause of action to have an adequate factual basis.
Rule 3.6: Trial Publicity
Basic premise: Attorneys can make a statement they believe is required to protect their client from a substantial prejudicial effect that could result from recent publicity neither the lawyer nor the lawyer’s client initiated.
An attorney who is or has been involved in the investigation or litigation of a matter, however, shouldn’t make an extrajudicial statement that could be disseminated by means of public communication if he knows it will likely prejudice a proceeding in the matter. Lawyers associated with the attorney through his firm or a government entity should also avoid making such statements.
Maximum violation penalty: A public reprimand.
Ethical considerations: Make sure your client’s best interest guides your behavior regarding trial publicity.
If any hearing or trial is being filed pursuant to Rule 22 of the Uniform Superior Court Rules, prepare your staff and client for cameras and reporters. The best response to a reporter’s questions about a case is often, “My firm has a policy that no lawyers will respond to questions regarding this personal matter.”
Tina Shadix Roddenbery is shareholder at divorce and family law firm Boyd Collar Nolen Tuggle & Roddenbery. She brings more than 30 years of family law experience, including divorce, custody, support modification, legitimation, paternity, and contempt, and is one of only a handful of National Board of Trial Advocacy board-certified family law attorneys in the state of Georgia. www.bcntrlaw.com
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