Family Law Prof Blog

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)

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.

• Appendix A—Appointment Provisions in Adoption Cases
• Appendix B—Appointment Provisions for Guardianship Cases

(last visited Jan 7, 2008 bgf)

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)

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)

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)

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)

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)

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)

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)

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)

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

Case Law Developments: Attorneys Fees

The New York Appellate Division has concluded that a prenuptial agreement precluding either spouse from seeking legal fees from the other in the event of a divorce, while not invalid on its face, is against public policy in this case given the gross disparity in the couple's finances. The court announced that fee waiver provisions should be reviewed on a case-by-case basis.

If, upon such an inquiry, the court determines that enforcement of the provision would preclude the non-monied spouse from carrying on or defending a matrimonial action or proceeding as justice requires, the provision may be held unenforceable. Also relevant to such a determination is the conduct of the parties over the course of the matrimonial action. Such a determination is frequently best made at the conclusion of the action. However, because an attorney's fee is authorized when needed to carry on or defend an action, it may be necessary to make such a determination at an earlier point in the litigation. 

Kessler v. Kessler, NY App Div (July 11, 2006)
Opinion on the web (last visited July 30, 2006 bgf)

Case Law Development: Judicial Determination that a Father is the Equitable Parent of a Child Precludes Paternity Actions against Other Fathers

A Michigan attorney was properly held liable for malpractice in failing to perfect an appeal of a child support order against a biological father because another man - the husband of the child's mother - had been already been adjudged to be the equitable parent. "Because a court determination that a man is the equitable father of a child is mutually exclusive of a determination that the child was born out of wedlock, an equitable parentage order precludes the mother from having standing to assert a paternity action regarding that child."  Thus, had the support order been appealed, it would have surely been reversed, making the case for malpractice one readily proven. 

Coble v. Green, 2006 Mich. App. LEXIS 1835 (June 15, 2006)
Opinion on the web (last visited June 18, 2006 bgf)

Case Law Development: Attorneys Fees to Be Based on Relative Financial Ability not Success in Litigation

A Florida trial court denied attorney’s fees to wife in a child support modification and abatement action on the basis that she had received a substantial tax return the prior year and that her attorney had taken several “needless actions” in the litigation. The Florida Court of Appeals reversed, finding that the trial court erred in basing the fee decision on these factors and ignoring the gross disparity in income and resources between husband and wife. The court noted that the purpose of the fee-shifting statute in Florida family action statutes is “to ensure that both parties will have similar financial ability to obtain competent legal counsel. The primary factor in considering whether to award one party's fees is the financial resources of the parties. Other factors that may also be considered include the merits of the parties' respective positions, the duration of the litigation, whether the litigation is brought or maintained primarily to harass, or whether the defense is brought primarily to frustrate or stall.”

Here, the court of appeals noted that one need not be totally unable to afford attorneys fees in order to merit an award.  Neither is success on issues necessary in order to be awarded attorneys fees. The court found that wife’s attorney had provided competent representation and had that there was no evidence of bad faith in any of the actions relied on by the trial court to deny fees.

Humerickhouse v. Humerickhouse, June 16, 2006.
Opinion on the web (last visited June 16, 2006)

Case Development: Attorneys have no Property Interest in their Family Court Appointment Practice

Attorneys who had established a specialty practice representing individuals before the Family Court Division of the District of Columbia Superior Court, including volunteering as court appointed attorneys, sued the court, judges and officies of the DC Public Defender Service arguing that their property interest "taken" by District of Columbia Superior Court Administrative Order, which established panels of lawyers who were eligible for appointment to represent indigent parties in family court matters. The order established panels of qualified attorneys for representation of indigent clients in four types of cases: (1) juveniles alleged to be delinquent or in need of supervision, (2) minor children needing guardians ad litem in neglect and termination proceedings, (3) parents and caretakers in neglect and termination proceedings, and (4) children needing special education advocates.

