Lerner v. Laufer, 359 N.J. Super. 201 (App. Div.), certif. denied, 177 N.J. 223 (2003) (A-2079-01T2; Decided April 8, 2003):

Mediation is now an accepted process in the resolution of family disputes except where an order has been entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33. Rule 1:40-5(a) requires mediation in the case of genuine and substantial disputes over custody or parenting time issues. Furthermore, the Supreme Court has promulgated guidelines for pilot programs of mediation for economic aspects of family actions. See Pressler, Current N.J. Rules, Appendix XIX (2003).

When a PSA reached through the mediation process must be formally incorporated in a judgment of divorce, the participation of attorneys governed by the adversarial process gives rise to a question as to the nature and extent of the duty of care imposed upon the attorneys. A mediated divorce settlement may well look substantially different on the same facts than would such a settlement hammered out in adversarial proceedings.

The law has never foreclosed the right of competent, informed citizens to resolve their own disputes in whatever way may suit them. “Clients have the right to make the final decision as to whether, when, and how to settle their cases and as to economic and other positions to be taken with respect to issues in the case.” Pressler, Current N.J. Court Rules, Appendix XVIII (2003). The voluntary settlement of disputes is a central policy dictate of the judiciary and is expressly encouraged. See Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995); Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div.), certif. denied, 94 N.J. 600 (1983). The courts approve hundreds of such settlements in all kinds of cases without once looking into their wisdom or the adequacy of the consideration that supports them. In divorce proceedings, the court daily approves settlements upon the express finding that it does not pass upon the fairness or merits of the agreement, see Pascarella, supra, 190 N.J. Super. at 125, so long as the parties acknowledge that the agreement was reached voluntarily and is for them, at least, fair and equitable.

RPC 1.2(c) expressly permits an attorney with the consent of the client after consultation to limit the scope of representation. In Ziegleheim, supra, the Court stated “‘what constitutes a reasonable degree of care is not to be considered in a vacuum but with reference to the type of service the attorney undertakes to perform.’” 128 N.J. at 260 (quoting St. Pius X House of Retreats v. Diocese of Camden, 88 N.J. 571, 588 (1982)). That means, if the service is limited by consent, then the degree of care is framed by the agreed service.

It is not a breach of the standard of care for an attorney under a signed precisely drafted consent agreement to limit the scope of representation to not perform such services in the course of representing a matrimonial client that he or she might otherwise perform absent such a consent.

See related Post, published by Hanan M. Isaacs, M.A., J.D., A.P.M.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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