PRO HAC VICE: GETTING AN ATTORNEY FROM OUT OF STATE

Once you get sick and tired of what your own attorney is doing, and once you have gone through several other attorneys in the course of your high conflict divorce, you might start thinking about going out of state for help.  This is not uncommon in a high conflict divorce.  

Is it possible to obtain legal representation from out of state for an action within the State of Connecticut?  Yes, you can.  Under those circumstances, you would obtain an attorney pro hac vice.  I have no idea of what that means in latin!  Maybe one of the readers of this blog knows and can tell me!  

This means you bring in an attorney from out of state by obeying Section 2-16 of the Rules of Superior Court.  

This section of the rules allows "any attorney who is in good standing at the bar of another state, the District of Columbia, or Puerto Rico, upon written application presented by a member  of the Connecticut bar, to be permitted in the court's discretion to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any Connecticut state court."  

In order to be admitted pro hac vice, an attorney from another state must provide an affidavit stating the following:

1) certifying whether he has a grievance pending against him in any other jurisdiction, has ever been reprimanded, suspended, placed on inactive status, disbarred, or has ever resigned from the practice of law, and if so setting forth the circumstances concerning such action; 

2) designating the chief clerk of the superior court for the judicial district in which he will be appearing as his agent upon whom process and service of notice may be served, and agreeing to register with the statewide grievance committee while appearing in the matter in Connecticut and for two years after the completion of the matter in which he appeared; and 

3. identifying the number of cases in which he has appeared pro hac vice in Connecticut superior court.  The attorney from out of state must agree to have a member of the Connecticut bar be present at all proceedings and this member must sign all pleadings, briefs, and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded.

Where feasible, the application to represent a client pro hac vice shall be made to the judge before whom such a case is likely to be tried.  If that judge is not available, the application should be made to the administrative judge in the judicial district where the matter is to be tried.  

The rule requires that there has to be a good reason for granting such a privilege and states that such a reason will be limited to personal or financial reasons that affect the client, not the attorney.  

An example of this could be a longstanding attorney-client relationship that predates the cause of action or subject matter of the litigation such that the attorney has acquired a specialized skill or knowledge with respect to the client's affairs important to the trial of the cause, or that the litigant couldn't obtain services of a Connecticut counsel.

Upon the granting of an application to appear pro hac vice, the clerk of the court in which the application is granted must immediately notify the statewide grievance committee of such an action.  

Rule 62-8A contains similar rules for appearing pro hac vice in the Connecticut Appellate or Supreme Court.

Arbitrations:  Apparently, in 2005, Judge Berger banned the use of out of state attorneys from Connecticut Arbitrations, thus joining a short list of states which won't allow them for such proceedings.  

The bottom line is that there are so many requirements for having an attorney appear for you out of state that it is ultimately prohibitive for anyone to do it.  

Also, how many attorneys here in Connecticut do you know that would be willing to sign his or her name endorsing some other attorney's briefs and pleadings and take full responsibility for another attorney's actions, particularly when they are going to represent a client with a difficult case who has already tried and failed with several other attorneys?  I don't see that happening.  

My best guess is this kind of situation happens with corporate attorneys with a large company which can take responsibility for the actions of the attorney coming from out of state.  But it is not likely to happen in high conflict divorce cases.  

Also, are you ready to pay for two attorneys when you go to a hearing in your case?

But don't rule this approach out entirely.  If you are willing to be flexible, the law doesn't prevent you from obtaining valuable support and advice from attorneys out of state by phone or email.  Many of the procedures for pursuing a case in family court are similar no matter what state you are in, so out of state attorneys can provide you with direction, while you follow through with the practical steps.  

LEGAL RIGHTS OF CLIENTS! YES, FOLKS, WE ACTUALLY DO HAVE SOME!

CLIENT'S BASIC LEGAL RIGHTS

As the client or consumer of legal services from an attorney or other professional, you have certain basic rights that you can expect your attorney to abide by. Be aware that although you have these rights, getting them enforced can be problematic. A reasonable, tactful approach to enforcing these rights will often be your best bet, since attorneys are reluctant to sue other attorneys and bar associations are notoriously ineffective at policing their own members. Nonetheless, if your attorney (or opposing counsel) has committed a breach of ethics, you have every right to report them to their professional association and any other applicable governing bodies. Legal Rights Of Clients You have a right to discuss the proposed rates and retainer fee with your lawyer and you have the right to bargain about the fees before you sign the agreement, as in any other contract. You have the right to know how many other legal staff (including additional attorneys) will be working on your case at any given time, and what you will be charged for their services. You have the right to know in advance how you will be asked to pay legal fees and any other expenses at the end of the case. If you pay for a retainer, you may ask reasonable questions about how the money will be spent or has been spent and how much of it remains unspent. You are under no legal obligation to sign a Promissory Note or agree to a lien or mortgage on your home to cover legal fees. You are under no legal obligation to waive your rights to dispute a bill for legal services. You have a right to a reasonable estimate of expected future costs. If your lawyer agrees to lend or advance you money for preparing your case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. You have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer's ability. You have the right to make the final decision regarding the settlement of your case. You have a right to original documents that are not part of your attorney's work product. For instance, if you gave your present attorney documents from another attorney, you have a right to those documents. You have a right to ask your attorney to forward documents to you in a timely manner as he/she receives them from the opposing party's attorney. You have a right to be present at ALL court conferences relating to your case that are held with judges and attorneys, and you also have the right to bring a family member or a friend to all court proceedings, unless a judge orders otherwise. You have the right to know the approximate cost of bringing a motion. The cost may vary depending on the lawyer's rates and circumstances of the case, but you have the right to a general estimate. If at any time, you, the client, believe that your lawyer has charged an excessive or illegal fee, you have the right to report the matter to a disciplinary or grievance committee that oversees lawyer misconduct. Please Note:  This list of Client Rights was taken from the S.P.A.R.C. website at:  www.deltabravo.net.  For more excellent information, check out this website.  It is extremely helpful to all litigants.

