There is a discouraging lack of civility and professionalism among litigation attorneys which has tarnished the legal community for the past 30 years as set forth in a recent California Court of Appeal decision.
The case of Lasalle v. Vogel, G055381 (2019) is a legal malpractice action, wherein the Court of Appeal noted thirty years ago, in 1989, that attorneys are ‘officers of the court’ and that includes extending professional courtesy to the court AND opposing counsel rather than attorneys waiting for “the slightest provocation to turn upon each other.”
Couples engaged in divorce are often emotionally distraught and feeling insecure and fearful of the future, so they think they need to hire a ‘bulldog’ attorney for waging war with their spouse/partner regarding money or property or custody of their children. Many attorneys relish the role of ‘gladiator’ and battling with the other attorney, however Collaborative Lawyers are trained to cooperate with their counterpoint and set aside the idea of a temporary ‘victory’ in the courtroom in favor of a victory in helping the family manage the current crises of divorce and then flourish beyond the end of the marriage.
In 1997, the Court of Appeal urged the bench and bar to practice with more civility: “The law should not create an incentive to take the scorched earth, feet-to-the-fire attitude that is all too common in litigation today.”
In 2011, the Court of Appeal warned, “We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth,’ nor does it mean lack of civility. Zeal and vigor in the representation of clients is commendable. So are civility, courtesy and cooperation. They are not mutually exclusive.”
To highlight the extent of the problem, in 2014 the State Bar amended the oath new attorneys are required to take to add a civility requirement!
In the Lasalle v. Vogel case, the Court of Appeal did not reward the hard ball tactics that had brought a ‘victory’ to the plaintiff in the trial court, and instead, the Court of Appeal held: “The term ‘officer of the court,’ with all the assumptions of honor and integrity that append to it must not be allowed to lose its significance. We reverse the order in this case because that significance was overlooked.”
What does this mean? That both parties expended a lot of time and money in the trial court, only to have it all thrown out by the Court of Appeal and the parties will have to begin anew, incurring more attorney fees and costs and taking up more of their valuable time!
Choosing the Collaborative Divorce Team approach means the parties will not waste time or money and take the chance they will have to ‘do it all over again’ as Collaborative Lawyers will actively cooperate to settle cases and not cause undue delays; they will share information and insight about the family’s needs and concerns and help craft ‘win-win’ solutions, and the Collaborative process is confidential so the private matters a family may want to keep private will remain private. As admonished numerous times by the Court of Appeal in the past 30 years, Collaborative Lawyers eschew ‘attack dog’ and ‘scorched earth’ methods in favor of treating each other with civility and integrity, which provides a better outcome for their clients and the family.
