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


Pro bono work sharply decreased in most states that mandated pro bono reporting

The ABA reports that mandatory pro bono reporting policies, in states that had recently enacted them, were followed by sharp decreases in four states, and a slight increase in one state, from 2009 to 2013. In the states that had already had the policies for several years, one state saw a slight increase and the other showed no change.  Here's a summary. Much more info on policies and statistics is at the ABA's page, Pro Bono Reporting: State Reporting Policies.

State Year imposed 2009 Participation 2013 Participation
 Florida  1993  51%  51%
 Hawaii  2007  50%  41%
 Illinois  2007  32%  34%
 Maryland  2002  54%  57%
 Mississippi  2007  53%  40% *
 Nevada  2007  43%  33%
 New Mexico  2008  67%  57%

 * Mississippi stopped  reporting percentages in 2012, but I computed the number by looking at the numbers on hours worked and hours per lawyer, and comparing with those numbers from the last year a percentage was reported.

(2009's total hours divided by hours per lawyer =8745=44%, so total lawyers = 19875
2012-13 total hours divided by hours per lawyer =8031, which is 40.4% of 19875.)


A vote for mandatory reporting of pro bono is a vote for mandatory pro bono, sooner, likelier, inevitable-er

Recently the Virginia State Bar's governing Council learned of a proposal for mandatory pro bono reporting, and I posted the text and practical details of the proposal on this blog. (UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to publiccomment@vsb.org. If you can't make that deadline send them anyway.)

Yesterday I took a break from the proposal's technical intricacies to write about what state pro bono rules and other pro bono efforts mean in the big picture, in "Throw the poor a bono? The real problem is that pro bono is no solution."

Now, back to the proposal at hand, but this time, the human side of it, not the technicalities.

The Virginia proponents argue that the change would not in any way lead to mandatory pro bono, and that there is no reason to be concerned about a “slippery slope”. They point out that the handful of states that have mandatory reporting have not later moved to mandatory pro bono.

They even point out that mandatory reporting may prevent a future imposition of mandatory pro bono, by (1) encouraging more voluntary pro bono work, and (2) putting together and publicizing the amount of pro bono work that is being done.

Well, that's like saying you can be 400 pounds and be as healthy as a horse. And you can choose not to get married and be more stable, committed, lifelong partners and parents than people who do. Possible? Certainly. Likely? Never. Unless you are a horse.

Most of us know how these things usually go, in Virginia and in the rest of the developed world. We know all about how to boil a frog, and when'n'how to gradually lubricate a slippery slope. For example, we all know respected, mainstream people who routinely will say that there’s no reason anyone in modern society should have any kind of gun, or how we’re the only democracy that doesn’t provide universal free health care, free two-month vacations, etc. But then when a policy that would move in that direction goes to the legislature, all that talk goes quiet, and all you hear is about how limited this particular measure is, and how dare anyone suggest that it would ever lead to more radical changes later on, of course we would never do that. In Virginia, we punctuate each step in this process by chuckling, “Virginia’s so conservative … they’d never try to slippery that slope here ….”. Then just a few years after it passes, all you hear is that that reform hasn’t made enough of a difference, and is somehow failing to achieve its real goal of making us perfectly healthy and gun-free, so we need to go back and strengthen it.  

Would this happen with Mandatory Pro Bono? If you only looked at what’s being enacted right now, it doesn’t look extremely likely, but then again they have it in at least one huge state now compared to no states six years ago. The only bars requiring it are New York State, where it was imposed by the Chief Judge over the objections of the state bar association, and several federal district courts. California’s state bar trustees approved a similar rule in 2014, subject to approval by the Supreme Court and the legislature. New York and California did this through the vehicle of bar admissions, as part of on-the-job training. The federal courts, from what I’ve seen, seem to do it through panels of lawyers who already try civil cases there frequently.

But the CONCEPT of mandatory pro bono – the widespread if not majority belief that it’s one of the main possible solutions – has been well-known for decades and is not going away. For a lot of people, mandating or prohibiting something is the first and easiest thing to think of when they are first told about a problem. Just a few weeks ago, Justice Sotomayor called for mandatory pro bono, and it might not be a coincidence that she did so in a speech to the American Law Institute, which is always looking for new projects, in response to a question from the Institute’s Director. 

