Family Court Reform Must Include Disciplining Lawyers Who Abuse the Process

December 22, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I’ve written a lot about the many ways in which family courts keep children from one parent or another, mostly fathers. In the process, I’ve often excoriated lawyers in child custody cases who exacerbate conflict between parents for the sake of increasing their fees. But here’s an op-ed with a slightly different perspective on family court lawyers. (Lincoln Journal Star, 12/18/14). It’s written by Ray Keiser who’s a Nebraska farmer and crop insurance agent. He’s no lawyer, but he’s got some very pertinent things to say about them.

His basic point is that courts need to discipline lawyers who abuse the process of litigation in custody cases. The reason is that abusive litigation that involves children inevitably abuses those kids. Keiser points out that, in other parts of the country, courts haven’t hesitated to level harsh discipline at lawyers.

There is an emerging trend nationally to punish lawyers who use abusive tactics in family law cases. As the California Court of Appeals said in a recent case, "zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility." In this case, the court found that "uncivil, rude, aggressive, and unprofessional conduct (by the wife’s attorney) marred this case from the very beginning," and upheld $400,000 in monetary sanctions for a litany of abusive tactics.

In an unrelated case, the California Court of Appeals upheld an attorney fee award of $552,153 for false allegations of domestic violence and other misconduct. It also awarded $15,000 for filing a frivolous appeal and sanctioned two lawyers $5,000 each for their involvement in the frivolous appeal. In a recent New Jersey case, an appeals court upheld an attorney fee award of over $1.5 million and an additional $300,000 in expert witness fees for a variety of abusive tactics in a custody dispute, including false allegations of domestic violence.

Courts have also recently awarded monetary sanctions in New York ($50,000) and Tennessee ($61,000) for abusive tactics in family law cases.

Plaintiffs’ lawyers will tell anyone and everyone that high-dollar awards in civil cases against corporations make sense because money is the only thing boards of directors understand. Make them feel it in the wallet, the lawyers say, and they’ll behave better next time. Maybe the same is true of lawyers who use abusive tactics in child custody cases.

But Keiser doesn’t stop there, and in the process reveals what may be the ugliest side of attorneys’ behavior in child custody matters – using children to extract money from parents, usually fathers. Put simply, many lawyers advise mothers to take the children to an unknown location at the beginning of the divorce case. Then the lawyer will tell Dad that, if he wants to see his kids, he needs to pay up.

Nebraska lags behind other states in policing abusive family court tactics. Perhaps as a result, 10 respected attorneys recently asked the Nebraska Supreme Court to amend our legal ethics rules to prohibit lawyers from engaging in one of the most abusive tactics — using children as leverage in financial disputes. As these attorneys pointed out:

“While not often discussed publicly, the use of children to gain leverage in financial disputes is a recognized tactic in Nebraska family law cases. This often is reflected in negotiations around parenting time and child support, in which an attorney may condition parenting time on the payment of additional child support. In extreme cases, an attorney may actively participate in a child abduction in which a parent denies the other parent access to the child until the other parent agrees to financial concessions.”

To illustrate this latter point, the attorneys attached a letter in which a Nebraska lawyer actively participated in a child abduction and demanded money for the return of the children. The lawyer had counseled the wife to leave the marital home with the children and then demanded an extraordinary five-figure upfront fee from the father in exchange for letting the father see his children.

Utterly despicable. Of course none of that would happen if judges didn’t permit it, a point insufficiently addressed by Keiser. Indeed, that’s the type of behavior by lawyers that should result in an immediate transfer of custody to the other parent and monetary sanctions against the lawyer. After all, child abduction is a crime and parental alienation is child abuse. And conditioning access to the child on payments of money is extortion. That any judge tolerates such outrageous behavior is beyond disgraceful. Every judge has the power to stop those actions when taken in a case in his/her court.

Keiser has some very useful suggestions about what the state bar and state legislature can do to drive the point home that attorneys taking part in the abuse of children will not be tolerated.

First, our courts should follow the lead of courts in other states and enforce existing rules that restrict the use of abusive tactics.

Second, we should amend our legal ethics rules to prohibit lawyers from using children as leverage in financial disputes and give bar discipline authorities the ability to prohibit attorneys who violate these rules from handling child custody cases.

Third, the legal ethics rules should provide that lawyers who are involved in child custody matters owe duties both to their client and to the minor children. Legal ethics rules already provide that criminal prosecutors have a higher duty than just to win, they must also protect the rights of the accused. The new rule would provide that family law attorneys also have a higher duty than just to win, they must also protect the best interests of the minor children (who are not their clients).

Fourth, the legal ethics rules should require special training for lawyers who handle child custody cases. This training should include information on optimal parenting time outcomes, how to minimize conflict, how to insulate children from the conflict that does occur, ethics, and child abuse and domestic violence including male victims and false allegations.

Those all sound like good ideas to me, particularly number three. At first glance, the concept of an attorney representing two different parties (parent and child) in the same contested case suggests a conflict of interest. But actually, there’s not one. The only time there’s a conflict of interest is when an attorney represents two people whose interests either conflict or may reasonably be expected to.

But the most basic point of child custody should be that, in all but the rarest of cases, parents and children’s interests are not only not in conflict, but are very much the same. Both want a continuing relationship with the other and both want what’s best for the child. In extreme cases, one or both of those may not be true, but the presumption should be that both assumptions hold. Given that, attorneys should be required, as Keiser says, to act not just on behalf of whichever parent they represent, but on the children’s as well.

Failure to discharge that duty would constitute malpractice, as it would if an attorney failed in his/her duty to any client. A child could, through its parent, then sue the attorney for failing to adequately protect little Andy or Jenny’s relationship with that parent. All in all, not a bad idea.

Keiser presents some good ideas that shouldn’t be forgotten in the continuing effort to reform family courts.

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