An Attorney's Ethical Duties and Limitations in Divorce Discovery
by
Joseph C. Maya on Jun. 23, 2017
Divorce & Family Law Divorce Other Ethics
Summary: A blog post about what a lawyer can and can't ethically do for a client during a divorce claim.
You state that you are handling a divorce case in which the parties have worked out the major financial issues on their own. You represent the wife. The marriage lasted less than three years and there is one child. The husband is in investment banking and his income fluctuates between roughly $1,900,000 and $400,000 each year (it has been declining recently). His assets include securities, a home and various investment partnerships. The wife is young, unemployed (but financially sophisticated) and taking care of the child. Her assets are minimal, but she will receive a large lump sum alimony, periodic alimony for five years, and substantial child support. She has moved out of the state and would like to be divorced soon. Other than an exchange of draft financial affidavits, there has been virtually no financial discovery. Your question is whether the lawyers can fulfill their ethical and fiduciary obligations to their respective clients without doing financial discovery. The parties are willing to sign waivers to that effect and to proceed with the divorce. The Separation Agreement will not include the usual language indicating that the parties have presented their finances accurately and are making this agreement in reliance on that information.
A lawyer is required by the Rules of Professional Conduct to provide competent representation to a client which includes thoroughness in preparation reasonably necessary for the representation. (Rule 1.1) Financial discovery would normally be conducted by an attorney in a matrimonial dissolution action involving a couple with substantial incomes and assets. You indicate that your client is financially sophisticated, although she has no independent income and minimal assets. She is apparently satisfied with the disclosure presented on her husband’s draft financial affidavit.
Rule 1.2(a) of the Rules of Professional Conduct states:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
In the Terminology Section of the Rules, the word “consult” is said to denote “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
Your facts indicate that you represent a client with the sophistication to understand the financial issues involved in the case. As the Comment to Rule 1.2 states,
A client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Law defining the lawyer’s scope of authority in litigation varies among jurisdiction.
You must consult with your client and inform her of the advantages and disadvantages of a financial settlement where financial discovery has been limited as requested by your client. Some of those disadvantages might be a less than full understanding of the nature of her husband’s assets, the processes for valuation of those assets and the prospects for income increases by her husband in the future. You should state to your client that you are not in a position to advise her on the fairness of the settlement because of the limitation the client has placed on the financial discovery. Once your client is fully informed of the possible consequences of limited financial discovery, you may follow your informed client’s instructions.
We are responding only to your inquiries regarding your responsibilities under the Rules of Professional Conduct. Legal issues such as an attorney’s potential liability for negligently failing to discover and value the other spouse’s assets in a matrimonial action and the fiduciary responsibility of a lawyer to his client for full and fair disclosure in matrimonial actions and the relevant requirements of the Practice Book with regard to financial disclosure, are beyond the purview of this opinion.
Source: CT Eth. Op. 95-31 (Conn.Bar.Assn.), 1995 WL 849614
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