Counsel for the Divorce

INTRODUCTIONThe legal profession has made it all but impossible to unbundle partisan advocacy from legal representation. In spite of repeated invitations to embrace the potential of the problem-solving lawyer whose expertise and creativity can add value for clients in non-adversarial ways,1 the bar continues to treat as selfevident the proposition that clients who want legal assistance must obtain it from someone who can offer vigorous, even zealous advocacy, promoting the client's individualized goals from a vantage point unhindered by other considerations. Justified by reference to vague ideals of loyalty and undivided commitment, the assumption seems like a beneficent one, something that protects clients from pernicious conflicts of interest. Upon closer inspection, however, the insistence that legal advice be delivered in an adversarial posture turns out to be costly, paternalistic, and willfully unresponsive to changing realities in the market for legal services.Nowhere are these consequences more pronounced than in the area of family law. The legal profession offers surprisingly little to divorcing spouses who seek assistance in a form other than the classic model of full-fledged representation.2 The paucity of alternatives is particularly unsatisfying when viewed in light of the tremendous changes that have occurred in the law of marital dissolution. In particular, the substantive legal rules that govern divorce have undergone a revolution in the past forty years, transforming divorce from a fault-based inquiry suitable for adversarial resolution to a process best characterized as the judicial restructuring of finances and relationships.3 No longer do courts determine who was at fault for the breakdown of a marriage, and then issue financial awards that can be analogized to damages for breach of the marital contract; nor do custody contests regularly result in one parent being identified as the sole or primary custodian while the other is relegated to visitation.4 Instead, courts focus on the equitable distribution of marital resources and strive for an allocation of parental responsibility that keeps both parents significantly involved wherever possible.5 Tracking these substantive developments, family courts have embraced procedural and structural changes that seek to make divorce faster, cheaper, and less acrimonious, such as early neutral evaluation by court employees, mandatory mutual financial disclosures, and other case management mechanisms uniquely tailored to the domestic relations context.6 Despite these profound transformations in family law, many divorce clients encounter an all-or-nothing choice when seeking legal services: either full-scale zealous advocacy in the adversarial tradition or self-representation.7Such a binary choice is troublesome on multiple dimensions, with the most obvious being cost. Most divorcing families cannot realistically fund two lawyers out of one marital pot. By some estimates, 60-90% of domestic relations cases involve at least one unrepresented party.8 Many scholars and activists frame the issue as an access to justice problem that should be solved by the judicial or legislative recognition of a categorical right to counsel at public expense.9 Setting aside the practical obstacles to such a solution, the financial downsides of the full-scale model affect a wide range of couples beyond those indigent enough to qualify for publicly funded counsel. Where both lawyers are getting paid out of a finite set of marital assets, every dollar spent on legal fees inures to the detriment of both spouses, who will share a depleted resource after the lawyers have been paid.10 Speaking strictly in financial terms,11 this is justifiable only from the point of view of an individual spouse who expects that his lawyer's zealous advocacy will result in an award that more than offsets that client's share of the lawyer's fees.12 Except in those rare instances in which both lawyers are adding value to the marital pot in an amount that exceeds what their fees withdraw from it, this expectation cannot simultaneously bear fruit for both spouses, creating a sort of prisoner's dilemma. …