Crossing the Rubicon

Posted Monday, June 4th, 2018 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Per wikipedia, during the Roman republic, the river Rubicon marked the boundary between the Roman province of Cisalpine Gaul to the north-west and Italy proper (controlled directly by Rome and its allies) to the south.

Governors of Roman provinces were appointed promagistrates with imperium (roughly, “right to command”) in one or more provinces. The governor then served as the general of the Roman army within the territory they ruled. Roman law specified that only the elected magistrates (consuls and praetors) could hold imperium within Italy. Any promagistrate who entered Italy at the head of his troops forfeited his imperium and was therefore no longer legally allowed to command troops.

Exercising impertium when forbidden by the law was a capital offence. Furthermore, obeying the commands of a general who did not legally possess imperium was a capital offence. If a general entered Italy in command of an army, both the general and his soldiers became outlaws and were automatically condemned to death. Generals were thus obliged to disband their armies before entering Italy.

In 49 BC, Julius Caesar led a single legion south over the Rubicon from Cisalpine Gaul to Italy to make his way to Rome. In doing so, he deliberately broke the law on imperium and made armed conflict inevitable. Caesar allegedly uttered the famous phrase alea iacta est (“the die has been cast”). The phrase “crossing the Rubicon” has survived to refer to any individual or group committing itself irrevocably to a risky or revolutionary course of action.

The metaphor of “crossing the Rubicon” has frequent application in counseling family law clients. There are certain actions a client can take that are highly risky and will have irrevocable consequences. Among the most common are seeking to place another parent in jail for violation of a court order, seeking to take custody away from a parent who is generally supportive of one’s relationship with the child(ren), or placing a father who voluntarily pays support on court-ordered child support. Taking any of these actions will irreparably damage co-parenting cooperation. Making allegations of serious immorality or financial dishonesty against the other party in domestic litigation will have similar irrevokable consequences.

This is not to suggest that one’s domestic clients should never “cross the Rubicon.” Nor am I suggesting one should never provide clients counsel that would have them do so. However, one should be mindful of litigation goals or strategies that will create an irrevokable rift between parties who either have children in common or once loved one another enough to be married. One should note this risk in providing counsel, and exercise caution in proceeding with such goals or strategies on less than overwhelming facts or without clear goals in mind (goals that cannot be achieved otherwise). “Crossing the Rubicon” is inherently risky. “Crossing” but failing to achieve one’s goals leaves the other side both vengeful and empowered.

It is extremely difficult for parties to have a good relationship with each other once one party has tried to put the other party in jail or accused the other party of some heinous act. Sometimes jail is the only way to get another party to behave reasonably and sometimes alleging (and proving) such heinous acts are necessary to protect one’s children or safeguard one’s rights. However one should not take such actions haphazardly. One should only “cross the Rubicon,” with mindfulness of how such actions will alter the parties’ dynamic, an strong (preferably overwhelming) chance of success, and with clear goals in mind that cannot be achieved otherwise. Mindlessly counseling clients to take actions that “cross the Rubicon” merely to demonstrate aggressiveness is bad lawyering.

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