JUSTICE VS. FAIRNESS!

As I have prepared for my case, I have spent a lot of time reading case law, not as much as you might imagine I would, but enough. As I read through the discussions, when it gets to the point of decision, the Trial Court will often pause to make a statement such as, "but since our Trial Courts are Courts of Equity we will do the following" implying that, somehow, if they weren't Courts of Equity they might not act as they have chosen to.

So, my question is, what does that mean, that our Family Courts are Courts of Equity? Here is the story.  Apparently, there are two kinds of Courts--Courts of Law and Courts of Equity. 

Courts of Law, which are based upon Common Law, emerged during the reign of King Henry II of England around the 1150s and 1160s.  Before then, the Courts ruled based upon the broad range of local customs, and decisions on similar offenses would vary based upon where you lived.  However, when Henry II came into power, he attempted to create a unified code of common law throughout England.  This continued to develop throughout the 12th and 13th centuries resulting in collective judicial decisions based upon tradition, custom and precedent. 

In other words, King Henry II established Common Law.  Common law, which is also known as case law, bases decisions on precedent. In essence, whatever has been done before in a similar case, will very likely be done in the next case. This is known as casuistry.

The idea behind the common law system is that it is unfair to rule differently on the same set of facts. Thus, if there is a question of what does the law require people to do in a particular situation, the judges will look at what has been done in these situations in the past and rule accordingly. This kind of decision making is based upon the principle of stare decisis, i.e. the concept that similar cases should be decided according to consistent principled rules so that they will reach similar results. 

However, if there is something about a particular case that has not yet been ruled upon, or what is called a "matter of first impression", judge are required to make the law by creating a new precedent. After that, the new law then becomes the precedent and all future trial courts will have to act on the basis of that new precedent. 

Also, fundamental to the practice of Common Law is the adversarial system, which, as most of us know means that each side, Plaintiff and Defendant, face off against each other in a pitched verbal battle, and the judge decides who wins the case.  There is probably a lot more to it, but that is as far as I would like to discuss this idea at the present time! 

Another important concept that came along with the development of Common law was the doctrine of the supremacy of the law. Supremacy of the law was originally intended to say that no one is above the law, not even the King. This doctrine has since been expanded to mean that even government agencies are subject to the law.

Common law is different from statutory law--law that is enacted by the legislature, and regulatory law, law that is established by executive branch agencies pursuant to delegation of rule making authority from the legislature.

The Courts of Law (which, again are based upon Common Law) are in contrast to Courts of Equity.  The Courts of Equity were developed two or three hundred years after Common Law was established as a method with which to introduce fairness into the legal system. 

With Common Law, sometimes enforcement of laws and legal rules was unfair or harsh because the rules were administered in an inflexible manner. That is, they were applied rigidly, even if the outcome was, in fact, unfair. To overcome this inflexibility, Equity Courts (also called Courts of Chancery) were established.

Originally, If they felt the Courts based upon Common Law had failed them, litigants could appeal to the conscience of the King--in other words have the King adjudicate the case.  This got to be rather burdensome, so eventually, rather than handle all these cases, the King delegated the work of adjudicating them to the Lord Chancellor, usually a member of the clergy, who was a symbolic representative of the King's conscience and  an important member of the King's Council.

Eventually, this business of appealing to the King soon evolved into another court system based upon concepts of equity, or canon law (Church Law) which was based on broad principles of justice and fairness.  This new court system was known as the Courts of Chancery, and eventually became known as Courts of Equity.

So, perhaps it is legal for Mr. Jones to take Mr. Smith's land, but would it be fair?  The question of what is fair is the province of Courts of Equity.  Thus, according to Black's Law Dictionary, equity is defined in part as, "Justice administered according to fairness as contrasted with the strictly formulated rules of Common Law."

Courts of  Law generally handle contract, landlord/tenant, foreclosure and other cases where a written document is involved. In these cases, it doesn't matter what was going on with you, or what your social circumstances were, the question is did you or did you not obey the contract, or did you or did you not pay your rent or mortgage.  If you committed the crime, then you would be punished. 

Courts of Equity generally handle family law cases and/or bankruptcy cases. The way it goes in a Court of Law, a judge must follow the law even if you were justified in breaking the law. In a Court of Equity, the Court can use its own discretion to determine whether you were justified or not in breaking the law, taking into consideration the litigant's motivations and social circumstances

One distinct aspect of a Court of Equity is that it does not allow for a jury trial based upon the 7th Amendment to the Constitution.  In a Court of Equity, only the judge is the trier of fact.  However, Courts of Equity do have a broader range of discretion to provide relief to citizens who come before them. 

