A Conversation between Joe Sorge and Mark Baer Regarding ‘Divorce Corp.’: Part 3 of a Series

This is the third of a series of articles wherein I share a conversation I had with the executive producer and director of “Divorce Corp.” wherein we discussed the 58 reasons why I was unable to endorse the film. Since my last article covered points 6 through 10, I will start this article with my 11th point. In an effort to eliminate any possible confusion, the items in italics are my responses to Mr. Sorge. They are in italics because those responses were never sent to him.

Mark Baer:
“Eleventh, it is false and misleading to claim that financial disclosures are required in order for the professionals to determine just how much they can take from the parties. Those disclosures are required because divorcing parties are in a fiduciary duty with each other and are so financially intertwined. They should be making informed decisions.”

Joe Sorge:
“We agree that the primary purpose of financial disclosure is so that the assets are divided fairly. However, people do not need litigators to help them list and divide their financial assets – an accountant is better equipped to handle this. We have a quote from one of our ‘victims’ who was in the used car business: he said that his attorney confided in him ‘It’s like the car business. First we find out how much money you have, and then we take it all away from you.’ It was said in jest, but it’s not uncommon for attorneys to litigate until the money runs out. At best, it’s an unregulated system. Even bankruptcy law has checks and balances that allow the litigant to keep a little bit at the end of the process.”

As I have said before, nobody in the United States is required to retain a lawyer to represent them in a family law proceeding. In fact, ‘National data indicates that 60 to 90 percent of family law cases nationally involve at least one self-represented litigant, while 5 percent or fewer of cases in general civil dockets include a self-represented litigant.’ (Hough, 2010) However, if people do wish to retain counsel, why must the retain litigators? This leads back to the ongoing themes regarding the need to change the default from litigation to mediation and the fact that clients tend to retain destructive lawyers, rather than constructive ones.

At this point, I think it is appropriate for me to share the following status update of mine from January 4, 2014:

“I just received the following email from someone I don’t even know:
‘Hi Mark, a very good friend of mine is looking for a very good divorce attorney. He and his wife have two children. How should I go about finding a caring and competent attorney in Salt Lake City?
Sorry to bother you!’

I think I found him someone who fits that bill perfectly. How wonderful is it that people are now looking for “caring and competent” instead of “a shark, pit bull, or very aggressive?” What’s even more exciting is that they come to me for direction.”

Furthermore, many family law attorneys encourage people to use either a Certified Divorce Financial Analyst™ (CDFA™) or a Certified Public Accountant (CPA) to complete such forms, among other things. Collaborative divorce is an interdisciplinary process that typically includes such a professional. I have also been involved in many a mediation in which the parties used such professionals for the same purpose. Moreover, nothing is stopping anyone from using such professionals in cases that are not in either the mediation or collaborative divorce process.

With regard to the quote from the used car salesman, I would consider the source. Not only is he a used car salesman, but he is a so-called ‘victim’ in this clearly biased film. People shouldn’t believe everything they hear and I seriously doubt that any attorney would make such a statement, even in jest. That being said, I must admit that I am well-aware of a number of attorneys known for litigating “until the money runs out.” To be quite frank, I firmly believe that such attorneys should be disbarred. However, I also want to point out that their reputations precede them and the clients who retain them generally know exactly what type of attorney they are retaining. If you seek out such destructive attorneys because of your own agenda, don’t complain when they do “scorched Earth litigation,” at least until the money runs out.

In fact, let me share with you a “Need” sent out to all of the attorney members of “The Esquire Network” on January 9, 2014: “Scorched Earth Divorce Attorney – A friend of mine, who is also an attorney, asked me for a referral to a divorce attorney. I asked her if she wanted a scorched earth or conciliatory approach. She said – in no uncertain terms – scorched earth. I know a lot of family law attorneys in TEN, and in that context, you are all exceedingly pleasant. Who among you will go to battle and take no prisoners?”

On January 10, 2014, that same attorney made the following comment: 

“Thank you all for your prompt response to my Need.

I know nothing about the client who needs the “scorched earth” divorce attorney. I have to trust that my friend – as an attorney herself – knows best what kind of attorney her friend needs.

I received two dozen names, and I referred four people who gave me the most “take no prisoners”-type answers.  Perhaps she’ll call one of you. If not, the good news is that there will need to be another attorney in opposition to the scorched earth attorney.  Two family law lawyers will be making lots of money.

Let’s not imagine the worst.  Maybe there are no kids, and it involves two super wealthy pain-in-the-neck movie producers.”