The district court dismissed the attorneys' claims for money damages but did not dismiss their claims for injunctive and declaratory relief. The United States Court of Appeals for the District of Columbia reversed and remanded with directions to dismiss the Fifth Amendment claims.

The court of appeals held that the attorneys asserted no property interest that was protected by the Fifth Amendment, as they had no guaranteed entitlement to compensated appointments prior to the order. "There never has been a statute or rule, or even a practice, securing to attorneys a right to compensated Family Court Division of the District of Columbia Superior Court appointments. And a lawyer's inability to make a living as a family court practitioner without such appointments does not remotely create an entitlement."  The court also noted that the defendant judges were entitled to judicial immunity with respect to their role in the panel selection process. 

Roth v. King, June 9, 2006
Opinion on the web (last visited June 13, 2006 bgf)

Case Law Development: North Dakota Holds Sex With Divorce Clients Constitutes Conflict of Interest Even if No Specific Rule Prohibits These Relationships

The North Dakota Supreme Court suspended an attorney for 90 days who had accepted about $20,000 from a mother he was representing in a custody action without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned. The attorney also failed to maintain records of the cash payments from the mother and did not deposit the payments into a trust account. He also had begun a sexual relationship with the client during the representation.   

The hearing panel had recommended a 30-day suspension for the fee violations, they did not recommend any sanction for the sexual relationship, as North Dakota Rules of Professional Conduct did not have a rule specifically prohibiting sexual relationships with clients (a new rule on the subject will take effect in August) and there was no proof that the sexual relationship affected the attorney's independent professional judgment. 

The North Dakota Supreme Court agreed that there was clear evidence of violation of Rule 1.5 on fees, the court disagreed with the hearing panel's analysis of the propriety of the sexual relationship.  Reviewing decisions from other courts, the court concluded that there was ample evidence of violation of the conflict of interest rule: "[Attorney] is an experienced lawyer who had to have known that the sexual relationship jeopardized the disposition of his client's custody case. The absence of a bright-line rule prohibiting sexual relationships with clients, and the lack of evidence of impaired representation, provide no excuse. The client's "motives" for becoming involved in the sexual relationship with [Attorney] are irrelevant. By engaging in a sexual relationship with his client during the course of the representation, [Attorney] placed his own interests above those of his client."

Disciplinary Board v. Chinquist, 2006 ND 107 (May 16, 2006)
Opinion on the web (last visited May 16, 2006 bgf)

Case Law Development: Abuse of Process Sanctions in Domestic Relations Actions

The Florida Court of Appeals upholds a sanction against an attorney for abuse of process in which he is prevented from filing any further future pleadings, petitions, motions, documents or other filings in any way related to his domestic disputes unless signed by another member in good standing of the Florida Bar. Since 2002, the attorney had submitted numerous meritless filings in the state court, all related to or emanating out of his 1994 dissolution of marriage proceedings.  The most recent filing, which resulted in the sanction order, was one in which the attorney sought to challenge the Judicial Qualifications Commission's decision not to pursue formal charges against several judges about whom he had filed complaints in relation to his ongoing child custody and child support disputes with his ex-wife.

Sibley v. Florida Judicial Qualifications Comm'n, 2006 Fla. LEXIS 667 (April 27, 2006)

Case Law Development: Overwhelmed Family Law Attorney Suspended Indefinitely

Family law practice is a high burn-out field and our students should be repeatedly cautioned to take care of themselves and get help before they become overwhelmed, lest they find themselves harming clients and out of the profession entirely.  Case in point: The Ohio Supreme Court indefinitely suspended an attorney for a series of representations in divorce actions in which she accepted retainers and then failed to carry through on the representation. Attorney cited her depression as a mitigating circumstance but the court noted in this regard her failure to comply with a previous lawyer’s assistance program contract.
 
