The Fathers' Rights Movement - May 2019, Issue No. 10

The Father’s Rights Movement’s Monthly May 2019

Issue 10

Family Lawyers in Trouble; Recent Ethics Decisions

By Paul L. Feinstein Updated: September 04, 2014

As matrimonial attorneys in difficult financial times, with evolving and varied legal issues and having to deal with nasty litigants and opposing counsel, it is always important to not cross the line between ethical and unethical behavior. Domestic relations lawyers are often a target of disciplinary complaints given the fiery emotions unveiled in these cases. The following takes a look at various lawyer disciplinary cases decided around the country recently. Many of these cases involved domestic relations but not all of them. Obviously a lot of these areas of misconduct are “no brainers” but it is interesting to see the sorts of things that are catching the eye of disciplinary commissions around the nation.

In Illinois some of the recent disciplinary decisions are found in a summary of such cases published by the Illinois Attorney Registration and Disciplinary Commission. I learned of the cases from other states courtesy of the American Bar Association Journal and the Legal Profession Blog. If the state is not identified, the discipline took place in Illinois.

I. Conflict of interest and neglect are a major problem:

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An attorney was suspended for three years and until further order of Court (suspension was partially stayed on probation with conditions) for borrowing substantial funds while serving as a cotrustee of a trust that he created to benefit his client’s developmentally disabled adult son, without making proper disclosures to the co-trustee about his conflict of interest. The loan was discharged in bankruptcy.

A lawyer was suspended for six months and until further of Court for neglecting a client matter and misrepresenting the status of the case to the client. He also failed to participate in the disciplinary process, which seems to take place in a shocking number of these cases.

A lawyer was suspended for two years and until further order of Court for among other things, not carrying out duties in cases where he had been appointed guardian ad litem.

An attorney was censured and required to complete a professionalism seminar for neglecting discovery obligations in a divorce case which caused monetary sanctions against the client, and then did not tell the client of the sanctions.

A lawyer who neglected nine different client matters, failed to refund unearned fees to the clients and did not cooperate with the disciplinary investigation was disbarred.

A lawyer who neglected several matters, misrepresented the status of his clients and delivered NSF checks to his office landlord, was disbarred on consent.

A lawyer in Michigan was disbarred for settling a personal injury matter without his client’s knowledge or consent.

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A lawyer in Missouri was disbarred for neglecting adoption matters and filing a false affidavit in an adoption proceeding.

Also be careful about trying areas of law that are not familiar to you. A lawyer in Massachusetts who had never before filed an appellate brief was reprimanded for filing a brief containing misrepresentations.

II. Disciplinary sanctions also follow charges, conduct or convictions of criminal activity in some instances: • •

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One lawyer was suspended for one year and until further order of Court for possessing illegal drugs on three separate occasions.

A lawyer who was convicted of forgery and theft for having defrauded her former law partner by intercepting checks due to the partnership and using the check proceeds for herself, and drawing checks on the firm’s account without her partner’s knowledge, was disbarred on consent.

A lawyer convicted twice of driving under the influence of alcohol was suspended for two years and until further order of Court (suspension was partially stayed on probation with conditions).

A lawyer who was convicted on five misdemeanor counts of theft of clients’ retainer monies was suspended for four years and until further order of Court, and until he satisfies a restitution order.

A lawyer who pled guilty to domestic battery after striking his wife and engaged in a second act of domestic battery involving his daughter, was suspended for two years and until further order of Court.

A lawyer who pled guilty to a charge of willfully assisting a client in filing a fraudulent income tax return that understated the client’s income, was disbarred on consent.

In California a lawyer was summarily disbarred following federal convictions of one count each for tax evasion and bankruptcy fraud and seventeen counts of money laundering. The same lawyer had earlier been suspended by the Bar for charging unconscionable fees and being “aggressive, hostile and forceful” with his clients.

III. Many sanctions have involved conduct involving fraud, deceit, dishonesty, misrepresentation or lack of candor: • • • • • •

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A lawyer who falsely billed his firm’s corporate clients, was suspended for two years.

A lawyer who twice acted as a witness to execution of documents that were signed outside of his presence, was censured.

A lawyer who falsified court orders and an affidavit in five different domestic relations cases in order to conceal the true status of cases from the clients, was disbarred on consent.

A lawyer who engaged in an ex parte communication with a Judge and misled the court in that conversation, was suspended for one year and until further order of Court.

A lawyer who made false and defamatory statements about judges, among other things, was suspended for two years and until further order of Court.

A lawyer was censured when at the request of a former client, he improperly notarized the former client’s wife’s signature on a power of attorney and a mortgage form. He was unaware at that time that the documents were to be used by the former client to obtain loans without the wife’s knowledge.

A lawyer advanced living expenses to a client, and also wrote checks on his law firm account payable to doctors and falsely made it appear as though the payments were costs for treating firm clients. He was suspended for one year and until further order of Court (suspension partially stayed on period on probation with conditions).

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In order to gain a financial advantage in his own divorce, a lawyer withheld from his wife the fact that he had assigned to his cousin the right to collect on a premarital debt owed to him by his wife.

He was suspended for one year and until further order of Court.

A lawyer who purposely failed to disclose assets in his own personal bankruptcy petition was suspended for one year.

A lawyer who billed more than $1,000,000 to two corporate clients for work that he did not perform, was disbarred.

A lawyer was suspended for two years for forging and notarizing signatures of a third party on pleadings in a divorce case, making false statements to the Court and to the Disciplinary Commission, and attempting to obstruct a disciplinary commission investigation by providing funds to a complaining witness.

Recently the Hearing Board of Illinois recommended (which is still subject to the right to appeal) a six month suspension and until further order of Court, for a lawyer engaging in misconduct revolving around a matrimonial case. The lawyer was found to have filed pleadings misrepresenting the contents of certain orders. He was sanctioned multiple times by different domestic relations judges. Even more disturbing, he then attempted substitutions of judges after they ruled against him, actually subpoenaing one of the judges, and accusing them of having “no intention of weighing the merits of the arguments,” intentionally making false statements, and racially discriminating against the lawyer.

A Missouri lawyer was disbarred for failing to prepare an order as directed by a family law judge and for not participating in the disciplinary process.

A lawyer in California was disbarred for repeatedly filing frivolous lawsuits, pleadings and appeals.

A lawyer in Michigan was suspended for 120 days after she was found in contempt of Court for violating a trial court injunction, filing a frivolous action and disobeying a court order.

A South Dakota lawyer who had previously been suspended and failed to disclose it in applications for employment to a law firm, and for malpractice insurance, was disbarred.

A lawyer who made a material misrepresentation on his application for admission to the Bar, by failing to disclose that he submitted altered law school transcripts to prospective employers, was suspended for three years and until further order of Court.

In Georgia a lawyer was disbarred for filing an unsuccessful lawsuit that the Judge found was, “perhaps the most frivolous and least warranted suit that it had ever encountered.” The lawyer relocated his office without informing the client. He did not give the client a copy of the summary judgment order until time for appealing it had passed. He collected a $9,000.00 fee for the frivolous lawsuit. There was other conduct as well.

A sole practitioner in Virginia was suspended 30 days followed by a year probation for (among other things) holding out that his law firm was bigger than it was. His website identified nonexistent practice groups, falsely stated that the firm had three locations and implied that a nonlawyer was actually a lawyer associate.

A Connecticut lawyer applying for a job with a state agency was suspended over misrepresentations on his resume. The moral is, prospective employers check resumes. One of the misrepresentations was disclosing a previous employer that, “apparently did not exist”. He also falsely claimed that he had graduated Cum Laude from law school. He claimed that he had been Assistant Note Editor with Law Review, which he had not. He also failed to disclose a law firm where he had worked.

IV. Of course, numerous disciplinary actions concern the issue of attorney’s fees: •

An attorney who failed to properly refund the unearned portion of fee advances he had received from several clients who had discharged him, was censured and required to complete a professionalism seminar.

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A lawyer who submitted inaccurate fee petitions and affidavits to a court in connection with a juvenile justice program, was suspended for two years (suspension partially stayed on probation with conditions).

A lawyer who shifted time so that bills that were sent to a client did not show the full extent of the time he spent on the client’s case and later filed copies of those bills with the court in support of a fee petition, was suspended for 90 days.

