My Attorney Isn’t Doing What I Tell Her to Do – Isn’t She Supposed to be Working for Me?

Posted on by Barbara J. Shah

The question of how an attorney goes about representing a client is not a simple one. On the issue of loyalty, there is no question; if the attorney cannot be trusted to look out for his or her client’s best interests, that is an attorney-client relationship that should no longer continue. The attorney owes the client the duty of absolute loyalty, and if there is a question of who the attorney owes loyalty to, the attorney should step aside. This includes situations where someone else other than the client is paying the bill; the attorney can and must focus on what is good for the actual client and cannot share information with or take instructions from anyone else, without the client’s express permission.

The issue generally presents itself in a different way, that is, the client lays out a course of action that they want to be followed or a legal position they want to take, to the attorney, and the attorney disagrees with the client’s request. Is an attorney required to do whatever the client instructs them to do? The simple and easy answer to the question is “no,” because the Rules of Professional Conduct adopted by the PA Supreme Court are binding on all attorneys licensed to practice law in PA, and these rules prohibit certain actions by an attorney which are considered to be prejudicial to the system of justice. We are not permitted to (individually or through others) present perjured testimony, file lawsuits which have no justification, or intimidate witnesses, to name just a few.

But beyond that easy answer regarding not taking actions prohibited by rules of conduct, is another answer which is much more difficult, and one which distills the essence of the attorney-client relationship. What are attorneys really supposed to do for their clients? One clue can be found in the rarely-used synonym for lawyer, “counselor.”

What a lawyer should be doing for his or her client is listening closely to all aspects of the problem which brought the client to the lawyer in the first place, and then giving a reasoned analysis of that client’s situation and the options available to the client for resolving the problem.  These options must include an analysis of personal factors, including costs, which limit the options available to the client. If there are children involved, the lawyer must consider and discuss with the client the effect on the children of the exercise of each option available to the client. It means that the lawyer must have an extensive “toolbox.” There is no one-size-fits-all solution to every problem. Each client situation or problem has its own unique issues.

Then the lawyer must counsel the client on his or her recommendations for solutions of the client’s problem. Most people have heard the old saying, “a good lawyer knows the law; a great lawyer knows the judge.” I finally came to peace with that saying; for years I thought it meant that a lawyer should develop some sort of “buddy” relationship with a judge to seek to influence his or her decisions because of their personal relationship, and I thought it was a repugnant idea. However, I finally came to understand what the saying means. It doesn’t mean that there should be a personal relationship between the lawyer and the judge; it means that the lawyer needs to take time to understand how the judge thinks about a particular kind of case by being attentive in that judge’s courtroom, talking to the lawyer’s colleagues, and studying the judge’s decisions, to be able to predict, with some degree of certainty, how a judge will rule on a particular type of case or in a particular situation.

When counseling a client, if rulings of the judge of the case (or the general attitude of the local bench on a particular kind of case) are known to the lawyer, the lawyer must make it clear to the client that certain types of actions will not be tolerated by the court, or that certain actions are much more likely to achieve the result the client desires to attain. No lawyer should simply be a “mouthpiece” for the client without undertaking such an analysis of the potential outcomes for a course of action. If in the lawyer’s learned analysis a course of action the client is proposing would not achieve the desired result, it is the lawyer’s job to say “No.”

If the client doesn’t like what the lawyer says, he or she can move on and look for a lawyer who tells them what they want to hear. However, in the end the results will most likely leave the client unhappy. Lawyers, have courage! Clients, be smart! There is a difference between lawyers, and the truth is, if the lawyer is telling the client something they don’t want to hear, then that is very likely a great lawyer.

Staying Together for the Sake of the Kids is Usually a Terrible Idea

Posted on by Barbara J. Shah

No two families are alike, and everyone’s marriage and marital problems are unique, to a point.  However, after many years of divorce practice, there are some things that have become clear.  First of all, for the purposes of this article, I am not going to discuss religious beliefs and practices.   I can safely assume that no one’s religion or religious practices countenances the torture of children.  If yours does, stop reading; this article is not for you.