It is also important to note that remedies in common law are defined by monetary damage while remedies in equity may be further expanded to injunctive relief that can order someone to do something or refrain from doing something.  In a Court of Equity, failure to follow the court's order to do or not do this thing can then be enforced by a contempt of court order resulting in fine or imprisonment or both.

At this point, the vast majority of Trial Courts in the United States have merged so that Courts of Law and Courts of Equity are often in the same courts, but they are flexible about providing both remedies.  Attorney James M. Bright provides the following example of that kind of situation:

"John Sodbuster has planted 10 acres of wheat, but just as the seeds are sprouting Sam Cattleman decides to drive his cattle over John's field.  A civil Court of Law could determine the value of the damage caused by Cattleman to Sodbuster's crop and order payment, but that does not solve the whole problem.  If Sodbuster gets reimbursed for his lost crop and Cattleman continues to drive cattle across Sodbuster's land, then Sodbuster is suffering additional damage which cannot easily be ascertained or which may not be compensable with money.  At this point, equity can step in and the court can order Cattleman not to drive cattle across Sodbuster's land.  If he continues to do so, the Court could not only assess  additional charges, the Court could lock Cattleman in jail for failure to heed the Court's order." 

So basically, Law is the set of rules which are to be enforced.  Equity is a system of justice administered according to standards of fairness.  Equity follows the law.  This means that, in Courts of Equity, applicable laws will be followed where they exist.  Where there are no applicable laws, principles of equity will be followed. 

Why this is important? It seems to me is that, if you are in Trial Court and the opposing counsel brings up case law as a sole justification for a decision against you which would be not only unjust, but unfair, I think you would be well within your rights to remind the judge that Family Court is a Court of Equity. 

If the outcome of a decision based upon case law would be unjust, since family court is a court of equity, it must also take into consideration the issue of fairness when making a determination.  Or to put it another way, as a Court of Equity, Family Court should not be allowed to rule in a manner that is fundamentally unfair.  That is an interesting point, don't you think?

OUR CONNECTICUT CONSTITUTIONAL RIGHTS!

I finally found it! The Connecticut Right to Due Process!  This has to do with the concept that legal proceedings will not be arbitrary, that they will be conducted fairly according to agreed upon procedures.

For example, handing you a motion just before you walk into the trial court is a denial of your due process rights because doing so prevents you from having reasonable advanced notice of the charges against you.

If you were wondering, our Connecticut Right to Due Process as incorporated into the Connecticut Constitution is located in Article I, Section 10 of that document and states as follows: 

"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

I'm not sure if I'm satisfied with that statement.  It seems a little wishy washy, but it is the only one we have. 

I like the statement by the United States Supreme Court in 1934.  It said due process is violated "if a practice or rule offends some principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."

On the Federal Level the due process clause is included in the Fifth Amendment to the United States Constitution as follows:

[N]or shall any person. . . be deprived of life, liberty, or property without due process of law. . .

Section One of the Fourteenth Amendment to the United States Constitution states: 

[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . .

Somehow the Federal version seems stronger to me than the State version.  Ultimately,  both guarantee our due process rights.

Equal Protection of the Law

By the way, I enjoyed Article I, Section 20 of the Connecticut Constitution which states as follows: 

"No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability."

This includes our right to ADA protection.

SO WHY NOT SUE THE STATE OF CONNECTICUT?

Sometimes I have really bad days where nothing goes right.  I will miss a deadline or keep on misspelling a word in a document even though I know perfectly well how to spell it.  I'll get an email to my Sloper account telling me what a no good blogger I am.  Ok, ok, I'm such a great blogger, this never happens, but I'm trying to sketch out a scene, all right!

Then I'll say to myself F**k it, I am going to sue the State of Connecticut.  I'll make them sorry for what the Court System has done to me."  Most of the time this kind of self talk has been just that--talk.  However, a few days ago, in another fit of pique, I actually followed through, went to google and typed into the search box the phrase: "How to sue to State of Connecticut." 

And, ladies and gentlemen, it is a little harder to sue the State of Connecticut than I thought it would be!  This is how it works. 

If you want to sue the State of Connecticut for some wrongdoing it has done to you, you must  first get permission from a single man, Mr. J. Paul Vance, Jr., the State's Claims Commissioner. 

What is the Claims Commissioner for?  Well, this is the story.  As it turns out, "The state, unlike most of its citizens, is immune from liability and from suit.  Without its consent, the state cannot be held liable in a legal action for any damage or injury it may cause or for the cost of any good service or benefit it may have received." 

So, the State can sue you and mess up your life, but you cannot sue the State.  So, in other words, this is like a "citizen beware" situation where the State of Connecticut is simply not responsible for its actions.  So when the State causes you harm or damage by neglecting its responsibilities, or when you delivered goods or services to the State and were not paid, the State is statutorily not responsible and can get away with the harm it has done by its actions, unless--and here is the kicker--its one representative which it hired for itself and pays a full salary to agrees that a citizen can pursue a claim, i.e. Mr. J. Paul Vance, Jr., the Claims Commissioner for the State of Connecticut. 