Columbus Bar Association v. Harris, 108 Ohio St. 3d 543; 2006 Ohio 1715; 2006 Ohio LEXIS 974 (April 19, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

Attorney Humming Twilight Zone Theme in Divorce Acttion Brings Sanctions

A Connecticut divorce attorney has been reprimanded for violation of Rule 4.4 of the Rules of Professional Conduct for humming "The Twilight Zone" theme song to imply a client's ex-wife -- seated at the same table during a post-judgment divorce proceeding -- is mentally unstable.  The statewide grievance committee found the action in violation of the discipline rule that prohibits using "means that have no substantial purpose other than to embarrass, delay, or burden a third person." Reported in The Connecticut Law Tribune. 
Click here to read the story on Law.com (last visited April 13, 2006 bgf)

Case Law Development: Attorney Judgment Shielded from Malpractice Liability

Family law clients may pressure attorneys to raise every conceivable argument available in pursuit of their case and attorneys are rightfully concerned when clients second guess their judgment not to raise a particular argument or defense.  The Michigan Court of Appeals emphasizes in a decision this past week that an attorney is not liable for malpractice if he or she is exercising good faith strategic judgment.  The case involved an attorney's failure to raise a statute of limitations defense in a child support action.  The parent was subsequently arrested for non-payment of the ordered support and the trial judge in that action had sua sponte raised the statute of limitations issue and released the parent.  Parent then sued his attorney, arguing that he would not have been arrested at all had the attorney raised the statute of limitations defense in the support action.  Attorney argued that raising the statute of limitations defense was meritless because parent had made partial payments of support, which under Michigan law, serves to renew the child support obligation and thereby extend the statute of limitations.  The trial court agreed and the court of appeals affirmed, noting that, simply because the judge in the criminal action had overlooked the exception to the statute of limitations, attorney had not duty to "forsee and exploit such an error."  Moreover, the court of appeals emphasized that even assuming the statute of limitations defense would have properly barred the proceedings, attorney was not liable for malpractice.  "By developing a strategy that a reasonable attorney could honestly believe was consistent with and well founded in state law, [attorney] acted in the best interests of this client."

Wickham v. Lepley, 2006 Mich. App. LEXIS 905 (March 30, 2006)
Opinion on the web (last visited April 4, 2006)

Case Law Development: Ohio Justices Disagree on Sanctions for Procrastinating Family Lawyers

In nearly all states, attorneys in family law practice generate more disciplinary complaints than in other fields of law.  While attorneys will argue that the high-emotional stakes of their cases are the cause of this higher complaint rate, all will agree that there are also attorneys practicing family law who simply aren't fulfilling their responsibilities.  What to do with these attorneys?

Justices of the Ohio Supreme Court in two different opinions could not agree on the appropriate sanctions for attorneys who had taken money from clients in family law matters and then not carried out the representation.  In both cases, the attorney's failure to cooperate with disciplinary authorities aggravated their sanctions and in both cases, dissenting justices argue that the sanctions imposed were too lenient. 

In Dayton Bar Ass'n v. Stephan, 108 Ohio St. 3d 327; 2006 Ohio 1063; 2006 Ohio LEXIS 656, (March 22, 2006), the Supreme Court of Ohio issued a two-year suspension but stayed the entirety of the suspension on conditions of CLE requirements and supervision of the attoreny's practice management. The attorney had charged his divorce client an additional $350 to prepare a QDRO and then did not do so, requiring that she hire another attorney in order to avoid contempt for failing to prepare the document.  Justices Moyer and O'Connor dissented, arguing that at least a portion of the suspension should be actually imposed rather than suspended.

