Monday, August 06, 2012
A Family Law Fraternity?
There are men's only golf clubs, massage parlors, resorts, and now law firms. The Wall Street Journal recently reported that a number of divorce lawyers are marketing themselves as for men only. (See the article here). Preying on men's fears that judges, mediators and others discriminate against them in custody and support matters, these firms claim expertise in helping men avoid common "traps" in divorce matters, such as being accused of domestic violence. Some of these specialized firms provide extra services such as "men's rights" websites (perhaps complete with Robert Bly poems?) and office reception areas adorned with ESPN-tuned TVs and copies of Sports Illustrated.
Although it's not clear whether these firms actually offer unique services or are just shrewd marketers, they claim success in attracting and serving clients. There undoubtedly are some concerns more common to men in divorce proceedings, but this niche practice itself raises some concerns about client selection and zealous advocacy. I don't think these men-focused firms are in the same league as certain famous debates over client selection. (To name just a few: the recent flap over King & Spalding's withdrawal from representing the House of Representatives in the DOMA litigation (see here for Paul Clement's resultant resignation from the firm); the debate between Monroe Freedman and Michael Tigar over the latter's representation of Nazi John Demjanjuk (outlined in the appendix to Freedman's book, Understanding Lawyers’ Ethics, App. B “Must *You* Be the Devil’s Advocate?”); and the controversy over the representation of the Ku Klux Klan by an African-American NAACP lawyer, Anthony Griffin (see Professor David Wilkins' article about it, Race, Ethics and the First Amendment: Should A Black Lawyer Represent the Ku Klux Klan?)). But if these firms are unwilling to represent a woman who came to them, able to pay their fees, it's not clear that they are operating within the ethical rules.
More significantly, this practice raises larger ethical questions endemic to many areas of family law practice. How should lawyers zealously represent clients when there are other, often unrepresented, parties who also have a significant interest in the matter. In the divorce context, I'm speaking, of course, of children. It is one thing to craft arguments from a father's perspective, quite another to coach men in avoiding support obligations or minimizing domestic violence accusations. (I'm not saying these firms do these things, but some of them do espouse a problematic message--that women often use accusations of domestic violence as a "tactic" in divorce and that "a shove" should not really be considered violence). In recognition of the toll divorce litigation can take on children, the American Association of Matrimonial Attorneys (AAML) guidelines state that attorneys for parents in custody and related actions have a fiduciary duty for the well being of a child and thus must competently represent the interests of the client, but not at the expense of the children. (See the AAML guidelines, aptly titled "The Bounds of Advocacy," here). Although these guidelines are not binding, they can hopefully begin to change the notorious "scorched earth" reputation of attorneys in divorce matters.
Posted by Cynthia Godsoe on August 6, 2012 at 01:17 PM | Permalink
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I find this a difficult issue to resolve. As you note, under the ethics rules, gender discrimination in client selection may be barred in some states. The ABA has a link to its comparison of various states' versions of comment 3 to Rule 8.4 at this page:
On the other hand, more than a few scholars and practitioners sided with Judith Nathanson, a Massachusetts divorce lawyer who refused to take on a male client because as a political and moral matter she had dedicated her practice to the representation of only women in divorce matters. Nathanson was fined $5,000 by the Massachusetts civil rights enforcement agency for her decision. Western New England devoted a law review symposium to that case. The Symposium begins with this short overview by Martha Minow:
20 W. New Eng. L. Rev. 5 (1998)
Posted by: John Steele | Aug 6, 2012 1:46:41 PM
While your point is well taken, the scorched earth approach to divorce has been a problem for quite a while, well before men-only practices began.
If you follow the genesis, it was hardly to help men avoid their obligations to the children, but rather in response to courts almost invariably ordering funding and physical custody to wives, to the extent of rendering husbands destitute while simultaneously denying custody or visitation with children.
The orders in favor of wives was shockingly lopsided, and the children were typically pawns in the game. It was common practice to raise a spectre of wrongdoing with regard to children, and courts would deny visitation well before anything was at the stage of provability just to assure that no harm would come to them.
This was gamed unmercifully by wife-only scorched earth lawyers. Men/fathers had no place to turn, and rarely had any funds left to mount a fight at all. This isn't a get-rich niche, as there's no riches to get, but one that supports a seriously unmet need.
Posted by: shg | Aug 6, 2012 1:57:57 PM
I certainly agree that the scorched earth approach to divorce predates these men-only firms, but I also think that gender-specific practices probably often worsen this trend, and that children are ultimately the ones most harmed. (And this despite my respect for Judith Nathanson, and many other attorneys who work only for a specific group of people--thanks, John, for reminding me of this case).
