Tuesday, October 19, 2010

How Many Lawyers Does It Take to Handle a Child Support Case?

Maybe 40?  From Peace FM Online:

Oksana Grigorieva showed up to court this morning for a hearing in her child support case with Mel Gibson -- and wouldn't you know it ... she has a new lawyer!

The new man in Oksana's life is Mitchell Jacobs -- a family law attorney who has been a Board Certified Family Law Specialist since 1986.

We're told Jacobs was brought in because today's hearing involves a certain technicality and they reached out to Jacobs because he's a family law specialist.

Sources say it is unclear whether Jacobs will remain on full-time.

As we first reported, Oksana has used 39 different lawyers so far in her child support case with Mel Gibson. The latest point of contention -- whether the judge's ruling that Mel has to amp up his child support payments to $20,000/month includes the housing payments Mel has been making.

As the old saying goes, 40th time is a charm.

Read more here.

MR

October 19, 2010 in Attorneys | Permalink | Comments (3) | TrackBack (0)

Thursday, November 5, 2009

Litigation Funds Fueling Divorce Litigation in Australia

During a divorce in the United States, a party might have to pay attorneys fees for the other, often nonworking, spouse.  However, one Australian article notes that wives challenging property division upon divorce are increasingly utilizing litigation funding—money fronted by a company in exchange for a success fee.  Litigation funding certainly permits those to litigate when they otherwise could not afford to do so, which is particularly helpful in family law cases, where men often have more money to pursue litigation.  The downside, of course, is that it has increased many people’s litigiousness, even when such a trait becomes unnecessary and counterproductive.    

MR

Money 

November 5, 2009 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Saturday, June 27, 2009

Case Law Development: Rude Behavior of Attorney Tipped the Scales in Favor of Protective Order Against Client

In a good example of the lesson that rude or aggressive lawyering is not effective advocacy, a California

trial court issued a protective order based on the aggressive conduct of examination by the defendant’s attorney.  While the California Court of Appeals reversed, the case nonetheless is a good reminder that respectful treatment of opposing parties is not bad advocacy.  The case involved an 83‑year‑old father who had filed a request for a protective order against his 56-year-old daughter, alleging that she had hit him, emotionally abused him, and caused caregivers for his 88-year-old wife to quit. 

The court of appeals rejected the daughter’s interpretation of the Elder Abuse and Dependent Adult Civil Protection Act as requiring a risk of future abuse and concluded that a protective order under the Elder Abuse Act could issue based on past actions alone.  However, the court nonetheless found that the trial court in this action had erred in issuing the protective order based on the attorney’s conduct at the hearing. The court of appeals noted “the trial court’s express acknowledgement that the attorney’s questioning and [the daughter’s] failure to intervene were “the straw that made the difference” in reaching its conclusion.”  However, the court pointed out that attorneys, rather than clients, are responsible for the conduct of examination.  “To require a client to correct his or her counsel’s behavior during the examination of a witness in order to avoid inferences as to the client’s prior actions outside the courtroom would go against all these accepted principles of the attorney‑client relationship.” 

Gdowski v. Gdowski, (Cal. Ct. App. 4th District June 23, 2009)

Opinion online (last visited June 27, 2009 bgf)

June 27, 2009 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2009

Case Update -- Termination of Parental Rights Vacated Because Counsel Appointed for Parent Only Two Weeks Before Trial

The Michigan Supreme Court issued a decision in In Re Hudson/Morgan Minors on April 8, 2009.

(MIF 4-10-2009)

April 10, 2009 in Attorneys, Child Abuse | Permalink | Comments (0) | TrackBack (0)

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)

February 10, 2009 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2009

Ohio adopts rules for Guardians Ad Litem

Completing a process begun in 2001, the Supreme Court of Ohio has adopted new rules governing the requirements for guardians ad litem in juvenile and domestic child custody cases.   The new rule 48 provides that courts must enter an order appointing either a GAL or a GAL and attorney advocate for the child. The rule includes a broad range of responsibilities for Guardians ad Litem, which are mandated unless impracticable or inadvisable.  These responsibilities include interviewing the parents and child and visiting the child in his or her residence.  All GALs are required to  file a written, final report at least seven days before a final hearing. 
Read the new rule 48 here (as a word document).