In Erie-Huron Counties Joint Certified Griev. Comm. v. Huber, 108 Ohio St. 3d 338; 2006 Ohio 1066; 2006 Ohio LEXIS 662 (March 22, 2006) the lawyer was suspended for one year for misconduct in which he took retainers and did little or no work for three clients, made dishonest statements to clients during his representation, failed to provide requested information about malpractice-insurance coverage, and had been unwilling to refund fees to clients whose legal affairs he neglected.  Two of the three cases were divorce actions.  Justice Moyer again dissented, expressing dismay over the court's justifying its leniency because of the attorney's "long career in the legal profession."   Justice Moyer ntoed "That is a new standard. I can only hope that this is the sole case in which it will be applied as the reason for such leniency. We should adopt the recommendation of the Board of Commissioners on Grievances and Discipline and issue an indefinite suspension to assure those who use the services of lawyers in Ohio that we are serious about our responsibility to appropriately sanction those lawyers who breach the rules of ethical conduct."

Case Law Development: Two days not too long for divorce trial

Rotating family law cases through judges and court dockets has many downsides.  Recognizing this, the California Court of Appeals has held that a judge's impatience to finish up divorce trials the judge moves on to another courtroom is not a basis for declaring a mistrial when the parties are unable to conclude the trial in less than two days. In reversing the judge's declaration of mistrial, the court noted that  there was only one witness left to call and only a few more hours left to go in the trial. The court determined that the judge's dissatisfaction with the amount of time the trial was taking in relationship to the amount at issue in the case could not by itself justify a mistrial and emphasized the importance in family law that one judge hear a case through to its conclusion. The court noted that the trial judge could take the case with her to her new courtroom assignment, which was only one courtroom away in the same courthouse and was still a family law assignment.

Blumenthal v. Superior Court, 2006 Cal. App. LEXIS 330  (March 10, 2006) BGF

Case Law Development: Incompetent and Dishonest Family Law Practice

An Ohio Attorney has had his licensed suspended for two years for incompetent and dishonest representation in a number of cases.  Worth bringing to the attention of the family law student is the fact that a number of the attorney's violations included telling a client to keep his children in violation of a court order to transfer the children to the other parent and sending other attorneys to hearings when those attorneys were not prepared to handle the case.

Muskingum County Certified Griev. Comm. v. Greenberger, 108 Ohio St. 3d 258; 2006 Ohio 790; 2006 Ohio LEXIS 540 (March 8, 2006)
Opinion on the web (last visited March 10, 2006 bgf)

Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support

The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel.  The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters."  The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders." 

In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."

Pasqua v. Council, 2006 N.J. LEXIS 171  (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)

Case Law Development: Attorney Advice to Violate Divorce Decree Results in Suspension

In another blow against hardball litigation tactics in divorce actions, a divorce attorney was given a two-year suspension for counseling Husband not to comply with the part of the divorce decree requiring that transfer certain documents and information to his former wife within 30 days. Rather the attorney had drafted deeds transferring the property to others and then, after her client was in contempt, drafted a deed transferring the property to wife, even though at that point her client no longer owned the property.

The Supreme Court of Nebraska, in affirming the recommendation of discipline, concluded "it is apparent that [Attorney] assisted her client, Ronnie, in an attempt to frustrate his divorce decree and that when that attempt failed, she engaged in a prolonged series of misleading transactions intended to extricate herself and Ronnie from the consequences of her actions. Not only was her conduct deceitful and prejudicial to the administration of justice, but it was a poor discharge of her ethical responsibility to Ronnie, who landed in jail as a result of [her] counsel." The court concluded that the attorneys' conduct involved dishonesty, fraud, deceit, or misrepresentation; that she counseled and assisted her client in conduct she knew to be illegal or fraudulent; and that she engaged in conduct prejudicial to the administration of justice.