Even if the idea is only for the State Bar to measure and report how much pro bono work is being done, that begs -- i.e., it decides without actually asking and considering -- the question of whether it's the job of the mandatory, regulatory state bar to monitor, measure, and publicize the amount of pro bono work being done. If that's part of its job, what reason would there be for that, other than its also being responsible for making sure pro bono work gets done and everyone's legal needs and wants are met?

Also, bear in mind what happened in New York: The Virginia State Bar’s elected leaders may not want mandatory pro bono, but all too often they are not the deciders – the Virginia Supreme Court is. If and when the Supreme Court is thinking about mandating pro bono, these proposed reporting and enforcement rules will make it easy for them.

Finally, we’re at a point where our nation’s politics, Virginia’s politics, and the beliefs of the generations and cohorts that enter and lead our professions, have moved left for several years now, but the law and the makeup of the bench have lagged behind that. For decades we’ve had a U.S. Supreme Court that took individual rights seriously even when they seemed to be in conflict with other progressive goals. So liberal and professional groups have recognized that there are certain things that constitutional law might not let you do, and that they should focus their efforts elsewhere for the time being. But now we’re hanging fire between the judicial regime that died with Justice Scalia, and the one that will take shape when he is replaced.

So let’s not be comforted by saying mandatory will never happen, or only happens in outlying states like New York and California. I believe that if you oppose mandatory pro bono, or if you oppose lightly deciding to add to the burdens, deadlines and penalties that we place on our members, who vary greatly in earnings, time commitments, clerical support, expertise, and opportunity to do pro bono, then you should not support mandatory reporting of voluntary work.


Throw the poor a bono? The real problem is that pro bono is no solution.

(UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to publiccomment@vsb.org. If you can't make that deadline send them anyway.)

As the proposal for mandatory pro bono reporting slouches toward the Virginia State Bar Council to be approved this Fall, others can complain about the burden on lawyers, especially sole practitioners and various unconventional lawyers. And they’ve done so at our latest Arlington bar meeting, the last state bar meeting, on my facebook, and on my last blog post’s comments section. But I think the biggest problem with any pro bono requirement is that it will always do far too little to have any effect on the problems it aims at. And this failure will eternally spark calls for redoubling our efforts, and mandates, and penalties, instead of other changes that might actually help.

Pro bono cannot even begin to mend the gap – the chasm – between what people can afford and what the legal system requires them to pay – whether they are coming to court seeking justice, or being dragged into court. We have huge structural problems that can never be fixed by more of the same work being done, whether forced or volunteer.

In some areas of the law, innovations have fixed this gap. For example, allowing contingent fees and class-action suits, to make lawsuits affordable for most people and get them lawyers who are as good and well-equipped as the big business lawyers for the other side.

But family law, my field, is an example of the kinds of law where that’s much harder. A couple generations ago we decided to allow unilateral divorce, so anyone might end up in a divorce or child custody case, but we didn’t do anything to make it affordable, and in fact many trends have combined to make it less affordable. Americans have the right to litigate everything until the cows come home, legal ethics and malpractice standards rightly demand legal advice and hyperactivity that pushes people farther apart and foments litigation, and custody cases can always go back into litigation about what’s best for a child, so costs mount up to numbers that even upper middle class people cannot afford. If hardly anyone can afford it as an individual, and it happens to perhaps almost half the population, then we can’t make it any more affordable by making taxpayers pay for it or by asking lawyers to do the work for free. And that’s without even looking at non-paying clients’ lack of rational incentives to weigh the cost of legal work when deciding how much of it, and what particular kind, to demand.

Lately there are a host of private-sector and nonprofit and governmental solutions popping up to address this need. Some have been around for a few years and become institutions. Some are court-led reforms that sacrifice traditional formalities that we used to think protected the public, so that there are other choices between self-representation and full-service, unlimited-cost, law firm representation. For example, the Virginia State Bar is launching a hotline for volunteer lawyers  to answer legal questions from low-income people.

Many of the proposed solutions are scary. Some need to be embraced anyway. Some are vital but need to be molded to be compatible with the legal system and its obscure dangers and obstacles. Some really are irresponsible, leave consumers worse off than they would be without them, and should be heavily regulated or squelched. Some are downright gross.

