UPDATE
Counseling Clients to Do the
Right Thing in Child Custody Cases
by Professor Charles P. Bubany
Despite efforts to sugarcoat it, divorce is not
pretty. Rather, for a large percentage of children
of divorce it is a tragedy. The best that can be said
for divorce in many cases is that it is the lesser of
two evils. 1 Once the marriage is irretrievably broken, one may talk about "restructuring" the family 2
but in fact it cannot be restructured; it is no more.
It no longer matters that the parents never should
have gotten married or had children. It no longer
matters that they could have worked things out
earlier in the marriage with proper help. All else
is irrelevant once the decision to divorce is made.
The goal now must be to make the best of a "bad
deal." At this stage, the well-being ofthe children
of the marriage must be looked after by all parties
facilitating the divorce.
The frequency of divorce has naturally led to
efforts to ameliorate its effects. One such effort
has focused on the manner in which custody disputes are settled at divorce. In recent years, here
has been a tide of criticism against the "traditional"
way of settling custody disputes at divorce. In fact,
it has been suggested that custody disputes be removed from the courts altogether. 3 Disenchantment with court-ordered adjudications and lawyer
negotiated settlements has led to an increased emphasis on alternative dispute resolution, especially
mediation, as a means of ordering the breakup of
a marriage. 4 But even in a regime in which alternative dispute resolution mechanisms are available, or even mandated, there is and will continue
to be a leading role for attorneys. 5 My focus is on
that role.
I. Attorney Models
The predominant categorization of family lawyers is the "legal advocate" on the one hand, and
the "problem-solver" on the other. 6 The one who
litigates is "tough"--aggressive and manipulative.
The other type, the one who settles cases, is "soft"-mediative, cooperative, and trusting. There is a
tendency to stereotype lawyers as fitting into one
of these categories. It is clear, however, that the
distinction between these polarized constructs has
been exaggerated. 7
In addition, much valuable study and thought
has served to discredit the view of an attorney as
merely an agent/advocate. According to that simplistic paradigm, the client tells the attorney what
he wants, and the attorney respoljds by telling the
client what can be done, and the client decides
whether that's what the client wants the attorney
to do. s The typical attorney has always been more
than that. By recognizing the broader role of an
attorney, we have become more thoughtful and
critical of the attorney role in counseling.
The basic principle of client representation has
not changed in the evolution of the rules governing an attorney's professional conduct. An attorney has a duty of zealous representation. The
old Model Role of Professional Responsibility and
the new Model Rules of Professional Conduct
each impose a duty of loyalty to the client9 and
a duty to represent that person competently.lO
Indeed, a lawyer's authority to act on behalf of
the client stems from her status as the client's
agent. 11
Undue emphasis on the agency concept has led
to the traditional or standard conception of the
attorney as the "hired gun;" purely adversarial and
instrumentalist in the practice of law. This notion
has led to criticism of lawyers as hiding behind the
so-called "adversary excuse" under the guise ofloyalty to the client. 12 The stereotypical advocate lawyer might well regard the counselor lawyer as
failing to serve her client's interests. Such a practitioner has no time for what she perceives as
"hand-holding."
My premise is that the good lawyer does not fit
neatly at either pole. The good lawyer is both aggressive and cooperative. The difficulty of effective
representation lies in knowing which role to adopt
in specific circumstances. Thus stereotypes are not
helpful. The attorney who relies on the adversary
excuse for not questioning a client's motives, for
example, might be regarded as practicing "wimpy"
law. On the other hand, the counselor lawyer can-
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not justify half hearted representation due to
doubts concerning the client's motives.
Essential to my theory of effective representation
is the notion that counseling clients is a two-step
process. First, the attorney must decide along with
the client what is in the best interest of the client.
Next, the attorney must do what can be done to
accomplish that. 13 At level one, the attorney is a
counselor, and level two, the attorney is an advocate. From this perspective, there is consistency
between the attorney's two roles.
II. Counseling
A colleague of mine tells a story from his practice
days. It goes like this. An angry client comes to
attorney's office and immediately says he has three
questions: one is a criminal law question, another
is about abortion, and the third is about a will.
Client who is white says that a Mexican (with additional epithets) has made his 18-year old daughter pregnant. His first question is whether he can
go over there to "that dirty, rotten - - - - - 's house,"
and provoke him into an attack so "I can kill him."
