January 27, 2017 • By Dennis Beaver
“I am going through a horrible divorce,” Kim’s email began, “and the meet and confer session at my lawyer’s office was a nightmare. We were all supposed to discuss a possible settlement of property, child custody issues, exchange current bank statements and other documents. We have given them everything they ask for, but it has not been a two-way street, with one delay after another and unreasonable demands made on us.
“While I and my lawyer were calm and polite, my husband and his attorney failed to bring any of the information earlier agreed upon, and when I asked why not, it became a screaming session, with both of them yelling their heads off at us.
“My husband is a bully and that is what he hired; right out of law school, he opened his own office as he was unable to find employment. Needless to say, nothing was resolved and we are going to try one more session, but this is costing me money I do not have.
“Before they got up and marched out of the office, my attorney quietly said, ‘Expect to pay 271 sanctions,’ and my husband’s lawyer replied, ‘I have no idea what you are talking about.’
“Can they get away with this or is there some way my husband can be forced to reimburse me for the additional attorney fees I will face and the loss of income I’ve suffered from taking off work?”
Divorce is supposed to be non-adversarial
“Dennis, you are describing exactly what should never happen in a meet and confer session. Courts insist the parties do more than merely show up; this is legally required to be a good faith conference aimed at resolving as many issues as possible,” Santa Maria-based family law attorney Steven Wagner replied when we discussed Kim’s description of what took place.
“Over the past several years, there has been an effort to make divorce non-adversarial – to take the fight out of it – and the Family Code makes that clear. A meet and confer session is an aspect of this desire to promote facing the issues constructively, not the place for a screaming match. So serious are these sessions viewed by courts across the state, that parties who do not act in good faith, causing delay and added expense, face costly sanctions under Family Code Section 271, which states:
“The court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”
Advancing a client’s unreasonable position is a disservice
While law school teaches the law and prepares students to pass the bar examination, truly becoming a lawyer requires time and experience. Hiring someone fresh out of school and on their own is rarely a good decision for all but the simplest of tasks. Here, the husband’s attorney is a good example of a “bull in a china shop” mentality some clients want, which, to Wagner, “has no place at all in divorce and certainly not in a meet and confer.”
We asked, “When a lawyer knowingly tries to advance a client’s unreasonable position, or, in a meet and confer, humiliates and punishes a spouse, what are the possible consequences?”
“Lawyers are both officers of the court and have duties to our clients,” he replied. “As an officer of the court, we have an obligation of promoting justice and the effective operation of the judicial system. You do not help your client by taking their unreasonable position, which frustrates settlement, dragging the case out.
“In divorce and all areas of law, we have a duty to say no and filter out certain things. An attorney who fails to screen and do whatever it is that the client wants – including outrageous conduct in a meet and confer – subjects their client to paying these 271 sanctions.
“For well-established attorneys, it is very easy to turn away business. Often, younger, inexperienced lawyers just starting out face economic pressure, taking on clients who aren’t looking to resolve a dispute. Instead, they view the legal system as a tool to punish someone, and have the money to pay an attorney to accomplish that goal.
“It is a disservice to your clients. If you tell them the facts of life, that their position is not sound, most clients will respect you for it.”
“Being reasonable and a willingness to comprise will always help to assure a successful meet and confer,” Wagner concluded.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.