24 Bills Affecting Family Law Get Through Both Houses, 4 Killed, More to Come

Here's how family law bills in Richmond stand after Feb. 20:

 Freshly killed in second house, after passing one house, since last post:

Highlights of what has passed both houses:

Signed by Governor, Enacted Into Law

Divorce

Support

Children

 Elder Law/Probate

Women's Liberation

Passed Both Houses, awaiting governor action OR conference committee -- Full List 

Marriage

 

 

 Children

Domestic Violence

 Elder Law/Probate

 Procedure

Passed One House, then Committee-Approved in Second House

Killed in first house (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):

Marriage

Divorce

Support

Children

Domestic Violence

Elder Law/Probate

Procedure


Berkeley thug: Violence OK if they don't obey. Sounds like every wife-beater ever.

(And husband-beater.) I'm a divorce lawyer, so I should know. Masked Berkeley rioter Neil Lawrence makes the all-too-familiar argument that violence is OK when people don't shut up and obey even after you ask nicely:

"But when you consider everything that activists already tried — when mass call-ins, faculty and student objections, letter-writing campaigns, numerous op-eds (including mine), union grievances and peaceful demonstrations don’t work, when the nonviolent tactics have been exhausted — what is left? Of all the objections and cancellation requests presented to the administration, local government and local police, the only one that was listened to was the sound of shattering glass."

 in the Daily Californian, "Black bloc did what campus should have"

 


46 bills affecting family law have passed one house & "crossed over" to the other

Here's how family law bills in Richmond stand after Feb. 16:

Fresh kills since last post

Highlights of what has passed both houses:

Passed Both Houses, awaiting governor action OR conference committee 

Marriage

Women's Liberation

Divorce

Support

 Children

Domestic Violence

 Elder Law/Probate

 Procedure

Passed One House, then Committee-Approved in Second House

 Passed One House, then Subcommittee-Approved in Second House 

 Freshly killed in second house, after passing one house, since last post:

Killed in first house (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):

Marriage

Divorce

Support

Children

Domestic Violence

Elder Law/Probate

Procedure


Richmond family law action on expat divorce, parenting time, voiding quitclaims, medical subpoenas, digital assets, spendthrifts

Bills that made progress since last post:

New killin' since last post:

Here's how bills stand after House and Senate Committees met on Jan. 25, in this order: (1) Approved by committee (2) Approved by subcommittee (3) Awaiting any committee or subcommittee action (4) Killed.

Approved by House or Senate:

Approved by Committee:

Approved by Subcommittee:

No action yet by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):


Va. legislature: More bills affecting families get through committee, more killed, more introduced

Here's how bills stand after House and Senate Committees met on Jan. 18, in this order: (1) Approved by committee (2) Approved by subcommittee (3) Awaiting any committee or subcommittee action (4) Killed.

Approved by Committee:

Approved by Subcommittee:

No action yet by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed (by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely):


Va. legislature's committees weed out 9 family law & probate bills, approve 16, more to come

Here's how things stand after House and Senate Committees met on Jan. 18, in this order:

  1. Approved by committee.
  2. Approved by subcommittee.
  3. Not yet acted on by any committee or subcommittee. 
  4. Killed. by any of several methods: Defeated, recommended not reporting, recommended tabling, carried over to next year, passed by indefinitely.

Approved and Reported by Committee:

Approved and Reported by Subcommittee:

Not yet acted on by any committee or subcommittee:

Marriage

Divorce

Support

Children 

Domestic Violence

Elder Law/Probate

 Procedure

Women's Lib

Killed:


If presidential perjurers don't get charged, will anyone be afraid to lie in court?

In the Clinton impeachment we decided that perjury isn't an impeachable offense, at least when it's basically about a president's private life and not the essential parts of his job, treason, murder, rape, subverting democratic elections, corruption ... .

But what about plain old criminal prosecutions? if presidents and candidates don't get prosecuted for obvious perjury either, then that tells everyone else to disregard that lying when testifying it's illegal and dangerous. And it gives lawyers and judges another reason not to believe what anyone says. Testifying to a court -- whether on the witness stand, in a deposition, or a written, notarized affidavit -- is under oath and "under penalty of perjury."