Why is this so?  Well, apparently, the State has "sovereign immunity" a British concept that we inherited from our Colonial days.  It originates with the phrase, "The King (sovereign) can do no wrong."  Likewise, the State of Connecticut can do no wrong, unless the Claims Commissioner decides to waive the sovereign immunity of the State after determining that such a waiver is "just and equitable."   

And further, "In most other cases where there is no legal or administrative remedy available, a person claiming to  be injured or damaged as a result of state action must pursue a claim through the Office of the Claims Commissioner (OCC)." This means that this one individual, the Claims Commissioner, has an extraordinary amount of power to do as he or she pleases in the role of gatekeeper to justice in the State of Connecticut! 

The legislation dictating the office and duties of the Claims Commissioner is set forth in Chapter 53 of the Connecticut General Statutes and includes provisions which allow the Governor to approve the appointment of a Claims Commissioner with the approval of the General Assembly every four years.  The position of Claims Commissioner originated in the 1970s, and is a system unlike that of any other state. 

But that is not a surprise to Connecticut citizens.  This is a State where extraordinary corruption reigns in the Family Court System where citizens are trashed every day--why would we be surprised by corruption elsewhere in the State! 

According to commentary I read online provided by David Cooney, a former president of the Connecticut Trial Lawyers Association, "From the lawyers I have spoken to in other states, this is not something they have ever heard of." Other States might have Claims Commissions or Boards, but only Connecticut puts the entire responsibility in the hands of one person. 

How does this system work?  When a party submits a claim, the Claims Commissioner has three options, i.e. 1) If it is $7,500 or under it can approve the amount for immediate payment; 2.  If it is over $7,500 it can recommend that the General Assembly either pay or reject a claim; and 3. It can allow lawsuits against the State of Connecticut to proceed.  The decisions of the Claim's Commissioner can only be appealed to the legislature. 

How many claims does the Office of the Claims Commissioner process each year?  The amount of claims that the Claim's Commissioner deals with each year are in the hundreds--three hundreds, five hundreds, numbers like that.  Out of those claims maybe around two dozen lawsuits have been allowed to proceed each year.  Once the Claim's Commissioner has received a claim he or she has two years to take care of it. 

Would you believe that in the vast majority of other States you can just file a lawsuit if you want to sue the State?  Yes, it's true, in other States, that's exactly how they do it!

Seeing as I still remained in the mood to sue after doing all this research, I went to the website for the Office of the Claims Commissioner and checked the FAQ section to see what I needed to do.  How do I file a claim?  Answer:  Refer to Chapter 53...; When must a claim be served and filed? Answer:  Refer to Chapter 53.  In other words, what a marvelously informative website...NOT! 

Guess someone doesn't want us citizens to sue!  I wonder why!  But do not be discouraged.  If you are interested in submitting a claim against the State of Connecticut, I recommend as a first step, just to obtain initial contact information, that you check out the website of the Claims Commissioner and go from there.  The website is at:

 

www.occ.ct.gov

THE ADVERSARIAL SYSTEM AND FAMILY COURT

As a litigant, when you walk into Family Court, the official story is that you are walking into a system that is operating according to what is known as the Adversarial System.  I don't think it is necessarily the first thing most litigants think about, but they should think about it, because the nature of the system has everything to do with the outcome of the cases they bring to Family Court. 

According to Wikipedia, the Adversarial System is a legal system where two advocates, each representing either the Plaintiff or the Defendant, faceoff and represent their parties' position before an impartial judge or jury and the intention is to determine the truth of the case. 

The Adversarial Process has its origins in the medieval mode of trial by combat where certain litigants, particularly women, were allowed a champion to represent them.  Think of Heath Ledger in "A Knight's Tale"! 

The idea behind the Adversarial Process is that two equally skilled advocates who argue their cases before an impartial judge can arrive at the truth.  Fundamental to this process is the concept of the examination and cross examination of witnesses and the presentation of reliable and relevant evidence, thus the development of the rules of evidence.  The attorneys are there to argue the case, determine which evidence and witnesses should be presented to the judge and/or jury, and the judge plays the role of neutral observor who makes sure that both sides adhere to proper Court procedures.  In the end, the judge could be the one to determine what is the verdict or else it could be a jury.  

The Adversarial System presents a contrast to the Inquisitorial System in which a judge or a group of judges work together to investigate a case.

In the Adversarial System, once a Defendant admits to a crime, the process is over, since you know who is guilty.  This means that the Adversarial System allows for opportunities for negotiations, agreements, and plea bargaining, and often many cases don't even end up going to trial. 

In contrast, when it comes to the Inquisitorial System, the fact that a Defendant has admitted to a crime means nothing and the proceedings will still continue, so there is little if any room for the Parties to work things out independent of a trial under that system.   

So, do we really have an Adversarial System in the Family Court System in Connecticut?  That's the big question, because a lot of us are saying that it appears to us as though Attorneys for both sides get together in a back room, make up their minds regarding how the divorce is going to go, and then play the rest of it all off as show.  And while they are at it, they cash in on as much money as they can get from the litigants.

