If you Google the phrase “attorney bias in divorce,” you will (as of this writing) get exactly zero exact hits. Judicial bias in divorce? Lots of hits. But here’s the thing: before family law judges become judges, almost all of them are attorneys. And their bias doesn’t begin the moment they put on that black robe. Why doesn’t anybody talk about attorney bias in divorce, and how it affects divorce settlements?
The answer to that has a number of layers. The most obvious is that judges are supposed to be impartial; if they have biases, we expect them to rise above them (which does not always happen). But in the case of divorce attorneys, clients often WANT them to be biased—toward the client’s position. After all, your attorney is supposed to be on your side, right?
Well, yes. Your attorney is supposed to be your advocate, championing your position. But it would be a mistake to assume that your attorney doesn’t have their own biases—and that those biases won’t affect how they approach your case.
The best time to think about attorney bias in divorce is when you’re hiring your divorce lawyer. You hire a divorce attorney for their legal knowledge and advocacy skills, but it’s also a more personal relationship than say, hiring an attorney to form a business entity for you. Ideally, you will have a good “fit” with your attorney; you will feel comfortable being completely honest with them, and confident in the advice that they give you.
Part of the process of finding that “fit” is asking a prospective attorney about their biases. A self-aware divorce attorney will have thought about this question long before you ask it, and will not be offended by it. A simple way to ask is “We’re all human, and we all have biases. What do you think yours are, in terms of how you approach a divorce case, and what do you do to overcome them?”
A divorce attorney who sees their role as to protect those who have been wronged may struggle to represent a divorcing spouse who is at fault. An attorney who doesn’t see same-sex marriage as as “real” or “valid” as a marriage between opposite-sex spouses may be challenged in representing a gay or lesbian spouse in a divorce. And a divorce attorney whose client reminds them too much of themselves may not be able to view the case objectively.
A divorce attorney who has been divorced, or is the child of divorced parents, will be affected by those experiences. That may be a good thing; an attorney who has been where you or your children are can offer unique empathy and guidance. But an attorney who doesn’t understand how their experiences have shaped them may lack the clarity to be a good advisor.
That’s not to say that an attorney who has biases cannot be a good advocate. What really matters is whether the attorney is willing to take a good hard look at those biases and how they affect their work. An attorney who won’t examine their biases has blind spots. Those blind spots can cause a number of bad outcomes. The attorney may give you poor advice because they are not being objective. They may pressure you to settle too soon, which means that you don’t get everything you deserve. Or they may continue to fight when it no longer makes sense to do so, costing you more in fees without getting you a better settlement.
Whether you are in the process of retaining a divorce lawyer, or have already hired one, it’s important to talk to them about bias. After all, you are counting on your attorney’s objectivity. It is impossible to be objective about your own divorce, so you need not only your attorney’s legal skill, but their clear-headed advice.
In addition to asking your attorney about how their own experiences may have shaped their biases, you may want to ask them how they advise clients with whom they disagree. What if you want to fight for something—more maintenance, a different custody arrangement—and your attorney thinks it is unwise? What you are looking for in this case is an attorney who will be able to clearly explain their understanding of how the law applies to the facts in your case, and help you make a cost-benefit analysis. In other words, you want an attorney who can rationally defend their position (and, ultimately, yours).
At Mundahl Law, we know that people, including attorneys, are shaped by their life experiences. Our goal is always to use our experiences to be able to understand and empathize with our clients. At the same time, we remain mindful of checking in with ourselves to make sure that what we are recommending is in the best interests of the client in front of us.