If you are thinking about representing yourself in a divorce, I want to share with you a chapter on the book I am writing for lawyers going through divorce. This is the chapter about whether a lawyer should be their own lawyer. (spoiler alert–the answer is NO!)
Should you be your own lawyer?
Should you represent yourself? OF COURSE NOT! But you could. But you really shouldn’t. One of the first decisions you have to make in your own divorce, along with food/shelter/clothing decisions, is whether to hire an attorney to represent you. This should be an easy question, shouldn’t it? (It is so easy that I answered it right up front. See?) In theory, it may be an easy decision. In practice, we go through the same thoughts that other people have, and the idea can be very tempting. I AM a lawyer, why do I need a lawyer?
As an attorney, when people ask me if they can represent themselves in their own divorce, I usually give some version of this colorful example:
Can you represent yourself? Absolutely[1]. In fact, you might also be able to learn how to do orthopedic surgery on your left hand using your right hand, and do a perfectly fine job, but the results could be ugly, and the damage could be permanent, expensive, difficult, and painful to try to fix.
Case closed, right? Probably not, if we are being honest with each other. Somehow that good advice we give to others isn’t so clear when we are talking about ourselves. We are attorneys, after all, and the thought that someone else might do a better job than we would (on my case!) doesn’t come easy. Even though, intellectually, we know self-representation is a bad idea for others, there is still a nagging temptation to ignore our own good advice when it comes to ourselves. Even though attorneys get divorced at least as often as people in other lines of work[2], most state ethics rules don’t address the question of should you represent yourself. In the American Bar Association’s model Rules of Professional Conduct, several sections would be worth paying attention to if you plan to represent yourself, like Rule 1.15 Safekeeping Property, Rule 3.4 Fairness to Opposing Party and Counsel, Rule 3.7 Lawyer as Witness, and Rules 4.1-4.4. But the question of should you represent yourself at all is avoided entirely. Another profession, however, has addressed the question head-on, and their take on the issue is illuminating.
What do doctors do?
In the medical profession, the American Medical Association strongly cautions against diagnosing one’s self or family members in all but emergency life-threatening situations where another physician is unavailable, and for routine illnesses. AMA Ethics Opinion 8.19:
“…Professional objectivity may be compromised when an immediate family member or the physician is the patient; the physician’s personal feelings may unduly influence his or her professional medical judgment, thereby interfering with the care being delivered. Physicians may fail to probe sensitive areas when taking the medical history or may fail to perform intimate parts of the physical examination. Similarly, patients may feel uncomfortable disclosing sensitive information or undergoing an intimate examination when the physician is an immediate family member. This discomfort is particularly the case when the patient is a minor child, and sensitive or intimate care should especially be avoided for such patients. When treating themselves or immediate family members, physicians may be inclined to treat problems that are beyond their expertise or training….
“Concerns regarding patient autonomy and informed consent are also relevant when physicians attempt to treat members of their immediate family. Family members may be reluctant to state their preference for another physician or decline a recommendation for fear of offending the physician. In particular, minor children will generally not feel free to refuse care from their parents. Likewise, physicians may feel obligated to provide care to immediate family members even if they feel uncomfortable providing care…”
If you replace the word “physician” with “attorney,” “patient” with “client,” and “treat” and “care” with “represent,” the text reads something like this:
“…Professional objectivity may be compromised when an immediate family member or the attorney is the client; the attorney’s personal feelings may unduly influence his or her professional judgment, thereby interfering with the representation being delivered. Attorneys may fail to probe sensitive areas when conducting an interview. Similarly, clients may feel uncomfortable disclosing sensitive information when the attorney is an immediate family member. This discomfort is particularly the case when the client is a minor child, and sensitive matters should especially be avoided for such clients. When representing themselves or immediate family members, attorneys may be inclined to represent a client in matters that are beyond their expertise or training….
