Buhai on Conflicts and Emotion in Representing Family Members

Posted by Alan Childress
Sande Buhai (Loy.-L.A.), right, has posted to SSRN her article:  “Emotional Conflicts: Impaired Dispassionate Representation of Family Members.”  The article “proposes specific amendatory language to the Model Rulesthemselves.”  Here is the first part of the abstract, with the detailed breakdown of its five parts beneath the fold:

Lawyers have a duty to provide objectiveand unbiased representation. Although emotional conflicts can interferewith proper discharge of this duty, sometimes quite seriously, neitherthe Model Rules of Professional Conduct nor scholarly writings on legalethics have ever systematically addressed the issues they raise. Thisarticle proposes, I believe for the first time, that lawyers should berequired to take potential emotional conflicts into account both beforeundertaking to represent and while representing any person with whomthey have family or emotional ties, whether spouse, lover, cousin,sibling, or parent.

The rest of the abstract is:

Part I explores changing conceptions ofthe role of the attorney. Whether a lawyer can properly perform her jobnecessarily depends on how we define that job. A lawyer, Part Icontends, is more than just a hired gun. In particular, the lawyer’srole as counselor and problem solver exacerbates the conflicts that canarise when clients and lawyers have emotional ties outside theirlawyer-client relationship.

Part II draws on thepsychological literature to support the importance of a lawyer’s rolein providing dispassionate counsel. Such counsel is often essential toovercoming emotional biases in a client’s perceptions, analyses, anddecision-making. When the lawyer is herself emotionally involved, herability to provide such dispassionate counsel may be impaired. Lawyersare often trained as rational decision-makers in law school and may beresistant to the notion that emotions can impact their judgment. Theliterature, however, suggests otherwise.

Part III thenexplores the ABA’s current Model Rules and their application to thisissue. A rule specifically addressing the problems posed by emotionalconflicts would be fully consistent with existing general rules.Current general rules, however, are inadequate in and of themselves.

Part IV offers, by comparison, the ethical rules that govern twoarguably comparable professions: psychology and medicine.

Part V,finally, proposes specific amendatory language to the Model Rulesthemselves. Our ethical rules, like those of other professions, shouldbe drafted on the assumption that its members are real people – humanbeings who laugh, cry, feel anger, fall in love, have ridiculouslycomplex emotional relationships with family members, and areoccasionally as irrational as anyone else.