People who carry on marital battles in an “intact household,” that is, where no one moves out and the parties remain residing in the same residence while fighting with each other (or maintaining a stony silence), seem to be to be like people who are beating their heads against the wall.  Why are they doing this?  If they are just two adults living together, some just work it out and go and come like ships in the night.  Everyone has their own reason, and if it is not emotionally exhausting to carry on such a lifestyle, well, who am I to stop them?  Except that how can they be truly happy?  How can they carry on socially, have friends over for drinks or dinner, etc?  How can they develop a new love life?  Why are they hanging on to this empty husk of a marriage?

The real rub comes in when there are children of any age in the household.  What is the purpose of family life?  To form an economic and emotional unit where each supports the other and the children learn love (and independence, hopefully) under the loving guidance of their parents (or parent, in the case of a single-parent family)?  Well, that is the plan.  The children observe and learn how to behave in a family, and they are able to take risks, because they are secure in the love and guidance of their parents.  If they fail at an enterprise, they have the confidence that they will still be loved at home, and most parents will encourage them to keep trying until they succeed.

What happens when children live in a household where their parents are at war?  At the very top of the terrible scale, if they observe domestic violence perpetrated on one parent by the other, it will form a permanent impression on them.  There is plenty of solid research available which tracks the effect on children’s later lives of witnessing parent-on-parent violence, and it is pretty depressing.  A parent who stays with an abusive parent is doing no favor at all to the children.  I realize that it is not easy to separate from a violent parent, but ignoring the effect on the children of witnessing parent-on-parent violence is not a wise option either.

Although domestic violence is a serious and under-reported marital problem, living in an unhappy household where there is no actual physical violence is not very healthy for children either. Let’s assume this is a household where the parents argue regularly, whether over money or any other major issue.  First of all, those who believe that their children do not know they are fighting are kidding themselves. Children ALWAYS know when their parents are fighting.  We know that even in the most stable of marriages parents fight.  The difference is:  do they make up?  Do they apologize to each other?  Do they figure out ways to work out the issue their fight was about?  When children see their parents working out their differences in a constructive way, it is an important learning experience for them. They learn how to cope with different ideas and opinions of their partners and work out their differences in a civilized manner.

The problem in a household where the parents are always at war or always angry with each other is that children don’t observe a healthy pattern of behavior to pattern themselves after. Studies clearly reveal that these children are at risk, and that they will experience problems in forming healthy adult relationships later in life.  So, if you are one of those parents who is “staying together for the sake of the children” with an abusive/angry spouse, but in doing so are exposing them to ongoing marital strife, think again.

Child Support Contempt Proceedings

Posted on by Kristen Anders Bojarski

In a previous blog post we discussed what to do when you find yourself thrown into contempt proceedings for failing to pay child support due to an unexpected loss of income, and how to defend against it by filing a petition for modification.  But what can you do to avoid even the possibility of being swept into the nightmare that is contempt proceedings?  The answer is obvious: pay your child support as ordered.

In some cases where a child support obligor has lost his or her job, they have some savings to fall back on or friends and family willing to help out financially until they get back on their feet.  If you are one of these people, you should still immediately file for modification of child support, but continue to pay the full support amount as ordered until you have your support conference/hearing.  If you do that, you will at least avoid contempt, and eventually get back any money you might have overpaid.

Except in some limited circumstances, child support is always wage attached, i.e., the employer deducts it right out of your paycheck and sends it to Pennsylvania State Collection and Disbursement Unit, or PASCDU, who then distributes it to the obligee.  When you no longer have an employer to take care of this for you, it is your responsibility to make sure your child support gets to PASCDU on time.  One major mistake people often make is paying the obligee directly by cash or check.  DO NOT DO THIS!  If you pay the obligee directly, then Domestic Relations in your county will have no idea that the support was paid.  Not only will you not get credit for the support you paid, Domestic Relations will begin contempt proceedings against you if their system shows that you are behind more than 30 days.  You must send child support payments to PASCDU!

I had a case recently where I represented the Father in child support and other proceedings.  For several reasons, the child support hearing did not take place until about 6 months after Mother filed.  Although we had a temporary order in place in between that time, and Father’s wages were eventually attached, for many of those months he had to make direct payments to Mother.  When we finally had the hearing and sought credit for the direct payments (about $5,000 worth), Mother claimed that Father never gave her the payments at all, and that the copies of the checks and money orders he produced were fake.  Even after we eventually proved that Father did make the payments, Mother continued to refuse to give Father credit for them.  Mother’s attorney was eventually able to get Mother to agree to give Father credit for the payments, but it cost him a lot of time, attorney fees and stress.   It was certainly a lesson to him, and me as well.