“Concerns regarding client autonomy and informed consent are also relevant when attorneys attempt to represent members of their immediate family. Family members may be reluctant to state their preference for another attorney or decline a recommendation for fear of offending the attorney. In particular, minor children will generally not feel free to refuse representation from their parents. Likewise, attorneys may feel obligated to provide representation to immediate family members even if they feel uncomfortable providing representation…”
This rewording of the AMA’s rule is better than any guidance I have seen from the bar association, and the states and ABA would do well to replicate it. However, for purposes of fairness, let’s consider the best arguments in favor of self-representation.
Actually, there are some rational reasons to represent yourself, including saving money, your intimate knowledge of the “case,” and your ability to focus on the case better than an outside counsel would because of the relative importance to you as opposed to a rank stranger[3]. If these reasons seem persuasive to you, more so than what came before them, it may be helpful to look at the hiring decision as the first decision you will make as your own lawyer, and dig into how you may have arrived there.
The perils of deciding to represent yourself
My favorite lawyer joke goes something like this: Three people are applying for a job at a prestigious university; a mathematician, an economist, and a lawyer. The final interview question is “what is two plus two”. The mathematician answers “that’s easy, the answer is ‘four’,” the economist answers “that’s easy, the answer is ‘four, give or take three’,” and the lawyer, for his answer, gathers the interview committee close to him and whispers “what do you want it to be?” As attorneys, we are very good at giving a full-throated, well-reasoned argument for what our client wants, whether it is objectively reasonable or otherwise[4]. Our job as an attorney is to simultaneously give objective, accurate advice to the client, and to advocate zealously for our client’s position. To do this effectively, our objectivity is paramount, whether the client chooses to accept our good advice or not. However, we are at a distinct disadvantage when giving advice to ourselves. You know as well as I do that clients in emotionally fraught situations can be hard to reason with, especially when working with them on a compromise of any kind. In many cases the client receiving unwelcome information or advice falls victim to “confirmation bias.”
Confirmation Bias
In a law journal some years back, I read a jury selection article that has stayed with me. It begins with an example that almost reads like a parable. A law school class was given two opening arguments, and asked who should win. To a person, the students gave the “right” answer, saying that they would wait to hear all of the evidence before making a decision. But, having heard the two opening arguments, they were nevertheless asked who did they want to win. Nearly every student had picked who they wanted to win.
If you haven’t learned about confirmation bias before, I will do my best to explain it a little bit and why it matters for purposes deciding to represent ourselves or not. Confirmation bias, in short, is the tendency to accept information that supports a decision we have already made (or an outcome we want to happen), and to disbelieve contrary, but otherwise accurate, information, that undercuts that decision[5]. In other words, we cherry-pick facts that agree with the outcome we want, and we discount or even ignore facts contrary. We as human beings, in spite of what we believe, are emotional/instinctual decisionmakers[6]. We tend to let our emotions or our instinct make the decision for us, we find “logical” reasons to support our pre-determined decision, and then tell ourselves that we let the facts guide us, even though the opposite is true.
The bottom line is that we may be very unlikely to ask ourselves the hard questions that another attorney would. In a divorce, where emotions so easily cloud our rational thinking, having someone give us accurate information, especially if it isn’t what we want to hear, is extremely important to a good (or less bad) outcome. The punchline to the lawyer joke referenced above becomes more significant in this context—what do you want the answer to be? If we already know what we want the answer to be, then it becomes extremely important to consider the contrary information, and, possibly, to invite a neutral third party to help you consider the best course.
Being your own white knight
You know this already, but a divorce, especially involving your children, scrapes against who you are, and against your very identity. If you are a family law practitioner, I suspect you have taken great pride in the kind of spouse you are (or were), and in the kind of parent you are. If your marriage has “failed,” and if you don’t “get the kids,” or “win” somehow, would that be a public assessment of whether you, the family lawyer, are the better spouse or the better parent? Or even, the shame of a “family lawyer” ending up “losing” the house/car/kids? Think for a minute if fear is a part of your decision making process right now. Let me answer the question for you: It is.
