Defining the Problem
One of the most vulnerable times in a person's life is when they are faced with divorce. This is a time when people are not only losing their love, but having to decide how to deal with raising the children, dividing up the property, who's going to move out, making a living, child support, visitation, and just plain survival. This is a time where families who are breaking up need the courts to help them through the process.
During this time emotions are running high. This is often a time when domestic violence occurs. Children are caught in the middle. There is usually a lot of anger involved. However, the couple still faces the obstacle of having to make decisions to try to end the relationship in an orderly manner, divide the property, and to provide for the children. A task that is incredibly hard under the circumstances.
This task is especially hard where children are involved. Although a couple may be splitting up, they are both still parents to their children. And unless a parent is deemed unfit, both parents have to eventually cooperate on rearing the kids. And they have to come to this agreement in the context of divorce. The divorce process itself must therefore lead to the fair distribution of property and custody and support arrangements that are as practical and workable as can be under the circumstances.
The Role of Family Courts
Family courts are established to serve the public and provide justice for families who are splitting up. The task that family courts are charged with is to help families with this transition in a manner that is as fair, quick, painless, and inexpensively as possible. Family courts, in their service to the public needs must always look for new and innovative ways to make divorce as smooth as possible, or help preserve the marriage if possible.
Family courts must accurately determine what kind of custodial arrangements are best for the children and to make those tough choices and see that these arrangements are enforced. The courts need to create the environment where the courts are the friend and assistant to the families. The courts need to be available to family members to assist them in changing circumstances.
In order to do this, Family Court needs to maintain a high standards of ethics. The courts need to be fair and impartial and honesty and integrity must be enforced to protect the families from those who would use the judiciary as an opportunity to take unfair advantage of families in need. Family Court judges need to strictly enforce the Rules of Professional Conduct to make sure lawyers who practice in family court have the integrity required to practice law before the courts of this state.
Lawyers in Family Court
The purpose of lawyers in family court is to protect the rights and interests of their client. But they must do so in a fair and ethical manner. When two good and ethical attorney's get together, they often will go over the facts, negotiate out a settlement, and then encourage their clients to accept a reasonable compromise. Good lawyers will help their clients get through the divorce quickly and inexpensively so that the families can get on with their lives.
There are however a lot of bad lawyers out there who take advantage of families at their most vulnerable time. These lawyers conspire with the opposing lawyer to run up the fees as high as possible. Often they will bill for services not performed. In many cases they will fuel the hostility between the divorcing couple so that they will spend every last dime (and then some) in a battle that never ends until they are bankrupt or in jail.
It is therefore up to the Family Court judges to make sure that lawyers meet the tough ethical standards which are required under the rules to practice law. And ethical standards need to be enforced by the presiding judges to ensure that lawyers who are unfit to practice law are prohibited from appearing as counsel before our courts.
In Re: Kenneth Joseph Downs, an Attorney 1963. MO.
In such cases as this it is almost futile to review the authorities, except, perhaps, to glean the guiding principles therefrom. Each case must necessarily stand upon its own facts. We do, however, note here the following, among the comparatively recent cases: In re Randolph, Banc, Mo., 347 S.W.2d 91; In re Sympson, Banc, Mo., 322 S.W.2d 808; In re Oliver, Banc, Mo., 285 S.W.2d 648; In re Woodward, Banc, Mo., 300 S.W.2d 385; In re Conner, Banc, Mo., 207 S.W.2d 492; In re Veach, Banc, Mo., 287 S.W.2d 753; In re Canzoneri, Banc, Mo., 334 S.W.2d 30; In re McLendon, Banc, Mo., 337 S.W.2d 56; In re Gitterman, Banc, Mo., 264 S.W.2d 366.
The theme running through these and many other cases is that the primary and ultimate purpose of disciplinary proceedings is to protect the public, the integrity of the Bar, and the courts, from the practice of law by persons unfit to serve as members of the Bar, - and that the courts have "a solemn duty to the public and to the legal profession to enforce the code of ethics governing the conduct of attorneys." Sympson (supra). There is no inherent right to continue in the practice of law, but rather it is a mere privilege which will be withdrawn when one proves himself unfit. Canzoneri, Conner (supra)."
In Re: William C. Maier, Respondent 1984 MO. 166
The privilege to practice law is only accorded those who demonstrate the requisite mental attainment and moral character and, absent mitigating circumstances, an attorney who betrays the trust reposed in him for personal financial gain demonstrates he no longer possesses the requisite moral character.
The Rules of Professional Conduct clearly establish a duty for judges to enforce ethical standards in the family courtroom. If a judge finds that a lawyer has been dishonest, the judge is supposed to turn him in to be disciplined. From the Missouri Rules of Court:
Cannon 3(c) Administrative Responsibilities|
(3) A Judge should report what the judge believes clearly to be professional misconduct of a judge or lawyer to the appropriate disciplinary agency.