Newsweek has published clear proof that Donald Trump either: (a) lied in a deposition in a case against an ex-employee, about a failed attempt to bribe Florida Gov. Jeb Bush, or (b) lied about it to Bush's face in the second debate. Or both. (Even if bribe is the wrong word, that doesn't affect the specific question that the lie and contradiction were about: Whether Trump was trying to get Bush to reverse his opposition to casino gambling when he hired the Defendant to get Florida to allow him to build a casino and hosted a fundraising event for Bush.)

The lawsuit was in Broward County, Florida. Perjury in a deposition is a third-degree felony under Florida law, and can mean up to five years in prison. I haven't yet found out whether Trump was in Florida or another state when he gave his deposition testimony, and whether that would keep Florida from prosecuting him. But the head prosecutor in Broward County, and/or the county where Trump testified, needs to decide whether to pursue a perjury investigation and prosecution, preferably before the election. 

DONALD TRUMP EITHER LIED TO THE REPUBLICANS OR BROKE THE LAW (EXCLUSIVE)


Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job

Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:

  1. It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
  2. It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property --  is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'

Larry writes:

"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education.  ...  Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year.  Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...

"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation.  Even [for them], law schools were not great in teaching statutory interpretation.  I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982.  To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...

"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."

Like most lawyers, I have good and bad recollections of my own legal education.  I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure.  The former taught us “the law” from uniform statues that were already in the process of major revisions.  The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.

-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016


Make lawyers report pro bono hours, contributions? Va. Bar seeks comments, decides Oct. 7.

The Virginia State Bar doesn't require lawyers to do pro bono work, but its governing Council votes Oct. 7 on changing the membership rules to mandate annual reporting of pro bono hours, subject to the same enforcement system -- fines for reporting late, eventual automatic suspension for not reporting -- that we impose for failing to pay dues or certify that we have malpractice insurance. 

The bar has asked for comments by August 31, 2016. They should be sent to publiccomment@vsb.org. If you can't send them by the deadline, send them anyway. Most Council members who spoke about it at the last meeting, and everyone who spoke up at our last Arlington bar meeting, were against it -- but experience shows that that doesn't translate into actual votes when the leadership cares deeply about a new expansion of the Bar's mission.

The existing rules say lawyers "should" spend 2% of their time on pro bono work, and they make clear that that does not mean they must; it's "aspirational". Like about 40 other states, Virginia does not require tracking or reporting of pro bono work.

 The proposed rules have extensive definitions of what work, for what clients or causes, is and is not pro bono – with the same level of detail as they would have if they were part of a mandatory pro bono rule. They even require the license renewal form to have a check-box for “I am exempt from providing pro bono legal services” as a judge, government lawyer, or officially non-practicing bar member.

Since the pro bono reporting, insurance reporting, etc. are part of annual membership renewal, which is not sent in until it's all finished, the small penalties for doing the various parts of it late add up, basically doubling your dues (which are generally $250).  The VSB budget shows that lawyers currently pay $470,000 in late fees and penalties and $9, 943,625 in current dues. Rough math translates this to 1,880 lawyers paying the penalties, out of the bar's 49,801 members (of whom almost all pay dues; 31,464 are fully active members). It's actually more than 1,880 lawyers, since some who have lower dues, for various reasons, must be among those paying late and thus contributing to the $470,000.  With the new rule, the lawyers paying the new penalty would be the lawyers who are already paying late penalties, surely the solo or barely-practicing lawyers with the least resources. The rule change looks like it would add another $50, as existing Para. 19 on penalties requires “a delinquency fee of $50, for each Rule violated.” It will slightly increase late renewals by adding one more step in the form, and one more reason for delay, mostly by people who’ll think they might have reconstruct their exact number of hours.

The entire proposal is below, and I think it's the only place with each functional part of the proposal including the existing rules it meshes with. But you may also want to look at:

Below are the four parts of the proposal:

  • the new proposed reporting requirement,
  • the existing wording on penalties and suspension which would now apply to failures to report pro bono
  • proposed additions to definition of pro bono
  • existing aspirational rule and its existing definition of pro bono

NEW BAR MEMBERSHIP RULE:

Proposed Changes to Paragraph 18 of Part 6, Section IV of the Rules of the Supreme Court of Virginia:
After the existing language about malpractice insurance coverage, the rest of the rule would consist of this, all new, language:
 
... b) Pro Bono Publico Legal Service Reporting Requirement.

