Counselors as Gatekeepers: The Professional Responsibilities of Family Lawyers in Divorce Cases

This article examines the professional responsibilities and ethical dimensions of the role of the family lawyer to serve as a counselor and as a “gatekeeper,” particularly in the context of working with clients considering or involved in dissolution proceedings. Family lawyers, as a class, seem to have abandoned their responsibilities to help their clients solve their marital problems and, instead, primarily seek to facilitate their clients dissolve the marriage with minimal difficulty and maximal ease. The article addresses the professional responsibility guidelines concerning the attorney’s ethical responsibilities to screen clients seeking or involved in divorce concerning their prior efforts to solve marital problems, to counsel clients getting a divorce, channel the client into exploring all reasonable options. Family law attorneys have a role as a gatekeeper in divorce. The article discusses the powerful public interest in having the legal profession perform some channeling function to help clients identify, understand and consider a range of options that may facilitate the avoidance of harms and distress. This article presents an overview showing that counseling and gatekeeping by family lawyers in divorce cases is well within and an important part of the legitimate professional and ethical role and responsibilities of attorneys, but raises more issues than answers. It provides the family lawyer with a general perspective and identify the general context of professionalism in which difficult decisions may be considered