It also seems when there are fee issues, that failure to pay restitution ends up hurting the lawyer in the disciplinary process.

V. Commingling and conversion is a serious problem as well: • • • • •

A lawyer who mismanaged funds belonging to a domestic relations client was suspended for three years and until further order of Court (suspension partially stayed on probation with conditions).

A lawyer was suspended for one year (suspension partially stayed on probation with conditions) due to bad bookkeeping practices. He failed to preserve the identity of money he had been holding in escrow in connection with a real estate transaction.

A lawyer who misappropriated estate and trust funds and collected an unreasonable fee, was disbarred.

A lawyer was suspended for two years and until further of Court, for among other things converting client funds, failing to refund unearned fees, failing to enter into a written contingent agreement in a personal injury case, and shoplifting from a grocery store.

If you think you have to take thousands and thousands of dollars to be sanctioned, you may be wrong. An attorney in Maryland was disbarred for misappropriating a total of $1,100.00 in two bankruptcy cases.

VI. Lawyers who continue to practice despite being suspended, obviously risk further disciplinary action: • •

A lawyer who authored an appellate brief on behalf of a client while that attorney was suspended, and used another attorney’s name, was suspended for three months.

A lawyer who was taken off the master roll of attorneys for not complying with continuing legal education requirements and continued to handle matters, was censured and ordered to complete a program.

VII. Disciplinary agencies have now begun to impose discipline for personal misconduct unrelated to the practice of law: • • • • •

A lawyer who among other things, video taped sexual encounters that he had with women, without their knowledge or consent, was suspended for two years and until further order of Court.

A lawyer who made unsolicited and improper sexual advances towards a female client and the wife of another client, was suspended for one year.

A lawyer was suspended for sixty days for violating an order of protection that his ex-wife had obtained against him. He also used personal identity information from his ex-wife to obtain a loan.

A New Jersey lawyer was censured for taking food and drink from a blind refreshment stand vendor without paying for the items!

A New Jersey lawyer was disbarred for creating phony time records, having sex with a client and submitting expense vouchers for dinners with women he was dating, including two women he met through the internet. The client he slept with was a divorce client. Both the lawyer and the divorce client denied a relationship, but emails between them told a different story. The divorce client was attempting to reconcile with her husband at the time.

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With such wonderful inventions as Blogs, Tweets, Facebook, etc., lawyers need to be more careful with what they say online. A government lawyer in Indiana recently lost his job after making a “tweet” with advice to police facing pro-labor protestors in Wisconsin. He said, “use live ammunition.”

A lawyer who revealed protected client information on an internet blog, was suspended for sixty days.

Also for lawyers considering this, the North Carolina State Bar may be issuing an opinion that says that it is unethical for a lawyer to offer bargains through Groupon.

Of course the severity of some of the penalties imposed depended on whether or not this was a first offense.

The consequences of many of these lawyers’ conduct appears self-evident, but since there seem to be so many incidents of varying conduct, it never hurts to periodically make oneself aware. In domestic cases make sure your conflicts checks are accurate as that seems to be an increasing problem (in other words, both spouses interviewing with the same lawyer or firm). Neglect is another problem area. If you are too busy to properly deal with a difficult family law case, refer it to someone who has the time or bring them in as co-counsel. And since these cases also touch on other areas of the law such as bankruptcy, corporate law and real estate, make sure you are equipped with the knowledge to handle the case. And beware of clients who lie and understand the ethical rules in your state concerning what to do.

Paul L. Feinstein, a Chicago sole practitioner with over 30 years of experience, concentrates his practice in family law with emphasis on divorce litigation, custody and visitation, and appeals.

Reporting a Lawyer for Ethics Violations

By Sachi Barreiro, Attorney, University of San Francisco School of Law

Lawyers who don’t live up to their ethical obligations can face discipline from a state board.

Lawyers are human, and like everyone else, they sometimes make mistakes when representing clients. In some cases, the mistakes are small and easily

fixable—for example, not filing enough copies of a document with the court or needing to reschedule a meeting. Other times, the mistakes are serious—such as 5|Page

missing the deadline to file a lawsuit, revealing confidential discussions with a client, or mishandling client funds. In these situations, the lawyer can face discipline for violating legal ethics, including losing the right to practice law.

Disciplinable Offenses Lawyers are given a lot of responsibility and often deal with serious matters, from criminal charges to child custody to tax and other financial matters. When you hire a lawyer, you are trusting him or her to represent your interests in the best manner possible. To

protect the public—and the integrity of the legal profession—each state has its own code of ethics that lawyers must follow. These are usually called the “rules of professional conduct.”

The American Bar Association publishes the Model Rules of Professional Conduct, which lists standard ethical violations and best practices for lawyers. Some states have adopted the model rules as their own ethical rules, while others use it as a guide and modify or add rules. However, most states cover issues such as communicating with clients, charging fees, handling client funds, and avoiding conflicts of interest.

Common complaints by clients include: •

Failing to communicate with the client. Lawyers have a duty to keep their clients reasonably informed about the status of their cases, to respond promptly to requests for information, and to consult with their clients about important decisions in their cases (for example, whether to accept a settlement offer).

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Not returning the client's documents. A client’s file is generally considered to be the property of the client. When a client fires a lawyer and asks for the file, the lawyer must promptly return it. In some states, such as California, the lawyer must return the file even if attorneys’ fees haven’t been paid in full.

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Lawyer incompetence. Lawyers must have the knowledge and experience to competently handle any case that they take on. They must also be sufficiently prepared to handle matters that come up in your case, from settlement negotiations to trial.

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Conflicts of interest. Lawyers owe a duty of loyalty to their clients, which means they must act with the client’s best interests in mind. This includes avoiding situations that would create a conflict of interest— such as representing two clients on opposite sides of the same case or taking on a new client who wants to sue an existing client.

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Financial matters. Misplacing or stealing client funds, refusing to hand over money owed to a client, or charging clearly excessive fees are all ethics violations. However, a simple dispute over how much you owe your lawyer in legal fees is generally not an ethics matter. Most of the time, these disputes are resolved through fee arbitration—an informal process where a neutral third party hears from both sides and makes a decision.

State Disciplinary Boards Each state has a disciplinary board that enforces state ethics rules for lawyers. The board is usually an arm of the state’s supreme court and has authority to interpret ethics rules, investigate potential violations, conduct evidentiary hearings, and administer attorney discipline. Depending on the offense, the agency might: •

issue a private reprimand (usually a letter sent to the lawyer)

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issue a public reprimand (usually published in the agency’s official reports and a local legal journal or newspaper)

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suspend the lawyer (the lawyer cannot practice law for a specific time)

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disbar the lawyer (the lawyer loses his or her license to practice law), and/or

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order the lawyer to pay restitution—in the form of money—to the client.

Some state disciplinary boards have websites where you can search for a lawyer by name and see if the lawyer has a history of discipline.

Filing a Complaint “If you think your lawyer has violated an ethical rule, you may file a complaint with the disciplinary board in the state where the lawyer is licensed.”

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In most states, you can file your complaint by mailing in a state-issued complaint form or a letter with the lawyer's name and contact information, your contact information, a description of the problem, and copies of relevant documents. In some states, you may be able to lodge your complaint over the phone or online.

Some states allow anonymous complaints if the problems impact the general public, while others don’t. Either way, it can be difficult for the agency to investigate a complaint without the cooperation of the complaining party. The board needs to gather evidence before disciplining an attorney, and in some cases, the only available evidence is the testimony of the complaining party.

Or, the board might need to know the identity of the complaining party in order to investigate at all—for example, if a client alleges that the lawyer stole funds from a client account, the agency would need to know which client account to focus on.

In many cases, complaints come from the lawyer’s own clients. However, other attorneys and even judges sometimes file complaints against attorneys for improper behavior.

Investigation Process In most cases, a board of lawyers and non-lawyers will review the complaint.

If there’s a potential ethical violation, the board will give the lawyer a copy of the complaint and an opportunity to respond.

In some states, the complaining party has a chance to comment on the lawyer's response and request an investigation. If there's no evidence of a violation, the board will dismiss the case and notify you. If the violation is minor, a phone call or letter to the lawyer usually ends the matter. For serious violations, the board will hold an evidentiary hearing.