In order to make available information about lawyers' pro bono publico legal service, each active member of the Virginia State Bar shall provide the following annual certification:

  1. Pro Bono Hours. I have personally provided approximately ____ hours of pro bono publico legal services during the previous 12 months beginning July 1 of the preceding year and ending June 30 of the current year.
  1. Financial Contribution. I have personally contributed $_______ to support programs that provide the direct delivery of legal services to meet the needs described in Rule 6.1 (a) of the Virginia Rules of Professional Conduct, as an alternative method for fulfilling my responsibility to render pro bono legal services.
  1. Exempt Persons. I am exempt from providing pro bono legal services because (i) I am currently serving as a member of the judiciary; or (ii) I am a government lawyer prohibited by statute, rule, regulation or agency policy from providing legal service outside of my employment; or (iii) I maintain retired, disabled or associate status with the Virginia State Bar. ____ (Check here.)

Pro bono legal services as described in Rule 6.1(a) of the Virginia Rules of Professional Conduct performed in other states by a member of the Virginia State Bar are reportable in Virginia as pro bono hours.

(c) Penalties for Failure to Comply. Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein.

"PARAGRAPH 19", REFERENCED ABOVE AS THE PENALTY FOR NON-COMPLIANCE, WOULD NOT BE CHANGED. IT READS:

19. Procedure for the Administrative Suspension of a Member—

Whenever it appears that a member of the Virginia State Bar has failed to comply with any of the Rules of Court relating to such person's membership in the bar, the Secretary-Treasurer shall mail a notice to the member advising of the member's noncompliance and demanding (1) compliance within sixty (60) days of the date of such notice and (2) payment of a delinquency fee of $50, for each Rule violated, provided, however, that the delinquency fee for an attorney who does not comply with the timely completion requirements of Paragraphs 13.2 and 17 (C) of these rules shall be $100, and the delinquency fee for an attorney who does not comply with the certification requirements of Paragraphs 13.2 and 17 (D) of these rules shall be $100, and shall increase by $100 on February 1 for noncompliance with the certification requirements. The notice shall be mailed to the member at his last address on file at the Virginia State Bar.

In the event the member fails to comply with the directive of the Secretary-Treasurer within the time allowed, the Secretary-Treasurer will then mail a notice to the member by certified mail to advise (1) that the attorney's membership in the bar has been suspended and (2) that the attorney may no longer practice law in the Commonwealth of Virginia or in any way hold himself or herself out as a member of the Virginia State Bar. Thereafter the attorney's membership in the Virginia State Bar may be reinstated only upon showing to the Secretary-Treasurer (1) that the attorney has complied with all the Court's rules relating to his or her membership in the bar and (2) upon payment of a reinstatement fee of $150 for each Rule violated, provided, however, that the reinstatement fee for an attorney who was suspended for noncompliance with Paragraphs 13.2 and 17 of these rules shall be $250, and shall increase by $50 for each subsequent such suspension, not to exceed a maximum of $500.

Whenever the Secretary-Treasurer notifies a member that his or her membership in the bar has been administratively suspended, the Secretary-Treasurer shall also (1) advise the Chief Judges of the circuit and district in which the attorney has his or her office, as well as the clerks of those courts and the Clerk of the Supreme Court, of such suspension and (2) publish notice of the suspension in the next issue of the Virginia Lawyer Register.

An administrative suspension shall not relieve the delinquent member of his or her annual responsibility to attend continuing legal education programs or to pay his or her dues to the Virginia State Bar.

ADDITIONS TO DEFINITION OF PRO BONO:

ADD TO COMMENTARY OF RULE 6.1 IN RULES OF PROFESSIONAL CONDUCT: 

[6]Pro bono publico legal services include but are not limited to the following:
a)Legal representation of disadvantaged people;
b)The provision of legal advice to an individual or non-profit organization that primarily addresses the human service needs of the disadvantaged;
c)Administrative rule making for the disadvantaged;
d)The provision of free training or mentoring to those who represent the disadvantaged;
e)Serving on bar association committees assisting the disadvantaged;
f)Serving on legal committees or boards that address the provision of pro bono legal services to the disadvantaged;
g)Serving on the boards of legal services or similar pro bono organizations;
h) Leading or coordinating Law Day activities;
i) Serving as an instructor for a continuing legal education program on issues of substantive law or
advocacy for pro bono and legal services lawyers;
j)Serving as a mediator or arbitrator in a matter involving a litigant who is unable to pay for such services;
k) Engaging in legislative advocacy to improve the law, the legal system or the profession in its delivery of legal services for the indigent.
Pro bono public legal services also do not include services rendered to improve the law, legal system or the legal profession unless they are primarily intended to assist disadvantaged persons, including not only persons whose incomes are below the federal poverty guidelines but also those person s frequently referred to as the “working poor.”