What others are experiencing is a situation where they can't get an attorney to represent their position, and are left in the stigmatizing and compromised situation of having to represent themselves.  Some of these people have interviewed dozens of attorneys, but have been unable to get an attorney to represent them.  And this may not be simply a matter of lack of agreement with what a litigant is asking them to do, but also a fear of ostracism within the profession.  No attorney wants to take on a case that their peers have decided is not worthy of representation, a decision that is often based upon discriminatory attitudes regarding race, gender, or disability as well as other misplaced social and cultural values.  Then, to get you to shut up and go away, these lawyers will lie to you and tell you that you have no case based upon the law. when in fact you do.  So, nothing adversarial going on here.

This is a denial of citizens' access to justice by the denial of any access to attorney representation.

Granting the whole thing isn't a sham, which I suspect it is, in my experience of participating in Family Court Trials, there appears to be a mixture of both The Adversarial System and the Inquisitorial System going on in Family Court, particularly during the hearings on issues brought before the Short Calendar which usually take around 15 to 20 minutes.  In these hearings, the Trial Court Judge isn't simply a neutral, impartial factfinder, sitting back sagely while the attorneys present their cases, and only commenting to make a determination.  On the contrary, these judges play a significant role in asking questions, examining and cross examining litigants and witnesses in ways that ordinarily only an attorney would do, as well as explaining Court Procedures to litigants who are often self represented.  Judges will sometimes express opinions or draw conclusions about the evidence presented to the Court, a role which would ordinarily be left to expert witnesses, were they there to provide testimony. 

This can lead judges into a situation where they make memorable remarks, some of them sharply derogatory of litigants, which can lead to lasting bitterness and anger.  It can also lead judges to intrude into the process in a way that calls into question their neutrality and their willingness to adhere to the law.  In these circumstances, in family court, the so called adversarial process, if there is one, breaks down entirely.

So  does it make sense to have the Adversarial System or some modified version of the Adversarial System in Family Court?  Some people believe that this system is the only way to ferret out the truth and to hold the Court to a high standard of accountability when it comes to applying the law to the evidence.  However, as this discussion shows, in family court, this doesn't seem to be working.

What is more, there are problems unique to family court which make the adversarial system detrimental for the litigants.  Specifically, this is a system in which you have only two Parties, the Plaintiff and the Defendant, and only one can be the Victor which pretty much leaves the other as the Loser.  If the children are sucked into the proceedings in a dispute over custody, they often end up as pawns in the battle.  Even when everything is done to protect them from the harm that can result from a custody battle, they can end up injured simply because their relationship with either one parent or the other is under dispute. 

Futhermore, in Family Court such considerable sums of money are often spent on legal fees, much of it out of college funds for the children or from financial resources intended the secure the family's future, that the financial damage occurring as the result of a divorce action can end up lasting for years, and the litigants may never even be able to recover. 

In situations like this, and there are many of them, no matter that the Plaintiff or the Defendant may end up on paper as the Victor, ultimately both sides lose.

Not only that, one of the unique aspects of divorce, as opposed to criminal or civil law, is that after the trial or the settlement of the case, a good majority of the time both sides can't simply just walk off and never see each other again.  Whether they won or lost, they will be required to work together for the best interests of their children for years subsequent to their Court Case.  They will have to consult regarding the childrens' academic achievements, regarding summer and holiday vacations, regarding medical and religious decisions, and eventually participate in weddings and baptisms of grandchildren. 

If a legal divorce proceeding is all about how to destroy the other side and grind the other side into smithereens, how can the litigants then be expected to work together jointly on behalf of their children after all that damage has been done?  And if they do so much damage that the other side is too crippled to proceed further in living a productive life, what is the consequence of that other than harm and destruction to the children of the marriage?  

I don't have any quick solutions to this problem.  However, I do think that vast numbers of litigants have already recognized this problem and are revolutionizing the Family Court System by choosing to represent themselves.  At this point, up to 80% of litigants in Family Court are self represented.  This is an extraordinary vote of no confidence in the attorneys here in the field of family law in the State of Connecticut.     

Finally, what is my solution?  I'd like to propose that we ask our representatives to pass legislation that would limit the amount of money that attorneys, GALs, and mental health professionals are able to earn in any divorce.  Once it is no longer possible to profiteer on the suffering brought on by divorce, and once there is no longer a benefit to be had by inciting litigants into lengthy and expensive legal proceedings, then we will see the development of more sensible and reasonable approaches to divorce.

WHO IS THE BOSS? YOU OR YOUR ATTORNEY?

So many of us know what it is like to pay thousands and thousands of dollars to our family court attorneys, only to find that when we try to get them to listen to us and work with us as partners, they refuse to do so. 

These attorneys, it seems, feel that they are above the law, that they can do whatever they want not only with us, but also with our cases, that they can enter into life altering agreements with the opposing party in our cases without considering our views, and then at the end of the process, after they've provided us with extremely unsatisfactory results, demand that we pay them massive sums of money for the privilege. 

Tell me how they get away with this? 

The law does not condone this behavior.  In fact, the Rules of Professional conduct require that attorneys act towards their clients in a respectful manner and defer to their clients' decisions. 

For example, according to the Rules of Professional Conduct Rule 1.2 (a) Scope of Representation, "A lawyer shall abide by a client's decisions concerning the objectives of representation."  Also, later on it states, "A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter."  This rule further states in 1.2 (c) "A lawyer may limit the objectives of the representation if the client consents after consultation."  Hello, Hello!  Note the words, "after consultation", so the lawyer is not supposed to just run off and change those objectives independently without imput from his or her client. 