Malpractice Lawsuits The purpose of the state disciplinary board is to discipline lawyers, not necessarily to compensate wronged clients for their losses. If you’re looking for compensation, a malpractice lawsuit is generally the way to go. However, legal malpractice lawsuits can be very difficult to win. Among other things, you 2|Page

must show that your lawyer made a significant mistake in your case and that you suffered a monetary loss because of it. In other words, you must show that you would have won your case—or received more in compensation—had it not been for your lawyer’s mistake.

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Can an attorney represent both spouses in a divorce action?

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Is it an ethical violation if my attorney doesn't tell me about settlement offers in my case?

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Can an attorney withhold attorneys’ fees from my settlement even if I contest some charges he billed me for?

Disciplinary Counsel by State You can find information for your state's disciplinary board below, including its name, address, and a link to its website, where you can find out more about filing a complaint.

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Alabama Alabama State Bar (ASB) Office of General Counsel 415 Dexter Avenue Montgomery, AL 36104 Phone: (334) 269-1515 https://www.alabar.org/resources/office-of-general-counsel/

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Alaska Alaska Bar Association P.O. Box 100279 Anchorage, AK 99510-0279 Phone: (907) 272-7469 https://www.alaskabar.org/servlet/content/complaints_against_a.html

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Arizona State Bar of Arizona 4201 N. 24th Street, Suite 100 3|Page

Phoenix, AZ 85016 Phone: (602) 252-4804 http://www.azbar.org/lawyerregulation/clientcomplaints/attorneyconsum erassistanceprogram

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Arkansas Supreme Court of Arkansas Office of Professional Conduct 2100 Riverfront Drive, Suite 200 Little Rock, AR 72202 Phone: (501) 376-0313 https://courts.arkansas.gov/administration/professional-conduct

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California State Bar of California Office of Chief Trial Counsel 845 S. Figueroa St. Los Angeles, CA 90017 Phone: (800) 843-9053 http://www.calbar.ca.gov/Attorneys/LawyerRegulation/FilingaComplaint. aspx

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Colorado Colorado Supreme Court Office of Attorney Regulation Counsel 1300 Broadway, Suite 500 1560 Broadway, Suite 1800 Denver, CO 80203 Phone: (303) 457-5800 http://www.coloradosupremecourt.us/Complaints/Complaints_Disc.asp

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Connecticut Statewide Grievance Committee 287 Main Street, Second Floor, Suite 2 East Hartford, CT 06118-1885 Phone: (860) 568-5157 4|Page

https://www.jud.ct.gov/sgc/for_public.htm

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Delaware Delaware office of Disciplinary Counsel The Renaissance Centre 405 North King Street, Suite 420 Wilmington, DE 19801 Phone: (302) 651-3931 http://courts.delaware.gov/odc/lawyer.aspx

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Florida The Florida Bar Attorney Consumer Assistance Program 651 E. Jefferson Street Tallahassee, FL 32399-2300 Phone: (866) 352-0707 http://www.floridabar.org/tfb/TFBConsum.nsf/0A92A6DC28E76AE5852 5700A005D0D53/37E34BBB81F1EE4E85256C0D00703FF4

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Hawaii Office of Disciplinary Counsel 201 Merchant Street, Suite 1600 Honolulu, HI 96813 Phone: (808) 521-4591 http://www.odchawaii.com/HOW_TO_FILE_A_COMPLAINT.html

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Idaho Idaho State Bar Office of Bar Counsel P.O. Box 895 Boise, Idaho 83701 Phone: (208) 334-4500 https://isb.idaho.gov/bar_counsel/complaints.html

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Illinois Illinois Attorney Registration and Disciplinary Commission (Chicago & Northern Illinois) 130 East Randolph Drive, Suite 1500 Chicago, IL 60601-6219 Phone: (312) 565-2600 (Central & Southern Illinois) 3161 W. White Oaks Dr., Ste. 301 Springfield, IL 62704 Phone: (217) 546-3523 https://www.iardc.org/howtorequest.html

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Indiana Indiana Supreme Court Disciplinary Commission 30 South Meridian Street, Suite 850 Indianapolis, IN 46204-3520 Phone: (317) 232-1807 http://www.in.gov/judiciary/discipline/2373.htm

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Iowa Iowa Supreme Court Attorney Disciplinary Board Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, Iowa 50319 Phone: (515) 725-8017 http://www.iowacourts.gov/For_Attorneys/Attorney_Standards__Discipli ne/Disciplinary_Procedures/

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Kansas Office of the Disciplinary Administrator 701 Jackson Street, 1st Floor Topeka, Kansas 66603-3729 Phone: (785) 296-2486 http://www.kscourts.org/rules-procedures-forms/attorneydiscipline/complaints.asp 6|Page

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Kentucky Kentucky Bar Association Office of Bar Counsel 514 West Main Street Frankfort, KY 40601-1812 Phone: (502) 564-3795 https://www.kybar.org/page/attdis

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Louisiana Louisiana State Bar Association Office of the Disciplinary Counsel 4000 S. Sherwood Forest Blvd., Suite 607 Baton Rouge, LA 70816-4388 Phone: (504) 293-3900 https://www.lsba.org/Public/complaints.aspx

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Maine Maine Board of Overseers of the Bar 97 Winthrop Street P. O. Box 527 Augusta, ME 04332-0527 Phone: (207) 623-1121 http://mebaroverseers.org/complaint/index.html

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Maryland Attorney Grievance Commission of Maryland Office of Bar Counsel 200 Harry S. Truman Parkway, Suite 300 Annapolis, MD 21401 Phone: (410) 514-7051 http://www.courts.state.md.us/attygrievance/complaint.html

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Massachusetts Office of the Bar Counsel 99 High Street Boston, MA 02110 Phone: (617) 728-8750 http://www.mass.gov/obcbbo/complaint.htm

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Michigan Michigan Attorney Grievance Commission 535 Griswold, Suite 1700 Detroit, MI 48226 Phone: (313) 961-6585 http://www.agcmi.org/investigation/how_to_file_a_request_for_investiga tion.php#.WKXglW8rKpp

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Minnesota Office of Lawyers Professional Responsibility 1500 Landmark Towers 345 St. Peter Street St. Paul, MN 55102-1218 Phone: (651) 296-3952 http://lprb.mncourts.gov/complaints/Pages/default.aspx

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Mississippi Mississippi State Bar 643 North State Street P.O. Box 2168 Jackson, MS 39225-2168 Phone: (601) 948-2344 https://www.msbar.org/ethics-discipline/consumer-assistanceprogram/frequently-asked-questions.aspx

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Missouri Office of Chief Disciplinary Counsel 3327 America Avenue 8|Page

Jefferson City, MO 65109-1079 Phone: (573) 635-7400 http://www.mochiefcounsel.org/ •

Montana State Bar of Montana Office of Disciplinary Counsel P.O. Box 1099 Helena, MT 59624-1099 Phone: (406) 442-1648 http://www.montanaodc.org/

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Nebraska Nebraska Judicial Branch Counsel for Discipline 3808 Normal Blvd.

Lincoln, NE 68506 Phone: (402) 471-1040 https://supremecourt.nebraska.gov/4571/how-file-grievance-againstattorney

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Nevada State Bar of Nevada Office of Bar Counsel 3100 W. Charleston Blvd., Suite 100 Las Vegas, NV 89102 Phone: (702) 382-2200 https://www.nvbar.org/member-services-3895/ethicsdiscipline/complaint/

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New Hampshire Supreme Court Attorney Discipline Office 4 Chenell Drive, Suite 102 Concord, NH 03301 Phone: (603) 224-5828 9|Page

https://www.nhbar.org/for-the-public/dispute.asp

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New Jersey Office of Attorney Ethics P.O. Box 963 840 Bear Tavern Road Trenton, NJ 08625 Phone: (609) 530-4008 http://www.judiciary.state.nj.us/oae/index.html

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New Mexico New Mexico Disciplinary Board 20 First Plaza NW, Suite 710 Albuquerque, NM 87102 Phone: (505) 842-5781 https://www.nmdisboard.org/

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New York (Manhattan/Bronx) Departmental Disciplinary Committee Supreme Court, Appellate Division First Judicial Department 61 Broadway, 2nd Floor New York, NY 10006 Phone: (212) 401-0800 (Brooklyn/Queens/Staten Island) Grievance Committee for the 2nd and 11th Judicial Districts Renaissance Plaza 335 Adams Street, Suite 2400 Brooklyn, NY 11201 Phone: (718) 923-6300 http://www.nycbar.org/for-the-public/about-lawyers-andjudges/complaints-about-lawyers-and-judges-how