When you get what you asked for, don’t complain! By the way, liquidation bankruptcy (Chapter 7) allows debtors to wipe out some or all of their debt and keep a certain amount of assets in order to have a “fresh start.” The “checks and balances” in such cases are the statutes and the debtors have no control over such things. In family law, the clients themselves should be providing such “checks and balances.” If the clients don’t do so for whatever reason, why is that anyone else’s fault? Can’t clients fire their attorneys if they don’t like what they are doing?

Mark Baer:
“Twelfth, I agree that many lawyers stir the pot to make more money and that they tell their associates that they are settling cases too soon because they have not yet billed enough. I hear such things from former associates at firms time and time again.”

Joe Sorge:
“There are bad apples everywhere. As the joke goes, ‘99% of attorneys ruin it for the rest of them.’ We know that most attorneys are good people and want to do the best for their clients. We are not against (most) attorneys. Instead we wish that the system could be reformed. Again, the system incentivizes good people (attorneys) to do counterproductive things.”

I am going to quote Michael Apicella in response to Mr. Sorge’s comment:  “Reforms are definitely needed in CA. To establish reforms that benefit the parties will require the participation of family law lawyers who support certain changes, too many which can be listed here. That said, it’s no secret that the family law system is a business. Additionally, it should be generally understood that model does not serve clients well, unless a client gets lucky and hires a highly ethical and competent family law lawyer who is more interested in resolving the divorce as amicably and efficiently as possible, rather than generating the most billable hours. I’ve seen far too many examples of the latter.

I was told by prior employers that I solved cases too quickly, and that by doing so, I cost that employ tens of thousand of dollars that could have been generated from the case (had I not resolved the parties issues so soon). That’s the primary reason I decided to work for myself, so my hands would not be tied, in terms of helping people resolve their divorce without costing so much, and without the unnecessary generation of conflict. To put out a fire, one should apply water, not gasoline. Many family law lawyers apply gas to increase the fire. The brighter and longer the fire burns, the more money they make. Of course, one who has a conscience (such as myself) finds this approach beyond deplorable.

Again, it’s no secret (at least within the industry) that most family law lawyers don’t bend over backwards to resolve conflict as quickly as possible, whether their reason is to generate more billable hours, or they lack the skill (professional/legal or interpersonal) to help parties resolve conflict in a competent manner.

Most lawyers are adept at conflict. Also, many get into family law for the wrong reason (because there’s plenty of work and it seems like an easy area of law, and it’s also easy to start a solo practice). Hence, parties are at high risk that once they initiate their divorce process and hire a lawyer, their problems will escalate.

These lawyers don’t need local rules to guide them on the right thing to do. It’s common sense, experience, and a moral compass, in my opinion. The simple fact is that some people are good at resolving issues, and some are good at escalating. Pretty quickly into a case, it’s fairly easy to figure out the type of opposing counsel we’re dealing with. The family bar where I practice, it’s no secret who uses the system to generate fees, regardless of meet/confer rules, and who’s good at solving problems.”

My question is why clients tend to seek out such lawyers. It is very well-known that the family law lawyers who tend to have more business and make more money are not those with what Michael refers to as “a moral compass.” I will say it once again – If you get what you pay for, don’t complain! If the general public wanted constructive family law attorneys, they would retain them.

Mark Baer:
“Thirteenth, the family law system is not designed to create more conflict. Rather, litigation itself is an adversarial process and therefore creates more conflict. I have written extensively about this issue and have an article coming out in the American Journal of Family Law later this year on this very issue.”

Joe Sorge:
“Agreed.”

Mark Baer:
“Fourteenth, it is false and misleading to claim that family law attorneys should not charge by the hour because they increase conflict to make more money. This is very true for some attorneys (possibly many attorneys). However, when it doesn’t cost people money to fight and they are divorcing, they will fight even more than they already do. In other words, the fee structure is not the cause of the problem.”

Joe Sorge:
“But people would not fight as hard if the system did not reward aggression. Instead of having to choose between the evils of fixed fee divorce versus bill-by-the-hour divorce, we think the real solution is to eliminate the use of the adversarial system and make divorce as simple as filling out a form (perhaps with the help of an accountant and a mediator).”

I will again reiterate that even in the Scandinavian countries, divorce is not “as simple as filling out a form.” Marriage results in the greatest financial entanglement possible. Moreover, contrary to the beliefs of Parental Rights Advocates, children are not chattel and should not be treated as such.