The attorney answers no. The second question is
whether the Client can make his daughter have an
abortion. The attorney answers no. As to the third
question, can the attorney write him a will in which
he disinherits her and the Mexican? The attorney
says ''Yes I can but it will take a week." A week
later, when the client comes back, the attorney
hands him the will that he has drafted which includes a statement that the testator intentionally
makes no provision for his daughter and "grand_
child." (The attorney had purposely used the word
"grandchild" instead of another term such as "heir"
or "issue"). As the client was reading that part,
the attorney could see an immediate change in the
client's demeanor. The client then said: "All this
really wasn't the grandbaby's fault. Can't we put
him back in?" The attorney answered affirmatively, but said it would take about another week.
A week later the client came in and advised the
attorney that things were much better with his
daughter. She and the baby's father were going to
get married, and he was already talking about taking his grandson to Washington, D.C., fishing, etc.
So the attorney drafted a third will in which the
client gave everything to his daughter .... and he
was happy.
My colleague felt good about what he did, but
almost as an afterthought he said to me, "I'm not
sure what I did was exactly right." Was it?
This story reminds me of Archibald Cox's hypothetical of the mother who wishes to disinherit her
son because of the son's refusal to fight in Vietnam.
This example is discussed by Peter Margulies in
his article arguing that lawyers have the duty, inter
alia, to advise clients on the moral consequences of
legal action. 14 Many lawyers will not perfunctorily
draft the papers necessary to disinherit the son.
Instead, Cox argues, "many lawyers will engage the
mother in a discussion how this decision, if the
mother could look back on it after it became irrevocable--after her death--would prompt feelings ofregret over her harsh treatment of her offspring."15
Although counsel beyond strictly legal analysis
might not set well with the mother, at least initially, "she subsequently may decide that a less
drastic alternative to disinheritance, such as talking to the son, will ventilate and clarify her feelings
sufficiently."16
The upside of this approach as opposed to "counseling the client about morality" (read "preaching"),
is that it: (1) may be more effective; (2) is less
difficult for the lawyer; and (3) since it is nonjudgmental, it may create less client resistance. T~e
downside is that this psychological approach "lets
the lawyer off the hook" and may degenerate into
condoning irresponsible behavior. 17 It appears
that this type of counseling is what seasoned matrimonial lawyers do all the time. Matrimonial attorneys emphasize the need tactically to take the
"high road."IS, "As a general rule ... the strategy
is effective because it offers the path of lease resistance to the trial judge who will find it easier to
identify with that party who is being reasonable
rather than the party who has taken an extreme
position."19
It has been referred to as an "existential paradox"--protecting of client autonomy while at the
same time empowering the client to make informed
decisioQ.s by manipulating that client. 20 The fact of
the matter is, however, most attorneys think they
know what is better for the client (and probably
most of the time, they do). Call it what you will,
"dialogic empowerment," making a "connection"
with the client,21 or whatever, but good lawyering
means helping the client make rational and informed decisions.
One commentator says that open influence,
rather than manipulation (which is surreptitious)
is healthy for the attorney-client relationship. "In_
fluence is the process by which the lawyer uses the
expression of sincere concerns, possibly coupled
with the application of leverage in the form of a
threat to withdraw from representation, to shape
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a client's decision."22 In fact, attorneys do "manipu.late" clients. The influence of attorneys over
their clients is patent, by what the lawyer does or
does not do, or what the attorney says or does not
say.23 While maintaining the pretense of client
autonomy, lawyers often use the "straw man" of the
law, the judge, or the evidence to "cool out" clients. 24 To me, the distinction between "influence"
and "manipulation" is fine. Perhaps the connotation of the latter is that it is for the benefit of the
lawyer, not the client.
It is clear that "purely technical legal advice"
may be inadequate. Both the Rules of Professional
Conduct and the American Academy of Matrimonial Lawyers Standards of Conduct acknowledge
that moral, ethical and practical considerations
may be referred to in giving advice. 25 These considerations "impinge on most legal questions and
may decisively influence how the law will be applied."26 The Academy takes a further step, regarded by some as controversial, that the
matrimonial attorney has an ethical duty to consider the welfare of the children when representing
only a parent. 27 My thesis is that this step is not
so controversial. In fact, family law practitioners
regard it as essential to the client's best interest to
focus on the welfare of the children.