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North Carolina Grievance Committee North Carolina State Bar P.O. Box 25908 Raleigh, NC 27611 Phone: (919) 828‐4620 http://www.ncbar.gov/public/filing.asp

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North Dakota Disciplinary Board of the Supreme Court of North Dakota 600 East Boulevard Avenue, Dept. 180 Bismarck, ND 58505-0530 Phone: (701) 328-2221 https://www.ndcourts.gov/court/Committees/disc_brd/information.htm

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Ohio Office of Disciplinary Counsel Supreme Court of Ohio 250 Civic Center Drive, Ste. 325 Columbus, OH 43215-7411 Phone: (614) 461-0256 http://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp

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Oklahoma Office of the General Counsel Oklahoma Bar Association P.O. Box 53036 Oklahoma City, OK 73152 Phone: (405) 416-7007 http://www.okbar.org/public/Complaint.aspx

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Oregon Client Assistance Office Oregon State Bar 16037 SW Upper Boones Ferry Road 11 | P a g e

P.O. Box 231935 Tigard, Oregon 97281-1935 http://www.osbar.org/secured/cao_attorneycomplaints.asp

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Pennsylvania Disciplinary Board of the Supreme Court of Pennsylvania 1601 Market Street Suite 3320 Philadelphia, PA 19103-2337 Phone: 215-560-6296 (For complaints outside of Philadelphia, see the Disciplinary Board’s list of district offices.) http://www.padisciplinaryboard.org/consumers/complaint-forms/

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Rhode Island Disciplinary Board of the Supreme Court of Rhode Island Fogarty Judicial Annex 24 Weybosset Street, 2nd Floor Providence, RI 02903 Phone: (401) 222-3270 https://www.courts.ri.gov/PublicResources/disciplinaryboard/Pages/defa ult.aspx

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South Carolina South Carolina Commission on Lawyer Conduct 1220 Senate Street, Suite 305 Columbia, South Carolina 29201 Phone: (803) 734-2037 http://www.judicial.state.sc.us/discCounsel/howToFile.cfm

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South Dakota Disciplinary Board State Bar of South Dakota 222 E. Capitol Pierre, SD 57501 12 | P a g e

Phone: (605) 224-7554 http://www.statebarofsouthdakota.com/p/cm/ld/fid=45

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Tennessee Board of Professional Responsibility 10 Cadillac Drive, Suite 220 Brentwood, TN 37027 Phone: (615) 361-7500 http://www.tbpr.org/for-the-public/file-complaint

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Texas State Bar of Texas Chief Disciplinary Counsel's Office P.O. Box 13287 Austin, TX 78711 Phone: (800) 932-1900 https://www.texasbar.com/AM/Template.cfm?Section=File_a_Grievance &Template=/CM/HTMLDisplay.cfm&ContentID=29656

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Utah Utah State Bar Office of Professional Conduct 645 South 200 East Salt Lake City, UT 84111 Phone: (801) 531-9110 http://www.utahbar.org/cap-request-form/

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Vermont Michael Kennedy Vermont Professional Conduct Board Office of Bar Counsel Professional Responsibility Program Costello Courthouse 32 Cherry Street, Suite 213 Burlington, VT 05401 Phone: (802) 859-3000 13 | P a g e

https://www.vermontjudiciary.org/LC/attydiscipline.aspx

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Virginia Virginia State Bar Intake Office 1111 East Main Street, Suite 700 Richmond, Virginia 23219-3565 Phone: (804) 775-0570 https://www.vsb.org/site/regulation/inquiry

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Washington Office of Disciplinary Counsel Washington State Bar Association 1325 Fourth Ave, Suite 600 Seattle, WA 98101-2539 Phone: (206) 727-8207 http://www.wsba.org/Licensing-and-Lawyer-Conduct/Discipline/File-aComplaint-Against-a-Lawyer

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West Virginia Lawyer Disciplinary Board City Center East, Suite 1200 4700 MacCorkle Avenue SE Charleston, WV 25304 Phone: (304) 558-7999 http://www.wvbar.org/public-information/lawyer-disciplinary-board-faq/

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Wisconsin Office of Lawyer Regulation 110 East Main Street, Suite 315 Madison, WI 53703-3383 Phone: (608) 267-7274 https://www.wicourts.gov/services/public/lawyerreg/file.htm

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Wyoming Office of Bar Counsel Wyoming State Bar P.O. Box 109 500 Randall Ave Cheyenne, WY 82003-0109 Phone: (307) 432-2104 https://www.wyomingbar.org/for-the-public/attorneycompliants/complain-about-a-lawyers-conduct/

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District of Columbia Office of Disciplinary Counsel The Board on Professional Responsibility 515 5th Street, NW Building A, Room 117 Washington, D.C. 20001 Phone: (202) 638-1501 https://www.dcbar.org/attorney-discipline/for-the-public/file-an-attorneycomplaint.cfm

When Does Making Threats In Divorce and Family Law Proceedings Become Extortion or 'Merely' Unethical?

Divorce Lawyer Ethics: Threatening Criminal, Administrative, or Disciplinary Action to Advance a Civil Cause (The Get 'Em Over a Barrel Ethical Quandary) By: Michael C. Peterson As a California family law attorney, a canon of ethical conduct I must adhere to is to be a zealous advocate - often within the context of high and raw emotional conflict. I am required to do every act reasonably and lawfully required to advance my client's position and achieve his or her goals, and this devotion to my client's causes is one thing I love about matrimonial law. In situations involving divorce, spousal and child support, and

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custody particularly, this means directing my efforts towards maximizing my client's financial and non-financial outcomes, and navigating their emotional reactions which often include instructions that I 'take no prisoners.'

In the 1992 movie "Night and the City," Robert DeNiro's character (a New York attorney who desired to become a boxing promoter) expressed a sentiment I commonly hear about how a "good" divorce attorney should act in achieving his or her client's aims (and I am paraphrasing here): 'my job is to get 'em over a barrel, and then get the settlement.' But, there are all kinds of dangers and pitfalls by allowing that theme to dominate the litigation.

California appellate courts are increasingly making it clear that divorce lawyers are not gunslingers in 21st century equivalent of the wild, wild West. "[Z]ealous advocacy does not equate with 'attack dog' or 'scorched earth'; nor does it mean lack of civility ." Marriage of Davenport (2011) 194 CA4th 1507, 1536. Davenport affirmed $400,000 in monetary sanctions per Fam. C. ยง 271 against a 75 year old wife and her counsel in a $30 million divorce case that generated 19 court file volumes, a 35 page register of actions, eight discovery motions, three motions for contempt against the husband, a $900,000 sanctions motion that contained a 52 page declaration by the wife's attorney with 1,250 pages of exhibits. The justices characterized wife's attorneys as "uncivil, rude, aggressive, and unprofessional [and that such] conduct marred this case from the very beginning" and spanked both attorney and client hard!

The obligation of family lawyers to uphold ethical codes of conduct, in both speech and stratagems, is critical to the integrity of the profession (the public has a very low opinion of lawyers in comparison to doctors, teachers, and emergency personnel, as reflected in jokes and jabs), and to individual client self-interest by keeping them out of financial and other trouble, as Davenport's monetary sanctions award emphasizes. Frankly, some clients especially the more narcissistic of them - feel that an attorney is not doing their job right if they are not inflicting pain on the other side, but these tend to fail to consider or simply ignore the damage this can do to themselves (not to mention others, like children, or parents who may be footing the legal bill). Others feel that they cannot secure a fair settlement unless the other side is 'rocked onto their heels.' It is perfectly natural to fantasize about ways to force the other side in high conflict divorce proceedings to capitulate, but the trick is not to obey those Gollum like impulses.

Attorney Threats in Order to Advance a Civil Litigation Position A common issue that comes up in the course of divorce litigation, and is often asked (and sometimes demanded) by my clients, is whether to convey a threat to report illegal conduct by the other party or attorney as a tool for obtaining important concessions. For example, an opposing party may have misrepresented facts on their tax returns, my client has knowledge/proof about the misrepresentations, and the she/he wants to tell the other side 'if you don't give me $ X amount of spousal support for life, I am going to turn you over to the IRS.' Or an opposing party might commit a crime such as causing an electronic tracking device to be placed on the other spouse's vehicle in violation of Penal Code ยง 637.7, and the victim in turn may be tempted to communicate to the other side words to the effect of 'give me sole legal and physical custody or I will report the tracker to the police' (this is not what occurred in our case).