But these kinds of changes are the only sustainable and scalable solutions to make legal help affordable for most people. Even more effective would be changes to the adjudication system so that less lawyering is needed in the courts, and even more fundamentally, so that fewer cases end up in litigation. Small claims courts are a great example of this that have been around for generations now. Even tradition-bound Virginia Circuit Courts are changing their terminology and procedures so that non-lawyers can do more to help themselves. Mediation and collaborative law, both for family law cases and other civil cases, including probate and elder law disputes, are helping but a lot more can be done. But even the substantive laws themselves too often are designed by lawyers who think that ending up in court, with a judge handcrafting a custom-made decision, is a routine part of life and is an easy all-purpose answer to questions about laws being vague, ambiguous, or leaving too much to a judge's discretion instead of being predictable. An outstanding example of changing this paradigm, and keeping millions of people out of court, is child support guidelines. But we should look at family law and other civil laws for more opportunities to streamline the interactions between law and everyday life.

I like pro bono, and I do pro bono. To help individual people and to make my own work more varied, balanced, connected, and socially just. But I do not do it to change society or make the legal system work to serve everyone’s needs. That’s impossible and would only make me crazy and permanently disappointed. When I want to work wholesale on fixing the misery the legal system imposes on families, I prefer to "go upstream" and work on collaborative dispute resolution and, further upstream, to learn how to help people improve and save their marriages; and further upstream, to avoid unhealthy relationships and establish healthy ones before marriage and babies are on the horizon.

 So I'm sure I can comply with any pro bono standard the bar throws at me, but my pro bono work for clients is only pro the bono of myself, my interns, and a few clients whom I hope I can help, and their families. What I do pro the bono of the publico doesn't look like lawyering at all.


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.


Va. Bar: Loosen automatic duplication of other jurisdictions' disbarments, suspensions etc.?

Should we loosen rules that automatically suspend lawyers who were disciplined in another jurisdiction, and that ensure they get the same punishment that the other jurisdiction imposed ? The Virginia State Bar thinks so, but it wants comments by August 6 on a thorough proposal about this. 

Generally, the existing rules are good: they protect the public so that disbarred  lawyers can't just hop from one state to another. They make the discipline process more efficient for the bar and the defendants, so the same offenses aren't litigated twice.

But a problem was revealed recently in a case where a lawyer was banned from a particular Federal tribunal, for reasons that never would have called for complete suspension or disbarment from the state bar. And although the tribunal was technically another "jurisdiction" under the ethics rules, the judge's banishment of the lawyer from that one tribunal was never intended to be as severe as a disbarment. He was trying to ban the guy from his tribunal, not put him out of business entirely.

The new proposal addresses all the potential problems with that case and several others the drafters anticipate. Please look at it and tell the Bar's Executive Director what you think, via publiccomment@vsb.org. All public comments are shared with the entire governing Council of the bar several days in advance of any vote on a proposal.

Go to: Proposed Paragraph 13-24 regarding disbarment, revocation, or suspension in another jurisdiction (Comments due August 6, 2016. Pending consideration by Council.)


Why's the military so toxic for marriage AND divorce? The best-expressed and newest insights.

Carl Forsling repeats several often-heard, and quite true, observations about how the military is bad for marriage, plus some insights that are original but intuitively very convincing once he points them out. Which explain why it's also so hard on divorce.

"Divorce — it’s no stranger to those in the military. At the same time, the military is a very tradition-minded institution, so divorce is often treated like the family secret no one talks about. ... some commanders have very black and white attitudes in regards to marriage. ... surprisingly prevalent in an institution where divorce is commonplace. The military attracts strong personalities, and they tend to either be very religious with very traditional views of morality or very not."

Very true. I'm more familiar with the strong personalities who are very non-traditional about marriage -- well, they may be traditional and sentimental about it in some ways, but in ways that get them married five times and divorced four times, if they're lucky. And hopefully with a divorce between each marriage. Or divorced early and married never again. Sometimes getting taken advantage of royally, as they see it, in their first divorce, and then becoming determined that next time, and every next time, they will be the ones in the relationship with the power, the knowledge, the leverage and the manipulation. Whether that's in a divorce or in devoutly unwed cohabitation. 