The new rule follows an extensive study of the Ohio GAL system which examined GAL services provided to abused and neglected children throughout the state.  The data for the study was collected through surveying guardians ad litem, juvenile/family court judges and through information contained in a sample of local court records.  Many of the recommendations from that report have found their way into the new rule.  Read the Ohio CASA/GAL Study Committee's Final Report: In the Interest of Abused and Neglected Children. (last visited Feb. 2, 2009 bgf)

February 2, 2009 in Adoption, Attorneys, Child Abuse | Permalink | Comments (0) | TrackBack (3)

Tuesday, January 20, 2009

Case Law Development: Nonrefundable Retainer Fee in Divorce Approved

The Rules of Professional Conduct in most states prohibit family law attorneys from charging contingent fees for fear that this would provide an incentive for attorneys to discourage reconciliation.  The American Academy of Matrimonial Lawyer's Bounds of Advocacy, while arguing for more flexible fee arrangements in matrimonial matters, agrees with this same rationale that fee agreements should not discourage reconciliation (See AAML Rule 4.5).

Yet a recent decision by the Michigan Supreme Court likely has at least one client considering the high cost of her decision to drop her divorce because of a different fee device: the nonrefundable retainer.  The Michigan Supreme Court dropped disciplinary charges against an attorney who had charged a non refundable $4000 "minimum fee” for a divorce. The opinion has generated a good deal of controversy, as many other states have found nonrefundable retainers unreasonable. The attorney's fee agreement in this case provided that the $4000 minimum fee was nonrefundable "under any circumstances" and provided for a $195 an hour fee once the $4000 was earned.  The client soon thereafter reported to the attorney that she and her husband had reconciled and asked for a refund of the retainer.  The attorney provided the client an invoice for 6.4 hours of work and refunded $1,385.75, noting that he didn't have to do so, but “from the goodness of my heart, I'll give you half of the unearned fees.”  The client complained to the disciplinary authority.  The disciplinary board concluded that “there really is no such thing as a nonrefundable retainer” and ordered the attorney to pay the balance of the unearned fees but imposed no other discipline.

The Supreme Court reversed: “As written the agreement clearly and unambiguously provided that the respondent was retained to represent the client and that the minimum fee was incurred upon execution of the agreement, regardless of whether the representation was terminated by the client before the billings at the stated hourly rate exceeded the minimum.”

Grievance Administrator v. Cooper, Mich., No. 135053, (December 12, 2008)
The opinion, briefs, and amicus briefs by the Majority of the Michigan Bar Association, the American Academy of Matrimonial Lawyers, and by the law firm of Varnum, Riddering, Schmidt & Howlett LLP are available online. (last visited January 20, 2009 bgf)

In his post, Mike Frisch of the Legal Profession Blog (a sister Law Prof blog) contrasts the disciplinary board's careful analysis with the cursory discussion by the court. Likewise, the Detroit News carried this editorial criticizing the opinion by Law Prof Lawrence Dubin of the University of Detroit Mercy School of Law and a former chairman of the Michigan Attorney Grievance Commission.

January 20, 2009 in Attorneys | Permalink | Comments (0) | TrackBack (1)

Tuesday, September 9, 2008

Missouri Supreme Court Approves Collaborative Law Practice

The Missouri Supreme Court recently issued a formal ethics opinion approving collaborative law practice.  Missouri joins the majority of states having addressed the issue.  The formal opinion (one of only six issued since 1996) concluded that, as a type of limited scope representation, collaborative practice requires informed consent by the clients.  On the issue of conflict of interest between attorney and client, the court concluded that the tension between the attorney's interests in continuing in a case and the client's interest in abandoning the collaborative process is little different from other situations in which an attorney must choose to put his or her client's interest first.

The court concluded, "The potential that individual attorneys may violate the duty of loyalty, from time to time, does not make the practice generally unethical, as long it is reasonable to believe that the vast majority of attorneys will fulfill their ethical obligations. In the context of collaborative law, the tension between the interests is not unreasonable."

Read the Missouri Formal Opinion 124 online (last visited September 9, 2009 bgf)
For an article summarizing the ethical issues and positions on collaborative law practice, see Barbara Glesner Fines, The Ethics of Collaborative Lawyering, Journal of the American Academy of Matrimonial Lawyers, Vol. 21, p. 141, 2008 Available online at SSRN (last visited September 10, bgf)

September 9, 2008 in Attorneys | Permalink | Comments (0) | TrackBack (1)

Saturday, August 9, 2008

Unbundling Begins in Missouri

The Missouri Bar Family Law Conference this week hosted a session explaining Missouri's new Supreme Court rule on unbundling of legal services.  The rule provides for express approval of attorney provisions of limited task representation and provides, in the comments, a helpful form for obtaining the client's informed consent to the limited representation.  The rule, the product of a multi-year process examining unbundling, is not limited to family law representation, but many task forces and commentators have suggested that family law is the area of practice in which unbundling will have the greatest impact, especially, as an adjunct to mediation.

