February 2006
Volume 2, Number 2
Table of Contents

The Benefits and Pitfalls of Representing Nontraditional Clients in Family Law, Estate and Civil Matters

By Thomas H. Prol

In the last decade there has been a great deal of attention given in the media to same-sex couples and their families. For new and established lawyers trying to develop business and make new law, representing gay and lesbian couples can be an exciting area on a new legal frontier.

According to the 2000 census, 601,209 same-sex couples were reported to live in the United States and Puerto Rico. 1 That number is likely higher as it is an extrapolation of a sample of people who were comfortable informing a stranger knocking on their door that they are gay or lesbian.

For some family law, estate and civil attorneys, these couples and the relatively new practice area that has grown up around their legal needs represents a great opportunity to serve an underserved group of new clients. Working in a growing legal market with forecasts for increasing consumer demand has many benefits. However, the pragmatic practitioner must realize that, as with any area of law that is undergoing significant growth and change, representing same-sex couples and their families is not without its pitfalls.

In years past, same-sex couples may have sought out a gay or lesbian attorney to handle their family, estate and civil matters. They did so under the belief that these attorneys could better understand their personal situation, uphold their confidences and would avoid judging the relationship outside of what was legally necessary. However, as society has become more accepting and open to gays and lesbians, these couples have stepped into the general legal marketplace and now seek out attorneys who are best suited to their specific legal need, regardless of the attorney’s sexual orientation.

If you plan to take your practice into this field, you should take a primer on the history of gay and lesbian civil rights litigation in the US and elsewhere, beyond what you may have learned in law school. There are a number of federal cases, laws and issues of which you should be aware, as well as researching your local jurisdiction.

  • Bowers v. Hardwick 478 U.S. 186 (1986) rev’d. by Lawrence v. Texas 539 US 558 (2003) (holding sodomy is not a Constitutional right)
  • Romer v. Evans 517 U.S. 620 (1996) ( Colorado’s constitutional Amendment 2, barring local protections for gays and lesbians, violates Equal Protection)
  • Dale v. Boy Scouts 530 U.S. 640 (2000) (holding that New Jersey’s discrimination protection in “public accommodation” conflicts with the Boy Scouts’ First Amendment expressive association rights)
  • Lawrence v. Texas 539 U.S. 558 (2003) (reversing Bowers and holding that a Texas law criminalizing sodomy violates the Due Process Clause).

Be aware that there are other cases that provide insight into federal Constitutional jurisprudence on same-sex relationship issues such as Loving v. Virginia 388 US 1 (1967) and Griswold v. Connecticut 381 US 479 (1965) , as well as laws and cases in your jurisdiction dealing with contract-based claims under meretricious relationships 2 and the statutory constructs that define same-sex relationships in some states and cities.

Importantly, the 1996 Defense (or Denial, depending on your perspective) of Marriage Act (DOMA) that was passed by Congress and signed by President Clinton, defines marriages under federal laws as between a man and a woman only. DOMA bars same-sex couples from the 1,161 federal marital rights and benefits that are granted upon marriage 3 and allows states to refuse recognition of other jurisdictions’ same-sex marriages under the Constitution’s Full Faith and Credit Clause. 4 Forty-two states have adopted state-level DOMA-like laws or constitutional amendments, most of which declare same-sex marriage to be against the state’s “public policy.”

DOMA has yet to be fully tested in the courts and the constitutionality of DOMA remains in question. Indeed, you may find in much of your practice that the law is simply not clear on an issue or result your client wishes to achieve. Thus, you should prepare to advocate vigorously for your clients’ wishes and approach their needs with creative lawyering. Some examples of creative lawyering include alimony or pendente lite support under both statutory and contract theories for clients upon termination of their same-sex relationships; making a loss of consortium claim or seeking wrongful death standing; and, child support based on theories of putative or psychological parenthood.

