Professional Responsibility

A Matter of Custody

You represent the husband in an acrimonious divorce action. Your client, a physician, has no desire to continue supporting his wife in the manner to which she has grown accustomed in the ten years that they have been married. The physician tells you quite explicitly that he expects his wife to get custody of the children, that she is much closer to the children (a girl age four and a boy age six) as his work has resulted in his wife being primarily responsible for the children during their early years. You determine that the physician does not want custody of the children. The client is, however, afraid that his wife's outrage over the fact that he is leaving her for a younger woman will result in an effort to make him suffer financially. The client seems particularly worried about his financial interest in a pharmaceutical business that a large supermarket chain is considering for purchase. During the interview the client suggests seeking custody of the children as a "bargaining chip" in the settlement negotiations. He wants to get matters settled with his wife and protect his interest in the pharmaceutical business. The wife knows of her husband's interest in the business but does not know that a potential sale is in the offering. The wife has had a drinking problem but after spending three weeks in a residential alcoholic treatment facility (when the children were two and four) has refrained from drinking. The physician tells you that he knows his wife wants to avoid a custody fight at all cost. [This scenario is from Thomas Shaffer & James R. Elkins, Interviewing and Counseling 415-416 (St. Paul, Minnesota: West Publishing, 2nd ed., 1987)]

Would you be willing to use the threat of a custody fight in your negotiation knowing that your client has no desire to have custody of his children?

  On the use of threatened custody fights by clients and lawyers, see Scott Altman, Lurking in the Shadow, 68 So. Calif. L. Rev. 493 (1995). Paul G. Haskell, in Why Lawyers Behave as They 9, 71-72 (Boulder, Colorado: Westview Press, 1998) notes that:

A lawyer represented Husband in a divorce proceeding. Wife wanted the custody of the children, as well as alimony and child support. Husband had no interest in the custody of the children, and wanted to minimize the alimony and child support. His lawyer advised Husband that a custody demand could be a bargaining device in negotiations to reduce alimony and child support because of Wife's fear of losing exclusive custody of the children. The lawyer told Husband that if Wife called their bluff by not yielding on alimony and child support and insisting on custody, they would withdraw the custody demand. Husband agreed to the strategy, and it turned out as planned--Wife settled for lower alimony and child support in exchange for exclusive custody.

Haskell notes that custody blackmail is "often done, and it may be professionally permissible. It is a misrepresentation of Husband's state of mind, but it has become a negotiating convention that may legitimize the tactic under professional rules." [Id.] Later in the book, Haskell argues that the strategy of the lawyer and his client is a "form of fraud." He points out that a lawyer is forbidden by ethical rules to counsel the client to engage in fraud or assist the client in fraudulent conduct. Haskell suggests that the matter is somewhat confused by the fact that this misrepresentation takes place in the context of negotiations and the ethical rules explicitly allow lawyers greater leeway in representations made during the course of negotiations. The bottom-line for Haskell is that "[t]here is no consideration that justifies this immoral behavior." [Id. at 71, 72]

 On the role of the lawyer in divorce cases, see: James R. Elkins, A Counseling Model for Lawyering in Divorce Cases, 53 Notre Dame Law 229 (1977). On children and custody battles, see Mary Ann Mason, The Custody Wars: Why Children are Losing the Legal Battle and What We Can Do About It (New York: Basic Books, 1999).