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.)


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.


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.


Congress to Rein in Juvenile Courts, End "Status" Detention

A bipartisan coalition, including Virginia's Rep. Robert Scott and Senate Judiciary Committee Chairman Chuck Grassley of Iowa, is working with the American Bar Association to update the 1974 Juvenile Justice and Delinquency Act to incorporate the latest scientific findings on juvenile psychology and development, crime prevention and community safety. A key feature is the end of jailing youth for "status offenses" -- things that would not be crimes if committed by adults -- and jailing them even temporarily with adult criminals.

The development of holistic, therapeutic juvenile courts over the past 100 years has done much good, but has also given them great power and discretion and little accountability. Children who merely misbehave can be sucked into the system, bring their whole families with them, get permanently defined as troubled youth, and be supervised so constantly that they can never get out of the legal system until they age out, having missed the opportunity to grow up. My father and law partner Richard Edelin Crouch sounded the alarm about this in the William & Mary Law Review 50 years ago, inspired by the Juvenile Court saga of his younger brother, the late Howard R. Crouch, which started when he idly walked by a restaurant, stuck his head in the door and yelled, "This place stinks!". The police were called, the social workers who followed in their wake declared the Crouches a "broken family" because their father had died, and it all helped inspire Richard's lifelong work for civil liberties and the rights of children, parents and families.

Reauthorization bill seeks to update a key juvenile justice law after more than 10 years

BY RHONDA MCMILLION @ abajournal.com, SEP 1, 2015 

See also:

Therapeutic juvenile courts ignored constitutional rights, human nature, says space-age law student


Creationist with backhoe debates more constructively than most lawyers, helps science

 In Collaborative Divorce and other kinds of Collaborative Law cases, the clients and lawyers share all the evidence. Even while disagreeing fundamentally about what it means. Even if they fear it will undermine their positions. That's one of the two most fundamental elements of Collaborative Law, and sometimes the most difficult (not hard to understand, but hard to bring yourself to do).

Collaboration borrows some concepts from science and medicine, in which teams of professionals in various fields pool their information and expertise and collaborate to solve problems. A great example of such collaboration in the midst of conflict, in which both sides seek the truth from very different points of view, was reported in the Calgary Sun last week:

"One of the most important fossil finds in decades, helping to solve an evolutionary puzzle dating back 60 million years" ... "comes at the end of a backhoe operated by a man known as the greatest promoter of creationism in Alberta. His name is Edgar Nernberg, and when he’s not sitting on the board of directors of Big Valley’s Creationist Museum or actively lobbying for the inclusion of creationism in Alberta’s school curriculum, Nernberg operates a backhoe in Calgary."

Nernberg found five complete fossilized "bony-tongue fish", about 60 million years old, while digging a basement. “'No, it hasn’t changed my mind. We all have the same evidence, and it’s just a matter of how you interpret it,' says Nernberg. ... 'There’s no dates stamped on these things,' he says, sharing a good-humoured chuckle about a discovery that has him working alongside the ideological enemy. ... Thursday, the University of Calgary will officially unveil the five priceless fish, which might have been chips had Nernberg not noticed them.vIt’s bound to be a very interesting meeting of minds, as Nernberg stands with officials from the university to show off the find."

Alberta creationist Edgar Nernberg digs up what scientists are calling the most important fossil finds in decades 

BY , CALGARY SUN   

1297705409474_ORIGINAL


Study: 50-50 custody far less stressful for kids than sole custody. Here's why, and how to make it work.

"This Divorce Arrangement Stresses Kids Out Most", by Mandy Oaklander in TIME Magazine, summarizes a new study: Based on  national data on almost 150,000 12- and 15-year-olds' psychosomatic health problems, including sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sad or dizzy; "Kids in nuclear families reported the fewest psychosomatic problems, but the more interesting finding was that students who lived with both of their separated parents reported significantly fewer problems than kids who lived with only one parent."

Study author Malin Bergström, PhD, said: “We think that having everyday contact with both parents seems to be more important, in terms of stress, than living in two different homes.”  “It may be difficult to keep up on engaged parenting if you only see your child every second weekend.” Having two parents also tends to double the number of resources a kid is exposed to, including social circles, family and material goods like money. “Only having access to half of that may make children more vulnerable or stressed than having it from both parents, even though they don’t live together.” 