The only exception to the rule that the attorney defer to his client's decisions occurs if the client wishes to do something fraudulent or criminal (see Rule 1.2 (d)). 

Another exception would be if the client is disabled or mentally incompetent, see  "Withholding Information" under the commentary for Rule 1.4 Communication and Rule 1.14 Client under a Disability.  Of course, I would suspect that most attorneys consider the clients they represent in family court mentally incompetent, particularly their female clients, so they may assume they are justified in violating their clients' rights based upon this rule.  But I doubt most of us would agree!

Attorney rules recognize that decisions can only be based upon Informed Consent.  Thus, in order to make decisions regarding their representation, the Rules of Professional Conduct that attorneys are supposed to abide by, state that a client must have enough information to make an Informed Decision.  Thus, Rule 1.4 Communication which states in 1.4 (b) "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."  

In this regard, under commentary, the Connecticut Practice Book states "The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.  For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps that permit the client to make a decision regarding a serious offer from another party."  

All of these directives reflect the political and cultural values of the State of Connecticut.  They reflect a respect for the clients who are litigating in Court with the assistance of attorneys who are supposed to be respecting them not only as Citizens of this State but also as persons worthy of consideration. 

The problem, as I see it, and as so many people I've spoken to see it, is that attorneys absolutely flout these rules and if you go before the Statewide Grievance Committee to complain that an attorney did not respect these rules, the Committee has a record of failing to uphold them. 

What is the result? 

Most attorneys seem to act in loco parentis, as if you are the child and they are the parent.  They seem to think they have the right to make all the decisions in your case on your behalf and to go ahead and participate in negotiations regarding agreements without letting you, the client, know anything about the issues that are under negotation and what your options are. 

In essence, the attorneys speak to the judges in chambers in the presence of the opposing attorney, they participate in discussions with GALs and custody evaluators, draw conclusions about what they intend to do in the case, and then coerce their clients into agreement.  What is truly annoying in situations of this kind, which pretty much occur most of the time in high conflict divorce, is that had your attorney actually kept you informed, you might have been able to provide information or evidence which could have strengthened your bargaining position; you might actually have been of assistance in developing an argument in your favor! 

We, as clients, know ten times more about our cases than our attorneys do, so cutting us out of the loop can only have the result of causing harm.  Furthermore, many of us are well educated college graduates and/or have rich life experiences which have provided us with the insight and skills to negotiate very well in family court, and it is galling to find that we are shoved to the sidelines at a time when just those abilities are crucial not only to our own well being, but that of our children. 

My question, and I'm sure other people have this same question, is "Where do these attorneys get the nerve?"   

Only legal corruption, the erosion of constitutional rights, the complete indifference to the law, which exists in family court, along with the steady disempowerment of litigants represented by attorneys in family court could have led to such an outrageous and blatently illegal situation for litigants in family courts throughout this State. 

It has gotten to the point where litigants have reported to me that attorneys have threatened, verbally abused, and slandered the reputations of their clients in order to get their clients to do what they are told.  

I have also heard that attorneys agree well in advance who will win or lose a case, and that outcomes are all determined by various systems of barter and pay back which have nothing to do with actually practicing law. 

Once you get to a place like that, where attorneys are abusing their own clients, and selling their own clients out to the opposing side, you can't even pretend to say that there is a functioning legal system in this State. 

So to answer the question of who is the boss?  Who is making the decisions?  Make no mistake.  It sure ain't you!

GOING, GOING, GONE: WHEN YOUR ATTORNEY FILES A MOTION TO WITHDRAW!

Here are two scenarios I'd like to address today.  First, one day I was doing my laundry, separating the darks from the whites, tossing out the clothing that was too messed up to wear any more, when all of a sudden I heard the door to my house open and close and out of the corner of my eye I saw this multipage document flying through the air.  I'd just been served by a Motion to Withdraw by my attorney.  You'd hope that the marshall would be polite enough to just knock on the door and hand it to me, but no such luck. 

Another scenario took place with a friend of mine who was represented by an attorney who kept on undercutting her case.  Finally, she told him, "You are fired!"  Still, wouldn't you know it, on her next Court appearance, guess who was standing there negotiating with the opposing attorney in her case.  You guessed it, the attorney she had fired.  "I told you I've fired you and I don't want you speaking for me." she said to her former attorney, but he just ignored her and kept doing what he was doing, presumably charging her for the Court appearance. 

So, what are we to make of this situation.  Can attorney's do this?  Can they just refuse to represent you, particularly when, as in my case, this attorney had filed the motion to withdraw immediately before an important court date?  If you fire an attorney, can they just ignore you and keep on working without your authorization?  The answer is, "Yes, they can!" 

When an attorney agrees to represent your case, he will file an appearance form with the Court.  This is the same form you have to fill out when you decide to represent yourself.  The appearance of an attorney on behalf of a client is regulated according to rules of the Connecticut Practice book Chapter 3. 

Once an attorney has filed an appearance on your behalf, he is obligated to represent you in regard to all legal matters in the Court where he filed an appearance.  If an attorney is  sick and tired of you, and your case, he can't just get rid of you.  He is obligated to request the permission of the Court in order to step down from your case. 

