the family bench. While that may sound like an administrative nightmare or an unacceptable barrier to entry, consider that admission to the patent bar requires underlying education in science or engineering. Shouldn’t admission to the family bar require education in psychology, child development and family dynamics, when so much is at stake? Zealous is a Four-Letter Word The zealots are tough to convert because so many are heavily invested in perpetuating litigation as a business model. In addition, zealots often receive a personal reward (beyond money) for being antagonistic, surly, and obstructionist. Is this what our bench and bar approve of as acceptable practices? Some of you will answer with an emphatic NO, and for that I’m grateful. But if stirring up the emotional pot in order to generate income and an adrenalin rush is not acceptable, how do we end it? The extra education for admission to the family bar will manage much of that behavior, but perhaps we should mandate that our attorneys, judges, and mental health providers be trained in facilitative mediation and collaborative practices. That step, in conjunction with the basic education requirements for practicing family law (above) would help to minimize the occurrence of self-serving, family-damaging litigation tactics. Wellness Goes Beyond Physical Fitness As for the wellness and balance component, if you are like most lawyers, you know intellectually that you need to do certain things to take care of yourself, but do you actually engage in the practice? I know I’m not alone in having come face-toface with someone on the other side of a case who is so deeply out of touch that they act as if the issues at stake were their own. That type of over-identification and alignment is not only an impediment to providing quality legal services, it is detrimental to the attorney-client relationship and seriously damaging to the mental health of the attorney. Do what you can with the resources you have but make time for yourself – for the sake of all of us! Of course, we can’t mandate wellness, but the State Bar of Arizona is one resource that should be educating the profession about the necessity of self-care. The Bar dipped a toe in that pool with a workshop that my friend, Alisa Gray (Fassold & Gray, PC), and I co-chaired earlier this year called “Beyond Burnout: Practical Approaches to Transform Your Practice and Your Life.” As a CLE, this was a voluntary activity, so I go back to the notion of mandatory education. The Bar requires three hours of ethics per year, leaving another 12 hours to our discretion. Given the alarming statistics regarding mental illness and substance abuse among lawyers, why not require three hours of wellness education and leave the remaining nine hours as electives? Those who can prove their regular
attendance at some type of good-for-you program (yoga, fitness training, meditation, etc.) can get a waiver. What if Legal Marriage Went Away? We currently have two systems of marriage: religious and legal. What bubbles up in my thinking of this issue is that we must un-hitch our legal wagon from the idea of the traditional family. The religious marriage (i.e., the wedding mass, or whatever iteration you like) is not part of this discussion and I think everyone should enjoy the ceremony of their choice in that regard. It’s the legal marriage that is problematic because the system was employed to confer property rights. Period. Fast forward a few hundred years and we have a cobbledtogether system of some civil law that’s been tweaked and some economics applied to childrearing costs and some watered down social science that passes for a best-interests inquiry regarding parenting rights and responsibilities. So what happens if we scrap the statute book? How do Sam and Sarah (the prototypical nuclear heterosexual family) “untie the knot”? How are property rights conferred and protected? How are parenting rights determined? And what if Sam and Sarah had a fabulous synagogue marriage ceremony but never actually got around to being legally married – a practice which is becoming the norm in many communities? What comes to mind for me is a system of residential partnership (RP), similar to the system we currently use for creating a corporation. RPs would apply to couples (including same sex), roommates, members of communal housing arrangements, inter-generational families, and anyone else who shares a residential household. If you want your RP (no matter what its flavor) to be recognized as a “legal” RP, then you must pay your fee and register with the state. What the parties would register is an RP agreement, similar to an Operating Agreement: a contract to set forth separate and joint property rights and (for couples) the method for which parenting issues will be resolved in the future. This type of agreement could be form-driven for the do-it-yourself (pro se) client or customized contracts for those with more resources and/or complexity. If parties fail to register an RP agreement and then have a property dispute, they would fall within civil contract law. For disputes regarding children and support, parties would be referred to mandatory binding arbitration. The arbitration panel would include an attorney-arbitrator, a child specialist to advise regarding best interests of children, and a financial specialist to advise regarding support. These are just a few ideas for revamping our system to make the practice of family law more humane (for us and for our clients). I can almost hear the gasps of outrage from some of my colleagues and my response is this: if you have a better idea, let’s hear it! n 2011 Edition | Attorney Journal
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