Counsel for the Divorce

This article challenges the legal profession’s foundational assumption that legal services must be delivered in an adversarial posture, with lawyers compelled to engage in robust partisan advocacy on behalf of their clients’ individualized interests. This narrow conception of the lawyer’s role is particularly inapt in family law because many divorcing spouses actually seek joint counsel, understanding that they have profound shared interests in minimizing transaction costs, maximizing the value of the marital estate, and reducing the hostility and animosity that are so harmful to children. Couples who wish to advance these interests by retaining joint counsel are poorly served by the profession’s insistence that they each retain their own lawyer or forego legal representation altogether. This binary choice, while justified by reference to seemingly beneficent notions of undivided loyalty, turns out to be costly, paternalistic, and willfully unresponsive to changing realities in the market for legal services.