Based on my 20 years of work in divorce and child custody, another major reason also seems obvious to me. All the inconveniences of "shuttling" between two homes, as real and bothersome as they are for many kids, are trivial compared to the disadvantages, pain and insecurity that comes from losing one parent from a fully parental role in the child's life. And when one parent take a lesser role, "he that hath little shall lose what little he hath," as the separated parents' competing employment needs, relocations and new relationships increasingly conflict with, and take priority over, co-parenting.

 That is why I support 50-50 joint custody when it's possible. I don't think it's necessarily the best, most enjoyable, day-to-day arrangement for most children: in our current social arrangements, in the U.S., most mothers "naturally" do more of the parenting and are more attuned to the children's needs. But in my own experience and in the statistics, so many divorces lead to a parent completely disappearing from the child's life, and many more see one parent marginalized, vilified, infantilized, and/or disempowered.  And children perceive that loss of a parent who can actually act as a parent, and of course it causes major stress for them. I think the 50-50 form is probably the most stable because, in it, neither parent assumes they have the unilateral power to make the changes which in turn make it practically necessary to reduce the other parent's role -- such as moving to a different school district or a faraway state.

But I am repelled by anyone who gushes that 50-50 joint custody, or any other custody arrangement, is just wonderful for kids. Any custody arrangement is a poor substitute for an intact family. 

The study is Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children? (28 Apr 2015) by Malin BergströmEmma FranssonBitte ModinMarie BerlinPer A Gustafsson, and Anders HjernJ Epidemiol Community Health doi:10.1136/jech-2014-205058

But it still takes work. "9 Rules to Make Joint Child Custody Work" by Kate Bayless on parents.com gives really good, tough-minded advice that would have prevented a lot of my clients' problems. Most of it is about how to act when working out a custody agreement, not how to implement it. Excerpts of each of the 9 Rules:

  1. "Badmouthing the ex will be internalized by the child because they are made up of both you and your ex."
  2. The divorce was about you, but custody is about the kids ... not about getting exactly what you want, or even demanding equity at any cost. ... "what is best for the child is not always what feels good for you as a parent."
  3. Be realistic about your own schedule and commitments.
  4. Choose a custody arrangement that accommodates your children's ages, activities, and needs.
  5. A bad spouse doesn't equal a bad parent. Almost always,  "it is unquestionably best for children to have frequent and continuous contact with both parents."
  6. Find a method of communication that works for you and your ex.
  7. Pick your battles. "School choices, vacations, and parenting time are worth the fight. Things like food choices ... are not worth the fight." Save your energy and good will with your ex and the courts for those things that do matter.
  8. Let your children feel heard. But also make the best decision for their well being.
  9. From time to time, review the arrangement and adjust as needed.

Va. leads in criminal charges for typical preteen behavior; lawmaker demands reform

"John kicked a bottle in the gutter!!" my kindergarten teacher exploded as soon as my mom picked up the phone. "And?" my mom asked. She realized right then that she needed to get me out of that school and away from people like that teacher.

I'm lucky I'm not a kid these days. Northern Virginia legislator and state senate candidate Scott A. Surovell (D-Mount Vernon), who occupies George Washington's old House seat, writes: 

"Virginia is #1 in child referrals to law enforcement. Virginia's rate for African American students is 10x higher than Maryland, 16x higher than DC, 2x higher than NC. Why? 'In southeastern Virginia, for instance, a 12-year-old girl was charged earlier this year with four misdemeanors — including obstruction of justice for “clenching her fist” at a school cop who intervened in a school fight.' We need to fix this."

For statistics on this in Virginia and all other states; the story of an autistic 11-year-old convicted of disorderly conduct for kicking a trash can, and felony "assault on a police officer" for struggling when a school policeman grabbed him; and a Georgia judge who has worked to stop this trend in his state and testified to Congress about "the School-to-Prison Pipeline and the negative effects of zero tolerance policies",  see:

Virginia tops nation in sending students to cops, courts: Where does your state rank?


Collaborative Law is modern, minimally-invasive surgery for divorce. But it doesn't force a deal or punish disagreement.