So, if your child support is not wage attached for whatever reason, you must send your payments directly to PASCDU.  Below is the direct link to the PASCDU website with instructions on how to make payments and where to send them:

https://www.humanservices.state.pa.us/csws/CSWS_controller.aspx?pageId=Member/payor_payment_options.ascx

Father’s Day: Some advice for separated or divorced dads (and moms) from a child custody lawyer

Posted on by Barbara J. Shah

Not every father has a happy Father’s Day.  Often dads who are divorced or separated from their children have a sad or lonely Father’s Day.  This need not be.  For the purposes of this article, I’m going to assume that the Dads I’m referring to are not drunks, mentally ill, or abusive brutes, that they are just regular guys, not perfect but that they love their children and want to spend time with them.  If the dad reading this article falls into those “bad” categories, I advise counseling and soul-searching; you will never be able to form a normal relationship with your children if they are afraid of you.

A good relationship can be maintained with children of divorce and separation, but it’s not easy.  It’s important for both Mom and Dad to recognize the role the other parent has in the life of a child.  We know that prior to separation, most couples have assumed some sort of pattern, often the traditional pattern that Dad works full-time (sometimes 2 jobs) and Mom works part-time (or not at all) and manages the household and child-rearing.  Sometimes it’s the reverse.  Without reference to the reason for the separation, we expect that the parties’ prior pattern of family responsibilities is going to change when they separate.  If Dad (or Mom) has had little responsibility for child-rearing while the parties were together, we expect that that parent will want to step and take more responsibility for arranging the children’s lives.  Since the parties will be not living together, it means that both parents will need to accept changes in routine, that is, that there will be periods when the children are not with them at all, that they will be in the other parent’s custody, and the other parent will need to step up and work out bedtimes, clothing, schoolwork, and discipline for the children.  Often the parent who will be seeing the children less due to this change has a hard time accepting it, and the person who will be having more time with the children feels overwhelmed by the new responsibilities.  These feelings are normal; they can be alleviated by the parents by learning to work together or cooperate.  What’s that you say?? If we could cooperate we’d still be together!!!  Well, it’s time to grow up and be an adult.  For the “abandoned” parent (who is seeing the kids less), get a hobby.  Learn to enjoy time away from the children.  Despite what you may think, your children are not your life.  If they are, you are too involved in their lives.  Accept that things will be different at the other parent’s home, and assume that he or she loves them too.  Children do not have to have mirror-image lives in the other parent’s home.  So long as they are safe and appropriately nourished and rested, you should not try to control what happens when they are with the other parent. Don’t turn your child into a “buddy” and unload your troubles on them.  If you need to talk to someone about your angry feelings about the other parent, talk to your mother or get a dog.  Leave the children out of it.

For the parent who is having more time with the children, it’s time to grow up and be an adult too.  Don’t be the “Disneyland” parent.  Make sure that the children have regular bedtimes and a routine at your house too.  Make sure they eat appropriate meals.  Speak respectfully about the other parent, even if the children tell you that the other parent is bashing you to the children.  Just smile sadly and say, “That must make you feel sad,” when you hear a report such as that, and dismiss it.  Resist the impulse to badmouth the other parent, even if you believe they are badmouthing you.  Think of the children’s feelings and let your home be the place where they feel safe and comfortable, where they don’t hear negative talk about the other parent.

Cooperation between parents is the best present you can give your children.  You don’t have to like the other parent to respect them as a parent, and when you start putting the children’s feeling ahead of yours, you will realize that that is what they need, to grow up in an atmosphere of acceptance and understanding, one where they will not be able to manipulate either parent, because the parents communicate with each other.

All this is hard to do, I understand.  However, co-parenting counseling is available almost everywhere.  Take a deep breath and vow to be the parent who cooperates; avoid fighting.  Avoid calling the police.  Remember, each child knows that they are made up of half of each parent, so if one parent is really bad, part of them is really bad too.  Enjoy your time with your children.  Happy Father’s Day.

Should I Make Child Support Payments Directly If No Wage Attachment Has Been Ordered?