To do so, he will file a Motion to Withdraw Appearance according to Practice Book 3-10, which means that he has to send a copy of that Motion to you by marshall (thus my little surprise when I was sorting my laundry) and include with that motion a notice of when the hearing on the motion will be held. 

The language of the Practice Book 3-10(a) in this regard is as follows:  "No motion for withdrawal of appearance shall be granted unless good cause is shown and until the judicial authority [the judge] is satisfied that reasonable notice has been given to other attorneys of record and that the party represented by the attorney was served with the motion and the notice required by this section or that the attorney has made reasonable efforts to serve such party.  All motions to withdraw appearance shall be set down for argument and when the attorney files such motion he or she shall obtain such argument date from the clerk."  

Supposedly, a "good cause shown" is not money, i.e. that you haven't paid your bill and there are multiple thousands of dollars due,  because lawyers are supposed to be above such things.  In fact, in one of the hearings on the motions to withdraw in my case, the attorney pointed out that I owed him $30,000; nonetheless, the judge made it clear that he felt that such a sum of money was a laughably small amount to owe and hardly the basis for withdrawing for my case.  Of course, I'm amazed by that because $30,000 is a lot of money to me, but who am I to say anything! 

Usually, the reason given for such a motion to withdraw is that there has been a breakdown of the attorney/client relationship.  The first time I received one of these motions to withdraw--and to be honest, I only had two--I consulted with some highly regarded attorneys in the field of matrimonial law and they assured me that no judge would allow an attorney to withdraw from my case, particularly just before trial. 

When they told me that, these outstanding, highly regarded super lawyers, they were simply lying right to my face.  Any attorney who really wants to wiggle out of a case can simply wiggle out of a case and that's all there is to it. 

And, what is more, if your attorney tells you he wants to get out of your case and does not wish to represent you any further, do not oppose him.  Let him go.  Shall I repeat that for you?  Let him go and do not show up for the hearing on the Motion to Withdraw to oppose him. 

Why? 

Because if you show up for the hearing and attempt to prevent your attorney from leaving your case, that attorney will promptly invent reasons to allow him to leave your case.  He will falsely accuse you of doing terrible things, he will slander your character, and he will drag you through the mud.  Trust me.  I have lived this situation. 

What is more, no matter what you say, in a face off between you and your attorney, the Court will believe all the vicious, nasty lies that your attorney tells, even if there is absolutely no evidence for what that attorney is saying, and even if his accusations make absolutely no sense.  If  you try to say something like, there is no evidence to prove what you just said about me.  The attorney will respond with something like, I do have the evidence but it would be breaking attorney-client privilege for me to reveal it.  Oh no, the Court wouldn't want to do that.  Of course, you say, go ahead, break it!  But the Court won't allow it. 

Of course, this kind of behavior, slandering your reputation in a Court hearing when they still are, at least officially, representing you, breaks all sorts of rules of professional ethics.  But, it happens anyway all the time.  Not only did it happen to me, but I have watched it happen many times in Court to other people.  Of course, this is the worst kind of violation of trust imaginable, that this person whom you have trusted, to whom you have confided all the intimate details of your case, should then turn on you and attack you, but sorry, that's life in a high conflict divorce, baby.  So get used to it. 

Now here is the real problem with a situation like this.  Any of the false accusations which your attorney(s) brought to the Court during his Motion to Withdraw acts as fodder for the opposing attorney.  You can be sure that the next Motion the opposing attorney files in the case will include as an attachment a copy of the transcript including your ex attorney's false accusations.  All future motions in the case will include in their summary of the case references to your ex attorney's false accusations, and these accusations will arise during negotiations in your case, and will be passed on to the therapists who work with your family during and subsequent to these proceedings. 

See what power these attorney's have to destroy your life and your reputation permanently?

Do not get in the way of these attorney's when they decide to withdraw--ever, ever, ever.

Of course, I know that you will want to ask me why you would try to keep an attorney on your case who obviously wants to leave and doesn't have any loyalty.  The answer to that is, of course no one wants an attorney under those circumstances.  But most of the time, once you are in this situation, all your money is gone and you don't have enough money for a retainer to hire a new lawyer.  In addition, if you lose an attorney it will literally take up to $10,000 or more to get the new attorney up to speed.  It is a tremendous financial loss on your investment when you lose an attorney and have to hire a new one. 

Now, getting back to the situation where my friend fired her attorney, but the attorney still kept on coming to hearings and representing her despite her requests that he stop doing so.  Can an attorney actually do that?  The answer is, "yes".  Come on--you knew that!  If following through on an action is nasty and disgusting and unjust, you can be sure that an attorney can do it--goes with the territory, right! 

Legally, you cannot fire your attorney unless you replace him with another attorney.  I am not sure where it is in the Practice Book, but that's the way it works, and the way it works is the law, even if it isn't the law, if you see what I'm saying.  Also, you cannot fire your attorney and replace him with yourself unless you have the permission of a judge, and getting a hearing before a judge for that purpose takes at least two or three weeks. 