We have a joke that Missouri is a 50/50 state. His lawyer gets half and her lawyer gets half. This is too often the truth. When a family is breaking up, the last thing they need is a couple of lawyers ripping them off. The Family Court has a duty to society to make sure this doesn't happen. However, the courts not only allow it, but have created an environment where such behavior flourishes. This tolerance to misconduct by lawyers in family court must end if there is to be any meaningful progress.
False ex-parte orders
When kids are involved lawyers often will advise their clients to charge the other party with sexual abuse or physical violence. Lawyers are telling their clients to lie to get an ex parte order against the other party. This is often then used at trial to gain custody, property, attorney's fees, and child support. Judges often know lawyers use this tactic, but allow it to continue.
In re Paul M. Storment, Jr., Respondent. 1994 Mo.
Disbarment is the appropriate sanction. Disbarment is appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, thus causing serious or potentially serious injury to a party, or a significant or potentially significant adverse effect on the legal proceeding. ABA Standards, Rule 6.11 (1986). The evidence shows that Storment, with the intent to deceive, participated in presenting false evidence. See id. (Commentary). Disbarment is appropriate.
Our family court system will not function where dishonesty is rewarded and honesty is penalized. The judicial system has a solemn duty to the public and to the legal profession to enforce the code of ethics governing the conduct of attorneys. When an attorney participates in the filing of a false ex parte order, it causes an innocent person to be thrown out of the home, lose all his possessions, except for the clothes on his back, and be taken away from the children. This is a serious deprivation of rights without and due process, and thus, if an ex parte order is granted on a false accusation, great harm is done.
Passing the Buck
A common occurrance in Missouri Courts is that the ethical standards, as contemplated in the Rules of Professional Conduct are ignored. Trial judge refers ethical complaints to the Chief Disciplinary Counsel. The Disciplinary Counsel refuses to consider any complaint while the case is open and refers the matter back to the trial judge. What happens is that no one hears the complaint.
The enforcement of lawyer ethics must be practiced at all levels. The trial judge is on the front line and has a duty to the Constitution to ensure that lawyers are held to a high standard of honesty and integrity in their practice of law in the halls of justice. (Cannon 3(c)(3)) However, the judges of Missouri don't do this and seem to take the attitude that "everybody does it". I suppose that the judges of Missouri are concerned that if we locked up every lawyer who broke the law, we'd run out of prison space.
In the Matter of Anthony Canzoneri 1960.MO.100|
The primary duty of every lawyer is to keep his own conduct above reproach (certainly above the minimum standards of the criminal law) because improper conduct of even a few persons lowers the prestige of the profession and its effectiveness in performing its duties and responsibilities.
In addition to judges sanctioning lawyers for ethical lapses, the Presiding Judge should track these sanctions and have policies in place where lawyers are suspended from practicing law in their courts if it is found that they are a persistent offender. The circuit courts need to make it clear to law firms that they can not be allowed to violate the public trust and that there is no inherent right to practice of law. That it is a mere privilege which will be withdrawn when one proves himself unfit.
Lawyers who drop the client, Keep the Money
Lawyers often will take a case and require a large retainer up front. This retainer is often $5,000, $10,000, $15,000 and more. The lawyer does nothing to prepare for the case and then, with less than a week before trial, the lawyer drops off the case, leaving the client stranded, and keeping the money.
In Re: William R. Murphy, Respondent 1987.MO.647|
Where an attorney has committed an act of fraud, dealt in a purposefully dishonest manner with a client, or sought to enrich himself dishonestly at the expense of others, disbarment is the appropriate sanction.
This practice of lawyers doing nothing, droping out, and keeping the money is criminal, and it needs to stop. In every case where a lawyer has decided to drop a client, the lawyer should at least have to refund the money unless the lawyer can show good cause. And if the lawyer can't show good cause the court should require the lawyer to pay the expenses of the client to transfer to a new lawyer.
Divorce breeds domestic violence. Families breaking up stir strong and violent emotions. People, who last week were normal, tax paying, law abiding citizens, are this week finding themselves in jail. The Family Courts have the responsibility to take steps to reduce domestic violence where possible. Right now, issuing ex parte orders is very popular in the courts.
I think that it can be concluded that the more stress is placed on the family during a divorce, the more likely that violence will occur. Often a family is jacked around by the courts. Lawyers are allowed to steal everything the family owns by dragging out litigation for years. Families are frustrated because they can't communicate with the judge who is making the decisions that affect their lives and the lives of their children. People are often treated unfairly by the courts. These things create the kinds of stress that leads to domestic violence.
One big factor is the length of time it takes to get a divorce. It drags on for years and years. People get to the point where they just can't do it anymore. They become virtual slaves to a system that treats people worse than criminals. When men in particular see O.J. Simpson murder his ex-wife, get away with it, do less time in jail, cost him less money, and have the whole process over with in less time than a Missouri divorce; it just sends the wrong message.
