Scott J.G. Finger, Hofstein Weiner & Meyer

Spoiler Alert: This article discusses the film, "Marriage Story," starring Laura Dern, Adam Driver and Scarlett Johansson.

Laura Dern may be cleaning up in awards season for her portrayal of divorce lawyer Nora Fanshaw in Netflix's "Marriage Story," but how would her character be judged as a family law attorney in Pennsylvania? Hollywood rarely gives lawyers a good name; divorce lawyers are no exception. In its depiction of three prominent California divorce attorneys, "Marriage Story" has given Pennsylvania family law attorneys reason to reflect on how they practice and advocate for their clients.

"Marriage Story" begins with Nicole (Scarlett Johansson) and Charlie (Adam Driver) attempting to amicably navigate their separation for the benefit of their own relationship and their son. Johansson and Driver initially agree that they would avoid using attorneys. At a friend's suggestion, Johansson consults with Nora Fanshaw, played by Laura Dern, because, as the friend commented, Dern "saved her life." In their initial consultation, Johansson praises Driver and focuses on working together for the sake of their child. As the meeting progresses, Dern convinces Johansson to focus on what she wants, and after having Johansson in tears telling her story, Johansson retains Dern. With that attorney-client relationship being formed, Johansson cedes control over her divorce, and her life, to Dern. What follows is a battle over whether the parties' son should live in California, or New York, where the family was living until Johansson took the son to California temporarily—and Dern playing fast and loose with the Rules of Professional Conduct.

While in New York, Driver receives a call from Dern regarding Driver's failure to respond to Johansson's divorce complaint filed in California. Dern starts the call by confirming that Driver is not represented. Pennsylvania Rule of Civil Procedure 4.2 prohibits attorneys from communicating with represented parties. Dern was consistent with the rule in verifying that Driver was not represented before continuing the conversation. Dern proceeds to educate Driver about California law, informing him of all of the drastic measures that Dern believes they are permitted to take and the likely outcomes resulting from Driver's failure to respond to the complaint. Divorce attorneys often have to communicate with pro se parties as there is no requirement that litigants in divorce matters obtain counsel. However, Rule 4.3(b) provides that "during the course of a lawyer's representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the lawyer knows or reasonably should know the interests of such person are or have a reasonable possibility of being in conflict with the interest of the lawyer's client." When Dern tells Driver that they will "set the number for child support at its highest level and claim full custody of your child" as that is "what the law says," she may be crossing the threshold between advising Driver as to Johansson's arguments and providing "advice" as to how the law operates in violation of  Rule 4.3(b).

As Driver questions whether Johansson is really seeking full custody, Dern tells Driver that she "represents Johansson and she's aware of everything I'm saying to you." As the movie and the litigation progresses, it becomes clearer that Johansson was not aware of "everything" that her attorney was saying and doing.

Rule 1.4 provides that "a lawyer shall: promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these rules; reasonably consult with the client about the means by which the client's objectives are to be accomplished; keep the client reasonably informed about the status of the matter."

The critical language of the rule is in subsection 2 regarding the lawyer's obligation to "reasonably consult" with the client as to how to accomplish the client's stated goals. In "Marriage Story," Johansson's goal was to reside in California with her son. Did that give Dern carte blanche to take an antagonistic approach with Johansson's son's father, and, critically, to suggest that Johansson would pursue sole custody when she had never suggested that was her goal? In family law matters in particular, the methods by which an attorney "accomplishes" a client's goal may be equally as important as the end result as the effects of an attorney's tactics against the child's other parent, with whom there will be an ongoing relationship, can have lifelong consequences.

A final spoiler—at the end of the movie and at the end of the litigation, when Johansson thanks Dern for "everything," Dern points out to Johansson that she will have an extra overnight, giving her 55% of the custody time. When Johansson responded that she thought they agreed to equal time, Dern reveals her most egregious violation of the rules when she said that she "didn't want him to be able to say he got 50/50." Surprised, Johansson reminds Dern, "but I didn't want to do that." Rule 1.2 regarding the scope of representation and allocation of authority between client and lawyer provides that a "lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter." While Dern might argue that threatening Driver with "sole custody" was an effective tactic to ultimately help Johansson win the California vs. New York custody battle, achieving an outcome that Johansson explicitly did not desire is not consistent with the rules. The end result of Dern's representation is that Driver and Johansson did not have the amicable process or outcome that they desired, and Driver is left to co-parent, believing that his son's mother's objectives were to deprive him of custody time, rather than only that the family would live in California. Dern's character let her own desires and professional drive trump any applicable ethical considerations.

Scott J.G. Finger is a shareholder with Hofstein Weiner & Meyer where he practices family law. Contact him at [email protected].