These kinds of impulses, and the arguable leverage opportunities that one might perceive arise, exist at the borders of zealous advocacy and other ethical rules do fix a kind of frontier that cannot safely be crossed - ultimately, it is the attorney for the client who needs

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to make the correct executive decision for them both because, as Davenport demonstrates, attorneys too can wind up footing the bill in terms of sanctions or fees caused by getting lost in what Mr. Arnold has coined as "divorce trance."

Lawyers, but not parties acting as their own attorney, must behave consistently with the California Rules of Professional Conduct ("CRPC") or face disciplinary outcomes ranging from reproval to disbarment. They are the California Supreme Court's rules regulating attorney conduct. There is a specific CRPC on the issue of using unethical threats - Rule 5-100. It provides: "(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

(B) As used in paragraph (A) of this rule, the term "administrative charges" means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.

(C) As used in paragraph (A) of this rule, the term "civil dispute" means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity." [Italics added].

In contrast, no prohibition comparable to Rule 5-100 exists in the American Bar Association's Model Rules of attorney ethics.

So, where does Rule 5-100 tell us the train of zealous representation come off the tracks?

One key word in the 5-100 Rule is "threaten." Another is "advance." Taken together with the rest of 5-100, it is not improper for instance to actually make a report about the opposition's illegal conduct to the appropriate government agency, but it is improper for a lawyer to communicate the potential reporting beforehand as a means of gaining leverage and concession to an issue in the civil matter (which, of course, includes family law cases).

As such, in regard to examples above of illegal activities of the other party that may come to light, there is nothing wrong or unethical about advising the client to make a report to the IRS or to the police department (assuming such reporting doesn't hurt the client's position or expose him/her to unintended adverse consequences). But the line is crossed by using or attempting to use the information against the Ex to 'get 'em over a barrel.'

Moreover, threats to file a civil action (e.g. an emergency Domestic Violence Restraining Order or a motion for guideline temporary spousal or child support orders) unless a party's civil demands are met do not themselves violate any statute or disciplinary rule. See Cal. State Bar Form.Opn. 1991–124, hypothesizing that there is nothing improper in an attorney's letter to opposing counsel stating something to the effect that 'all available legal remedies will be pursued against your client' unless parties reach quick resolution/settlement on the civil issue involved and in dispute.

Extortion and a Non-Lawyer's Threats in Order to Advance a Civil Litigation Position

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Another consideration is that Rule 5-100 only applies to lawyers practicing in California, California lawyers practicing in other jurisdictions and their personnel, but not directly to unrepresented litigants or clients acting on their own without direction from his/her attorney. See CRPC Rule 1-100 and its implied exclusion of non-lawyers not employed/contracted by lawyers. The problem, however, with non-lawyers using threats of administrative, criminal or disciplinary action is that s/he may expose themselves to criminal extortion charges under Pen. C § 518 (a felony, with a 2, 3, or 4 year potential prison sentence). And, of course, lawyers can fall prey to such exposure as well. A recently published decision, Mendoza v. Hamzeh (2013) 215 CA4th 799, 805, delves into the issue of a civil cause of action for extortion in connection with a 5-100 violation.

California Penal Code § 518 provides: "Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."

California Penal Code § 519 provides: "Fear, such as will constitute extortion, may be induced by a threat, either: 1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or, 2. To accuse the individual threatened, or a relative of his or her, or member of his or her family, of a crime; or, 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime; or, 4. To expose a secret affecting him, her, or them; or, 5. To report his, her, or their immigration status or suspected immigration status."

The California Supreme Court has said that extortion is a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal; in many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money. Flatley v.

Mauro (2006) 46 Cal.Rptr.3d 606, 39 Cal.4th 299 In Mendoza, a former employee brought a tort action against his employer's attorney for causes of action of civil extortion, intentional infliction of emotional distress, and unfair business practices. At the trial level, the defendant attorney's anti-SLAPP motion was denied, and the appeal resulted. On appeal, the Mendoza court held that the lawyer's threat to report a crime to enforcement agencies, coupled with a demand for money, constituted extortion even when the employee in fact committed the crime and owed the money. In other words, truth is not a defense to an extortion civil cause of action.

The Mendoza court reasoned that extortion is "unprotected by constitutional guarantees of free speech or petition." The crime of extortion is "… the obtaining of property from another, with his consent ... induced by a wrongful use of force or fear...." Pen.Code, § 518. The fear element of Pen. Code 518 "may be induced by a threat, either: … 2. To accuse the

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individual threatened ... of any crime; or, 3. To expose, or impute to him ... any deformity, disgrace or crime[.]" Pen.Code, ยง 519. Moreover, "[e]very person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat." Pen.Code, ยง 523.

The Mendoza court analyzed the facts as follows: In "Hamzeh's demand letter [he] threatened to report Mendoza "to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, [and] the Better Business Bureau," and to disclose the alleged wrongdoing to Mendoza's customers and vendors if Mendoza did not pay "damages exceeding $75,000." The Mendoza court continued "[t]he fact Hamzeh did not list specific crimes in the demand letter does not mean the threat is not extortionate."

While the Mendoza case involved a civil lawsuit for extortion against a lawyer, the same kinds of issues and the same kinds of liabilities (both monetary and criminal) can result against a non-lawyer who makes extortionate communications in connection with anticipated or presently-existing litigation in terms of a Penal Code violation. As such attorneys should be cautioned not to make a statement to a client to the effect 'while I can't threaten to call INS on your baby-daddy, there is nothing preventing you from doing so in your conversations with him.' Horrible advice; this could not only result in the client being criminally charged and/or sued for monetary damages, it could also result in the attorney being sued for malpractice.

By the law, there is a kind of 'whistle-blower' exception to the crime of extortion recognized in certain scenarios. For example, extortion does not occur if an employee threatens to report the illegal activities their employer unless the employer stops the conduct in question. Flatley v. Mauro (2006) 46 Cal.Rptr.3d 606, 39 Cal.4th 299, 139 P.3d 2.

Extortion and Child Custody What about extortion-like conduct made in connection with child custody proceedings?

People, human beings, in the United States have not been property since Abraham Lincoln's Emancipation Proclamation and the ratification of the 13th, 14th, and 15th Amendments to the Constitution in the mid-1860s, so how could it be extortion for baby-daddy to threaten to call CPS for baby-mama's meth use if a baby-mama doesn't agree to give baby-daddy sole custody of the child?

One of the elements of the crime of extortion under Penal Code ยง 518 is obtaining either (1) property with consent, or (2) the official act of a public officer. An argument could be made that property rights are indirectly impacted by child custody in the form of greater or lesser child support obligations. Alternatively, a judge's signature to a stipulation (i.e. a consensual contract entered as an order in a legal proceeding) giving baby-daddy sole custody of the child could be an official act. As such, a demand for sole custody by one parent couple with the threat make a report to a government agency, for example to call INS, the IRS, or CPS, could constitute the crime of extortion .

The cases on "official acts" under Penal Code ยง 518 generally speak to direct extortion of a police officer or a judge, not extortion through a third party (e.g. the other parent's demanded consent to agreement). Nevertheless, it has been said that by the California Supreme Court that "[t]he concept of 'official act' is not limited to authorized acts nor is it

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so broad as to encompass any conduct by an officer occurring during his working hours … it is functional nature of public officer's conduct that establishes its 'official' character, and an act is 'official' if it is done in official capacity, rather than privately." People v. Norris (1985) 219 Cal.Rptr. 7, 40 Cal.3d 51, 706 P.2d 1141. In Norris, "the issue is whether defendant committed, or intended to commit, the crime of extortion as defined by section 518 when, after obtaining a gun, he ordered police officers who held him in custody to drive him to a safe haven and release him. We conclude that, although defendant committed a variety of other crimes, his demands neither constituted extortion nor reflected any intent to extort…" Id. From Norris, we can infer that a family law judge making child would probably be considered an official act within the meaning of Pen. C. § 518 and its definition of extortion if one parent's acts constitute a "wrongful use of fear" in a means similar to those examples given in Pen. C. § 519. Moreover, the financial benefits of increased or decreased child support resulting from the custody order would satisfy the "obtaining property" prong of Pen. C. § 518 in the alternative to the "official act" element of the crime.