On the other hand, there are many who are honorable and generous to a fault. Or who want what's best for their kids even if it isn't best for themselves. 

Many, whether honorable or manipulative, are gung-ho and unashamed of whatever course they're pursuing, in divorce, adultery or whatever. If they're war veterans, they usually have a sense of entitlement, understandably. The military rightly tells them that they and their jobs are important, and that the civilian world should accommodate them. They may see divorce and other family breakups as just part of the petty civilian-life BS that the military requires them to take care of, but that could never be compared in importance to their mission or their careers.

And yet again, there's another side of this: Timid careerists who are always looking over their shoulders. Junior officers who are expert at creating paper trails to shift blame and responsibility to others, and who think that will work for them in family court.

I've only recently begun to see the very religious and neo-traditional officers and servicemembers the author talks about, but I know they have been out there for quite a while now.

He has a refreshing point of view on a practice that is widespread, widely advised, encouraged by regulations, but which also can make civilian courts get really mad at spouses and treat them like stalkers who are trying to destroy the careers they have benefited from:

"On top of that, some hurt soon-to-be former spouses have in the past called up commanding officers and sergeants major, and in today’s “pro-family” military, those leaders usually picked up the phone to an earful of often highly exaggerated drama. Sometimes those senior leaders rightfully take it with a grain of salt. Other times, service members get chewed out or worse based on the spouse’s account of events that may or may not have happened as described. ... Many units now have “human factors” or “commander’s safety” councils, wherein members’ personal lives are aired out in the name of “safety.” Guess who gets talked about in those? In today’s environment, where the phrase “perception is reality” is too often said without irony, too many service members end up with their reputations tarred." 

(That's not just "in the past", by the way.)

As for two well-known factors that weaken military families, he describes them freshly and eloquently:

"Service members often marry young. Part of that is the rapid maturation the military forces on people, part of it is undoubtedly bad decisions based on housing allowance rates, and part of it is ironically likely the military’s old-fashioned views on marriage. Whatever the reason, marrying young is not a good indicator of matrimonial success."

"Add in the deployments, long hours, etc., and things don’t bode well for military couples. There are some marriages that thrive despite the challenges — as those in the military are fond of saying, 'What doesn’t kill you makes you stronger.' For others, though, what doesn’t kill them severely damages their relationships."

Another factor Forsling doesn't mention: The continuing reluctance to seek mental health treatment for reputation and career reasons. That has been a huge problem in many of my cases.

He concludes: 

The military has made a big push to be more family friendly in recent years. ... As it tries to be better for traditional families, it needs to improve the culture for non-traditional ones, as well."

That's so true. Our society needs to understand that being pro-family means strengthening intact nuclear families, but also honoring all family bonds and strengthening what's left of "broken" families too. 

The Military’s Problem With Marriage

 

Bills would let unregulated gov't non-lawyers file serious court cases against parents, without a lawyer's signature

A bill now in Virginia's  Senate and House of Delegates would let Virginia welfare agencies file court cases against parents without a lawyer signing off on the case -- fundamentally changing the traditional role of law practice as a regulated, accountable profession bound by ethics rules. These are very serious cases that can take apart families, destroy parents' finances and livelihoods, and lead to their being jailed for contempt.

Currently, legal ethics rules, court rules, and the Sanctions statute require all lawsuits to be signed by a lawyer (except for people who represent themselves), and require the lawyer to believe, after due investigation, that the suit is well-founded in the facts and the law and not filed simply to harass, impoverish or delay the other party. They also require lawyers to be truthful to courts, opponents and others involved.  The bill, and the statutes it amends, do not do anything to make these new case-filers subject to those rules. And even if it did, that would not be the same as requiring a lawyer to put her credibility and hard-earned license on the line every time she signs a court filing. 

Welfare agencies do great work but like anyone, they do get things wrong, out of negligence or simply normal human imperfection, not malevolence or corruption. Requiring a lawyer to sign off on these case filings is an important protection for the public, reducing the chances of a completely groundless prosecution, ensuring due process of law, and providing accountability when things go wrong. An example, where a judge felt strongly that sanctions and lawyers' fees should be awarded to the victim of a groundless civil child-abuse suit, is FAIRFAX COUNTY DEPT. OF HUMAN DEV. V. DONALD, 251 Va. 227 (Va. 1996). 

