attorney competence in domestic relations & domestic violence matters mike brigner, j.d....

Attorney Competence inDomestic Relations &

Domestic Violence Matters

Mike Brigner, J.D. mbrigner@sinclair.edu

Author, Ohio Domestic Violence Benchbook for Judges

Former Ohio Domestic Relations Court Judge

University of Cincinnati College of Law

November 16, 2005

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Session Objectives Upon completing this session you will be able to:

1. Recognize how attorney competence in domestic relations & domestic violence matters can improve client service, client safety, and community safety

2. Understand critical issues about victims, abusers, and children domestic violence cases

3. Identify the legal system’s best tools to protect battered women and their children

4. Identify a lawyer’s best tools to protect battered women and their children

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Professional Competence

Lawyering in all types of cases

Lawyering in family law cases

Lawyering in domestic violence cases

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Abraham Lincoln

“Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser --- in fees, expenses and wastes of time. As a peacemaker the lawyer has the superior opportunity of being a good man. There will be business enough.”

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Chief Justice Warren Burger

“The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts. . .

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Chief Justice Warren Burger

“To fulfill our traditional obligations means that we should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about.”

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Elihu Root

• American Statesman, Nobel Peace Prize winner:

“Half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.”

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“Professionalism and the Z-Factor”

Canon 7: “A lawyer should represent a client zealously within

the bounds of the law.” BUT: The 39 Ethical Considerations and 11

Disciplinary Rules (plus subparts) proscribe OVER-zealous as well as UNDER-zealous conduct

• Judge Thomas Patrick Curran, For the Record, Ohio Judicial Conference (May/June 1999)

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Professional Competence

Lawyering in all types of cases

Lawyering in family law cases

Lawyering in domestic violence cases

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“Perhaps my greatest joy is in reducing the trauma to children and seeing them thrive even during a divorce.”

“A BetterWay to Divorce”

Shift away from the adversarial context for resolving family law cases

“I saw that when people have more choices, most of them would choose a divorce that builds a new future instead of one that rehashes the past.”

Forrest S. Bayard, ABA Journal (Dec 1998)

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“Family Law, A View from the Bench”

“Blessed are the attorneys who:”

Preparation Tell the judge what has to be decided, the client’s position & what evidence supports the position

Pragmatism Realistically prepare clients, picks the real disputes, stipulates the rest

Professionalism Recognize that courtesy, cooperation and integrity are the tools of the trade

Louise Scrivener, Trial (June 1993)

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“Tossing Mud in Court”

IN CHILD CUSTODY CASES: Ducks fly with ducks: One parent trashing the

other discredits BOTH in the eyes of the judge Acknowledge own shortcomings: Thus

demonstrating the capacity to grow and learn Relate the other parent’s virtues: A sign of

enormous parenting strength. Tells judge this parent will permit children to love & respect the other parent

• Hon. Anne Kass, FairShare (Jan 1977)

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Professional Issues Specific to Family Law

Avoid Communication with Adverse Party Refuse Custody Fight for Coercion Advise Client to Seek Professional Help Report Threats of Crimes:

Domestic Violence & Child Abuse

Report Child Abuse Oppose Delay, Frivolous Conduct Volunteer Prompt Complete Discovery

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Bounds of Advocacy Professional Goals for

Family Lawyers Created by American Academy

of Matrimonial Lawyers (AAML) Aspirational Standards Not just zealous advocacy, but

“constructive advocacy” http://www.aaml.org/

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Bounds of Advocacy SECTIONS

1. Competence and Advice

2. Communication and Decision Making Responsibility

3. Conflict of Interest

4. Fees

5. Client Conduct 6. Children 7. Professional

Cooperation and the Administration of Justice

8. Attorney as Mediator

9. Attorney as Arbitrator

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Bounds of Advocacy:Remarkable Concepts

A competent matrimonial lawyer should:

§1.3 - Refuse vindictive conduct; lower emotional level

§2.4 - Not abdicate responsibility for propriety of objectives sought or means employed

§2.5 - Protect client from harmful effects of own impaired decisions

§4.6 & 4.7 - Represent paying clients §5.1 - Not condone dissipation of assets

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Bounds of Advocacy:Remarkable Concepts

A competent matrimonial lawyer should:

§6.1 “Consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children”

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“The World Would Be a Different Place if Children Paid Attorneys.”

