Symposium, Kramer vs. Kramer Revisited: A Comment on The Miller Commission Report and the Obligation of Divorce Lawyers for Parents to Discuss Alternative Dispute Resolution With Their Clients

Andrew Schepard, Maurice A. Deane School of Law at Hofstra University

Abstract

The 2006 Report of New York State's Matrimonial Commission to Chief Judge Kaye (commonly know as the Miller Commission Report) recommended that New York begin to incorporate alternative dispute resolution into the State's fragmented and adversarial divorce system. This Comment argues that it should have more strongly recommended that divorce lawyers be mandated to discuss alternative dispute resolution, particularly mediation, with parent-clients before filing suit. The Comment begins by describing the advice given to a parent client in the movie Kramer vs. Kramer and argues that that advice constitutes zealous advocacy as famously described by Henry Lord Brougham in Queen Caroline's Case. While the advice given the parent client in Kramer v. Kramer is consistent with current notions of professional responsibility for lawyers, it does not serve the best interests of children in that it did not incorporate advice about the general importance of reducing conflict between parents to the best interests of children or discuss methods for doing so. The Comment contrasts zealous advocacy as portrayed in Kramer v. Kramer with problem solving advocacy as described by Lincoln, Gandhi and the Bounds of Advocacy of the American Academy of Matrimonial Lawyers. It argues that empirical research has demonstrated that judicial and legislative mandates that lawyers discuss alternative dispute resolution with clients are in the best interests of children, promote problem solving advocacy, and are generally appreciated by divorcing parent clients. Finally, this Comment briefly explores whether divorce lawyers should have a mandatory ethical responsibility to children of parents, and concludes that for the present, that duty should be aspirational only.