State ex rel. Counsel for Discipline v. Horneber,  270 Neb. 951; 2006 Neb. LEXIS 13 (January 20, 2006)
Opinion available on the web (last visited January 25, 2006 bgf)

pme

Case Law Development: Consecutive Discipline Appropriate for Family Law Magistrate's Sexual Assault of Petitioners

The West Virginia Supreme Court censured a magistrate judge, imposing four one-year suspensions and fines totaling $20,000, in a case in which the magistrate judge had sexually assaulted women, two of whom had come to the court for protective orders in domestic violence cases.   In justifying the consecutive imposition of separate sanctions for each of the four violations, the court expressed its outrage at the magistrate's conduct: "Imagine going to a magistrate's office to fill out a domestic violence petition after being beaten so badly that you required medical attention and then having the magistrate grab you and engage in revolting and inappropriate sexual contact. Such conduct cannot and will not be tolerated by this Court." 

In re Toler, 2005 W. Va. LEXIS 177 (December 2, 2005)
Opinion on the web at http://www.state.wv.us/wvsca/docs/fall05/31797.htm (last visited December 5, 2005 bgf)

Case Law Development: Malpractice in Drafting Pre-Nuptials

The Michigan Court of Appeals, in a 2-1 decision, upheld summary judgment for an attorney in a malpractice action based on his drafting of a prenuptial agreement.  The attorney had provided his client (Wife) with the agreement and instructed her to attach a list of assets to the agreement.  She did so, but without including values of the assets on the list.  When, in her subsequent divorce, the antenuptial was set aside for failure to disclose financial assets, Wife sued the attorney for malpractice.  The majority of the court of appeals upheld the trial court's summary judgment on the basis that the failure to disclose values in the asset list was only one factor in the court's decision to set aside the prenuptial, so that Wife could not prove that the attorney's negligence was the proximate cause of the court's action.

A scathing dissent castigated the attorney for his sloppy approach to drafting.  "defendant devoted a relatively small portion of his practice to family law, so it is not too surprising to discover that he left the tailoring of a boilerplate antenuptial to his client and his secretary....Attorneys are legal professionals who are hired to forge binding agreements and are best equipped to detect any fatal flaws. Just as a doctor may not provide a patient with plaster and gauze and expect the patient to set and encase her own broken leg, an attorney may not leave the most legally sensitive portion of a contract to a client's drafting skill and expect that it will survive judicial scrutiny. If a contract fails because of a flaw related to the attorney's abandonment of the drafting process, we should hold the attorney responsible."

Winkler v. Carey, 2005 Mich. App. LEXIS 2989 (December 1, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051201_C255193_33_255193.OPN.PDF (last visited December 5, 2005 bgf)

Case Law Development: Assisting Both Spouses to Form a Family Limited Partnership In Spite of Marital Discord States a Claim for Breach of Attorney's Fiduciary Duty

Most state rules of professional conduct expressly prohibit representing both husband and wife in a divorce proceeding. This case from the South Carolina Court of Appeals provides notice that joint representation of couples in estate or tax planning may also be ethically risky if the attorney does not inquire as to whether there is family conflict, particularly where one spouse has significantly greater wealth or is controlling the planning process. 

In this case, husband and wife weren't getting along and had failed in their attempts to use marital counseling to repair their relationship. During this period, Husband turned to Attorney, who had represented Husband substantially in the past, and began plans to set up a family limited partnership. Attorney represented both Husband and Wife but never inquired regarding family conflict, nor did he inform Wife of the ramifications of the family limited partnership in the event of a divorce (specifically that such a device can be used to "freeze out" a spouse from assets). The Court of Appeals reversed the trial court's grant of summary judgment, holding that these facts, while insufficient to state a claim for civil conspiracy or fraud, did state a claims for breach of fiduciary duty.