Posted by: Cynthia Godsoe | Aug 6, 2012 3:21:17 PM
I completely agree that the practice area would do enormously better to end the scorched earth approach as well as the gender only approach. Judges, as well, need to stop providing incentives for this approach.
But until there are unicorns and rainbows in divorce practice, something has to be done to bring things back into some sort of balance. Sadly, nobody really cares all that much for the children, though everyone swears that's all they care about.
Posted by: shg | Aug 6, 2012 3:29:53 PM
While single-gender may be a bridge too far, I see not much objectionable in the far more common practice of firms that concentrate solely on representing breadwinners, stay-at-home-parents, accused domestic abusers or the domestically abused.
As for children, I think it would be best if they had their own zealous advocates rather than attempting to shoehorn a rather alien divided duty approach into the US style adversarial legal system.
Posted by: Brad | Aug 6, 2012 6:15:41 PM
Cynthia, the substance of your post, as well as your mocking Robert Bly quip, is a great illustration of why men's rights organizations exist in the first place.
The elephant in the room that is the flat-out bigotry against men in family law (and arguably in law generally) screams for institutions devoted to advocacy for men. After all, this is the logic of feminists when it comes to systemic problems women face in various contexts, right? But suddenly, when it comes to advocacy for men against what is undeniably very real discrimination, we should be concerned that it's just men, what, using their good-ol'-boy patriarchal privilege to game the system in their favor at the expense of women and children? Of course, you don't use these terms, but you lean in that direction with your glib comparisons to golf clubs, fraternities, and message parlors.
"There undoubtedly are some concerns more common to men in divorce proceedings, but this niche practice itself raises some concerns about client selection and zealous advocacy."
Ah, the "but." Do you get this "concerned" over attorneys/firms that represent the interests of women (after all, as you note, the AAML rules aren't binding)? If not, I imagine it's because you assume they generally believe in what they do, even if they make a profit doing it, whereas the firms you are concerned about may "coach men in avoiding support obligations" (which you quickly then note you DON'T KNOW THAT THEY ACTUALLY DO)? And if you do, do you compare such firms to nail salons, Tupperware parties and Oprah book clubs?
Or is your concern the "problematic messages" they espouse, like the idea—the fact—that women sometimes lie to pull on the institutional heart strings that the justice system already dangles in front of their faces? And why is the claim that women may lie about domestic violence "problematic" to you? Do you know if it's true? What if it is? Should lawyers who represent men not call it out and prepare their clients for it?
Men face bigotry; systemic bigotry, but it's rarely discussed. As such, when organizations arise that serve to combat such bigotry, the inevitable mocking and presumptions of ill-intentions ensue. This phenomenon itself, ironically, illustrates why more institutions such as the ones you are "concerned" about should exist.
Posted by: New Prof. | Aug 7, 2012 8:39:56 AM
Where to begin? Although there are undoubtedly gender stereotypes at work in family law, penalizing both men and women, the data is not at all clear that there is "flat-out bigotry" against men. In fact, as Cathy Meyer's recent analysis of Pew Center statistics in the Huffington Post showed, fewer fathers seek custody after divorce and mothers are more involved in their children's care during and after divorce, making them more likely to be granted custody. (See http://www.huffingtonpost.com/cathy-meyer/dispelling-the-myth-of-ge_b_1617115.html).
Regarding domestic violence, the Department of Justice has listed domestic violence as one of the most chronically under-reported crimes (see U.S. Department of Justice, Bureau of Justice Statistics, Criminal Victimization, 2003). Numerous studies have also illustrated that rather than favor women who falsely report abuse, courts in fact don't adequately deal with real abuse in deciding custody and support matters. (See e.g. family court judge Philip Trompeter's article on this subject at http://scholarlycommons.law.wlu.edu).
Finally, as to your question of whether I am concerned about firms representing women's interests, I said in an earlier comment that I am troubled by gender specific practices in family law, whether geared towards women or men. I think gender specific practices may only perpetuate these stereotypes, rather than helping move towards a more nuanced and accurate understanding of fatherhood and motherhood.
Posted by: Cynthia Godsoe | Aug 7, 2012 9:08:59 AM
Where to end is actually a more difficult question than where to begin, so I will just tackle your first point to make mine.
The Meyer piece is hard to take seriously. Just take a look at the comments to see the kind of analytical holes one can easily poke through it upon some cursory critical thought. Really, I urge you to read the comments, as they completely tear apart the piece.
Take this gem from Meyer:
“In other words, 91 percent of child custody after divorce is decided with no interference from the family court system. How can there be a bias toward mothers when fewer than 4 percent of custody decisions are made by the Family Court?”
