It’s okay for clients to blame lawyers for life’s complexities, especially when prenups are involved, as I explain in today's Chicago Tribune:
[Also posted on The Faculty Lounge]
October 23, 2017
The first thing we do, let’s blame all the lawyers
The “Modern Love” column in the Sunday New York Times is always about relationships, but they are usually between romantic partners rather than attorneys and clients. Sometimes, however, lovers need lawyers. Even so, the sweethearts often resent the advice of counsel, and never more than when the heart wants one thing and an attorney is recommending something else.
Consider the “Modern Love” story of Abby Mims and her fiance, Matt. Already in their early 40s, and living together with their toddler son, the two had not yet wed.
Abby, who wrote about their relationship, was eager to get married, but Matt held back, mostly for fiscal reasons. Having worked for 15 years “in finance,” he’d accumulated a significant amount of money “that he hadn’t disclosed to anyone,” including the mother of his child. Abby, on the other hand, was an impecunious freelance writer, with only a few thousand dollars and an old car to her name, not to mention $10,000 in debt.
Predictably, they had fought about money throughout their six-year relationship, and even couples therapy had not resolved their differences.
Matt eventually figured out how to overcome his aversion to marriage. He proposed to Abby on the condition that they obtain a prenuptial agreement, saying that “he would pay all of the lawyers’ fees and make it as easy as possible.” Abby cringed at the thought, but she half-heartedly agreed, “believing it was the only way forward.”
The reality of the prenup turned out to be more humiliating than Abby had imagined. She could barely bring herself to reveal her meager finances to her own lawyer, and she recoiled when he pointed out the unfairness of a provision in Matt’s proposed agreement. Who could possibly care about “the hypothetical divorce payout from a man I wasn’t yet married to from the sale of a house we didn’t yet own”?
Abby fled the office in tears. She “sort of hated” her lawyer for bringing up the house-sale clause, which made her feel “surprisingly worthless.” Still weeping, she called Matt for reassurance. “What a mess,” he consoled her. “I thought it would be simple. I forgot that nothing is simple when you get lawyers involved. Listen, I don’t know what he’s talking about, but let’s just sign it and finish the process.”
Matt’s encouragement to “just sign it” was disingenuous at best. As an affluent banker, he surely realized that the house-sale provision was intended to protect his assets at Abby’s potential expense. After all, asset protection was why he wanted a prenup in the first place. Perhaps Abby could not envision a post-divorce house sale, but Matt, who had kept his investments hidden, must have understood the possible complications of joint property ownership.
It is easy to blame the lawyers for making life complicated, but nobody coerced Matt into seeking a prenup. And once he retained counsel, it was his lawyer’s obligation to anticipate everything that could go wrong in the marriage. It would border on malpractice to draft an agreement that fails to account for a couple’s most valuable property, which in this case would have been paid for by Matt’s earnings.
Of course, Matt was not the first client to blame his lawyer for trying to do a good job. That comes with the territory. For lawyers, it is better to be blamed now than cursed later.
Abby accepted Matt’s feeble excuse that he had never asked for the house-sale provision, and she went along with his urging to execute the agreement as written. “I called my lawyer and told him Matt and I were getting married in a week and I wanted to sign the prenup,” including “the troublesome house-sale clause.” Fortunately, her attorney balked and he negotiated a change in the language so that “when we sold the house we didn’t yet own, I would get my fair share.” (There were fees; lawyers do not work for free any more than bankers do.)
Matt soon apologized for insisting on the prenup. “This was an awful thing I did to you, to us,” he said. “And for all the fights we’ve had about money, this was a huge waste of it.” “But there was no other way,” Abby told him. “If I fought you on it, everything would have imploded.”
Abby and Matt have now been married for two years. It seems that they no longer argue about money, with Matt having sequestered his personal funds and Abby trusting that the whole ordeal will turn out to have been unnecessary. “I don’t even know where we put our prenuptial agreement,” she wrote, “and I hope I never need to know.”
Matt no doubt shares Abby’s optimism, but it’s a safe bet that he knows exactly where to find the prenup (hint: his lawyer has a signed copy). But if things ultimately do implode, well, Abby will at least get half of the house.
Steven Lubet is a law professor at Northwestern Pritzker School of Law and director of the Bartlit Center for Trial Advocacy.