I now want to raise the following point that Mr. Sorge mentioned in response to my seventh issue: “People should have the right to go their separate ways on their own terms.” Have you ever heard of a Pre-Marital Agreement? “As Harvey A. Silberman, family law judge for the Superior Court of Los Angeles County in California likes to remind people, ‘getting married in and of itself creates a pre-marital agreement – the Family Code.’ Thus, as with all circular arguments, people manage to reach a “conclusion,” without ever having addressed the question. In this case, the question is as follows: What are the terms of your pre-marital agreement? They can either be the terms set forth in the Family Code or terms that you specifically negotiated as part of the pre-marital agreement.”

Furthermore, as I keep saying, nothing prevents parents from mediating their family matter. The choice as to process and type of attorney, if any, is retained is up to the parties themselves. However, “unless and until the default process for handling divorce and other family law matters is changed from litigation to some form or forms of consensual dispute resolution, it only takes one person to sink the ship and thus destroy the family. Parents who end up in court are forced into an adversary system that knows little about child development and less about the best interests of children or the family unit. In sum, the adversary system destroys families. No one can expect a couple to effectively parent after being exposed to the court process.”

Mark Baer:
“Fifteenth, the fact that lawyers cannot be sued for being overly zealous is no longer true and equally applies in all areas of law. In fact, I recently posted the following on Facebook: ‘Zealous advocacy loses ground’ is the title of an article by Jennifer A. Becker that was published in the October 11, 2013 edition of the Los Angeles Daily Journal. The article states in pertinent part as follows:

‘Attorneys are taught to be zealous advocates for their clients. With rare exception, an attorney’s zealous advocacy should not lead to liability to third parties. Two recent state Court of Appeal decisions demonstrate that the line between zealous advocacy and actionable attorney conduct is blurring.

In Rickley v. Goodfriend, the 2nd District Court of Appeal allowed a nonclient to pursue attorney-client conspiracy claims by characterizing attorney conduct obstructionist, and therefore not protected by the litigation privilege.

The 4th District Court of Appeal in Keleveland v. Siegel & Wolensky evaluated the conduct of underlying litigation and then denied an attorney anti-SLAPP protection in a malicious prosecution action.

Both opinions fail to protect the adversary system by distinguishing client duties from attorney duties, and appropriately applying the litigation privilege.

A third recent decision, Malin v. Singer, finding an abrasive and arguable extreme settlement demand was protected by the litigation privilege embraces the public policy underlying the litigation privilege and is at odds with Rickley and Kleveland.

The takaway

These cases suggest that zealous advocacy is being challenged and scrutinized more closely than in years past. There is no bright line test to determine whether an attorney’s conduct crosses the line from appropriate but unpleasant advocacy to actionable conduct. The success of a practitioner’s assertion of the litigation privilege is far from guaranteed and depends in large part on the court or appellate panel reviewing the matter. Although it may have a chilling effect on advocacy, attorneys should be mindful of what appears to be a more selective application of the litigation privilege.’

I ABSOLUTELY LOVE THIS!!!!!! IT IS ABOUT TIME THAT LAWYERS START TO REALIZE THE DIFFERENCE BETWEEN BEING AGGRESSIVE AND BEING ASSERTIVE. AGGRESSIVE LAWYERING HAS BEEN FOUND TO BE COUNTER-PRODUCTIVE TIME AND TIME AGAIN. HOWEVER, ALL LAWYERS SHOULD BE ASSERTIVE, WHETHER THEY ARE INVOLVED IN LITIGATION, MEDIATION OR COLLABORATIVE PRACTICE.”

Joe Sorge:
“We are on the same page here in spirit. However Bidna vs Rosen (1993) 19 Cal. App. 4th 27 established a bright line eliminating malicious prosecution as a cause of action in family court. It involved an ex-wife who had sued her husband 6 times for the same issue (custody, I believe). The ex-wife’s mother was funding the litigation. The ex-wife had no assets, and thus an award of sanctions had no value. Therefore, the husband sued the ex-wife’s attorney and the mother for malicious prosecution. The court ruled that the ex-wife’s mother could not be sued because she was not a party to the litigation, and that the attorney could not be sued or sanctioned because the family code only permitted the sanctioning of the parties, not their attorneys, and that malicious prosecution would no longer be considered a valid cause of action in family court. The cases you cited in 15 below are not family law cases. Yes it is still (barely) possible to win a malicious prosecution case in civil court. But it is impossible to do so in family court because of the decision in Bidna vs Rosen.”

Please note that the decision in Bidna v. Rosen was from 1993, long before the recent cases I referenced. Furthermore, Bidna is not a California Supreme Court case and is therefore only binding authority in the 4th District of California. Moreover, law changes and nothing is preventing the law made in Bidna v. Rosen to change. In fact, if it is not changed through case law, it can be changed through statute.

To be continued…