To me, the perceived conflict between client
autonomy and lawyer domination ofthe counseling
relationship may stem from a misperception of
process. In his critique of the influential Binder
and Price client-centered model, Professor Dinerstein opines that the quality of lawyer-client dialogue may depend more on the way in which a
practitioner implements the model than on any inherent characteristic of the model itself. 28 Technique is critical. Most clients come to an attorney's
office with certain expectations, framing the issues
they present to attorneys as legal problems. Clients also are "outcome-oriented." Not surprisingly,
clients may tend to view the law in absolute terms;
they have bought into the "myth of finality."29
Rather than jumping to legal alternatives (as my
students do), a good lawyer must deal with client
expectations and misconceptions about the law. A
critique of the client-centered model as presented
by Binder and Price is that the authors reach the
formulation-of-Iegal alternatives step too soon,
without adequate consideration of the goals and
objectives of the relationship.30 The client must be
counseled before the client decides what to do.
IV. Counseling Scenarios
To focus the earlier discussion, five hypothetical
scenarios are presented below. Limited random
reactions to these counseling situations are given.
Scenario #1
H comes to see you in connection with his pending divorce. He is an outstanding member of the
community, and wants custody of his children, ages
8 and 10. But he says he will not fight custody
because, although his spouse is not the "best
mother," it is probably best that the children stay
with her. Moreover, since he has heard how difficult it is for a man to obtain custody and because
he is worried about the effect of a custody battle
on the children, he does not want to make the effort.
Reaction
The attorney will ask, "Not the best mother?" to
begin examining the client's "frame of reference."
The client's conclusions must be tested. The attorney, presumably even the so-called adversarial attorney, would want to know the basis of the client's
conclusion. This inquiry is necessary due to the need
to assess whether the client can "win." Attorney no
doubt also will ask why H thinks it is best for the
children to stay with their mother. If, in fact, further
probing reveals grounds for a finding of unfitness,
counsel may say, "You are right, it is difficult for a
man to obtain custody of the children, but if we could
make a case for custody by showing unfitness of the
children's mother, would you want to do that?" All
of this is designed to find out what the client wants.
(Of course, the wary attorney must be aware of possibly being "suckered" by the client, who may be
trying to lay the groundwork-even for his attorneyfor a claim that he, not his spouse, is the reasonable
and accommodating party.)
The attorney's first reaction might be to say,
"Yes, you're right, and what we'll try to do is get
you the best visitation possible." This could have
the negative effect of carrying out the client's intentions without realizing the best interest of the
client or the children. It probably would be preferable to say something to the effect, "You are probably right about custody. I think it's good you are
concerned about the children, but tell me, what do
you want and what do you think would be best for
the children?" The client could be timid about expressing his wants. There may be feelings of inadequacy at the prospects of having to raise the
children without their mother. The fear of a long,
difficult battle over custody is certainly legitimate.
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The feelings of loss of the former spouse may also
present a stumbling block to expression of his desires. These feelings should be probed and the
client made to understand that they may be clouding his judgment.
Scenario #2 31
Your client Dr. Martin Arrowsmith has no desire
to continue supporting his wife Leora after divorce
in the manner to which she has grown accustomed
in their ten years of marriage. Martin says that
he expects his wife to get custody of the children
(a 4-year-old girl and a 6-year-old boy), because his
work has resulted in his wife being primarily responsible for the children. He says (and you believe) that's fine; he really does not want custody.
Martin is afraid that his wife's outrage over his
leaving her for a younger woman will result in an
effort to make him suffer financially, and he seems
particularly worried about his financial interest in
a pharmaceutical business that a large supermarket chain is considering for purchase. Martin suggests the possibility of seeking custody of the
children for leverage in settlement negotiations.
He wants to get matters settled with Leora and
ensure that his interest in the pharmaceutical business is not encumbered in any way. Leora knows
of Martin's interest in the business but does not
know that a potential sale is in the offing. Leora
is a recovering alcoholic, and after spending three
weeks in a residential alcoholic treatment facility
(when the children were 2 and 4), she has refrained
from drinking. Martin tells you that he knows his
wife wants to avoid a custody fight at all cost, but
he does not elaborate.
Reaction
Here we're fairly certain at the outset of the client's frame of reference. Our attorney might have
an immediate negative reaction to the client. The
attorney could immediately react by saying, "No, I
cannot represent you if you intend to use the children as bargaining chips."32 The preferable approach might be to ask questions designed to make
the client examine whether it was in his best interests to take this position. He should be made
to understand that he needs to take the "high road."