Read the Missouri Supreme Court's order amending Rule 1.2 (July 1, 2008) (last visited August 8, 2008 bgf)

Faculty may also find helpful the hour free video on Expanding Your Practice by Offering Limited Scope Legal Services: A "Hands On" Family Law Workshop produced by the Practicing Law Institute.

August 9, 2008 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 8, 2008

Case Law Development: Divorce Litigant's Threats to Kill Judge and Attorneys Not Protected by Attorney-Client Privilege

This case is a window on the divorce attorney's worst nightmare - the client who threatens violence in retaliation for divorce.  A divorce attorney heard her client make repeated threats to kill the judges and opposing counsel.  The content of the statements is detailed in the opinion.  She tape recorded one of these phone messages and called the police.  This case would be provide a useful "how would you handle it?" class discussion.

In the subsequent criminal action for threatening a judge, the trial court ruled that "because Defendant did not make the threats to his attorney for the purpose of facilitating the rendition of professional legal services said statements were not covered by the attorney-client privilege."  The Utah Court of Appeal's affirmed on the alternative ground of waiver, finding that because client's defense counsel stipulated to admission of the divorce attorney's testimony and the tape recorded conversation, defendant had waived the attorney-client privilege. 

(The central issue in the case was whether the threats need to have been  communicated to the judge in order to violate the statute.  The court holds that they do not.)

Utah v. Jeffrey K. Johnson, 2008 UT App (January 4, 2008)
Opinion will be available at the Utah Court website (last visited January 8, 2008 bgf)

January 8, 2008 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2008

Case Law Development: Attorney for Child May Not Act as GAL

The confusion between the status of attorney for the child and guardian ad litem was the target of appeal in Marriage of Anderson, an Iowa Court of Appeals decision.  In this case, Mother requested appointment of a guardian ad litem in a custody case.  However, the trial court's response was to appoint an attorney under the Iowa statute allowing appointment of an attorney for the child.  The court then rejected the attorney's report and request to testify, finding that the attorney had not been appointed as a guardian ad litem. 

Read In Re Marriage of Anderson (Iowa Court of Appeals, Dec. 28, 2007) (Last visited January 7, 2008 bgf)

The case is a fine example of the continuing debate regarding the role of attorney representatives for children.  The Standards of Practice for Lawyers Representing Children in Custody Cases require that a judge appointing a lawyer for a child specify whether the attorney is a “Child’s Attorney” or a “Best Interests Attorney.”  The ABA’s Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, while recognizing the hybrid attorney/guardian ad litem role for lawyers under certain circumstances, expresses a clear preference for the attorney for the child model.  Based in part on these standards, the National Conference of Commissioners on Uniform State Laws is preparing a Uniform Representation of Children in Abuse and Neglect and Custody Proceedings Act.   Professor Atwood's fine article exploring the policy choices in the uniform act can be accessed from her SSRN page: Atwood, Barbara Ann, "The New Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism" . Family Law Quarterly, 2007 Available at SSRN: http://ssrn.com/abstract=938211

For tables reflecting a 51-state analysis of the standards of representation of children in adoption and guardianship, see 41 Family Law Quarterly (Summer 2007) article "Hearing Children's Voices and Interests in Adoption and Guardianship Proceedings" of the American Bar Association Child Custody and Adoption Pro Bono Project.

(last visited Jan 7, 2008 bgf)

January 7, 2008 in Attorneys, Custody (parenting plans) | Permalink | Comments (4) | TrackBack (0)

Monday, February 26, 2007

Case Law Development: The Costs of Divorce

The Missouri Court of Appeals decided a case involving a divorce from a 27-year marriage in which maintenance, division of property and attorneys fees were disputed.  The court affirmed the trial court's decision to award maintenance to wife, who had been a homemaker for most of the marriage and who had health problems and few job skills, and to award her a portion of the husband's retirement account, as well as the decision to award attorneys fees. 

That the trial court's decisions were upheld is not particularly surprising given the high degree of deference given to trial courts on these issues and the fact that Missouri allows marital fault to impact these decisions. 