Posted on by Barbara J. Shah

By Kristen Anders Bojarski

Last week I wrote about what to do when a child support payor (obligor) finds himself (we’ll use the masculine pronoun for now, but you female support obligors, this applies to you too!) subject to contempt proceedings for failing to pay child support due to an unexpected loss of income, and how to avoid this by filing a petition for modification.  But what can you do to avoid even the possibility of being swept into the nightmare that is contempt proceedings?  The answer is obvious: pay your child support as ordered.  Yeah, you think, easy for you to say, but what if I can’t afford it?

In some cases when a payor has lost his job, he has some savings to fall back on or friends or family willing to help out financially until he gets back on his feet.  If you are one of these people, you should still immediately file for modification of your child support order, but you should continue to pay the full support amount as ordered until your support modification hearing.  If you do that, you will avoid contempt charges being filed against you, and if the order is modified, and through a temporary reduction in your obligation, you will likely eventually get back any money you might have overpaid.

Child support is normally wage attached, that is, your employer deducts it right out of your paycheck and sends it to Pennsylvania State Collection and Disbursement Unit, or PASCDU, who then distributes it to the support obligee. When you have no employer, the responsibility is yours. (However, if you qualify for unemployment benefits, the wage attachment is normally transferred to that benefit).

Sometimes support obigors decide to pay the obligee directly by cash or check.  BAD IDEA!  DO NOT DO THIS!  Not only will you not get credit against your support obligation for the support you paid directly, Domestic Relations will likely begin contempt proceedings against you if their system shows that you are behind more than 30 days.  You MUST send ALL child support payments, even partial payments, to PASCDU.

I am aware of a recent case in which the obligor, for several reasons which seemed logical, paid his child support directly to the obligee; the modification hearing did not take place for several months.  At the hearing, the obligee denied receiving some of the payments and/or said that certain payments were not actually for support. As a result, after the hearing, the obligor’s wages were attached and arrears were set for many of those months he made direct payments to the obligee.  Ultimately, after several months and spending a lot of money on attorney fees and expenses for copies of money orders, most of the payments were credited.  (Hint:  If the obligee had been receiving welfare, the obligor would have gotten NO CREDIT FOR HIS PAYMENTS AT ALL, as the support payments would have been owed to welfare.)

So, if your child support obligation is not wage attached, you must send your payments directly to PASCDU, not to the obligor.  Below is the direct link to the PASCDU website with instructions on how to make payments and where to send them:

https://www.humanservices.state.pa.us/csws/CSWS_controller.aspx?pageId=Member/payor_payment_options.ascx

What happens when you lose your job and can no longer afford your child support order

Posted on by Kristen Anders Bojarski

Lately I have been seeing and hearing about a lot of cases where a parent who pays child support has a sudden loss of income due to an involuntary termination, job lay off, cannot work because of a medical issue, etc., and as a result, is unable to afford their monthly child support obligation.  Some of these people believe that if they are not bringing any income in, then they don’t have to pay their child support obligation and then just stop paying.  These people are then shocked when they receive papers in the mail ordering them to appear in court for a contempt proceeding for failure to pay child support.  How can they be in trouble for not paying child support when they no longer have the income to pay it, right?  Wrong!

If you stop paying child support per the terms of your child support order, domestic relations of your county will automatically begin contempt proceedings against you.  The first step is usually to order you to appear at a contempt conference/hearing where you have to show why you shouldn’t be held in contempt of your child support order.

Once this first contempt proceeding is scheduled, people often believe that they just have to appear at the proceeding, show that their income was reduced, and the court will reduce/terminate their child support obligation and drop the contempt.  Unfortunately, those people would be wrong again.  The contempt proceedings are generally about the contempt only.  Even if it is clear that your income has been reduced, the conference officer who is handling the contempt proceeding will not reduce your child support at that time; they will only address the contempt issue.  Since you failed to pay the support as ordered, you could be found in contempt and ordered to purge yourself of contempt by continuing to pay the full support order, making a lump sum payment towards the child support arrears, pay the payee’s attorney’s fees if he/she hired an attorney for the contempt proceeding, or worse.

So what SHOULD you do you do if you have a sudden loss of income and can no longer afford to pay your child support obligation?  You must immediately file a petition for modification of the child support order in the county your child support order is through, and schedule a conference/hearing date to determine whether the support should be reduced.  That way if domestic relations does schedule a contempt proceeding, the contempt and modification proceedings can probably be heard together, and you will be able to produce evidence of your reduced income, request that your support be lowered all the way back to the date you filed, and greatly help your chances of not being held in contempt for failure to pay child support.