EXISTING VOLUNTARY PRO BONO RULE AND DEFINITIONS:

(Note: The overall definitions section for the Model Rules says that "should" means an aspiration, not a requirement.)

6.1  Voluntary Pro Bono Publico Service

  • (a) A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.
  • (b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
  • (c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.

Comment

[1] Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.

[2] Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of “poverty law.” Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as “poverty law,” provided the free or nominal fee nature of any such legal work is established in advance.

[3] Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.

[4] Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of “public interest law.”

[5] Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of “volunteer activities designed to increase the availability of pro bono legal services.”

[6] Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify.

Collective Fulfillment of Pro Bono Publico Service

[7] Although every lawyer has an individual responsibility to provide pro bono publico services, some legal matters require the application of considerably greater effort and resources than a lawyer, acting alone, could reasonably provide on a pro bono basis. In fulfilling their obligation under this Rule, a group of two or more lawyers may pool their resources to ensure that individuals in need of such assistance, who would otherwise be unable to afford to compensate counsel, receive needed legal services. The designation of one or more lawyers to work on pro bono publico matters may be attributed to other lawyers within the firm or group who support the representation.

[8] ABA Model Rule Comment not adopted.

Financial Support in Lieu of Direct Pro Bono Publico Services

[9] The provision of free or nominally priced legal services to those unable to pay continues to be the obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need Not only do these needs far exceed the capacity of the collective bar, the nature of legal practice for many lawyers places constraints on their ability to render pro bono publico legal services. For example, some lawyers (e.g., some government lawyers) are prohibited by the terms of their employment from engaging in any outside practice. Other lawyers lack the experience and access to resources necessary to provide competent legal assistance.

[10] To provide legal services beyond those available through the pro bono efforts of individual lawyers, the legal profession and government have established additional programs to provide such services. Lawyers who are unable to fulfill their pro bono publico obligation through direct, legal representation should support programs that provide legal services for the purposes described in (a) through financial contributions in proportion to their professional income.


How is family law like pornography? Google Ads is going to censor it, that's how.

Raleigh, NC lawyer Lee Rosen has been THE cutting-edge lawyer for every new innovation in law practice and firm management for the past 20 years, at least in my field, family law. When a friend of mine got a job with him in the late '90s, she wasn't given her own office or cubicle -- no one was. Instead, the firm had different areas for doing different kinds of work, like a hospital. It was exactly what she needed, as someone who, like many of us, had trouble focusing and staying  on task without some social and environmental reinforcement. Already, back then, The Rosen Firm had a form on its web site where you could check boxes for all the different issues in your family law case and get a quote for the firm's flat fee, a billing practice that eliminates most of the worry, friction, heartache and regret from the attorney-client relationship. Later I got a notice that the firm was closing its offices and replacing them with home/mobile offices and small conference centers. If it had been anyone else, it would have been a self-parodying last hurrah of a quickly-disappearing business, but since it was from Lee, I knew it was the wave of the future -- indeed, a long-overdue adaptation to the present. Lee -- still the owner of a relatively large law firm for our field -- posted a picture of his office -- his Macbook Air on a small folding bookcase in his kitchen. Then I heard he was getting rid of all his books via a service that scans them for a flat fee of a dollar apiece. Then most of the stuff in his house. Then his house,  following the same principle he already applied to office equipment, software, data storage, and most clerical services: why own when you can rent, why lease when you can month-to month, why that when you can on-demand? Today he's more prominent as a firm management consultant, trainer and speaker. He has always kept a hawk's eye on customer service, and on what everything we do looks and feels like to potential clients, and what they expect from other businesses they deal with.

Anyhow, today's issue of Divorce Discourse, Lee's longtime blog/newsletter, is titled "How Family Law Is Like Pornography". Its news was shocking and frustrating, at least to divorce lawyers: A message from Google's web advertising service said that "interest-based" banner/sidebar advertising would no longer include several sensitive subjects, including divorce. A sobering reminder of where family law stands.

And yet, when you think about it, it makes sense. These are ads that tell you, and anyone looking at your computer, what you have been searching for and reading. And of course it's not really censorship, that's just a shorthand, in a twitter-length headline, for a decision by a private company about who to do business with and what unsolicited images and words to stick into people's computer screens.