Domestic violence is very expensive. Divorce turns hard working taxpayers into criminals. Businesses are bankrupted to pay lawyer's fees. Children are traumatized and grow up to be drug addicts instead of doctors. People are crippled and maimed and have to live on state welfare. The prison population is increased. More law officers are needed and more officers are injured or killed. Citizens become angry and disolutioned with government and join the militias. These are all very expensive to society and any changes in Family Courts that measurably reduce domestic violence might well pay for themselves.
Making Family Courts better for families will make life safer for Family Court judges. Court security is a big issue these days as people come into court with guns and blow away judges. And if you look at the statistics, the judges who are killed are not killed by murders, mobsters, rapists, or serial killers. Judges are killed by people getting divorced. And there's a reason for that. A murderer has rights and he usually gets a fair trial and due process of law. A person getting divorced does not.
You'll never get to have a chance to talk to the Judge
The Family Court system in Missouri isolates the judge from the family. Everything is filtered through the lawyers. The family is placed in an situation where their lives are going to be divided up by a total stranger who won't even talk to them. All conversation is filtered through the lawyers who, as a third party, must convey the details of the relationship to the judge. Even under the best of circumstances this is a very ineffective way for the judge to get enough information to make an informed decision. It often ends in an unjust or impossible decision which often leads to domestic violence or criminal activity.
Judges can't have the luxury of not having to deal with the families. And families can't afford to pay lawyers to tell the judge things that they can do a better job of telling the judge directly. Judges are going to have to be ready to get their hands dirty and do the work they're paid to do. That is, after all, why they make the big bucks.
Appearing without a Lawyer
Although it is advisable to have a lawyer for the divorce itself, many divorce related procedures can be done more effectively and less expensively by letting family members appear pro se. Many divorced couples are barely able to survive without getting their utilities shut off and can't afford to pay a lawyer every time circumstances change. However, the divorce courts of Missouri are openly hostile towards pro se litigants. This has to change.
Family Court needs to be structured more like small claims court where the couple can appear for modification orders which can be decided quickly and efficiently. In order to help the couple file their motions, the Family Court can provide booklets that explain the rules and provide forms for routine proceedures.
Many times a lawyer will ask the court that one party pay the legal fees of the other party. Generally the working party pays for the non-working party. In this situation the working spouse has to pay both lawyers and unlimited amount of money to pay for his own destruction. With "someone else" paying the bill, there are no controls on spending except what is imposed by the court. And the courts aren't imposing and spending limits.
What needs to be done
There are a lot of things that can be changed to make the family courts better for people, work faster and more efficiently, protect the rights of people, cost the government less money, and put a lot more of the divorcing couples assets in the hands of the couple. It would be easy to implement and we should just do it.
A solution might be to have a marriage arbitration system that would be less formal; more like small claims court. The judge would be the first person in the system you'll see after filing for a divorce. Your first hearing can be with or without lawyers. Lawyers will be welcome in the process. The special judge will let both parties speak directly to him and tell their story. The judge will interact with them guiding the conversation towards a settled solution and educating the couple about how the process works and what to expect.
In this process the judge will get out a drawing board and start listing the marital and non-marital property by item and start dealing with disputed items ruling in real time as to if an item is marital or not. He would also hear about the children and what arrangements are possible as to how the couple can work together to raise the kids.
During this initial visit the judge will explain to the couple the "facts of life" about divorce and what the rules are. In addition to that, at the time the couple files for a divorce the clerk of the court will send a booklet to the couple titled, "So you're going to get a divorce" which will give the couple a lot of information about what to expect and where to get help. That way the couple will have a good idea what to do at the first hearing.
In the process of a few hours the couple, along with their lawyers, will have a good idea as to what to expect as to how the property is likely to be divided up. The idea being that the results of this first hearing isn't binding but is more of a preview of what the decision might be like. In this preview the judge might say, if you can prove X I'll rule in your favor, else I won't. That way the lawyers know what items can be argued over.
This process would clear the backlog in the courts, save marriages, save money, reduce crime, and everyone wins except dishonest lawyers. Legitimate honest lawyers, who are trying to do the right thing for their client, will still make about the same amount of money as any non-contested divorce where there are some differences to work out. In fact, I think it would be more satisfying to the lawyers to work in this environment because they would do less work for about the same money, and have to deal with less violent emotions in the process.
For a good honest lawyer, divorce is stressful. Lawyers have to play psychologist and help the client deal with the pain of separation and loss. This is distressing to lawyers who just want to help you get through it and are not out to rip you off. Most lawyers are not crooks. And divorce is something that is not fun for lawyers.
In this proposal, getting to a solution is quicker and less painless. This reduces the stress that everyone goes through. And if the couple reconciles then everyone is happy and the lawyers still have made a few bucks and the clients are happy to pay it.
If you want to help make this vision reality, go to my People before Lawyers page and read about what you can do. Judicial reform may be easier than you think and you can help make it happen.
This document is a draft of a proposal for reforming the courts of Missouri by Parents United as One. The contact person for Parents United as One is Bob Pilger. Bob can be reached at 417-890-5821.
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