Of course, it is not guaranteed that child support will be lowered because you lost your job, such as if you quit on purpose or were fired for cause.  Anyone who finds them in this situation should seek the advice of a competent family law attorney immediately so they can be advised according to their particular circumstances.

 

 

 

The Key to Success in any Divorce is Preparation

Posted on by Barbara J. Shah

If worst comes to worst and you cannot settle your case with what seems like a reasonable compromise, your lawyer should be calling and scheduling a meeting with you well before trial to prepare for the trial itself.  First of all, for most cases I am scheduled to try, a pretrial statement must be filed.   When the trial was originally scheduled, it is likely that trial judge entered what is called a “pretrial order” setting forth discovery deadlines and due dates for the parties’ pretrial statements to be filed with the judge or the court clerk.  Some jurisdictions have rules that set forth the due dates and contents of pretrial statements, so there are not individual orders for each case.  However, before the pretrial statement can be filed, the lawyer and the client should meet to discuss strategy and the identities of witnesses that they may want to call to testify, and to identify the documents which will need to be offered into evidence, to prove their case at the trial.

There are numerous rules that govern what evidence can be offered at trial; evidence cannot be “hearsay,” that is, the person who offers testimony or authenticates documents that they want to put into evidence must have FIRST HAND KNOWLEDGE of the events or issues they want to testify about.  With limited exceptions, witnesses will not be allowed to testify to anything someone told them. I wish I had a dollar for every time a client offered to bring a letter from a proposed witness, (notarized or not), that lays out that person’s testimony.  Sorry, hearsay.  Not permitted.  Testimony must be given in person.

This is probably an appropriate time to explain what notarization of a document means.  Most people seem to think that if a document is notarized, that it has some official recognition as being true, or accurate.  Actually, all that a notary seal means is that the notary public is guaranteeing that the person whose name is signed to the document is that actual person; normally the notary is going to require that the person whose signature they are notarizing SIGN THE DOCUMENT IN FRONT OF THEM and that they produce I.D. to prove who they are.  Don’t bring a signed document to the notary and ask them to notarize it; it is against the law.

Unfortunately many lawyers don’t involve the client in the trial preparation process; if they did, the client would have a better understanding of the strengths and weaknesses of his or her case, and what evidence or witnesses the lawyer intends to call at trial to prove their case, or in the event they are the defendants in the case, what evidence they can put on to disprove the plaintiff’s case.  I have found that involving the client in the pretrial process is extremely valuable,   both to me and to the client, in preparing for trial.

Before the trial, the lawyer should plan to meet with everyone whom they intend to call as a witness in their case.  If they have expert witnesses, such as a real estate appraiser, a physician, pension expert, or whatever, it is unlikely that they will meet to review their testimony personally.  However, most expert witnesses are used to testifying, and usually the lawyer can go over their testimony with them by telephone.   In the case of lay witnesses, I have an ironclad rule.  If they cannot meet with me to go over their testimony so that I can know what questions I should be asking them and also to  prepare them for cross-examination by opposing counsel, I will not put them on the witness stand.  That doesn’t mean that I have to meet with everyone individually; many times I hold group witness preparation sessions with numbers of witnesses.  However, the key is preparation.  If I don’t know exactly what the witness will be testifying about, I would be foolish to call them to testify, and if they are not prepared for tough cross-examination by opposing counsel, all of their good intentions can come to naught.

In trials, as in most things in life, proper preparation is required to reach the desired result.  Thorough trial preparation doesn’t always mean you are going to win your case, but it sure as heck makes it more likely.  And frankly, it often intimidates the opposing counsel, who may not have his or her case as well prepared.  Many times I have settled cases on terms satisfactory to my client, on the way into the courtroom when my client and I are better prepared for trial, and opposing counsel is aware of the disparity in preparedness.

Why is My Divorce Lawyer So Friendly With my Ex’s Lawyer?

Posted on by Barbara J. Shah

 

Sometimes it is hard for clients to understand when I joke with or make small talk with opposing counsel.    Clients don’t really want to be in court anyway, and they are usually very stressed just to be there.  Something very important to them is in the process of being settled or litigated, and they may be filled with dread.  The last thing they want to do is laugh or joke, and often they see their lawyer doing just that, and often with the hated opposing counsel.