I think it would be an extremely interesting criminal appellate case if my hypothetical scenario of an extortion-like threat to involve CPS if custody of a child was not given under a stipulated order. If the judge is not being extorted, is it an extortion crime to threaten the other parent with agency action for child custody? Frankly, I think this kind of behavior in similar scenarios happens all the time since many family law litigants often think and act as if the 'ends justify the means' when their sacred cows, their money or their children, are involved and are at stake. In any event, prudent care should be used by family law litigants and their attorneys in using tactics that could expose them to criminal liability.

Conclusion A reader might think 'Peterson is soft since he won't go all the way to help me get what I want' after reviewing this article. I don't think so a bit, and personally I would rather have an attorney advise me to not make a bad situation worse for myself on the chance I might not get caught, charged, and/or sanctioned. I have had times straight out had tell a client "NO"; "either report the crime/other malfeasance or don't and live with the consequences, but we are not going to threaten it to get you more dollars in the settlement." I even recently admonished one newly-admitted attorney not to make verbal threats to me concerning reporting some of my client's alleged activities to the state contractor's board.

Client and attorneys need to understand that a violation of CRPC 5-100 or Penal Code section 518 is just not a place where they can go, despite the natural and sometimes frantic desire to get the best outcome possible. While the desire to tear the other's heart out, or to cause them risks to their financial or personal freedom, in the throes of divorce litigation may understandably be seductive, it is just another example of how family law litigants or rabid attack dog attorneys blow themselves up.

Or, as the picture of Mr. Arnold's 1 year old Jack Russell 'Jasmine' being threatened by TV dogs above is intended to illustrate, some threats are simply illusory - but your family judge won't find them nearly as cute as he might this pup! Which I suppose is a blog for another dog - oops, I mean "day".

Author: Michael C. Peterson, Esq.

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ATTORNEY FEE ETHICS - Some Basic Things to Watch For Regarding Family Case Fees and Billings

By Thurman Arnold III

Red Flags To Watch for in Retaining Your Family Law Attorney Here are some useful pointers about attorney fee arrangements that most divorce clients aren't aware of, and which many attorneys ignore.

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Attorneys are required to have a written fee agreement for all clients whose cases are reasonably expected to exceed $1,000 in costs for legal services. Don't trust any attorney who doesn't present you with a retainer that discusses how you will be billed.

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Attorneys must render a billing statement to a client within 10 days following a client's request, unless the attorney has submitted a bill within the past 31 days.

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Attorneys cannot hold your files hostage in payment of fees, nor can they charge you to copy a set for their own records. If you terminate the relationship, you are the "owner" of the files. Ten days is a reasonable time for them to get their files to you.

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Attorneys must segregate out unearned fees by utilizing a trust account into which these funds are deposited and maintained.

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Attorneys cannot spend your money until they've earned it, only at which time it becomes theirs. I personally know a half dozen attorneys who rarely use their trust accounts for client fee deposits, and who write their retainer fee agreements using sentences like "these fees are considered earned upon receipt." The attorney's purpose in doing this is to make the client believe that the attorney is entitled to access the retainer deposit immediately (which means even though the fees are as yet "unearned"), so that they can move the monies into their general, office accounts, at once. This is prohibited by the State Bar. In my opinion, the only reason why an attorney would attempt to create such a contract is because they are in cash-short positions and need to take possession of your funds to pay their own bills.

Such conduct is a red flag for future troubles for you with that attorney. First, an attorney who is spending unearned fees has financial problems that could affect or infect your case, and certainly they can't manage their own budgets. Second, if you decide to fire that attorney you may find that they don't have the ability to quickly repay the unearned fees because - they've already spent your money and have to wait to do this again to the next client - it is like checking-kiting, or a Ponzi scheme.

Third, attorneys who are that desperate for cash infusions tend to over bill their clients. Fourth, an attorney who does this not only exercises bad judgment, but is evidencing ethical lapses that may plague your case and your relationship with them in other regards.

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Alternatively, attorneys may attempt to disguise their fee arrangements as a "flatfee" retainer. California does not recognize such agreement as being legally enforceable. However, flat-fee agreements are nonetheless not uncommon. One problem with them is the "what have you done for me lately" syndrome, where an attorney feels he or she has no financial incentive to finish the case diligently, particularly where it turns out they under-estimated the flat fee and so find themselves with more work to do than expected.

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If attorneys don't carry malpractice insurance, they must disclose this fact to the client in the retainer fee agreement. Failure to make this disclosure makes the retainer agreement voidable at the option of the client, but the attorney is still entitled to collect a "reasonable fee" rather than the amount that is set forth in the retainer agreement.

The take-away is this: Competent legal professionals practice according to the rules.

Lawyers who ignore or circumvent the rules are likely to cost you more and give you less.

Study Examines Ethical Violations in Child Custody Evaluations Being away from your child is never easy. If you are not the custodial parent, you can sometimes feel you are being forced out of their life against your will.

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Due to the influence of the long-dead Tender Years Presumption, family law courts still tend to favor women over man when deciding child custody. Despite efforts being made to install shared parenting presumptions, unless proven otherwise, mothers still receive preferential treatment in the decisions, affecting fathers and their relationships with their parents.

These issues, along with many others that affect fathers and the amount of time that they get to spend with their children, are ethical concerns that many feel need to be addressed. This starts with the court-appointed child custody evaluators assigned to cases and the focus of many ethical issues.

Child custody evaluations A study from Alliant International University that was published in the Journal of Child Custody examined what can and does go wrong in child custody evaluations and the ethical problems that can arise.

The study brings up several ethical concerns that many who have dealt with child custody evaluations have. One of the most important concerns that many have is regarding competence. The study states that child custody evaluators need to conduct an initial screen or obtain the necessary information to assess whether or not they are competent to complete the evaluation.

Removal and concerns There are a variety of reasons why a child custody evaluator would remove themselves from a case. If the evaluator believes that the case would benefit from psychological testing that they are not equipped or qualified to do, they would need to refer that part of the evaluation to a competent professional and consult with the psychologist to understand the outcomes and how to incorporate the outcomes into the overall findings.

If a case requires a high level of cultural concerns, the evaluator would need to make sure that they have access to an interpreter, knowledge of that culture, and the ability to consult with experts of that culture.

If a case involves allegations of neglect, family violence, child abuse, sexual abuse, or partner abuse, attorneys are more likely to ask for a child custody evaluation. The evaluator would need to familiarize themselves with the laws of the state, in regards to the issue. The researchers stress that merely taking one or two workshops on the topic does not qualify someone to have expertise to evaluate these types of cases.

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If these and other similar concerns are not addressed, the evaluator would need to recuse themselves from the given case. Understanding every facet of the given case means that you can provide an educated judgment when called upon, and that requires competency.

Consent and assent Another concern that is important to monitor is regarding informed consent and assent. When a child custody evaluator makes initial contact, extensive information needs to be outlined to both sides regarding their qualifications and role, limits of confidentiality, policies, fees, and procedures.

Those meeting with a court-appointed child custody evaluator need to understand that anything they say, in response to their questions, could be put into a report that is shared with the judge and court.

While the evaluator has the ability to put what is said into the report, they are required to provide consent and assent forms for each person involved to sign. According to a study published in the Professional Psychology: Research and Practice journal, 75 percent of evaluators overlook providing consent and assent forms to sign and do not document the informed consent and assent process in their reports.

This limits both parties in the child custody situation from understanding the limits of confidentiality and how it varies from the standard limits of patienttherapist-confidentiality.

Interview and protection During the interview process, the evaluators are required to be nonjudgmental, neutral, and familiar with the case and documents. They should be focused on assessing several variables that could relate to current parenting attributes.

Additionally, children older than the age of five should be interviewed by the evaluator. Both the interview with the child and the interview with the parents have the potential to go poorly if the evaluator does not follow their guidelines.

These guidelines create the necessary parameters for the child custody evaluation process, aiding the court in making an informed decision. However, if it is not properly handled by a professional dedicated to seeing the child placed in the best situation possible, these guidelines can help mask any errors or improper actions taken during the evaluation process.

