Family Law Quarterly
Volume 50, No. 3 (Fall 2016)
Ethics and Access to Justice in Family Law
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
Dedication to a Fearless Leader, Lawyer, Child Advocate, and Friend: Linda Henry Elrod
Gail D. Baker
Linda Elrod, the Richard S. Richter Distinguished Professor of Law and Director of the Washburn University School of Law Children and Family Law Center, is and has been for many years the heart and soul of the ABA Family Law Section. Her professional accomplishments are impressive. A look at the list reveals twenty-six pages of publications, presentations, and other activities that include having served as editor in chief of Family Law Quarterly for twenty-four years.
I have learned so much from Linda about the law, professionalism, service, ethics, collaboration, leadership, compassion, and friendship. Linda, we thank you for all you have done for us and the profession as we honor you with this small token of our appreciation: dedication of the Fall 2016 Family Law Quarterly to you, our always fearless leader and friend.
The Changing Landscape of Disciplinary Risks in Family Law Practice
Barbara Glesner Fines
Family law attorneys are subject to more disciplinary complaints and malpractice suits than many of their colleagues practicing in other areas of law. More than ninety percent of disciplinary complaints in domestic relations cases are dismissed, however; the dismissal rate may reflect unrealistic expectations or ongoing conflict in underlying, emotionally charged cases.
One challenge to family law attorneys in avoiding discipline actions lies in the changing landscape of ethical standards. Substantive and procedural standards in family law cases have evolved to encourage more cooperation and diminish adversarial conflict, and the original professional responsibility canon requiring “zealous advocacy” has been tempered to recognize norms of fairness to opponents and others. Yet loyal and diligent adversarial representation in litigation remains a primary value. This article focuses on three issues of adversary ethics in family law: the collection of evidence, civility, and communications with opposing parties and counsel.
Until the Client Speaks: Reviving the Legal-Interest Model for Preverbal Children
Lisa Kelly & Alicia LeVezu
When the state intervenes in a child’s life through a child abuse and neglect case, a court proceeding is initiated and legal rights attach. Children in these situations need trained legal representatives to protect these rights, but there is widespread confusion and debate about the role of attorneys. Appointed attorneys are often expected to advocate for what they believe to be in the child’s best interests. This best-interest method of advocacy, however, has been criticized for allowing attorneys’ implicit biases to dominate legal proceedings, which fosters a lack of accountability, allows inconsistency, assumes nonexistent expertise, serves state prosecutorial functions, and violates the ABA Model Rules of Professional Conduct.
This article explores legal-interest advocacy as an alternative to best-interest representation for nonverbal clients. The legal-interest model envisions a lawyer limited to enforcing legal rights that have been clearly articulated in statutory and case law.
Administrative Divorce Trends and Implications
Hon. Lynda B. Munro (Ret.), Johanna S. Katz, & Meghan M. Sweeney
Family courts have seen a dramatic increase in marital dissolutions, post-judgment hearings, domestic violence proceedings, and the resulting overcrowded dockets and case backlogs. At the same time, the number of self-represented litigants (SRLs) has also risen. The combination of the increases in volume and SRL numbers has created a perfect storm in our family courts, leaving parties with even the most simple and straightforward marital dissolutions at the mercy of courts’ overcrowded calendars.
Several states have fashioned a creative solution—summary dissolution—to soften the impact of the family court crisis by means of a cost-effective and efficient alternative pathway enabling parties to proceed like shoppers in the fast lane at the supermarket, unencumbered and without an attorney. This article provides an overview of summary dissolution. It discusses different types of summary dissolution statutes, processes, criteria, and experiences, and it makes recommendations for its use in all states.
LLLT—Limited License Legal Technician: What It Is, What It Isn’t, and the Grey Area in Between
Lori W. Nelson
The LLLT idea arose from the growing number of unmet legal needs across the country. Many questions of efficacy remain, as do other concerns. Because family law is an area with a substantial pro se population, it is incumbent on family law attorneys to be involved in the analysis, design, and implementation of new programs. Family law cases are complex, involved, and emotional, and they frequently involve critical issues of domestic violence or mental health problems. The pro se problem in family law cases cannot be addressed with a simple solution.
That said, certain cases might be resolvable with a little bit more information than clients seem to have when they go at it alone. Perhaps that little bit more can be provided by paraprofessionals. Other cases, however, will clearly require the expertise of an attorney.
The trick will be knowing the difference.
The Preferences and Voices of Children in Massachusetts and Beyond
Donald G. Tye
In divorce and custody proceedings, courts are often saddled with a heavy burden: divining in whose custody a child ought to be placed. Research conducted by the Administrative Office of the Massachusetts Probate and Family Court and the author shows that every state lends some credence to the child’s preference. However, ascertaining the preference—to the extent it even exists—is fraught with complexity. Courts must protect the child and also maintain procedural due process.
Courts have developed two primary and interrelated means of letting a child’s “voice” be heard: first, by allowing for judicial interviews of children, and second, through representation for the child, whether through an attorney, a guardian ad litem, or some combination thereof. This article addresses both means but focuses on judicial interviews. National and international practices are discussed, but greater attention is paid to practices in Massachusetts.