Is it possible that fathers know that the deck is stacked against them and so negotiate this away in order to win other concessions? In other words, may the reason why there is “no interference” by the justice system is BECAUSE of bias in favor of mothers? Of course the answer is “yes,” which is why this very phenomenon has been written about, something Meyer seems blissfully unaware of. Eg, see this by Diana Thompson:
“Even the 80% to 95% maternal preference documented by these studies and others understates family court discrimination against fathers by identifying many coerced child custody arrangements as "uncontested." The vast majority of divorces involving children are initiated by women, and women are usually granted temporary custody of the children. Judges are reluctant to switch children from the custody of one parent to another. Fathers, left to fight an uphill battle to gain custody and often out of both money and hope, sometimes give up. Others spend their life's savings trying to obtain joint physical or sole custody so they can remain a part of their children's lives. Devastated financially and with little hope of winning, they often sign consent orders granting custody to mothers. In both of these common scenarios, the child custody arrangement is "uncontested."”
Meyer’s piece deserves no credence, as it’s grossly simplistic to the point of being just plain misleading.
Most importantly, I fail to see how your invocation of Meyer’s piece is relevant to our original point. Even assuming it’s true, what difference would it make that many fathers don’t seek custody after divorce? What do you say to the father who DOES but still must face the often de facto presumption against awarding him custody? In other words, when you take fathers who do want custody and seek it in court, but who is nevertheless, all other things being equal, not as likely to win it because of bias in favor of the mother?
Anyway, I am all for “a more nuanced and accurate understanding of fatherhood and motherhood.” Part of such a nuanced understanding is not comparing men’s attempts to combat what they and many analysts on the subject deem to be gender bias, to fraternities and such where dudes gather to talk about babes and baseball and conjure up shemes to avoid paying child support over some brewskies. That was my original point. If you’re willing to put this mocking glibness toward the problems men face in the legal system aside, perhaps we would converge on substance.
Posted by: New Prof | Aug 7, 2012 12:47:07 PM
I think we're going to have to agree to disagree, as I am aware of no statistics that show that fathers who are equally engaged in child rearing fare worse than mothers in custody situations. The reality is that men overwhelmingly do not engage in the same amount of child care as women. This is not likely because they are uninterested in their children, but rather is perhaps a reflection of the marketplace realities or of the joint decisions of couples. (To speak from my own experience: although my husband and I both work full time, we have allocated other responsibilities such that I am more responsible for our 3 children, perhaps because he earns more than me and has less flexible hours, perhaps for other reasons we haven't articulated). As to the comments about ESPN and Sports Illustrated and a family law fraternity (a typical definition: 1. a body of people united in interests, aims, etc. the teaching fraternity; 2. brotherhood), these firms advertise their waiting area media choices and tout their environments as places where "untrusting" men can be "comfortable." Thus, back to my point that these types of firms likely reinforce, rather than break down, gender stereotypes.
Posted by: Cynthia Godsoe | Aug 7, 2012 1:32:17 PM
As a divorce lawyer for the past 17 years, I get to meet and speak to dozens of people every week regarding their relationships and the problems they encounter in their marriages. Having counseled thousands of people, I am privy to both the underbelly of marriage and divorce. In the same way that people get married by choice, they make a choice about the tone of their divorce.
Posted by: Divorce Lawyer Las Vegas | Aug 15, 2012 8:06:31 PM
A lawyer with strong intellectual and emotional views with regard to gender, like Ms. Nathanson, the Massachusetts lawyer who represents only women in matrimonial cases,is required to decline to represent men, on grounds of conflict of interest. Even if she made every effort to represent a male client zealously, there is a significant and plausible risk that, unconsciously, she would be less than zealous on his behalf.
Although the male client might express a willingness to waive the conflict, my advice to her would be to decline the representation on the ground that it would be imprudent for her to accept it. Despite a waiver, a disappointed male client might nevertheless sue her later for malpractice on the ground that she had betrayed his interests, citing her admitted bias in favor of women. The waiver would be an argument in her favor, but it wouldn't create immunity from a malpractice action that no lawyer would want to have to deal with.
Posted by: Monroe Freedman | Aug 27, 2012 3:13:22 PM
"quite another to coach men in avoiding support obligations"
Non-custodial men have a far better track record at paying child and spousal support than non-custodial women.
You are an uninformed sexist pig. Get some better facts.
Posted by: Jay | Aug 27, 2012 11:50:37 PM
"But if these firms are unwilling to represent a woman who came to them, able to pay their fees, it's not clear that they are operating within the ethical rules."
You mean like the thousands of for-women-only lawyers and services provided by the gov, paid for by taxpayer money? Or is it okay if it's for women?
How tiresome it is that anything male-positive is instantly and constantly attacked and derided...
Posted by: Deansdale | Aug 28, 2012 3:29:39 AM
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