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Perjury in Our Family Courts: Family Lawyers BEWARE! Aurora Maria Maskall and Robert P. Dickerson Author’s

It is no surprise that emotions run high in the family law arena, and litigants’ perceptions of incidents vary wildly. What happens, however, when a witness swears to “tell the truth, the whole truth, and nothing but the truth” and then lies? Unfortunately, despite the fact that perjured testimony is offered everyday in our family courts, not much happens to the lying litigant. Not only does the opposing party have limited civil remedies available to “right the wrong,” but history and the current policy of the Clark County District Attorney’s Office tells us that the perjurer will not be criminally prosecuted. Moreover, our family court judges appear to be hesitant to exercise their contempt powers to put an end to the prevalence of perjury.

But, family lawyers beware! While it is highly unlikely that anything will happen to your lying client — unless, of course, our judges take a more aggressive role in counteracting the perjury — you face a far greater risk of being disciplined by the State Bar or being criminally prosecuted for suborning your client’s perjury.

Perjury — a serious evil without a civil remedy Except when authorized by statute, no civil action lies to recover damages caused by perjury or subornation of perjury. In Eikelberger v. Tolotti, 96 Nev. 525, 531, 611 P.2d 1086, 1090 (1980), the Nevada Supreme Court noted that “[i]t is uniformly held that the giving of false testimony is not civilly actionable.” Thus, a party injured by perjured testimony cannot bring a civil action against the opposing party or a witness who has offered perjured testimony, even if the perjury has affected the final judgment in the case.

Lying parties and their witnesses also are shielded from civil liability for the closely related torts of slander and libel for falsehoods committed during a judicial proceeding.

The Restatement (First) of Torts ' 588 (1938), states: “A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying, if it has some relation thereto.” This privilege is meant to encourage witnesses to speak freely, and without fear of civil liability. Our Nevada Supreme Court has held that “[i]t is important to the administration of justice that full disclosure by a witness be not hampered by a possible future damage suit. Consequently, perjury is an offense against the public only, and subject only to the criminal law.” Eikelberger v. Tolotti, 96 Nev. at 531.

“Contempt of court” — probably the only reasonable and viable alternative It generally is recognized and well settled that perjury may be punishable as a contempt of court. See generally, 12 Am.Jur., Contempt, Section 17. In the divorce case of Crute v. Crute, 86 Ga.App. 96, 97, 70 S.E.2d 727, 728 (1952), the appellate court upheld the trial court’s finding that the husband was in contempt of court for “testifying falsely” and 25 | P a g e

for “deliberately attempting to mislead the court and conceal from the court evidence in the case.” The appellate court correctly noted that “a witness who seeks to conceal the truth or to give evasive answers or to falsify or mislead the court is not acting respectfully to the court and his conduct is reprehensible,” thus subjecting the witness to the court’s inherent power to punish for contempt. Id. Similarly, our Nevada Supreme Court has recognized that “[t]he power of courts to punish for contempt and to maintain decency and dignity in their proceedings is inherent, and is as old as courts are old.” Lamb v. Lamb, 83 Nev. 425, 428, 433 P.2d 265 (1967).

The fact that perjury also constitutes a crime for which the offender may be indicted does not prevent the act from being punished as contempt by the family court judge.

Such multiple “consequences” stem from the fact that perjury has the double aspect of being an offense against both the state and the court before which the perjured testimony is offered. NRS 22.010 defines contempt as “[d]isobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at chambers.” As noted by the court in Russell v. Casebolt, 384 S.W.2d 548, 554 (Mo. 1964), a “witness may be cited for contempt and a hearing held, with appropriate punishment if justified; or, the matter may be referred to the prosecuting attorney of the county for appropriate criminal action, if that is found to be justified.”

Unfortunately, in Nevada, and more specifically in Clark County, there is little likelihood that any case referred to the District Attorney’s office for a criminal perjury prosecution will be approved and prosecuted. During the past 20 years, only about four criminal perjury cases have been initiated by the Clark County District Attorney’s Office. Of those four cases, one criminal defendant pleaded guilty and the three others proceeded to trial. Each of those three trials resulted in acquittal. As such, the current “general” policy of the Clark County District Attorney’s Office is to not prosecute criminal perjury cases due to the office’s belief that such cases have little, if any, jury appeal. The general consensus is that perjury is a difficult crime to prove and that juries, unfortunately, do not seem to consider perjury to be a serious offense. Moreover, in light of the significant financial resources required to prosecute a criminal case, our local prosecutors prefer to use their limited resources to prosecute cases in which the likelihood of success is greater than that which history has shown with respect to perjury prosecutions.

Since the inception of the family court in Clark County in 1993, at least two cases have been referred to the Clark County District Attorney’s Office by the trial judge for criminal perjury prosecution. The District Attorney’s office declined prosecution on both cases.

As such, it appears that the only viable alternative to counteract the perjury that occurs in our local family courts is through our family court judges themselves imposing appropriate punishment for contempt of court. The suggestion has been made that until our family court judges choose to “crack down” on the perjury that is prevalent in local divorce proceedings, such conduct will continue.

But, lawyers beware — you’re not so lucky when it comes to perjury prosecutions Notwithstanding the current policy of the Clark County District Attorney’s Office, there appear to be at least two reported cases in Nevada in which a criminal perjury prosecution has been initiated as a result of perjured testimony presented in a divorce case. Most noteworthy of these two cases is Ex Parte Sheldon, 44 Nev. 268, 193 P. 967 (1920), in which the attorney, and not the client, was prosecuted for subornation of 26 | P a g e

perjury. The Nevada Supreme Court held that the attorney could be prosecuted for subornation of perjury for his alleged aiding and abetting a client to commit perjury in a divorce matter.

The second reported case from our Nevada Supreme Court involving a perjury prosecution resulting from false testimony presented in a divorce case is Cosio v. State of Nevada, 106 Nev. 327, 793 P.2d 836 (1990). In Cosio, the defendant was convicted of perjury after he falsely testified before the divorce court. Interestingly, however, his conviction was reversed because the Nevada Supreme Court concluded that the trial court erred in not allowing the defendant to testify that he relied on the advice of his divorce attorney, and thus lacked the intent to commit the crime of perjury. This case should be instructive to all divorce practitioners — when your client commits perjury, he/she no doubt will cast the blame upon you, the divorce lawyer.

NRCP 60(b)(2) offers another possible alternative Fortunately, the party injured by such perjured testimony may have some redress for the harm caused by his or her spouse’s perjury in the divorce case. An injured party who was unable to successfully assert a contempt charge for the perjured testimony during the divorce proceeding, or who later discovers evidence of the perjury, may attack the judgment directly if the final judgment is the result of such perjured testimony.

Rule 60(b)(2) of the Nevada Rules of Civil Procedure provides an avenue for directly attacking the judgment. Rule 60(b) provides, in pertinent part: “(b) Mistakes; inadvertence; excusable neglect; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; . . . The motion shall be made within a reasonable time, and for reasons . . . (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.”

An excellent discussion as to how such an aggrieved party may rely upon NRCP 60(b)(2) to attack a judgment obtained by perjury is found in the following excerpt from the “Nevada Civil Practice Manual,” Fourth Edition, ' 2522, at page 499: “Up until 1981, Nevada case law recognized a distinction between extrinsic and intrinsic fraud. Extrinsic fraud was recognized as a basis for relief from a final judgment although intrinsic fraud was not. Numerous Nevada cases discussing the difference between extrinsic and intrinsic fraud no longer apply since the amendment in 1981 of Rule 60(b)(2) to allow relief on the basis of fraud ‘whether heretofore denominated intrinsic or extrinsic.’

The most important consequence of the amendment allowing relief in cases previously denominated intrinsic fraud is that a judgment can now be successfully attacked on the 27 | P a g e

ground that it had been obtained by perjury.” 11 Wright & Miller, Federal Practice & Procedure, Civil '2861, at 194 (1973) (emphasis added).

The savings clause contained in Rule 60(b) provides that a party may file an independent action for relief from a judgment, order or proceeding for “fraud upon the court.” In order to prevail on this ground, the burden is on the moving party to show by clear and convincing evidence that “an unconscionable plan or scheme... designed to improperly influence the court in its decision” had been perpetrated. Occhiuto v.

Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568 (1981), quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960).

