Thursday, February 12, 2009
Pursuant to the New York State Family Court Act, domestic violence civil protection orders are available to "members of the same family or household," including those "who are or have been in an intimate relationship."
Two recent New York state trial court cases have applied the "intimate relationship" language. In R.M.W. v.G.M.M, the court found that two women who bore children fathered by the same man have an "intimate relationship" for purposes of this statute. In K.J. v. K.K., the court found that a woman has an "intimate relationship" with her biological daughter, even though the woman had relinquished the girl for adoption eight years earlier.
Tuesday, February 10, 2009
Case law Development: Contractual Liabliity for Failing to Represent in a Professionally Responsive Manner
In a case that reminds family law attorneys to carefully review what they promise in retainer agreements, the Maryland Court of Appeals held that an attorney's representations regarding the quality of their legal services may be enforceable under contract principles. The case involved an attorney sued his client, whom he had represented in a custody action, for more than $13,000 in unpaid legal fees. The client counterclaimed for the $24,525 in fees he had already paid, arguing that the attorney had breached his agreement to provide quality representation. The retainer agreement contained the following statement:
Thank you for expressing the desire for our firm and the attorneys herein, to represent you with reference to your marital difficulties. You may expect our firm to be both sensitive and professionally responsive to your situation.
The agreement went on to disclaim any warranties regarding outcomes in the case and to require the client to notify the attorney if he was dissatisfied with any aspect of the representation. On appeal from a jury verdict in favor of the client, the attorney argued that the court erred in not enforcing the arbitration clause. The court of appeals reviewed the split in authority nationally on the question of whether agreements requiring arbitration of incompetence claims are enforceable. However, the court concluded it need not reach that legal issue since the attorney's participation in the litigation had the effect of waiving the arbritration clause.
The attorney further argued that the client could not maintain a cause of action for breach of contract and that, even if that was permissible, the contract did not promise competent representation. The court of appeals disagreed, finding the contract a promise of competent representation, so that the trial court did not err in introducing expert testimony and giving jury instructions regarding competence. The court of appeals also affirmed the verdict for the entire amount of fees the client had paid the attorney.
Abramson v. Wildman (Md. Ct. Spec. App. February 4, 2009).
Read the opinion online (last visited February 10, 2009 bgf)
Monday, February 9, 2009
Professor Sara Benson, fellow LawProf blogger, and currently visiting assistant professor at the University of Illinois College of Law, has posted to SSRN a draft of her article: "Failure to Arrest: A Pilot Study of Police Response to Domestic Violence in Rural Illinois." The article is explores the issue through focus-groups of survivors. Professor Benson notes that "it is important to consider law enforcement response to domestic violence calls because police officers often serve as the gateway to the legal community through first-response action." The article "points out the disparity between law and action in rural Illinois as detailed by the survivor narratives." The article then proposes a method of strengthening police responses to domestic violence calls in rural areas. bgf
The Midwest Family Law Consortium is soliciting proposals for presentations and papers for its annual conference. The 2009 conference theme is "The Future of Family Law Education”
Do you have family law teaching ideas that you are willing to share? Would you like to talk with other professors about successes and frustrations related to teaching family law courses? This conference is for you!! The conference will be held on Friday, June 26 at William Mitchell College of Law in St. Paul, Minnesota.
Please send workshop proposals to Nancy Ver Steegh at firstname.lastname@example.org (651-290-6342) before March 1, 2009. (Workshop proposals should include a 200 word abstract, a one-page outline, three learning objectives, and presenter contact information.) Selected papers will be published in a special issue of the Family Court Review. Please watch for more information at the conference website. The conference is sponsored by The Midwest Family Law Consortium: Indiana University School of Law – Indianapolis; University of Missouri-Kansas City School of Law; and William Mitchell College of Law; with the Academy of Matrimonial Lawyers, Minnesota Chapter; the Association of Family and Conciliation Courts; and Hofstra University School of Law, Center for Children, Families, and the Law.