What if you want to handle your family law case cooperatively but still need legal help?
As you may already know, lawyers have a duty of loyalty to their clients.
This duty includes:
- Keeping the client’s secrets and confidence
- Identifying and acting in their client’s best interests
- Not working for a second client’s whose interests may be in conflict with their client
For this reason, a family law lawyer cannot advise both parties to a family law case – whether that is two divorcing spouses or two unmarried parents. This is the reason that lawyers typically run “conflict checks” before talking to a new potential client to make sure they don’t already represent or have already consulted with the other spouse or parent. That way, they can ensure that they keep all information confidential and give advice free of any conflict of divided loyalty.
But what if you and your spouse or co-parent need to get a divorce or legal orders but want to do this cooperatively and without things turning nasty? You may worry that if you both go to your own lawyer, the lawyers will encourage you to take an “adversarial” (or argumentative or hostile or combative) approach which you don’t want.
Or you may not have the money to hire two lawyers or you just want to save on expenses.
Let’s assume that you don’t want to DIY it because you need help about how to go through the process, make decisions and create the right legal documents. You many want information about the kind of things a judge can order or want to talk through options and figure out solutions.
What are your choices in this scenario?
Option 1: You each consult with a lawyer without actually hiring one.
This option will help you get the information, advice and document help you want. But you may be worried that the lawyer will talk one of you into starting a court battle. You can manage for this by doing your homework before and during any lawyer meeting.
Before you book a session with a lawyer:
Find out as much as you can about that lawyer’s approach.
Read any reviews, talk to friends, and spend some time on their website to see what they are talking about.
Do they talk about creative approaches, problem solving and cooperative processes or do they use language that assumes your spouse or coparent is out to get you, shouldn’t be trusted or brag about their ability to “win” “crush the other side” and similar terms?
Find out if the lawyer you’re hoping to consult with is a mediator, has served as a judge pro tempore (that’s a volunteer position that lawyers can do to help with certain cases where courts have backlogs and ensures that the lawyer has experience seeing both sides of a case).
Similarly, find out if the potential lawyer is trained in “Collaborative Divorce Law.”
These are signs that your lawyer has training, experience and interest in helping find solutions not just trying cases about problems. Make sure you both are working with peacemaking/problem solving lawyers rather than “warriors,” “trial lawyers” or the proverbial “pit bulls.”
During your meeting with your lawyer:
Many lawyers have more work than they can handle and may welcome the chance to take on simple consultations, free of any pressure to “make the sale.”
But even if this isn’t what you are sensing, it’s your case.
Tell the lawyer what your goals are for the consultation: you want to get information about the process, the law about your rights and responsibilities and their thoughts on a good settlement outcome.
Asking the right questions will help you keep control of the agenda and ensure you get what you need from the consultation. Most lawyers want to have happy clients and so are interested in meeting your needs. Be clear and firm about what yours are.
Option 2: You handle your case using the Collaborative Divorce method.
In this approach, both lawyers have had specialty training on how to handle a case without going to court. This can include a team model to bring in neutral professionals specializing in one of the issues of the case to work for both parties.
For example, a certified divorce planner can help with budgeting while a family therapist can help create a parenting plan right for your children. A collaborative divorce involves signing a 4-way agreement (both clients and both lawyers) that commits to a non-court solution. If the process breaks down (which happens in less than 15% of the cases), both lawyers must withdraw from this case. This model ensures everyone has a stake in working the case out and that information freely shared in the collaborative process isn’t used by one of the lawyers in a later court case.
You get the benefit of having two trained lawyers working actively and together with you and your spouse or coparent to find solutions without giving up the chance to privately ask questions and get legal advice about how certain deals could affect you.
Option 3: You do your own research, mediate and then prepare your court paperwork.
The first step under this option is to research your rights and responsibilities.
There is a lot of information on the Oregon Judicial Department website for example. There you can find general information about how Oregon law treats your issues such as parenting, support and property. You would then need to cooperate to sharing information you each found as well as exchange financial information, information about your children, etc.
After you figure out what you can agree to, you can isolate your differences and hire a mediator to help you reach an agreement on those. After you have an agreement, one of you could hire a lawyer to prepare the paperwork you need to open your case and turn that agreement into a court judgment. This avoids the situation where one of you is speaking with a lawyer who pushes that one into a case that neither of you wanted before that lawyer meeting.
The downside is that you may not fully understand your rights and responsibilities before committing to an agreement. We don’t always know what we don’t know. A good lawyer is also a good listener and can spot issues you might not see.
Consulting with lawyers for informational sessions only without hiring them can minimize this risk.
Option 4: You can each work with lawyers who offer “limited scope,” “limited representation” or “unbundled legal services.”
These are lawyers who will work with you on some of the parts of your case but don’t take on full representation. (Rogue Family Law is one of those!) This option gives you more control over what happens in your case.
Here’s why:
In theory, any lawyer should only take action that you authorize. But most lawyers will have a set process that they follow which they may or may not explain fully to you so can opt out before the work is done. Also, once a lawyer becomes your “counsel of record,” they must respond to all that happens in your case. This means that they have to take every call, read and respond to every email and go to every court hearing. And because Newton’s 3rd law (for every action, there is an opposite and equal reaction) is as true in the court as it is in the lab, cases can take on a life of their own.
By using “limited scope” services, the lawyer isn’t put into the position of having to respond to everything. And, because you are discussing what they will do upfront -- specifically defining it-- the work is more transparent and preset.
This keeps you in control over what happens in advance, takes out two potential actors/reactors who could start a spiral, and forces you to think through your goals, tools and strategy before things heat up.