Thus, if the perjury is discovered within six months of the family court’s entry of the divorce decree, the aggrieved party may file an appropriate motion with the family court seeking relief from the judgment pursuant to NRCP 60(b)(2). If the perjury is discovered after such six-month period, however, the aggrieved party must file an independent action seeking to be relieved of the judgment that was obtained as a result of his or her former spouse’s use of perjured testimony.

Ethical considerations: perjury — a trap for the unwary lawyer As an officer of the court, an attorney has a duty to ensure false evidence is not presented. The lawyer, however, also has a duty to his client to keep all attorney-client communications confidential. Usually, maintaining both these duties is not a problem.

However, when a client decides to commit perjury, the lawyer is faced with the dilemma of reconciling these two conflicting interests.

The Model Rules of Professional Conduct, which have been adopted by the Nevada Supreme Court “as the rules of professional conduct for lawyers who practice in Nevada,” provide that a lawyer “shall not reveal information relating to representation of a client unless the client consents after consultation.” See SCR 150(1) and 156(1).

However, “[a] lawyer may reveal such information to the extent that the lawyer reasonably believes necessary . . . to prevent or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services have been used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action.” SCR 156(3)(a).

The question often arises as to what an attorney ethically and legally must do if he knows his or her client intends to offer or has offered perjured testimony or falsified evidence to the court. In considering this issue, SCR 172 is instructive. SCR 172 provides: “Rule 172. Candor toward the tribunal.

1. A lawyer shall not knowingly: 2.

1. make a false statement of material fact or law to a tribunal; 2. fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

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3. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 4. offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

3. The duties stated in subsection 1 continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 156.

4. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

5. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.” (emphasis added) The mandatory language of SCR 172(1) presupposes that a lawyer will actually “know” when the client’s testimony is false. The irony of this rule is that the lawyer is an advocate, and issues such as the veracity of a client are best left to the trier of fact.

Nevertheless, when a lawyer believes a client intends to commit perjury, “the lawyer should seek to persuade the client that the evidence should not be offered, or, if it has been offered, that its false character should be revealed.” (Model Rules of Professional Conduct, Rule 3.3, Comment 5). The permissive language of SCR 172(3) further strengthens the premise that the lawyer is in control of what evidence is to be offered to the court, and imposes a standard of “reasonable” belief, granting further discretion to the lawyer.

Most importantly, however, is the mandate set forth in SCR 172(2) which provides that the attorney’s duties set forth in subsection 1 “apply even if compliance requires disclosure of information otherwise protected by Rule 156.” Thus, it is apparent from our Supreme Court Rules that the Nevada Supreme Court has concluded that an attorney’s ethical obligation to prevent perjured testimony from being presented to a court takes precedence over the attorney’s obligation to “not reveal information relating to representation of a client unless the client consents after consultation.” SCR 156(1).

Conclusion Prosecution of perjury cases in the domestic law arena remains infrequent. In Nevada, such perjury prosecutions are virtually non-existent, and there is little likelihood that any criminal perjury prosecution will occur in the future — unless, of course, the prosecution is against the divorce attorney for suborning perjury.

Even more disturbing, however, is the fact that our family court judges appear to be reluctant to find a person who has presented perjured testimony to be in contempt of court. Perhaps our family court is lenient in this regard because the court understands the emotional stress and anguish a party in a divorce or family law proceeding experiences during the course of the proceedings, thus causing the court to rationalize that “bending” the truth is to be expected. Perhaps, too, it is the province of our family court’s mantra — that it is “a court of equity and not punishment.” If this is, in fact, the philosophy and rationale of our family courts, we, as family law practitioners, must take 29 | P a g e

it upon ourselves to urge the court to exercise its inherent power of contempt. Unless such contempt power is exercised, there is little doubt that perjury will continue to be prevalent within our family court system.

Nevertheless, we as family law attorneys must recognize and understand that it is we who are at risk. The family law attorney should — and must — strive to maintain the integrity of our family court. Moreover, the family law attorney must recognize that, in all likelihood, he or she stands a far better chance of facing disciplinary action for a client’s perjury than the client stands to be punished for committing the perjury. If we as family law practitioners take a proactive stand against the proffering of perjured testimony and falsified evidence in our cases, we no doubt can and will bring integrity into the family court system.

Political Pressure: The Reason Why Ethic Laws are not enforced in Family Courts

By Page Agape As we all know Politics plays a large part of how our Countries Judicial System functions. I have always heard that the reason “Lady Justice” wears a blind fold is so she can’t see how twisted the law has become. I wonder at times what “Lady Justice” would say if she saw our Family Court Judicial System today.

We live in a Society where Family Court Judges and Lawyers have immunity for any wrong doings and are given complete Judiciary Discretion, without any oversight.

Where a person’s Civil Rights can be ignored in their entirety and children can be bartered with as if they were “Cattle”. Our Family Court System has mutated into a political stronghold, where Politicians vote for their friends who practice law to advance their own political careers.

Judges in most states for Family Court are voted on in an unethical manner by politicians who for the most part are not aware of the actual status quo in Family Courts.

They are voted on by secret ballots and then announced publically to give a performance for an audience who might be watching.

Political Climate, as we know is an everyday force in our Country. It influences our daily lives from what we eat for breakfast to how we spend our money. For most of our Society it does not even come up in conversations. And only comes up in mainstream media when a Politician has been found to have committed a crime. Those 30 | P a g e

of us who deal with Family Courts are all too well aware that our children and our very family’s cases are determined by the Political Climates that are behind closed doors.

Our Countries Constitution describes how our Judiciary Branch is supposed to work and be designed. “Innocent until proven Guilty”, “Burden of Proof”, and “Rights of the Accused” have all been ignored by a modern Gestapo Judiciary Branch called “Family Court”. Even the name Family Court is not real; it is an adopted term to make this kangaroo judicial system sound more inviting. The name for these Courts is actually “Domestic Relations” Courts. Not so inviting sounding, is it?

Today this Political pressure has taken over. How does this effect Ethics in Family Courts (“Domestic Relations Courts”)? Simple, it has allowed ethics to become a mere rumor in the dark corners of the Court Rooms. Perjury Laws are seldom enforced, evidence rules are ignored, and Civil Rights are nonexistent in our Domestic Relations Courts. All this due to political pressure from Legislators who may benefit from advancing their careers or financial gain. This is at the cost of our children.

Litigants are forced to seek justice from the very bodies who allow these violations at high costs. They are told to speak with Ethic Committees and Legislators who do a song and dance number for them. In Layman’s terms litigants are paying and voting for individuals who will perform a routine for them and then say there is nothing they can do.

Today there are a very small number of Legislators who have taken up the fight for a change in these Courts. Several of these Legislators are ridiculed or isolated for defending the need for Reform in our Family Courts. These Courageous Legislators need our backing to force the change of Political Pressure from keep the Status Quo that currently exists, and to enforce the ethics laws in these Court Rooms. To hold Judges and Attorney’s accountable for their actions.

David slew Goliath with a small stone. We can slay these Legislators with a small vote. We control the Political Pressure by voting for Legislators who truly seek reform and justice in our Domestic Relation Courts. It is not the Politicians who control us, but we control them.

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Attorney Tip of the Month

by Catherine Stuckart, Esq. Ethics are a minefield for attorneys. They have been given a lot of power with their licenses to practice law. Temptations to misuse that power come up on an almost daily basis.

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There are many lawyers out there who do their best to observe ethical behavior. There are some who don’t.

The guidelines for attorneys are the Codes of Ethics. Each state has its own version.

Many states borrow heavily from the model Code of the American Bar Association.

These Codes typically cover everything from client confidentiality to when to report another lawyer for unethical behavior. The Codes constitute works in progress, and do change from time to time.

A good lawyer stays on top of changes in ethical rules. As law is the skeleton of society, so, too, are the Codes of Ethics the skeletons of law practice.

If you would like to look up the Code for your state, it is usually pretty easy to find online. For example, in New York State, “nys attorney code of ethics” should get you there.

As a father with custody issues, you are literally placing your future and your children’s future in the hands of someone you probably don’t know too well. Reading the Code of Ethics for your state is a safeguard. You will know your rights when it comes to the mandatory rules your lawyer must follow.

Your attorney has power. You can, too, because your knowledge of the rules for lawyers gives you power.

As always, good hunting after justice!

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