Using the approach he suggests could backfire. It
could cost more, it could generate hard feelings and
in the long run, could defeat his primary goal of
preserving the business. This is especially true
because the equities certainly are not on the doctor's side. On the face of it, he looks the part of
the villain in the breakup and could easily be
painted so. Bringing up his wife's background also
is risky. Attorney might ask, "If you were the judge
do you think you would regard the way your wife
has handled the drinking problem as a positive or
negative thing?" Also, "If your wife has worked to
solve her drinking problem, how do you think it
would look to the judge if we were to make a big
issue of that?" This is a fellow who might respond
to casting the course of action in his "best interest."
Martin must think that his wife's unwillingness
to fight custody is a factor in his favor. This needs
to be examined. Again, an intransigent position on
the client's part could translate into a picture of a
person who does not really care about the children.
Finally, the attorney may want to ask the client
what he would do if he "won." (Of course, if the
client is to make a decent case for custody, he will
have to show a plan for their care and a bona fide
concern for the children. Otherwise, it will be evidence that he is bluffing, corroborating the picture
of a selfish, insensitive person.)
Scenario #3
Client, mother of two children, ages 5 and 7, insists
that she wants custody. Her husband wants joint
custody. Client says, "I know I don't have to agree
to joint custody, and I won't give him the satisfaction.
Besides the children should have their mother." Client also would like to deny her husband visitation
rights or temporary custody of the children for vacations. Client does not appear to believe that her
husband is a bad influence on his children or that he
will not care for them well. You sense your client is
hurt, feels betrayed, is angry about her husband's
affair with another woman, and thinks other people
know about it and are talking about her. These feelings, you believe, have influenced her feelings about
custody arrangements.
Reaction
The attorney might say to herself, "I've got to get
this client down." The attorney needs to show empathy and understanding for the client's feelings,
but must take care not to legitimize them. For
example, the attorney must convince the client that
while it is acceptable, acting on those feelings may
not be in neither the client's nor her children's best
interest. Without preaching, attorney needs to
make the client understand that taking an intransigent position could create a problem rather than
a solution. The client needs to think about whether
she will only hurt herself but adopting an uncompromising position. This may be difficult when the
client has been wronged. Attorney may be able to
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agree that "joint custody often does not work but
let me ask, do you oppose it because you thi~ it
would be good for the children?" Another tack
would be to ask, "What do you think the children
will think?" or, "Do your children love their father
and want to be with him?"
The obvious purpose ofthis type of inquiry would
be to change the client's focus away from herself to
the children. If the client responds that the children do care for their father, attorney might ask
"Are you concerned at all about what the childre~
will think if they see you as cutting them off from
their father?" While this particular tactic might
not be successful in this instance, there are many
situations where a client wants to cut off visitation
because the other parent is considered by the client
to be the weaker parent. The attorney might then
ask, "Why not give the other side a chance to fail?"
and "prove you're right."
The counseling goal here probably should be to
persuade the client that taking the "high road" is in
her ultimate best interest and the best interest of her
children. An agreement to visitation at reasonable
times and in reasonable places should be considered
by the client as in her long-range best interest.
Scenario #4
You are attorney for F in his divorce action
against M. Both F and M seek custody of three
children. The battle promises to be fierce and the
outcome is in doubt. Your investigation of the case
reveals that F is not a very good father. He often
leaves the family for days at a time, has a poor
relationship with his children, and often refuses,
for no apparent reason, to allow his children to play
with their neighborhood friends. M, on the other
ha~d, is an excellent parent and you, therefore,
belIeve she ought to be awarded custody of the
children.
Reaction
An attorney cannot deny her feelings about her
potential client. Attorney also knows that if she
does not take the case, F likely will find an attorney
who will. If the attorney's investigation confirms
that M is in fact the better parent, F needs to be
advised that a contest of custody by F could be
counterproductive. This situation may be easier
than if both parents are "bad." In either situation,
counsel may request the court to appoint an attorney or guardian ad litem for the children. (What
if you are concerned that the ad litem appointed by
the court will do only a pro forma job? That does
not do much to save one's conscience.) Again, the
client's frame of reference must be examined. Why
does he want custody? Does he understand the
risks of taking the hard-line position?
Scenario #5
Same situation as #4 except that you learn from
F that he has molested one of his daughters but M
and her attorney don't know about it. What would
you do or say in that instance?
