I discovered the zeal that I had been searching for. See “Where's the Zeal?”, NYLJ (April 22, 2019). I found it in the most counterintuitive and unhealthy place. In 2009, the Rules of Professional Conduct superseded the former Disciplinary Rules of the Code of Professional Responsibility and removed the term “zealousness” from the adversarial system. In its place, New York State Professional Rules of Conduct provided that a “lawyer shall not intentionally fail to seek the objectives of the client through reasonable available means” or prejudice the client during the representation. The basis for the change was to de-escalate the conflict within the adversarial system and promote civility and wellness amongst attorneys and their respective clients.

To improve the wellness of the legal profession, the Task Force recommended that all stakeholders develop and enforce standards of collegiality and respectful engagement. Judges, regulators, practicing lawyers, law students, and professors continually interact with each other, clients, opposing parties, staff, and many others. Those interactions can either foment a toxic culture that contributes to poor health or can foster a respectful culture that supports well-being.

When it comes to family law matters, despite the removal of zeal, most clients have expectations that their lawyers will fight zealously when it comes to their relationship with their child because it is paramount to preserving their legacy and thus tied to their survival. When this relationship is threatened, the amygdala is triggered. The amygdala is the emotional part of the brain and is most active when one's existence is threatened and during adolescence. The prefrontal cortex is the part of the brain that is responsible for long-term consequential thinking and is not fully developed until the age of 25. Hence, parents in custody battles often act without reflection and expect their attorneys to do the same. The removal of “zealousness” should help to reduce that expectation. However, as I discovered, attorneys are unaware of the 10-year-old change. It would also be presumptuous on anyone's part to assume that clients are aware that the zealous requirement in an adversarial system has been removed.

Not only is the false expectation of zealousness alive and well in the area of child custody matters, it is the standard by which the attorney for the child must represent his/her client, who as previously noted lacks full brain maturation and relies on the emotional part of the brain to make decisions. According to the 2017 standards and rules set forth by the New York State Bar Association, the attorney for the child must zealously advocate for their client's position, even if such judgement is not in the child's best interest. Commentary by Rules of the Chief Judge, Section 7.2(b). The dichotomy in representation undermines the removal of zealousness under New York's Professional Rules of Responsibility and perpetuates the high rates of chronic stress, depression and substance abuse among lawyers that was outlined by the 2018 National Task Force on Lawyers Wellbeing. Most importantly, it compounds the stress for the child's attorney where she is bound to represent the expressed interest of the client zealously even knowing that it is contrary to the child's best interest.

The New York State Bar Association Standards does not permit the attorney for the child to substitute her judgement for the child unless the child's position places that child in substantial risk of imminent danger or the child is not competent (standard, A-3). Addressing this determination is very stressful for the attorney for the child. Competency and capacity have traditionally been considered psychological issues by the courts (see Dusky v. U.S., 362 U.S. 402 (1960)) and according to the commentary, “in certain complex cases, when evaluating whether the use of substituted judgment is permissible, the attorney may wish to consult a social worker or other mental health professional, keeping faithful to attorney-client confidentiality, for assistance in evaluating the child's developmental status and capability.” A recent case law review suggests that no competency evaluation has been subject to court review.

The lack of a clear standard by which the attorney for the child can substitute his judgement and the obligation to zealously advocate for his client's position, places an unfair burden on the attorney for the child. While the other attorneys are no longer required to zealously advocate for their client, the attorney for the child is required to zealously advocate for a position that she may not agree with. In furtherance of reducing the high rate of mental and physical health problems experienced by lawyers, the standards of representing children needs to fall in line with the New York Rules of Professional Responsibility by removing the requirement of zealous advocacy and standardizing the question of competency.

Robert Goldman is an attorney and psychologist who work with courts to assist them in reducing high conflict matters.