"Today, surgeons deliver 'minimally-invasive' procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? Why do so many people still rely on stone knives and bear skins when getting a divorce?" Collaborative Law is the equivalent of modern, "minimally-invasive" surgery for divorce, Plano, Texas lawyer  writes in "The Minimally-Invasive Divorce?" on LinkedIn.com. It lets couples  privately "work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner." It's "a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues." Negotiations focus not on positions, accusations, and legal doctrines, but on people's real goals, interests and resources. Which the court system is not interested in, as it is designed for finding and punishing wrongdoing. 

 Curtis's article is a great overview of collaborative divorce, what it can do for you, and what it demands, with a fresh perspective. One bone to pick: I don't agree with the pejorative terms "renege" and "damages clause" for the situation in which the parties fail to reach a complete agreement and have to get new lawyers for litigation. That situation is rare, but it has to be a legitimate possibility in order for agreements to be freely chosen and sustainable. Collaboration is not a promise to reach agreement.  No one is bullied into agreeing just for the sake of agreement; doing that would actually punish the more compromising person and vice-versa. (Agreements that clients feel "forced" and hurried to enter are actually common in Litigation, not in Collaboration.) Failure to reach agreement is not wrongdoing, and can still be done with mutual respect. And in my one experience with a collaborative case that "failed", it was. In that case, trying collaboration first was very good for both parties and for their litigation.

So if the Collaborative Commitment -- the lawyers' irrevocable disqualification from contested litigation between these two clients -- is not a "punishment", then what is it? It is more like a speed bump or a guardrail to keep a divorce from escalating into litigation. Now, in or out of collaboration, there's always substantial value to reaching a deal and great cost to going into litigation. The Collaborative Commitment adds slightly to that value and that cost, but honestly not much: people in heavy family-law litigation often change lawyers once or twice anyway. Lawyers are replaceable. What it really does is to give couples a way to signal to each other, in a shared vocabulary, that they are serious about negotiating a "good divorce". And they do that not with empty words about trust and good-faith, but with actions that give tangible reasons to trust each other's intentions and to behave collaboratively: contracting away the possibility of litigating with these particular lawyers; and contracting to share all relevant evidence.  When negotiating with their collaborative team, they don't have to worry that the other spouse is really just maneuvering and preparing for litigation.

And that "Collaborative Commitment" is just the beginning. The lawyers and other professionals who choose this kind of practice mostly tend to be better negotiators; they often were recruited by other collaborators because they get along well with other lawyers, but not at the expense of advocating for their clients' interests; they have the several days' collaborative training and mediation training that's required for membership in their collaborative practice groups, and they continually seek additional training to do the job better. But perhaps even more important, I've discovered over my 12 years in collaboration that collaborative practitioners continually seek feedback on what works and what still doesn't work for clients, and they keep improving, innovating and simplifying to improve clients' experience of divorce. 


If you work with families or have one, learn about Discernment Counseling March 18!

I'm so proud and lucky to be training to work as a divorce lawyer and mediator with couples in discernment counseling. It fills a generations-old need so fundamental that people have turned to all kinds of crummy substitutes over the years with demoralizing results -- marriage counseling that turns into divorce counseling and leaves one spouse feeling that that's what it was all along; "trial separations" that do the same and escalate the divorce conflict, mediations where the spouses and mediator have five different ideas of what they're meeting for. "DC" gives a safe space where people can weigh both options without getting into actions, threats and misunderstanding that drive people apart and quickly make divorce inevitable and nasty. 

March 18th Webinar -  Discernment Counseling for Couples on the Brink with Dr. Bill Doherty!

Learn about an innovation in working with couples on the brink of divorce where one spouse is leaning out of the marriage and the other wants to save it. This is a common presentation to marriage therapists, clergy and divorce lawyers, but there have been few protocols for helping these couples. Discernment counseling is a structured way to help "mixed agenda" couples decide whether to work on preserving their marriage or move toward divorce, based on a deeper understanding of what has happened to their relationship and each person's contributions. Bill Doherty has developed discernment counseling protocols for couples therapists (five sessions) and for clergy (one session and referral), plus an "ambivalence" protocol for family-friendly divorce lawyers and mediators.

 

Objectives

  1. Identify the special challenges that mixed agenda couples face when they see helping professionals.
  2. Describe how couples therapist use discernment counseling to help these couples decide on the next step for their relationship.
  3. Describe how clergy use their own version of discernment counseling.
  4. Outline an ambivalence protocol for divorce lawyers and mediators who see mixed agenda couples.