Be aware of the status of the various legislative inventions that define same-sex relationships as well as the wildly variant rights and benefits governments give to people in them. A good rule of thumb is to know that civil same-sex marriage is equivalent to marriage; civil unions are designed to mirror marriage (without the word “marriage” and without granting any federal marriage rights)’ and “reciprocal beneficiary relationships” and “domestic partnerships” are not even close to marriage or even “marriage lite.” The latter categories generally provide only a handful of the hundreds of rights that come to a couple who marries under states’ laws.

For example, Massachusetts residents are able to have a same-sex marriage with all the same rights and benefits as opposite sex couples, though the federal DOMA appears to bar any federal marriage benefits, such as immigration and social security. As an another example, Vermonters have civil unions which are almost exactly the same as marriage within state borders, but do not include standing as a spouse under the US laws or those of other states. Hawai’i residents can enter into reciprocal beneficiary relationships while New Jersey and California residents can join in Domestic Partnerships. In New Jersey, though, a domestic partnership provides only six of over 800+ rights that a married couple has and absolutely no federal rights.

Some other helpful hints:

Leave your personal views at the door. If you have a religious or other objection to gay and lesbian relationships, this is probably a practice area of which you should steer clear. If your personal objection impacts the quality or depth of your legal work for your client, you likely have a responsibility under your state’s Rules of Professional Conduct to avoid that representation.

Know the language. Words such as “homosexual” or “gay lifestyle,” while seemingly innocuous could be offensive to your client. Have your office staff use phrases such as “partner” and other language that your client uses. And don’t be afraid to ask what makes them comfortable.

Know the core terms and definitions of statutory non-marriage relationships from state to state and, even, from city to city. Two good sources are http://www.hrc.org/ and http://www.lambdalegal.org/. Also, check with your local or state bar for a gay and lesbian rights committee if it exists.

Treat the gay or lesbian client just like you would any other client. It should not come as a surprise to you that the issues of concern to gay parents are remarkably similar to those of a non-gay parent. The trick is understanding the status of the law and, where necessary, applying creative lawyering to help your client achieve their desired result.

Be frank about the limits of the law with your client. Know that the laws of many states and the U.S. may work against your client and try to help them avoid problems. Gay men and lesbians understand discrimination well and will appreciate your being frank about what cannot or probably cannot be done under the law.

Recognize when you cannot represent both members of a couple. If you are drafting a domestic partnership agreement or a pre- or ante-nuptial contract, for example, you may need to recognize that each person needs separate counsel, particularly if there is a disparity in bargaining power or other complications.

Your retainer agreement or a separate, signed letter should include an acknowledgement by your client of the transitions in a particular area of law and the possibility that the domestic partnership agreement, Last Will, judgment, custody order or the like that you are seeking may not survive across a state line or on appeal, for that matter. For example, a custody or visitation award to one same-sex partner arising from a Vermont Civil Union may be ignored or dishonored in Virginia where that state declines to recognize such relationships or the judgments and decrees of other states arising out of same-sex relationships. Your malpractice insurer will thank you for a carefully worded statement. Your client will thank you for being honest and preparing them.

Being a family law, estate or civil attorney in this area of law can be difficult, but rewarding. If you stay on the cutting edge of this changing field of law, you can have a successful practice and serve clients who truly need the help of legal counsel as they try to protect themselves and their families.

Thomas H. Prol, is co-chair of the NJ State Bar Association’s GLBT Rights Committee. He can be reached at thomas@prol.net. This article reflects his own opinions and is not legal advice.

United States Census Bureau, 2000 Census. See also http://www.gaydemographics.org/USA/USA.htm (last visited December 14, 2005).

See, e.g., Koslowski v. Koslowski, 64 N.J. Super 162, 395 A2d. 913 (Ch.Div. 1978) aff’d. 80 N.J. 378, 403 A2d. 698 (1979) .

2003 Report of the General Accounting Office

Weiss, Daniel and Prol, Thomas. “Lifting a Lamp: Will New Jersey Create a Safe Harbor for Gays and Lesbians Under Federal Immigration Law?” NJ Lawyer Magazine, April 2004.

 

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