The drafters seem to think that providing standard, foolproof check-box forms (which already exist) removes the need for lawyers. But having non-lawyers draft the forms is never a problem and is not the issue. The issue is protecting citizens and courts, by holding even the do-goodingest government agencies to the same basic rules that govern any other person, corporation or agency that takes someone else to court.

The bill adds to Code § 16.1-260 on Juvenile Court filings:

"designated nonattorney employees of a local department of social services may complete, sign, and file with the clerk, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, and motions for a rule to show cause;"

[Note: "Motions to amend or review" includes modification of any existing child custody, visitation or placement order. "Rule to show cause" means contempt of court, including up to a year in jail and setting amounts of support arrears to be paid in order to get out of jail.]

It adds to § 54.1-3900, on who can practice law:

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from appearing before an intake officer to initiate a case in accordance with subsection A of § 16.1-260 on behalf of the local department of social services.

Nothing herein shall prohibit designated nonattorney employees of a local department of social services from completing, signing, and filing with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause.

And it adds to Code § 63.2-332, "The local director shall designate nonattorney employees who are authorized to (i) initiate a case on behalf of the local department by appearing before an intake officer or (ii) complete, sign, and file with the clerk of the juvenile and domestic relations district court, on forms approved by the Supreme Court of Virginia, petitions for foster care review, petitions for permanency planning hearings, petitions to establish paternity, motions to establish or modify support, motions to amend or review an order, or motions for a rule to show cause."

The proposal is in two bills which appear identical: House Bill 589 and SB 417SB 417 passed the State Senate 20 to 17, with three Senators not voting. I'm proud to say my William & Mary law classmates Jennifer Wexton and Ryan McDougle, Fairfax Senators Chap Petersen and Scott Surovell, my old Senator Tommy Norment, and Donald McEachin all voted Nay. It is now in the House Courts of Justice - Civil Law Subcommittee. It is on the Committee's agenda for this coming Monday, Feb. 22. The subcommittee's members are Delegates Habeeb (Chairman), Kilgore, Loupassi, Minchew, Leftwich, Campbell, Miyares, Toscano, McClellan,  and Krizek. The full Courts committee's members are Delegates Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Habeeb, Minchew, Morris, Leftwich, Adams,Campbell, Collins, Miyares, Watts, Toscano, Herring, McClellan, Hope, Mason, and Krizek.

HBl 589 passed the House almost unanimously and is now in the Senate Courts of Justice Committee, which also meets this coming Monday.

Almost as bad, I see that Code § 54.1-3900 already has existing language allowing this practice for child-support filings. Even though Social Services already has its own internal administrative tribunals that can make and review child support orders without lawyers. It reads:

Nothing herein shall prohibit designated nonattorney employees of the Department of Social Services from completing, signing and filing petitions and motions relating to the establishment, modification, or enforcement of support on forms approved by the Supreme Court of Virginia in Department cases in the juvenile and domestic relations district courts. 

If I understand correctly, this was added a few years ago to protect the validity of existing support orders after it was discovered that some non-lawyer social services employees were already doing this. But they could have done that without allowing the practice to continue and be authorized by the state. The existing language is bad enough but the new version would cover many more kinds of cases. Ideally, an amendment-as substitute should delete that existing language and drop all the new language currently in SB417

If you want to see what protections this bill takes away from parents, Here is Code § 8.01-271.1:

§ 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions.

Except as otherwise provided in §§ 16.1-260 and 63.2-1901, every pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, and the attorney's address shall be stated on the first pleading filed by that attorney in the action. A party who is not represented by an attorney, including a person confined in a state or local correctional facility proceeding pro se, shall sign his pleading, motion, or other paper and state his address.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, written motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.

An oral motion made by an attorney or party in any court of the Commonwealth constitutes a representation by him that (i) to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (ii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading, motion, or other paper is signed or made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed the paper or made the motion, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper or making of the motion, including a reasonable attorney's fee.