Although I am not a great fan of divorce lawyers, I generally do not go out of my way to vilify them. I think that their organizational and professional culture is essentially destructive. They have inherited a system that is a poor fit with its task of disassembling families using a fault oriented system to manage no fault divorce. But most of them, as individuals, are not reprehensible. Most think they are doing good. They believe that the intense conflicts in which they participate are simply the product of the moral and psychological deficits of their clients, and that they are just doing their jobs by providing rigorous representation. Few have any understanding of the historical or cultural context in which they operate, and almost none of them have a clue about their role in fomenting and exacerbating unnecessary conflict.
So it is unusual that I have occasion to witness a truly evil lawyer urging ruinous conduct on the part of a client. This is the one in which the lawyer’s behavior cannot be explained by cultural inclinations. It can only be understood in terms of naked greed and utter indifference to the consequences of destructive behavior.
I was recently consulted by a man who wanted help convincing his wife to mediate their divorce. He is a successful businessman in his early forties earning in the range of $300,000. His wife had interrupted a lucrative career to have children, both of whom are under the age of ten. In her late thirties she was in agreement that the marriage needed to end. The question was, how to go about negotiating a settlement? The husband was hoping to use mediation notwithstanding that the wife had hired one of the better known lawyers in her city, a man with a reputation as an aggressive, take-no-prisoners type. Apparently she had taken the advice of a friend who, like so many friend-advisors, had urged that she hire the toughest lawyer she could find and who would fight for the maximal result. She had bought the myth that the “tough” lawyer could get her more money than other lawyers. Although there is absolutely no data to support the myth, it has an amazingly tenacious hold on the American imagination. Predator lawyers don’t get you more money; they just cost you a lot of money by creating conflict for which they can bill at up to $500 per hour. The predator lawyer’s first meal is inevitably their own client. In this case the wife’s lawyer had collected a retainer in excess of ten thousand dollars, which he had gone through in the course of writing a few threatening letters to the husband. That he was now demanding more raised the possibility in the mind of the husband that his wife might be ready to consider mediation. But that was not to be.
A few days after I saw the husband, he called me to tell me that mediation was no longer possible. He had just received a visit from the police who had come to investigate a complaint of domestic violence by the wife. There had been no violence or threats between the couple. It appeared that the wife had been urged by her lawyer to file a complaint against the husband for the possibility that the police would believe her and evict the husband. When questioned by the police, the wife was only able to tell them that she “felt afraid”, although nothing had happened. The police left, telling the wife that if she continued to feel afraid, perhaps she should leave. The incident outraged the husband, and in the ensuing heated discussion the wife told him that her lawyer had told her she was entitled to lifetime alimony, and that he would have to support her forever. The wife had left a job paying her in the high eighties. The notion of permanent alimony, given these facts, was an absurdity and any lawyer with two weeks experience would know it. The wife had been given false hopes by her lawyer that could serve only one purpose: to stir the pot, generate more litigation and generate a huge legal bill.
The husband, who until now had been inclined toward an amicable divorce in which the wife would be secure, now concluded that his wife was only out to get as much money as she could, and would do anything possible, including lying to get it. From his perspective the shenanigans of the lawyer were imputed to the wife so that the lawyer’s warlike posture became the wife’s warlike posture. So the husband declared war as well. He had for some time harbored a suspicion that the wife had been having an affair. Although he had not been inclined to pursue the matter, he now hired a private detective to investigate. Within a few weeks the investigator turned up compelling evidence of a long standing affair. This put the husband in the position to deny all alimony to the wife because North Carolina is one of six states in which infidelity bars alimony. So whereas the husband had been completely willing to pay reasonable alimony to his wife, he now was inclined to deny her support entirely. Even worse, from the wife’s interest, the investigator also uncovered considerable evidence that the wife had a serious alcohol and drug problem. So now the husband who had wanted a shared parenting arrangement with the wife became inclined to fight for sole custody.
I had no reason to follow the case, so I do not know its present status. But I find the case remarkable in that a lawyer managed to create great problems for his client that in the end, completely defeated her, and in the process turned what could have been an amicable divorce into an ugly mess. This particular lawyer is an extreme example of the mischief that can be created by an adversary posture. Too many couples don’t become adversaries until their lawyers gain control. But until more people better understand the legal culture, the damage continues.