Therapeutic jurisprudence: roles for lawyer, judge and client

• Author: Annette J. Szorosy/Stephanie Matalon
• Profession: General Magistrate/General Magistrate
• Pages: 95-138

THERAPEUTIC

JURISPRUDENCE

1-1

CHAPTER 1

Therapeutic Jurisprudence:

Roles for Lawyer,

Judge and Client

QUICK VIEW

The Florida Supreme Court has set forth its goals and desires for family-law practice in Florida. The rules

promulgated by the Supreme Court move Florida family law toward the goal of trial as a last resort, using

therapeutic jurisprudence. Just as the family court judges are learning about child development and how to

deal with emotionally charged people, the family-law bar is going to need to promote innovative skill-building

for lawyers to meet the goal of therapeutic jurisprudence. Minimizing conf‌lict and initially moving the parties

to amicable resolution as a goal requires evolving knowledge, focus, and skills beyond those of a litigator.

This chapter begins the process to def‌ine and provide for the interplay in Florida family-law practice between

judges, lawyers, and clients, empowering lawyers to empower the parties to select processes for addressing

issues in their cases that are compatible with the family’s needs, f‌inancial circumstances, and legal requirements.

TABLE OF CONTENTS

I. REALITY OF FLORIDA FAMILY LAW PRACTICE

A. Family Court

§1:01 Creation of Family Divisions

§1:02 Further Ref‌inements

§1:03 Unif‌ied Model Family Court

§1:04 Principles of Unif‌ied Model Family Court: Blueprint for Systematic Change

§1:05 Technology and Electronic Filing Continues to Change

§1:06 Coordination of Related Family Cases and Hearings

B. Satisfying Supreme Cour t’s Diaz Standard

§1:10 Florida Supreme Court’s Expectations

§1:11 Meeting the Florida Supreme Court’s Expectations

§1:12 Interplay Between Lawyer, Client, and Judge

§1:13 Electronic Filing and Sanctions

C. Therapeutic Jurisprudence and Transactional Model

§1:20 Family Lawyer Must Be Deal Maker

§1:21 Transactional “Deal Maker” Analogy

§1:22 Therapeutic Jurisprudence

THERAPEUTIC

JURISPRUDENCE

Florida Family Law and Practice 1-2

§1:23 How the Business of Family Law Is Conducted

§1:24 Limitations of Therapeutic Jurisprudence

D. Limited Representation (Unbundled Legal Services)

§1:25 Creation and Purpose

§1:26 Ethics Rules

§1:27 Florida Family Law Rule of Procedure 12.040

II. FAMILY LAW ETHICS AND PROFESSIONALISM

A. Resources

§1:30 Website

§1:31 Florida Bar Ethics Hotline

§1:32 Written Ethics Opinion

§1:33 Published Opinions

§1:34 Ethics in the Digital Age

B. Lawyer-Client Relationship

§1:40 A Lawyer’s Responsibilities

§1:41 Family Lawyer Is More Counselor Than Advocate

§1:42 Must Consider More Than Just Law

§1:43 Must Refer Client to Interventions and for Advice in Other Fields

§1:44 Creation of Lawyer-Client Relationship

§1:45 Client Conf‌idences and Conf‌licts of Interest

§1:46 Duty to Tell Spouse of Client’s HIV

§1:47 Former Client’s Right to Disqualify Attorney From Representing Opponent

§1:48 Avoidance of Appearance of Impropriety

§1:49 Do Not Represent Both Sides

§1:50 Do Not Recommend Lawyers for Client’s Spouse

§1:51 Sexual Conduct With Clients

§1:52 Lawyer’s Responsibility for Technical and Legal Tactical Issues

§1:53 Client Decides Objectives of Litigation

