GPSolo Magazine - March 2005
Domestic Relations Law
Representing Diverse Clients
You are more likely today than ever before to encounter diverse clients or multicultural issues in your family law cases. To provide thorough and competent representation in these cases, lawyers must learn two valuable lessons. First, it is always necessary to identify a client’s diversity and become educated about his or her cultural, ethnic, or religious background. Second, a lawyer must be willing to assemble a team when necessary to accommodate diversity.
Identify and educate. Although racism clearly exists in the United States, race is not likely to be the primary factor that will inhibit communication between a lawyer and client. Culture, immigration status, and religion are much more likely to affect the framework of the domestic relations representation.
A lawyer’s first, and best, source of information about diversity issues should always be the client. Given the many distinctions within cultures and religions, the client may be the only person who can set information-gathering parameters. Questioning should be direct and probative, but framed with sensitivity, respect, and delicacy. Generally, a discussion of the following topics should reveal significant issues: rules of social interaction; food; dress and grooming; neighborhood; beliefs about education, government, and the legal system; and family structure, including the status of women and children.
If the client is not a citizen, his or her legal immigration status and the immigrant economy are likely to affect the case. The domestic relations attorney must know the legal consequences of any domestic relations action on the client’s immigration status. Immigrant communities also have economic practices and barriers that will impact the case. As with immigration status, religion often is an important factor. Family lawyers should be careful, however, not to equate “a religion” with a particular cultural background. At least some religious diversity exists in most countries, as do degrees of conservatism. Also, some people may decide not to practice their religion, or to practice it less conservatively, once they have been in the United States for some time.
Very often a client will come to the law office with a family member or friend. It is rarely a good idea to allow that person to serve as interpreter or to provide cultural information. From an ethical perspective, including a third party in interviews with a client may give rise to confidentiality and attorney-client privilege issues. In addition, as a practical matter, family members and friends may speak English only marginally better than the client. They also may have their own version of events or their own agendas as to what they believe is an appropriate resolution for the client. Those biases and agendas can lead well-meaning friends and family to slant or limit the information they provide.
Next, you must educate yourself about the diversity. In your busy practice, you can get a quick overview of the diversity question by using your Internet browser. Diverse colleagues are another great resource. These days, most lawyers know other lawyers with diverse cultural or religious backgrounds. International university students can be excellent interpreters and sources of information about countries and cultures. Local cultural institutions or community agencies may specialize in serving people who share their cultural, ethnic, or religious backgrounds. If you live in a small town and do not have access to independent cultural organizations, you may seek the help of a local community or religious leader, but be aware of potential personal bias or agenda.
Build the team. Depending on how “different” the client is from mainstream America, a lawyer may need to assemble a team to litigate the client’s case properly. Interpreters may be necessary, but even clients whose first language is English or who speak English fluently can require nontraditional litigation team players. Domestic relations practitioners are familiar with team members such as licensed property appraisers, private investigators, and pension evaluators. However, in these cases, the types of experts required and the areas of their “expertise” may be unique.
Traditional discovery and investigative tools may not work in diverse communities. Obtaining foreign documents through official channels can be confusing and slow. Family, friends, and community residents can sometimes provide speedy, effective, and no-cost investigations both here and abroad. Although evaluations are commonly used in custody disputes, “traditional” evaluators in your area may not be able to effectively assess diverse families, who may seem bizarre to someone not well versed in the particular culture, religion, or other set of family values. To remedy this problem, the domestic relations practitioner may need to look beyond the usual list of evaluators. Diverse communities may have their own social service agencies, some of which may provide counseling or be licensed to do certain evaluations.
Generally, a domestic relations practitioner will explain basic procedures to clients before trial. With diverse clients, the domestic relations practitioner may need to go a step further and have a thorough discussion about legal procedures. Although time-consuming, such discussions should explore the client’s assumptions about the legal system. The clients’ notions about the judicial system in their home country can greatly effect their courtroom demeanor and manner of testifying. As with any case, family members and friends are the usual lay fact witnesses called to support the client’s claim. This will be no different with diverse clients. Again, attention must be paid to witnesses’ cultural biases and agendas, particularly with regard to the roles of women and children in the family. Intense questioning of such witnesses may be necessary, often requiring much more time than the average witness preparation interview.
Depending on the cultural or religious traits of your client, you may need “experts” to explain what may appear to be bizarre or trivial behavior. Cultural and religious practices, particularly those surrounding rites of passage for children, continue long after the first generation of immigration. In many communities, issues such as grooming, attire, and diet are not just questions of health and cleanliness. These issues can invoke serious religious and social consequences, affecting not just current life, but life into the future, such as a child’s ability to marry within the culture. As noted regarding custody evaluations, cultural and religious norms can lead mainstream professionals to make skewed diagnoses and recommendations. The same risk exists with a domestic relations finder of fact who may be called on to interpret credibility based on everyday behavior. In most larger universities, academics well versed in the particular religious or cultural practice are available to testify as experts and explain these issues to the court.
Clients for whom immigration status is an issue in the case may need legal experts to explain their immigration situation. Most jurists and family law practitioners are unfamiliar with basic immigration procedures and do not keep pace with rapidly changing immigration laws. In support cases, they may not understand work authorizations and various types of employment visas sufficiently to assess earning capacity and other economic issues. In custody disputes, they may not even be able to recognize an original immigration document when it is being presented to establish residential stability. Given that immigration status often is linked to familial status, the family law practitioner must work with an immigration attorney to ensure that nothing in the family law context jeopardizes the client’s immigration status.
|For More Information about the Section of Family Law|
- This article is an abridged and edited version of one that originally appeared on page 14 of Family Advocate, Fall 2004 (27:2).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/family/.
- Periodicals: Family Advocate, 64-page quarterly magazine; Family Law Quarterly, quarterly journal.
- Books and Other Recent Publications: Collaborative Law; The Complete QDRO Handbook; The Divorce Trial Manual; 101+ Practical Solutions for the Family Lawyer; Balancing Competing Interests in Family Law; Surviving Your Divorce: A Client Manual.