Reaction,
One attorney said he would not take the case. The
attorney-client privilege precludes you from reveal~g F's crime. Do you simply dl;lcline to represent
him? The answer is "Yes," if the attorney's hatred of
his client's conduct is such that you cannot give him
o~jec?vely competent representation. Another option IS to first try to get him to do the "right" thing?
And if so, how do you do that? The attorney must
determine the "facts": Whether the incident was isolated? What were the circumstances? etc. Attorney
must determine the client's frame regarding his acts
toward the child: remorse, denial, etc. Do you
threaten to withdraw representation unless F "turns
himself in?" Perhaps the proper approach is to turn
to the old standby, the client's best interest. If F
persists in seeking custody, he runs the risk that M
and her attorney will investigate further. If it does,
the results from F's point of view will be disastrous:
he likely will lose all rights in the children. If F's
response is, "Won't I lose them anyway, even if I
admit it?" The attorney's response could be, "Not
necessarily ..." and so on.
Conclusion
Counseling the client involves educating the client. But the key is to educate without preaching,
to lead without lecturing, to persuade without
proselytizing. The lawyer cannot, and should not,
check his private life outside the door before interviewing a client. But a client will not be receptive
to moralizing by the lawyer or what is seen as an
attempt to impose what the lawyer thinks is
right. 33 Counseling must be for the client, not the
lawyer. And if doing the right thing is perceived
by the client as in the client's best interest in the
long run, there is a good chance that is what the
client will want to do.
*Professor of Law, Texas Tech University School of Law.
B.A., St. Ambrose University 1962; J.D., Washington University St. Louis), 1965. My special thanks to colleagues Clay
Abbott and Dan Benson for their insights and to the numerous
students over the years who have whetted my interest in the
subject of client counseling, most recently John Perlman and
Glynette Carson, who helped in the preparation of this article.
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the Code ofProfessional Conduct, 47 SASK. L. REV.
186, 191-94 (1982-83).
Endnotes
1. See Barbara D. Whitehead, Dan Quayle Was
Right, THE ATLANTIC MONTHLY 47, 64 (April
1993) (referring to the study reported in J. WALLERSTEIN & S. BLAKESLEE, SECOND
CHANCES: MEN, WOMEN AND CHILDREN A
DECADE AFTER DIVORCE (1989».
7. Robert D. Benjamin, Application of Mediative
Strategies in the Traditional Practice of Family
Law, 15 FAM. L. RPTR. 3001 (Feb. 14, 1989).
8. See, e.g., McEwen et al., supra note 4.
9. Model Code, Canon 5; Model Rules 1.7.
2. See, e.g. International Society of Family Law
North America Regional Conference, "Family Restructuring at the End of the 20th Century," June
10-12, 1993, Jackson Hole, Wyoming. This article
is based on a paper presented at that conference
by the author.
11. Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515,
518 n.
3. Carl E. Schneider, Discretion, Rules and Law:
Child Custody and the UMDA's Best Interest Standard, 89 MICH. L. REV. 2215, 2216 n. 4 (1991).
12.See, e.g., L. Ray Patterson, Legal Ethics and the
Lawyer's Duty ofLoyalty, 29 EMORY L.J. 909, 90910 (1980) (the "hired gun" approach provides a "convenient basis for rationalizing" misconduct).
4. See Henry H. Foster and Doris J. Freed, Child
Custody and the Adversary Process: Forum Conveniences?, 17 FAM. L. Q. 133, 137-38 (1983); Steven
T. Knupper, Comment, Promise and Problems in
Divorce Mediation, 1991 J. DISPUTE RESOLUTION 127, 135 (making point that mediation is best
considered as a supplement, not an -alternative to
the adversary system). See also Marc Galanter,
Worlds of Deals: Using Negotiation to Teach About
Legal Process, 34 J. LEG. ED. 268, 269 (1984),
where the author notes his belief that negotiation
is not "alternative" dispute resolution since it is the
"central core" of litigation.