--Nancy Grigsby,Executive Director,Georgia Coalition Against Domestic Violence

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Bounds of Advocacy:Remarkable Concepts

A competent matrimonial lawyer should:

§6.2 Not permit client to contest custody or visitation issues for financial leverage or vindictiveness

§6.3 Not communicate with child §6.4 Not call a child to court

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Bounds of Advocacy:Remarkable Concepts

A competent matrimonial lawyer should:

§6.5 Disclose information necessary to prevent substantial physical or sexual abuse of a child

§7.1 - Lower the emotional level of matrimonial disputes

§§7.2 through 7.14 - Behave like a true professional and create peace on earth

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Professional Competence

Lawyering in all types of cases

Lawyering in family law cases

Lawyering in domestic violence cases

Shall We Dig36,000 More

Graves?

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Why 36,000? In the past 25 years, men

killed an average of 1,440 women a year in DV cases

“It is insanity to do the same thing over and over and expect different results” –Albert Einstein

If we don’t change what we are doing, we will dig 36,000 new graves for battered women in the next generation

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Is the justice system failing

battered women?

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What Have We All Accomplished?

In the quarter century since the U.S. started working on DV, the answer is NOT MUCH

The DOJ did a study on DV fatalities 1976-98

You are going to be surprised by what they found

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National Success Rate in Reducing DV Deaths

-18%-62%

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Fatality Numbers

1,6001,400

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A Boston Surprise In one recent year, Boston

homicide detectives opened 150 case files

That would be an all-time record high for murders in that city

BUT: It turned out the city did not actually have a record number of homicides that year

WHY?

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A Boston Surprise In 82 of those 150 cases the victim

did not die as originally expected Boston’s medical care system

saved 55% of potential homicide victims

Those 82 cases became aggravated assault files, instead of homicide files

Many victims are alive today who would have been a death statistic 25 years ago

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Numbers

18%55%

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What Has the Justice System Accomplished? Maybe, the Answer is ‘Not Much’

If the medical community is arguably saving 55% of battered women who would have died a quarter century ago

And women’s death statistics have fallen by only 18%

Two logical, incredible conclusions: 1. Serious domestic violence incidents are

actually increasing! 2. The justice system has had NO impact upon

lethal domestic violence, and possibly has contributed to its increase!

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1600

2927

16001317

1600

720

0

500

1000

1500

2000

2500

3000

3500

1976 1998

Lethal Violence Incidents

Actual Change

If Trauma Care Saved 55%

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Is the justice system irrelevant to battered

women?

Is the justice system dangerous to battered

women?

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What Could the Justice System Do?

Protocols for processing domestic violence cases

Risk assessment at every stage of system Domestic Violence Courts Law office screening procedures Legal services for all battered women Judicial competence Attorney competence

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Why is attorney competence in DV matters so important?

DV affects most other family matters

Lawyers may be the most important link between DV victims and safety

Lawyers may be the weakest link

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Homicide Suicide Violent assault Juvenile

delinquency Child abuse Child

abduction Child runaways

Child suicide Substance abuse Mental illness Homelessness Workplace

violence Jail overcrowding Rape Kidnapping

Experts tell us domestic violence negatively impacts many of society’s worst problems

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And DV Kills Our Friends

State DV Coalition of Washington Did a study of fatality review files

for the last five years. They found:

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friendspolice

neighborsrelativeschildren

good samaritansco-workers

19%

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The lives we save when we work against domestic violence are not just battered women and their abusers, but children, neighbors, and police officers

• Source: Sue Parrott, Domestic Violence Can Hurt Victims’ Supporters, Too, The Bellingham Herald (Bellingham, WA) Opinion Section, Pg. 9A (Apr. 7, 2004)

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Are Lawyers The Most Important Link?

