Family Law Prof Blog

Pennsylvania Guardianship Rules Change

From JD Supra:

Pennsylvania’s Powers of Attorney and guardianship rules will change in 2019, providing additional protection to the elderly at a time when they are at their most vulnerable.

A guardian is an individual or entity appointed by the Court to make decisions for an incapacitated person. The law in Pennsylvania defines an incapacitated person as, “An adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

A Judge sitting in Orphan’s Court decides if an individual is incapacitated. The process begins with an interested party filing a Petition with the Court.  Then, a hearing is scheduled.  More persons, referred to as “potentially aggrieved parties” such as a fiancée, best friend or business partner, will need to be served with notice and have the right to legally participate in the hearing. Previously, medical testimony was taken from a doctor or psychologist who has treated or examined the alleged incapacitated person. The new guardianship rules require an “Expert Report” instead of deposition testimony.

Read more here.

Seventh Circuit Holds ERISA Does Not Preempt Slayer Statute

From JD Supra, Holland & Knight:

The Employee Retirement Income Security Act of 1974, as amended (ERISA), pre-empts most state laws. However, there are certain types of state laws that are not pre-empted. Recently, the U.S. Court of Appeals for the Seventh Circuit in Laborers' Pension Fund v. Miscevic, 880 F.3d 927 (7th Cir. 2018), held that the Illinois slayer statute is one of those state statutes that is not pre-empted by ERISA. A slayer statute is a law that prevents an heir from receiving assets or other property from a decedent if that heir is responsible for the decedent's death.

In this case, a woman killed her husband. The husband was a participant in a union pension plan that provided survivor benefits to a surviving spouse or, if there were no surviving spouse, to a minor child. There was no dispute as to the facts. In a state criminal proceeding, the woman was found to be not guilty of killing her husband by reason of insanity. Her husband's pension fund, The Laborers' Pension Fund (the Fund), brought an interpleader action to determine the proper beneficiary of the husband's pension benefits because the couple had a minor child.

Read more here.

FMLA Turns 25

From The National Law Review:

The Family and Medical Leave Act (FMLA) is celebrating its 25^thanniversary this month. On February 5, 1993, President Bill Clinton signed the FMLA into law guaranteeing certain employees up to 12 unpaid weeks off of work a year to care for children or ill family members, or to recover from one’s own serious health condition. During the time off, an employee’s medical benefits would remain intact.

When initially passed, the statute’s purpose was to address the rising number of American households with working parents who were concerned about losing their jobs when taking time off to care for a child or a sick family member. It was also meant to allow people who had serious health conditions to  remain employed when taking time off work for temporary periods.

Since that time, the FMLA has become a source of contention for employers and employees alike. Employers often feel overburdened by the paperwork’s technical requirements, the ever-increasing threat of litigation, and the costs of complying with the statute.  Employees and workers’ rights groups are concerned about the FMLA’s lack of coverage for part-time and small-business workers and the narrow definition of family.  Either way you slice it, the FMLA is due for a revamp, but are the Trump administration’s budget proposal and tax cuts pushing the FMLA in the right direction?

Read more here.

Another Parentage Success Story

From Fred Silberberg writing for The Huffington Post:

You may recall the landmark Court of Appeal published decision obtained by our firm in 2014 known as Jason P. v. Danielle S. 226 Cal. App. 4th 167. That case created a change to decades old parentage statutes which barred a biological father who provided sperm to a physician for insemination into his unmarried partner from legal parentage status even where the father had a father-son relationship with his child. The decision allowed the biological father to obtain legal status as the child’s father where he could meet certain legal criteria. Prior to that time, statutes and decisional law precluded the biological father from obtaining such status, distinguishing them from fathers who were married to the child’s mother at the time of conception.

We are pleased to announce that another of our clients has now obtained legal parentage status by application of the principles set forth in Jason P. In a recent memorandum of decision, the court found that our client, a father who had a relationship with his son who was conceived through fertility procedures with a female friend, met the criteria set forth in the Family Code as modified by Jason P. The court declared that he would also be the legal father of his little boy over the mother’s objections.

Read more here.

Legal technicians provide family law assistance

From the News Tribune:

VANCOUVER, WASH. - Navigating the family law system can be an overwhelming and emotional process, especially for people who have no choice but to represent themselves in court.

The number of pro se litigants has steadily increased across the country, with between 60 to 90 percent of family law cases involving at least one party with no legal representation, according to information released by the American Bar Association in 2013.

"People are kind of in a society of do-it-yourself. Some people may be able to afford an attorney, but others can't. We are seeing more and more people representing themselves," Clark County Chief Deputy Clerk Baine Wilson said.

Local and state agencies recognize a strong need for assistance and have begun offering alternatives to help guide the public through the process, reported The Columbian.

Read more here.

Judge OKs malpractice suit over law firm's successful fight to uphold client's postnuptial agreement

Malpractice Suit on Firms Negotiated Post-nuptial Agreement Gains Traction

From the ABA Journal:

A New York trial court has OK’d a malpractice suit against Phillips Nizer, over the law firm’s handling of a divorce case that generated $1.4 million in legal fees for work done by 23 attorneys and 16 other professionals.

At issue is a 2000 postnuptial agreement that the firm helped negotiate and draft for client Elizabeth Berardi. It granted her a 49 percent interest in companies controlled by her husband, who operates bus companies. However, the pact did not specify whether she could liquidate her interest and, if so, how she could do so, reports the New York Law Journal (sub. req.).

A divorce ensued within five years, and Berardi again retained Phillips Nizer. Her husband, Eugene Berardi, challenged the postnup and she fought against its invalidation, winning the legal battle. However, unbeknownst to her, agreements made before 2000 with former shareholders and business partners in her husband’s companies limited the liquidity of her own interest, Elizabeth Berardi alleges in her complaint against the firm.

Read more here.

Fear Factor: Meeting with a Family Law Attorney

From The Charlotte Observer:

“I have an appointment this afternoon with a family law attorney.”

“Oh no. I’m so sorry. So, you are going through a divorce?”

 

“What? No, no. I just want to ask some questions. Do you think the attorney is going to make me leave my spouse? Should I cancel?”

So often conversations like the one above take place and people worry about what it really means to meet with an attorney. All kinds of thoughts and emotions fill the client’s head and heart. They worry that their spouse will find out. They worry what other people will think. They worry that if they meet with an attorney, their fate has been sealed and they are doomed to divorce.

That is simply not the case. Yes, sometimes when people meet with a family law attorney, it is because they have decided to separate and want to move forward with the process. But, unbeknownst to many, there are other reasons to meet with a family law attorney.

Someone may be experiencing a tough time in their relationship and he or she may simply want to know what is behind “door number two.”

Read more here.

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

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

 

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. 4^th District June 23, 2009)

Opinion online (last visited June 27, 2009 bgf)

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)

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)

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)

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.

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)

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.

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)