First of all, it seems to be pretty universal that since clients are in a battle with a hated enemy – the person on the other side of their case- they expect me to hate the opposing party too.  However, it is important that I do not adopt my client’s attitude towards their adversary.  If I did, it would rob me of my ability to make an independent analysis of the case.  This is what they trained us to do in law school.  If we can’t maintain our independence and independent thought about a case, we are of little value to our client.

In order to serve my clients’ actual best interests, I can’t get “invested” in their views of their case.  I have to coldly analyze it, coldly analyze the opposing party’s case, and make a learned prediction of the likely range of outcomes.   This gives me the ability of determine a range of settlement options and make recommendations to my client which are reasonable, given the situation and set of facts which look provable to me.  There are many factors to analyze, including my client’s ability to testify, negative factors which may affect the case, the skill of opposing counsel, and what I know about a judge’s predilections from past experience.  This is why I get paid the “big bucks.”  My analysis pulls no punches and takes no prisoners.  I have to look at everything with a cold, independent eye.   Would you prefer a lawyer who gives you an honest analysis of your chances or one who tells you what you want to hear?  If you choose the latter, might as well stop reading this article.

In most jurisdictions, there is a relatively small circle of attorneys who are experienced in a particular area of law.  Pennsylvania does not allow lawyers to advertise “specialties” in law; we are all general practitioners in the eyes of the PA Supreme Court.  However, most lawyers, especially those in or near larger urban areas, have developed an area of concentration within the law.  Hopefully if your case is in such an urban area, you have been referred to a lawyer who mainly practices in the area of law your case relates to.  In any case, these lawyers get to know each other pretty well.  We belong to the same organizations, attend court on a regular basis, and attend meetings (and parties) which pretty much this same group of lawyers also do.

We have usually developed healthy professional relationships with these lawyers we see on a regular basis.  We may know about their family, health issues, and other information.  For the most part, they are just like us, struggling to maintain their professional independence while trying to advance their client’s interests, observing the rules of ethics which govern our profession, and making a living.  When you consider this, wouldn’t it be odd if we didn’t act cordially to one another?  It’s true that during court appearances, some attorneys act like bullies or make disparaging remarks about the opposing party or their case, but  generally this is just part of the “persona” that they adopt in public.  Sometimes they do it to impress their clients who are nearby and don’t understand that lawyers really don’t hate each other, or that they don’t really hate the opposing party. (Unfortunately, sometimes lawyers have lost their independence from a case, but that’s another story.)

So as a client you should feel good if your lawyer banters with opposing counsel in the hallway or outside of court; it is a good sign that their independence is intact, and that they are not uptight or worried about your case.  Smile and trust your lawyer!

 

 

 

The Truth about Divorce Lawyers Who Lie

Posted on by Barbara J. Shah

DO LAWYERS LIE IN COURT?

Before I became a lawyer, while I was in law school, it was confusing to me why lawyers had a reputation of not telling the truth.  To me it was pretty clear – as a lawyer I would be representing my clients and helping them explain their position of point of view in court.  Since I would not be a litigant, my  role was a very limited one, and since I was not personally a witness to anything, what was there for me to lie about?

Well, 32 years later I have seen a lot, and now I understand that “liar” reputation that tends to follow the legal profession around.  First of all, let me be clear that the ethics requirements of my profession require that I always tell the truth to the judge, and I am not allowed to permit my clients to commit perjury, if I am certain, or substantially certain, that their testimony is untruthful.  I am supposed to ask for a recess in the proceedings, “remonstrate” with my client – essentially insist that they tell the truth – and if they refuse to change their testimony, I am supposed to ask the court for permission to withdraw as that witness’s lawyer.

As a general practice, I have always advised my clients to tell the truth.  First of all, I need to know the truth, so I can work with them to make smart decisions as to how to go about best presenting their case.  Perjury is against the law, so I can’t be a good lawyer/citizen if I permit my clients to break the law. Second, my reputation is important to me; I want judges and other lawyers to respect me; it helps my clients in the long run if the judges of their cases can feel confident that I don’t allow my clients to perjure themselves in testifying.

Unfortunately, there are lawyers that appear to be a lot less scrupulous with the truth.  Do they just forget to get enough information from their client and feel the need to cover up their lack of knowledge?  Is “winning” so important that they forget their obligations to the court and to society?  Why do some lawyers make up excuses for their clients not complying with a deadline or an order of court which are clearly false?  I try to make it clear to my clients:  doing the right thing is always better (and usually cheaper) than trying to “game” the system or using the courts to “wound” the other party.