A recent study found:Legal services for battered

women are the ONLY community services that

actually reduce the incidence of domestic violence

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Legal Services Reduce Violence

“Because legal services help women with practical matters such as protective orders, custody and child support, they appear to actually present women with real, long-term alternatives to their relationships.”

Farmer & Tiefenthaler, 2002 study based upon US Department of Justice report, due to be published in Contemporary Economic Policy

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Are Lawyers “The Weakest Link?”

Lawyers will make themselves scholars in medicine, tax, engineering, whatever it takes to represent some clients

But even “family lawyers” generally remain ignorant of domestic violence

Lawyers rarely screen clients for domestic violence

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Are Lawyers “The Weakest Link?”

Lawyers rarely know what to do when they discover domestic violence

Lawyers will not force reluctant trial judges and appellate judges to deal with domestic violence issues

The criminal defense bar takes no professional responsibility for discouraging criminal careers or encouraging treatment

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A New England Tale

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“Battered Women and Family Lawyers: The Need for an Identification Protocol”

Lawyers who represent female clients in any kind of practice encounter battered women 10% are being abused

now 50% are abused at

some time during their lives

Psychiatrist: “How do I know a female patient has been abused? I assume she has been abused. Then, at least 4 times out of ten, I’ll be right.”

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Fatality Numbers

2,0001,400

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“Battered Women and Family Lawyers: The Need for an Identification Protocol”

EVERY FAMILY LAWYER NEEDS AN OFFICE PROTOCOL FOR IDENTIFYING CLIENTS WHO ARE NOW - OR HAVE BEEN - ABUSED

COMPETENCY: To be effective advisors and advocates, lawyers must have command of the facts

SAFETY: Client’s safety and welfare may turn on whether the lawyer asks the right questions

SILENCE IS THE VICTIM’S ENEMY: A lawyer’s silence confirms the batterer’s control

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“Battered Women and Family Lawyers: The Need for an Identification Protocol”

MEDICAL PROFESSIONALS DO IT: And have learned that it works to change lives of battered women and their children

HOW TO DEVELOP AN IDENTIFICATION PROTOCOL FOR YOUR OFFICE? Start with AMA guidelines Add your own questions

• Kathleen Waits, 58 Albany Law Review 1027 (1995)

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Law Office Screening:

Domestic Violence Screening For Identifying Domestic Violence Victims

Questions Family Lawyers Should Ask Every Woman Client

--Screen every woman client

--Convince yourself she has not been battered

--Nonjudgmental attitude

--Expect reluctance to disclose

--Look for child abuse

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“Some Ethical Aspects of Representing an Abused or Abusive Spouse”

Obvious anger & explosiveness: Require counseling or withdraw

Denials of past abuse not credible: Attorney’s actual knowledge of falsehood =

fraud Competency requires advice that story not

believable + rigorous test cross-examination Withdrawal if client wants legal services that

are criminal, fraudulent, repugnant, imprudent

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“Some Ethical Aspects of Representing an Abused or Abusive Spouse”

Spurious custody claim for vindictiveness or advantage: AAML Bounds of Advocacy forbids such conduct Rules forbid means used to embarrass, delay,

burden a third person, & dilatory tactics At least counsel the client of adverse effect of

custody fight on children, possible coercion claim which could void any agreement

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“Some Ethical Aspects of Representing an Abused or Abusive Spouse”

Veiled threat of violence against spouse: State codes vary as to permitting disclosure

of intention to commit crime, & information necessary to prevent the crime

Many states require reporting of child abuse• Disclosure = risk of complaint against

lawyer• Non-disclosure = risk of harm to client

• Lewis Becker, FairShare (April 1999)

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“Reap What You Sow” Lawyer ethics

could benefit from an application of Proverbs Justice Purity Mercy Honesty Civility