§1:54 Avoid Suggestion of Ability to Inf‌luence Judge

§1:55 Attorney Withdrawal

§1:56 Arbitration Clauses

C. Lawyer’s Communication With Client’s Spouse or Spouse’s Lawyer

§1:60 Be Careful Dealing With Unrepresented Person

§1:61 Do Not Let Unrepresented Person Push Your Buttons

§1:62 Do Not Speak to Represented Party

§1:63 Do Not Threaten Opposing Counsel With Discipline

§1:64 Do Not Threaten Opposing Counsel With Criminal Prosecution

§1:65 Receipt of Documents Mistakenly Sent or Produced

§1:66 Requirement to Prevent Inadvertent Disclosure of Conf‌idential Information

§1:67 Revealing Conf‌idential Information

D. Lawyer’s Relationship With Court

§1:70 Reasonable Efforts to Expedite Litigation

§1:71 Responsibility of Candor

§1:72 Communicate Facts to Court in Motions and Pleadings, Not E-Mails or Letters

§1:73 Diligence: Family Law Is Specialty—“Generalists” Beware

E. Ethics and Attorneys’ Fees

§1:80 Retainer Agreement Should Be in Writing

§1:81 Excessive Fees

§1:82 Results Obtained or Bonus Fees Are Not Permissible

§1:83 Contingency Fees Only for Enforcement or Collection of Existing Judgments

§1:84 Nonrefundable Retainer Permissible

§1:85 Unit Billing Is Impermissible

§1:86 Interest

THERAPEUTIC

JURISPRUDENCE

1-3 Therapeutic Jurisprudence: Roles for Lawyer, Judge and Client

§1:87 Fee Disputes

§1:88 Costs

III. PSYCHOLOGICAL CONSIDERATIONS FOR LAWYER AND CLIENT

A. Lawyer

1. Four Unconscious Lawyer Archetypes

§1:100 Healer

§1:101 Protector

§1:102 Warrior

§1:103 Broker

2. Interactions With Clients

§1:110 Historic Reactions to Clients of Both Same and Opposite Genders

§1:111 Counter-Transference

§1:112 Interviewing Style

§1:113 Negotiating Style

§1:114 Inf‌luence of Personality Type

§1:115 Your Psychological Proclivities: Believing Client or Becoming Client

§1:116 Letting Go of Case and Client

B. Client

1. General Points

§1:130 Stress of Dissolution

§1:131 Marital Bargain

§1:132 De Minimis Assets and Expenses

2. Determining Client’s Motive and Intent

§1:140 Look for Hidden Agenda

§1:141 “I deserve everything. My spouse deserves nothing.”

§1:142 Perceived Marital Bargain Violated

§1:143 “I want nothing. Just get this over as fast as you can.”

§1:144 Fight Over Bird and Bird Cage or $20 Flatware

§1:145 “Controller”

§1:146 “Victim”

§1:147 “My children want to speak to you and the judge.” or “My spouse threatens to take the

children.” or “My spouse doesn’t deserve to see the children or be part of their lives.”

§1:148 “Here is what my spouse and I agreed to. We don’t want to f‌ight; we just want you to

type this up in a legal form.”

§1:149 The Non-Responsive Non-Initiator

3. Memory Theory: Key to Explaining Perception vs. Reality

§1:160 Memor y Theory

§1:161 Factors Affecting Memory

§1:162 Memory Is Flawed

4. Emotional Stages and Psychological Process of Dissolution

§1:170 Stages

§1:171 Bearing of Stage on Lawyer-Client Relationship

§1:172 Using Stages to Explain Other Spouse’s Behavior

§1:173 Death of Marriage

§1:174 Initiator or Noninitiator

IV. THE COLL ABORATIVE LAW PROCESS

A. Collaborative Law Process Act—Rule Regulating the Florida Bar 4-1.19

§1:180 Purpose

§1:181 Duty to Explain Process to Prospective Client

§1:182 Written Agreement Required

§1:183 Dut y to Address Domestic Violence

§1:184 Comment to Rule 4-1.19