What is striking about the case from a teaching perspective are the numbers:

Wife stayed at home for most of the marriage and never had earned more than $2000 a year. 
At the time of trial, Husband had a monthly income of $3900, working as a machinest.

The couple had arrived at a settlement agreement and divided most of their marital property and debts.  After the trial court divided the retirement account, the total property Wife received under the judgment was $9908. The total value of the property awarded to Husband, less the marital debt, came to $14,341. The trial court ordered Husband to pay modifiable maintenance to Wife in the amount of $550 per month.

Each party incurred about $3000 in attorneys fees for the dissolution action. For the appeal, Wife was awarded $6000 attorneys fees for her representation on appeal; Husband paid $18,000 for his representation on appeal.

Russum v. Russum, February 20, 2007
Opinion on the web (last visited February 26, 2007 bgf)

February 26, 2007 in Attorneys, Maintenance (alimony), Property Division | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 13, 2006

Case Law Development: Kansas Family Law Attorney Suspended Indefinitely

In a disciplinary case that appears to include nearly every major violation of the ethics rules possible in three different family law cases, including abandoning clients, settling cases without client authority, and diverting client funds,  the Supreme Court of Kansas indefinitely suspended the attorney.  A minority of the court would have disbarred the attorney, but the majority agreed with the hearing panel that the attorney's struggles with depression and cocaine addiction and his work on recovery over the previous year's time were mitigating factors. 

According to the ABA Commission on Lawyer's Assistance Programs, "while ten percent of the general population has problems with alcohol abuse, anywhere from fifteen to eighteen percent of the lawyer population battles the same problem." I have long wondered whether those numbers might be even higher for attorneys who practice in the emotionally stressful context of family law.  I would be very interested in hearing of any studies or programs addressing this issue among family law attorneys in particular.

In re Lampson, 2006 Kan. LEXIS 707 (December 8, 2006)
Opinion on the web (last visited December 13, 2006 bgf)

December 13, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Friday, December 8, 2006

Case Law Development: Guardian Ad Litem's Duty of Confidentiality

When I want my students to explore one of the most difficult aspects of child representation, I ask them to consider the duty of confidentiality and the best interests of the child dilemma.  The West Virginia Supreme Court recently addressed that very dilemma in an abuse and neglect case.  The child who was the subject of that proceeding, a 15-year-old girl, had disclosed to the guardian ad litem that her mother's boyfriend had sexually molested her, but had requested that the guardian ad litem not disclose the information.  The GAL honored that request, believing that her duty of confidentiality to her client demanded silence.  Family services allowed the client's mother and boyfriend to have unsupervised visitation with her.  Some months later, both a case worker and a foster care worker reported that the client had disclosed the prior sexual misconduct, and also disclosed that she had spoken to the GAL about the matter.  The division of family services then moved to have the GAL removed because of her failure to report the earlier conversation with the client.

The circuit court denied the motion on the grounds of attorney-client confidentiality.  The supreme court disagreed however.  The court reasoned that the rules of professional conduct do apply to a GAL's represenation "because many aspects of a guardian ad litem's representation of a child in an abuse and neglect proceeding comprise duties that are performed by a lawyer on behalf of a client."   However, rather than an absolute rule of confidentiality, the court analyzed the GAL's representation of a child under Rule 1.14 (Client under disability) and noted that a child's direction to an attorney must be given some degree of consideration but it is not binding as would be a competent adult client's direction.  The court held that the GAL's dual role as representative of the child and representative of the court required balancing the confidentiality duty.  It held "Where honoring the duty of confidentiality would result in the children'ss exposure to a high risk of probable harm, the guardian ad litem must make a disclosure to the presiding court in order to safeguard the best interests of the child."  However, since the information had been disclosed, the court concluded that the trial court did not abuse its discretion in refusing to remove the GAL.

In re Christina W, Sissy W and Lisa W, 2006 W. Va. LEXIS 131 (November 29, 2006)
(Opinion on the web) (last visited December 5, 2006 bgf)

December 8, 2006 in Attorneys | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 6, 2006

Case Law Development: Contingent Fees in Action to Rescind Divorce Settlement Prohibited

The Nevada Supreme Court addresses its rules of professional conduct that prohibit contingent fees in domestic relations matters in a case involving litigation over a 25-year-old divorce settlement.  The agreement addressed alimony and community property distribution through a $600,000 promissory note in which Husband was to pay Wife for her half of the community property by paying up to $ 50,000 per year in principal and monthly interest-only payments, beginning at a rate of 6%. The increase in interest payments each year, based on annual adjustments according to the consumer price index, served as Wife's alimony. The note prohibited Husband from prepaying principal, and instead provided that Wife could demand up to $ 50,000 of principal annually. If Wife never demanded principal, interest would accrue indefinitely; if she requested the maximum every year, then the note would be fully paid in twelve years.  25 years later, with Husband having paid a total over over twice the original note amount and with monthly payments of $8,500, he brought a civil action to reform, rescind, or recover damages based on usury, unconscionability, and fraud.