There are plenty of lawyers around like me, those who are interested in upholding the sanctity of the legal system, so that those who have to rely on it don’t feel that they are behind the 8-ball. It’s true that trying to negotiate the legal system without a lawyer is difficult, but that is because there are procedures and rules which the system operates under, which are difficult for the layperson to understand and follow.  There’s a reason lawyers spent all of that time and money to attend law school.  Like I tell clients, of course anyone is entitled to represent themselves, just like I am entitled to try to fix my car instead of hiring a mechanic.  However, the results of self-representation are often pretty unsatisfying, just as any feeble attempts I may try to make to fix my car.

If you believe that “lawyers are liars,” you just haven’t met the right lawyer.  And if you are looking for a lawyer to help you perpetrate a lie, I suspect you can find one.  However, count me out on that.  I’m not interested.

Technical Competence Now Required for Pennsylvania Divorce Lawyers

Posted on by Barbara J. Shah

 

In October 2013 the PA Supreme Court adopted changes to the rules of professional conduct affecting PA attorneys, related to the issue of technical competence.  The rules now require PA attorneys to attain an appropriate level of technical competence and employ modern technology in their law practices, to the extent that it will improve their ability to represent their clients.   These changes were suggested by the American Bar Association, and many states have now adopted similar rules.

When I first began practicing law in 1982, once you got your law license, you were golden.  All you had to do was pay a small annual registration fee to the PA Supreme Court, not break any laws or rules relating to the conduct of the profession, and you could practice forever.  Sometime in the 1990’s, changes began to occur.  First, a fund was set up for victims of attorneys who stole or frittered away client money in their control, and the annual registration fee suddenly zoomed to over $70 per year.  Around the same time, disciplinary rules relating to lawyers were instituted to require that every lawyer, in order to maintain their right to practice law in PA, take CLE, or Continuing Legal Education courses every year, 12 “substantive” hours per year (courses relating to changes or developments in different fields of law) and one “ethics” credit, course relating to lawyers’ ethical obligations to their clients or the courts.  Since then, we get an annual print-out of all CLE courses we have taken during the past year, which have to be reported to the Disciplinary Board of the PA Supreme Court, to notify us whether or not we are in compliance with this CLE requirement.  If not, our license to practice law is suspended until we bring ourselves into compliance.

It seemed to me that this requirement was a no-brainer.  In the U.S., we follow the tradition set up by British law, of following legal precedent.  That means that if an appeals court in our state or the U.S. Supreme Court renders a decision which changes the way a law has been interpreted in the past, or interprets a new law, that decision is binding on all of the trial courts in the country.   Also, if a new law is passed by the legislature and signed by the governor, it is also binding on the courts unless they find it unconstitutional.   How else could we find out about these decisions, or changes in the statutes (laws passed by the PA Legislature), if we didn’t take refresher courses?   12 hours a year of refresher courses didn’t seem to be much of a burden.  Do you really want to employ a lawyer who doesn’t keep up with changes in the law?

Then came the computer revolution, the internet, emails, Facebook, and smartphones.  I remember when facsimile (fax) machines gave us the ability to exchange copies of documents, including signatures, in minutes.  Seemed amazing then, but now that scanning documents and email have become the preferred mode of exchanging documents and fast communications between lawyers and clients, it seems quaint, sort of old-fashioned, when a lawyer wants to fax you something.  A few years ago, the Orphans Court in Allegheny County (wills, estates, guardianships, and adoptions division of the court) began to require lawyers to put email addresses on court papers they filed.  That seemed controversial, since many lawyers didn’t personally have their own computers and had to rely on their office staff to receive and review their emails.  However, with the availability and ease of powerful lightweight laptops and tablet computers, and the advent of smartphones, most lawyers (and everyone else) now access their email regularly.

Now the ABA and the PA Supreme Court have made it official.  Lawyers must adapt to and keep up in some way with technological advances affecting their profession or step out of the way.  So, here is a new way to judge the competence of an attorney you are considering hiring:  Does he or she  give you an email address and encourage communication through that medium?  Does he or she have a website? Dinosaurs are fun to study as kids (and grown-up paleontologists), but do you really want to be represented by one?

~ Barbara J. Shah, Esquire