For many of us, the decision to go into this business, the practice of law, was motivated by where we came from as children ourselves. Why would we have gone into this line of work when there are much easier, less stressful, lines of work for folks who are intelligent, driven, gregarious, and outwardly confident? Was it because we couldn’t resist the call of a noble centuries-old profession essential to the preservation of Western civilization and an ordered society, and intellectually stimulating to someone of our great intellect? Probably not. Let’s be honest with ourselves for a moment. In all likelihood, on the deepest, most fundamental level, it was about money, power, and social standing. And there’s nothing wrong with that. The late Louisiana history professor Mark Carlton called med school and law school “vo-tech for the middle class.” There is quite a bit of truth in that. For the bright kid growing up lower or middle class, the fields of law and medicine are very attractive. These professions have social cache, and are intertwined with the person. You don’t just “work at a hospital”—you are a doctor. You don’t just work at a law firm—you are a lawyer.
If you began life as a “lower class” (or maybe even “middle class”) child, having this identity is a step up from where you were. In being a lawyer, you have importance. You have power. You can theoretically go toe-to-toe with the biggest corporation, or fight the government itself, and win. You can stare down a big bully and crush them with nothing but the force of your will and your intellect. For the child who has been bullied, this is a great temptation and a great appeal. The power to be someone else’s white knight is intoxicating and heady. So is the temptation to be your own white knight, or, maybe in our own mind, the white knight for your children. Let’s dig further. If you were bullied as a child, chances are you like having the power to beat up a bully. Were you ignored by your parents? Being heard is extremely important to you in your career. If a judge disregards your argument, does that sometimes remind you of that childhood pain? If you were unloved by one or both parents, chances are that you get job satisfaction from the approval of your clients. Did you grow up poor? Again, your social status as an attorney, being viewed as prosperous and successful are meaningful to you now. Each and every one of these “buttons” will get pushed in your divorce. There will be a great temptation to salve these wounds by cutting and gouging in litigation. Ask yourself honestly—do you hope to use your position and your skill as an attorney to punish your spouse?
Final considerations
Besides the emotional turmoil you are going through, and, having to continue to run a business, and having to do with the often burdensome discovery requests including tracking down financials somewhere in a box somewhere to comply with the discovery process, and trying not to run afoul of the ethics laws yourself, and making sure that you preserve your cordial professional relationship with everybody in the system, representing your self is a bad idea.
How would you advise another attorney?
I would like to pose this question to you: if a colleague of yours asked if they should represent themselves, what advice would you give them? If your advice is that your colleague should hire outside counsel, then you would be well advised to take your own advice. By the way, the phrase “he who represents himself has a fool for a client” applies equally to lawyers and members of the general public. My recommendation is hire someone competent and turn the case over to them.
Do you have a question about divorce? I am always glad to consult via telephone. Call me now at (985) 320-6554. I want to hear from you.
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Endnotes:
- There is a plethora of online services selling do-it-yourself-divorce forms to the general public. These are an especially bad idea in domestic cases. Divorce, community property, and custody judgments are intended, by their very nature, to be enforced by judges, lawyers, and law enforcement, and, potentially several years into the future. If a judgment is written in an unusual format, or uses wording or terminology unfamiliar to the street-level police officer, or even to the court, it can cause a delay or an outright refusal of enforcement in some circumstances. If a situation has deteriorated to the point where you need police enforcement of a judgment, the last thing you want is hesitancy or refusal to enforce. Also if the court is not familiar with the particular terminology in the judgment, there may be hesitancy to apply the judgment in the way you expected it to be applied. ↑
- The United States Census Bureau reported in its American Community Survey 5-year data for 2015 that attorneys in that period divorced at a rate of 27.6 percent, which is right about the middle of the pack for occupations. ↑
- A 2007 study suggested that self represented criminal defendants actually may do better at avoiding conviction than those represented by counsel, but the study was small and the results may be explained by other factors. Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant North Carolina Law Review, Vol. 85, No. 2, pp. 423-487, January 2007, UGA Legal Studies Research Paper No. 06-002. ↑
- Consistent with the rules of ethics of course. ↑
- https://en.wikipedia.org/wiki/Confirmation_bias ↑
- Emotion and Decision Making, Jennifer S. Lerner, Ye Li, Piercarlo Valdesolo, Karim S. Kassam, Annual Review of Psychology 2015 66:1, 799-823 ↑
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