Does an attorney’s conduct matter?

If you are finding yourself in the (sometimes unenviable) position of choosing a Family Law attorney, there are a few things you should know.

California has a enacted a public policy of civility in family law litigation, with the dual goals of promoting settlement and deterring the pursuit of unreasonable positions.  While every person’s due process rights to have a hearing and present evidence are preserved and protected by Family Code 217, and the various Court Rules and procedures which were the result of Elkins v. Superior Court, each participant must still conduct themselves reasonably. Participants must try at every opportunity to reach agreements.

This means not only your conduct, but also your attorney’s.




Not only should your choice of attorney be outstanding in her/his expertise and experience, but s/he must understand the rules of the road.  One party learned that his attorney’s apparent “zealous representation” was not as satisfying as he thought.  Osborne v. Todd Farm Service reminds us that an attorney who repeatedly ignores the Court’s orders acted in “flagrant misconduct”.   That fellow’s case was dismissed because of his attorney’s “bad” behavior.

There are several strong tools to which a Trial Court may turn to keep attorneys and their clients in this reasonable and productive mindset, including Family Code section 271, Code of Civil Procedure 128.5, Marriage of Heggie, Marriage of Falcone and Fyke and Marriage of Feldman, to name a few.

But professionalism and respectful conduct should start well before your matter hits the courtroom doors.  As the Court stated in Davenport, “Zeal and vigor in the representation of clients are commendable. So are civility, courtesy and cooperation. They are not mutually exclusive.”

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