• Gordon J. Beggs, ABA Journal (March 1996)

A lawyer’s purpose should be serving the cause of justice: “acquiring a disciplined and prudent life, doing what is right and just and fair.” Proverbs 1:3

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Lawyer’s Checklist for Helping Victims Emergency help Advocate Safety plan Report all crimes Protection orders Enforce POs Support orders Enforce support

orders

Look for child abuse Report child abuse Get weapons removed Avoid mediation Insist on serious

batterer treatment Security at office Security at

courthouse

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Lawyers Duties in Domestic Violence Cases

Encourage clients to assume responsibility Encourage clients to obtain needed

counseling Report child abuse Protect children from involvement in

litigation Avoid increasing conflict between parents

Sample Community Protocols

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Lawyers Duties in Domestic Violence Cases

Refuse to threaten criminal charges for divorce advantage

Discourage criminal claims brought for divorce advantage

Discourage contesting custody issues for leverage on other issues

Advise clients re specific: (1) conduct required & (2) conduct prohibited by protection orders

Sample Community Protocols

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Lawyers Duties in Domestic Violence Cases

Report threats of crimes Never communicate, advise, negotiate with

an unrepresented party It is a crime to negotiate, in a civil case,

dismissal of criminal charges It is a crime to intimidate, influence, or

hinder a witness, including complainant, by force or threat

Sample Community Protocols

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Creating Lawyer Competence in Domestic Violence Cases

What Every Individual Who Touches Victims’ Lives Should Know

What Every Individual Who Touches Abusers’ Lives Should Know

What Every Lawyer Who Touches Children’s Lives Should Know

Theresa Mitchell

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Time LineNov 1996 Tried to leaveSept 1997 ThreatJan 1998 Rings2/5/98 911 Call, Criminal TPO2/98 to 7/98 Numerous TPO violations7/6/98 Civil Protection Order

7/12/98 ????????

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Time LineNov 1996 Tried to leave

Sept 1997 Threat

Jan 1998 Rings

2/5/98 911 Call, Criminal TPO

2/98 to 7/98 Numerous TPO violations

7/6/98 Civil Protection Order

7/12/98 Oscar Stabs Theresa to Death

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“For Theresa”

19-Minute video produced by 3 Antioch College students

Includes Theresa’s 2/5/98 call to 911

No one gets seriously injured on this date

STRONG LANGUAGE ADVISORY

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Offense AGG BURGLARY,

AGG MURDER

Committing County MONTG

Date of Admission 1998 12 30

Institution LEBANON CORRECTIONAL INSTITUTION

Status INCARCERATED

Ohio Department of Rehabilitation and Correction Offender Data

OSCAR DELANZO MITCHELL JR

#370891

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Ohio Department of Rehabilitation and Correction Offender Data

OSCAR DELANZO MITCHELL JR

#370891

Sentence Information

Definite Sentence

10 Years  

Indefinite Sentence

Minimum: 30 Years  

Maximum: Life

Next Parole Hearing Date

2028 10 05   (yyyy mm dd)

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“City of Shelter: A Coordinated Community Response to Domestic Violence”

An award-winning internationally-distributed video training package for professionals working with domestic violence

www.cityofshelter.org

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Courthouse Myth: Victims “Abuse” The Legal System When Initiate Domestic Violence Cases Then Fail to Complete Them

Reality Check

A. Don’t blame victim for what she thinks is safest course

B. Don’t count success as failure

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Protection Orders: Non-Returning Victims 45% = Abuser left area or stopped abuse 25% = Victim now had safety plan & felt safe

without further court intervention 17% = Reconciled

- National Center for State Courts Study

SO: 87% of VICTIMS see SUCCESS 100% of COURTS see FAILURE

Attorney Competence inDomestic Relations &

Domestic Violence Matters

Concluded Thank you

©2005 Mike Brigner, J.D.http://people.sinclair.edu/mikebrigner/

Permission is granted to use this presentation for nonprofit purposes, with attribution to the author.