5. Lawyers often do not participate in mediation sessions but they must prepare their -clients for mediation. Clients "should be as well prepared as their
lawyer who would be going to trial." Joel H. Mirman,
Father Knows Best? Male Parent Issues in Custody
Cases, TRIAL 16, at 20 (June 1993). See also Marian
F. Dobbs, Reflections ofa Divorce Lawyer, TRIAL 50,
at 54 (June 1993), where the author noted that
"(m)ediation works if ... lawyers are involved." Not
only does the existence of alternative mechanisms
not transform the lawyer's role, the lawyer may use
them for the client's benefit. See Craig A. McEven,
Richard J. Maiman, and Lynn Mather, Lawyers, Mediation, and the Management of Divorce Practice, 28
LAW & SOC. REV. 149, 172-76 (1994), observing that
lawyers use mediation to control the pace and development of the case.
6. Richard J. Maiman, Lynn Mather, and Craig A.
McEwen, Gender and Specialization in the Practice
of Divorce Law, 44 ME. L. REV. 39, 61 (1992); R.S.
Redmount, The Nature of Client Counselling and
10. Model Code, Canon 4; Model Rules 1.1, 1.2.
13. Louis M. Brown and Harold A. Brown, What
Counsels the Counselor? The Code of Professional
Responsibility's Ethical Considerations - A Preventive Law Analysis, 10 VALPARAISO L. REV. 453
(1976); Harry W. Jones, Lawyers and Justice: The
Uneasy Ethics of Partnership, 23 VILL. L. REV.
957 (1978), making the point that the lawyer's functions as advocate and counselor must be regarded
as separate.
14 Peter Margulies, "Who Are You to Tell Me
That?": Attorney-Client Deliberation Regarding
Nonlegal Issues and the Interests of Nonclients, 68
N.C.L. REV. 213 (1990).
15. Id. at 227-28.
16. Id.
17. Id.
18. See, e.g., Dobbs, supra note 5, at 50, where the
author related that
I tell clients that their court case will be enhanced
by taking the "high road." That means not indulging in behavior motivated by spite.... (E)ventually
a judge will hear about all this. A judge will be
favorably impressed by the high-road approach, not
by low-road shenanigans.
Most clients do not want to hurt their children,
another argument favoring the high-road approach.
Id.
19. Benjamin, supra note 7, at 3004. See also
Thomas A. Bishop and Ann L. Milne, When Custody
Is Not (The) Issue, Fam. Advoc. 14, 16 (1989).
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20.
Stephen Ellman, Lawyers and Clients, 34
26. Rules of Professional Conduct 2.1, Comment.
21. Anthony V. Alfieri, The Antimonies of Poverty
Law and a Theory of Dialogic Empowerment, 16
N.Y.U. REV. L. & SOC. CHANGE 659, 696 (198788).
27. American Academy of Matrimonial Lawyers
Standards of Conduct, Standard 2.23.
28. Dinerstein, supra note 23, 582.
22. Margulies, supra note 14, at 248.
29. Benjamin, supra note 7, at.3001.
ucLA L.REV. 717, 779 (1987).
23. Robert D. Dinerstein, Client-Centered Counseling: Reappraisal and Refinement, 32 ARIZ. L.
REV. 501, 506-07 (1990); Stewart Macauley, Lawyers and Consumer Protection Laws, 14 LAW &
SOC. 115, 151-52 (1979). Lawyers have a need to
"control" their clients. Marvin W. Mindes and Alan
C. Aycock, Trickster, Hero, Helper: A Report of the
Lawyer Image, 1982 A.B.A. FOUND. RES. J. 177,
215-16.
24. Robert J. Levy, Comment on the PearsonThoennes Study and on Mediation, 27 F AM. L. Q.
525, 530 (1984); McEwen, et ai., supra note 5 at
166 n. 24; Austin Sarat, Lawyers and Clients: Putting Professional Service on the Agenda of Legal
Education, 41 J. LEG. ED. 43, 46 (1991).
25. Rules of Professional Conduct 2.1; American
Academy of Matrimonial Lawyers Standards of
Conduct, Standard 2.9, Comment.
30. Dinerstein, supra note 23, at 591.
31. This scenario is taken form THOMAS SHAFFER & JAMES ELKINS, LEGAL INTERVIEWING
AND COUNSELING IN A NUTSHELL 415 (2d ed.
1987).
32. See American Academy of Matrimonial Lawyers, Standards of Conduct 2.25.
33. Lee Modjeska, On Teaching Morality Students,
41 J. LEG. ED. 71, 73 (1991) gives an example of
the failure of a lawyer's interjection of value judgments and questions of morality to influence a corporate client's decision to shut down a plant on
Christmas Eve. Quaere whether raising questions
about adverse publicity and its effect on the client's
image would have had a greater effect?
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