Smith v. Hastie, 2005 S.C. App. LEXIS 273 (November 28, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=4052 (last visited December 1, 2005 bgf)

Case Law Development: Attorney Malpractice for Failure to Secure Obligations in Divorce Settlement

The U.S. Third Circuit Court of Appeals provides a cautionary tale regarding the costs of failing to follow-through after the divorce decree.  Attorney represented Wife in a divorce, in which Husband eventually agreed to pay Wife a total of $143,000 in four installments. As part of the divorce settlement approved by the court, Husband agreed to provide his 401(k) Plan as security and take out an insurance policy naming Wife as beneficiary in an amount sufficient to cover his obligations.  To secure the debt through Husband's 401(k) Plan, Wife needed to obtain either a Qualified Domestic Relations Order ("QDRO") or a survivors annuity. Attorney advised Wife to enter into the divorce settlement, although it contained neither of these and despite his knowledge that Wife might not ever legally qualify for a QDRO.  He then took no steps to insure either of these security devices were put into place.  When Husband died before the obligations were paid and Wife was unsuccessful in recovering either the 401(k) or insurance funds, Wife sued Attorney for malpractice and was awarded nearly $300,000 in damages.  The Third Circuit Court of Appeals upheld the award.

Winters v. Patel, 2005 U.S. App. LEXIS 24552 (3rd Cir. November 14, 2005)
Opinion on the web at http://www.ca3.uscourts.gov/opinarch/041753np.pdf (last visited November 17, 2005 bgf)

Case Law Developments: Sanctions for Bad Faith Divorce Litigation

In two cases, the Texas Courts of Appeals recently were called upon to review trial court sanctions in divorce litigation.  The first case presented an easy case for sanctions, notable only for the audacity of the petitioner.  The second case presents a much more difficult case, highlighting the sometimes precarious nature of practice for divorce practitioners.

Kramer v. Kramer, 2005 Tex. App. LEXIS 7084 (August 30, 2005)

Upholding sanctions for groundless litigation against petitioner Mother, who filed suit for divorce as next friend for her son, who had been left incapacitated in an accident. She filed the suit knowing that her son’s wife had been appointed his legal guardian.  While she later dismissed the action, the Texas 13th District Court of Appeals (Corpus Christi) upheld the trial court’s sanctions on the basis that Mother had no standing to bring an action for divorce on her son’s behalf and that the action was brought solely for the purposes of harassment.

In the Interest of K.A.R., 2005 Tex. App. LEXIS 7080 (August 30, 2005)

In a much closer question of sanctions, the Texas Fourteenth District (Houston) Court of Appeals, in a 2-1 decision, affirmed an order of sanctions against a petitioner and his attorney.  The case involved protracted litigation, in which father had moved to modify the terms of the custody decree.  Over the course of the proceeding, father apparently changed his mind about proceeding with the motion.  Father eventually committed suicide shortly after the trial.  The Court of Appeals noted that other trials courts might not have ordered sanctions and that some of the basis for the trials court’s sanctions were ill-considered, it held that the trial court sanction was justified by one of its bases: the failure of both attorney and client to attend a court-ordered mediation.   Attorney had been unable to attend the mediation because of a conflicting trial setting, but the trial court found that attorney could have notified it earlier of the conflict.  Father failed to attend the mediation because he did not desire to further participate in any proceedings. 

The majority and dissenting opinions’ characterizations of the attorney’s conduct differed dramatically:

The majority held that, “When Clarke chose to cancel the court-ordered mediation, she effectively usurped the court's role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, Clarke interfered with a core function of the court.”
The dissent disagreed that failing to attend a court ordered mediation should be considered a per se basis for sanctions. The dissent commented on the position the attorney was placed in given her client’s volatile mental state:

“Ironically, the circumstances of this case aptly demonstrate the indispensability of restraints on the trial court's inherent power to sanction. Because, against the backdrop of multiple settings and appearances inherent in the practice of law generally, attorneys in family law cases represent, advise, and seek to achieve the goals of clients who are often governed by powerful, sometimes overwhelming, emotions. Securing their cooperation with motion and trial settings can be difficult. In most cases, attorneys are able to effectively counsel their clients to ensure full participation, but there are those times when a client will be completely uncooperative despite the attorney's best efforts. In those cases, as in this case, the attorney should not be sanctioned for conduct attributable solely to an unpredictable and irrational client.”

BGF