Wife's attorneys  offered her the choice of a $ 5,000 retainer with hourly billing or a one-third contingency fee.  She insisted on a contingency arrangement. Ultimately, the firm negotiated a settlement for Wife of a $ 600,000 lump sum payment, an amount that was more than she had indicated she would be willing to settle and which entitled the firm to $ 200,000 fees.

In this action, seeking a writ to review the trial court's decision to enforce the contingent fee agreement, the Nevada Supreme Court found that the fee was indeed contingent and involved alimony, thus violating the rule of professional conduct.  The court reviewed decisions from other states, some of which recognized exceptions to the contingent fee prohibition for collecting past due support, but concluded that in the context of this action, this was not an action for past due support but an action whose outcome would determine the amount of future alimony Wife would receive. 

A dissenting judge would interpret the rule to permit such a contingency fee agreement and urged the court to modify its rule in the future.

Marquis & Aurbach v. Eighth Judicial Dist. Court, 122 Nev. Adv. Rep. 97 (November 30, 2006)
Opinion on web (last visited December 5, 2006 bgf)

December 6, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 15, 2006

Case Law Development: Malpractice for Delay in Transferring Pension Funds

A cautionary tale: In any area of law, missed deadlines and delay are a common cause of malpractice.  In divorce practice, a common area for delay to cause harm is in the follow through required after a dissolution.   

The New York Court of Appeals reversed a trial court’s dismissal of a malpractice action premised on delay in transferring funds from a pension.  The trial court had held that the plaintiff’s damages were speculative as they were based on her argument that the pension investment had declined in value during the delay and if she had received the funds sooner, she could have made wiser investments and avoided that loss.  The court of appeals found that “the complaint sufficiently asserts that defendants' inordinate delay in effecting the stipulated transfer of funds resulted in a loss of principal attributable to defendants' lack of professional diligence. For purposes of this appeal, we reject the intimation that plaintiff must be treated as an investor who implicitly assumed the market risk inherent in an investment vehicle such as the Plan… Plaintiff agreed to accept the proceeds of the Plan, not the investments it represented. Moreover, it is clear that the stipulated agreement contemplated a prompt transfer and distribution of funds. Finally, at this stage of the proceedings, we are not prepared to rule that defendants' failure to fix the value of the Plan in the stipulated agreement or otherwise insulate plaintiff from the market risk attendant upon a delay in transfer and distribution of the proceeds cannot be deemed a lapse in the exercise of professional diligence.”

Lappin v Greenberg, 2006 NY Slip Op 8168 (November 14, 2006)
Opinion on web (last visited November 15, 2006 bgf)

November 15, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Monday, October 30, 2006

Case Law Development: Disqualification of Attorneys Based on Consultations with Prospective Clients

The Supreme Court of Arkansas, interpreting its new rules of professional conduct regarding duties to prospective clients, has held that an attorney may be disqualified from representing a wife based on the husband's prior consultation with an attorney in the firm regarding possible representation in the case, even if no representation ensued.  The new Arkansas rule, based on ABA Model Rule of Professional Responsibility Rule 1.18, bars an attorney from representing a client with adverse interests to those of a prospective client in a substantially related matter if the attorney "received information from the prospective client that could be significantly harmful to that person in the matter."

The trial court had used the same presumption of receipt of confidential information it applies when using a former client conflicts analysis.  The Supreme Court affirned, stating that the duty an attorney owes to a prospective client under Rule 1.18(b) is "coextensive with the duty an attorney owes to a former client" and "exists regardless of how brief the initial conference may have been and regardless of the fact that no client-attorney relationship ensued."

The court noted that in this case, husband's consultation with the attorney involved the same custody proceeding as in the later representation and that he had given the attorney a copy of his journal, told her about facts that were not in the journal, and "disclosed everything he knew and his concerns about the children and his former wife." The court concluded that "a lawyer who consults with a prospective client about a change-of-custody proceeding will necessarily become privy to information that could be used to the disadvantage of that person in the same proceeding."  The fact that the husband had indicated in his testimony on the disqualification that he had not disclosed harmful information was not determinative, according to the court, because "a prospective client would not know whether the information disclosed during the consultation could be significantly harmful."

