Caring Too Little, Caring Too Much: Competence and the Family Law Attorney

Abstract:     
Family law practice has undergone dynamic structural changes in recent years. Efforts to reduce, rather than exacerbate, conflict in divorce and custody disputes have resulted in the restructuring of court systems, increased use of alternatives to litigation, new forms of practice emphasizing collaborative negotiation and interdisciplinary cooperation. Whether working with a client in litigation of a custody action or arranging a consensual stepparent adoption, all attorneys working with families planning or undergoing transitions are challenged by the emotional aspects of representing families.

Thus, for attorneys practicing family law, competence must reach beyond what are commonly considered to be the hallmarks of quality: knowledge and skill in legal doctrine and processes. Rather, attorneys must be especially knowledgeable and skilled in dealing with human emotions. If attorneys ignore the demands of the affective and psychological aspects of family representation, both the client and attorney may suffer.

This article examines the level of competence in family law practice today. We first examine why the demands of competent practice are in many respects unique in family law practice. We then consider whether today's family law attorneys are meeting those competency challenges. We believe that competence problems in family law practice often flow from caring problems. Some competence problems are the result of caring too little - either society and the legal system as a whole caring too little about families and their legal needs or individual attorneys caring too little about the non-legal needs of their clients. We then suggest that attorneys must develop strong listening and counseling skills and knowledge if they are to competently represent their clients. Other risks to competency may come from caring too much, causing attorneys to suffer the loss of independent professional judgment and presenting the risks of vicarious trauma. We conclude that attorneys must learn to protect themselves from these risks just as diligently as they protect themselves from missing deadlines or failing to know the law. Only by striking the balance of care in family law practice can attorneys have a long, successful career serving the needs of families.

Keywords: Competence, competency, family law, children, child, conflict, divorce, custody, alternatives to litigation, collaborative negotiation, interdisciplinary, human emotions, family representation, caring, listening, counseling, best interests, guardian ad litem, professional conduct, ethics, malpractic

JEL Classifications: J12, J13, K10, K40, K41

Accepted Paper Series