Until then, guess what!  For all official business, for all hearings, your attorney is obligated to appear, no matter what you said about how he was fired.  Of course, if you have one of these lovely high conflict divorces, when you file a motion to get rid of your lawyer and replace that lawyer with yourself, you can be sure that the opposing attorney will file an objection to that motion.  And although the opposing attorney is unlikely to win since you have a constitutional right to represent yourself, still, it can make you nervous, because granting what other attorney's may have said about you in Court hearings on their Motions to Withdraw, it is possible that the opposing attorney could argue that you are too incompetent to represent yourself. 

In the kangaroo court atmosphere of the Family Courts where it often appears that anything goes and chaos reigns, it could happen!  You can never tell. 

So, my best advice to you is, if you receive that Motion to Withdraw just don't show up for the hearing.  The judge will then grant the Motion to Withdraw by default, the attorney will be happy, your reputation will not be destroyed, and you will be able to move on and find someone else or sign on to represent yourself.  Here is a situation where, without a doubt, no action is the best course of action.

RELATED ARTICLES:

http://divorceinconnecticut.blogspot.com/2012/07/pro-hac-vice-getting-attorney-from-out.html

http://divorceinconnecticut.blogspot.com/2013/01/why-am-i-not-surprised-study-reveals.html

http://divorceinconnecticut.blogspot.com/2013/04/oconnell-flaherty-and-attmore-now.html

http://divorceinconnecticut.blogspot.com/2011/09/multiple-complaints-against-attorney.html

http://divorceinconnecticut.blogspot.com/2011/01/ct-statute-sec-46b-62-formerly-sec-46.html

http://divorceinconnecticut.blogspot.com/2011/10/bad-attorneys-bad-bills.html

http://divorceinconnecticut.blogspot.com/2012/08/the-parties-will-divide-gal-fees.html

THE STANDARD OF REVIEW, STRUCTURING YOUR LEGAL ARGUMENT!

I'm not sure what it is, but structure generally tends to escape me when it comes to my writing, and also when it comes to my life in a lot of ways, so when I first read through the section on "The Appellant's Brief" on page 15 of the Handbook of Appellate Procedure the instructions totally did not sink in.  Maybe that is leftover from the seventies hippie rebel in me!

As a result, my first brief had a section on the Standard of Review which, had anybody read it--and I sort of doubt any Judge did, since I lost--consisted of a jumble of pretty much as many standards I could think of.  I said, take these ten issues and consider them according to this whole bunch of standards that I pulled together from my reading on the subject. 

Well, ok, again, I guess I understand why no judge read my brief, as I suspect they did not. 

It was only in my most recent endeavors in Appellate Court, after I had the opportunity to read the brief of the opposing attorney in my case, that the light began to shine.  I have to thank that opposing attorney in my case.  Without her miserable and relentless responses to my motions and briefs, I wouldn't be the smart, intelligent, and forthcoming self represented party I am today! 

So this is what I figured out.  For each issue you present in your brief, you must state what particular factor the judges should take into consideration when they evaluate it, i.e. what Standard of Review would you like them to consider. 

Thus, the parts of a brief are as follows: 

1) Table of Contents;
2) Statement of Issues;
3) Table of Authorities;
4) Statement of Proceedings and Facts;
5) Legal Argument;
6) Conclusion. 

The Section on Legal Argument (No. 5) should repeat exactly each one of the Issues you listed in your Statement of the Issues (No.  2), provide the Standard of Review for each Issue, and then elaborate upon the case law or constitutional law that supports your legal argument.  So the sequence is:  I.  Issue #1; II.  Standard of Review; III. Legal Argument on that Issue.  Go to the next issue until you have repeated the process for each issue.  

This means that your issues cannot be compound.  Each issue should encompass a single idea.  Each idea should be considered according to a single Standard of Review.

According to the Handbook, "The statement of the standard of review is an opportunity to tell the judges hearing the appeal how you  believe they should review the actions of the trial court."  It helps to narrow down and focus the attention of the judges on the issues you would like them to address. 

The Standard of Review that you apply to the issues in your appeal can have a significant impact on the likelihood of your appeal achieving a successful result and so you need to be scrupulous in choosing the appropriate ones. 

You can choose from a broad array of Standards of Review, but the ones that the Handbook Recommends are as follows: 

A)  The "de novo" or "plenary" standard of review.  This is the standard you would use if the Trial Court simply violated the law or misinterpreted a particular statute in its decision in your case.  This is the best standard because it really means that in considering the issue the Appellate Court is not required to defer that much to the determinations of the Trial Court; 

B) The abuse of discretion standard of review.  This is the standard you would use if the Trial Court mishandled issues related to the management of the trial, i.e. scheduling, evidentiary rulings, etc. during the course of the Trial; 

C) The clearly erroneous, or plain error standard of review.  This is the standard you would use of it appears that the Trial Court made factual determinations which were simply wrong.  Remember, another term for a judge is "Finder of Fact" and everything that the judge states in his or her Memorandum of Decision is supposed to be a fact, so if you read through a judges decision and see that one of his determinations is not a fact, in your view, the Appellate Court should review that determination under the standard of "plain error".  Unfortunately, the Appellate Court tends to defer considerably to the Trial Court in regard to the decisions it made in regard to questions of fact. 

As you can imagine, if you specifically direct the appellate judges as to exactly the basis for how a determination should be made on each of the issues in a case, this makes things much easier for them. 

For more information on the structure of the Legal Argument in a brief for Appellate Court, see Connecticut Practice Book Sec. 67-4(d).