Sturdivant v. Sturdivant, 2006 Ark. LEXIS 536 (October 26, 2006)
Opinion on the web (last visited October 30, 2006 bgf)

October 30, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 30, 2006

Case Law Development: Attorney Authority to Bind Client to Agreement Amending a Divorce Judgment

The Ohio Court of Appeals clarified the jurisdiction of a court to enforce agreed-to amendments to property division judgments in a case in which the divorce judgment had provided that husband would receive 50 percent of the marital portion of wife's pension. When the first QDRO prepared pursuant to this judgment was rejected by the plan administrator becuase of uncertainty as to the portion of the pension that was marital, the parties signed an amended QDRO which gave husband a full 50 percent of the wife's total pension. Wife sought to amend that QDRO, claiming that she never intended to relinquish her premarital interest in the plan and that she had misread the amended QDRO. The trial court sua sponte vacated the amended QDRO, finding that without the wife's intended consent to the amended QDRO, it lacked jurisdiction to have entered it.

The court of appeals reversed. While the court did agree that the trial court's jurisdiction to enforce a post-decree modification depended on the agreement of the parties, the court concluded that there was no evidence to support wife's claim that she did not agree to the amended QDRO, as she conceded that she had given her attorney authority to sign the QDRO. The court pointed out that "The attorney-client relationship is considered to be a limited agency. The attorney has no implied power to do more than relates to the proper conduct of a suit, and cannot, without specific authority, bind the client. However, it is beyond question that a duly authorized attorney may enter into an agreed judgment entry the terms of which will be binding on his or her client. " Thus, wife was bound by her attorney's actions and the trial court had jurisdiction to enter the order. To the extent relief was available for her mistaken agreement, it would be under Ohio's relief from judgment rule to have the original order set aside.

McGee v. McGee, 2006 Ohio 4417; 2006 Ohio App. LEXIS 4343 (August 28, 2006)
Opinion on the web (last visited August 29, 2006 bgf)

August 30, 2006 in Attorneys, Property Division | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 15, 2006

Case Law Development: Wiretaps and Videotapes of Spouse as Torts

The New Jersey court recently addressed a divorce action which included Husband's allegations that Wife had violated the New Jersey wiretap act by tape recording home telephone conversations and that she had violated his privacy by placing hidden video cameras in the home office at their New Jersey marital residence and in the bedroom of their New York apartment. The trial court awarded Husband statutory damages of $1000 for the phone wiretap and, for the invasion of privacy claim, $1 in nominal damages (as there had been no proof of actual damages) and $125,000 in punitive damages.

The New Jersey Court of Appeals reversed, concluding that  award was erroneous. As to the New Jersey home office, there was no finding that Husband had a reasonable expectation of privacy in the home office, as the whole family freely used the room. As to the New York apartment, New York law provided no common law or statutory right of privacy. Moreover, even if there were a right of action, the court held that before punitive damages can be awarded, there must be a finding of compensatory damages, for which there was no proof here.

Colon v. Colon, (August 11, 2006)
Opinion on the web (last visited August 15, 2006 bgf)

August 15, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Monday, July 31, 2006

Case Law Development: Attorneys Fees in Custody Litigation - Alaska's Approach

The Alaska Supreme Court holds that a prevailing party in actions to enforce custody under Alaska's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) shall be awarded actual reasonable attorney's fees and expenses.  Alaska is the only state that has adopted general fee-shifting, allowing partial attorney's fees to the prevailing party as a matter of course in any case.  However, the court here noted that the UCCJEA provides for an award of reasonable attorney's fees to a prevailing party, and concluded that "reasonable actual fees are intended rather than reasonable partial fees" (as would be the result under general Alaska court rule).

This case also raised the issue of recovery of attorneys fees by legal services attorneys.  The prevailing party here was represented by  Alaska Legal Services Corporation.  Nonetheless, Alaska courts have been consistent in awarding attorneys fees even if the litigant is not personally responsible for fees to his or her attorney.  The court found an argument that petitioner's counsel had violated legal services legal services funding restrictions (which prohibit requests for attorneys fees) to be irrelevant, noting that the remedy for any such violation is with the funder not the court.

Vazquez v. Campbell, 2006 Alas. LEXIS 115 (July 28, 2006) bgf

July 31, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)