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Recent Blog Posts in August 2011 |
| August 29, 2011 |
| SECOND OPINIONS With THURMAN W. ARNOLD - Honest Feedback on Family Law Matters |
| Posted By Thurman Arnold, CFLS |
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Quality Divorce and Family Law Legal Advice and Second Opinions
and Some Philosophical Spice!
Because this Blog has brought me into contact with so many wonderful people, a segment of whom are facing daunting struggles in their personal lives who would otherwise never wish to share the company of attorneys (not because family law attorneys are necessarily bad companions, but because divorce lawyers like myself are rarely called in except when situations reach critical mass), I hope to share from time to time about issues that extend beyond my role as a family law specialist and speak to the dangers that flow from the disintegration of our core identity and value systems - the family unit.
Whether mine is an exercise in self-aggrandisement or a cutting edge dialogue about the elephants in the rooms we all inhabit remains to be seen. However, as a person on the front lines where people battle against one another about basic concerns over economic and emotional security, I worry that the collapse of the most basic unit of human interaction - families in whatever configuration - potentially guarantees the collapse of the social structures upon which we all depend. We may deny that Americans are vulnerable to the same erosions that beset Pakistan, Syria, Africa and so many parts of the world. But once traditional expectations for the quality and entitlements of peoples' everyday lives seemingly becomes impossible to fulfill (for instance because fundamental needs for food, shelter, or intimacy cannot be met) a radicalization will occur that devalues and undermines all social glue in a self-perpetuating cycle of violence.
If at the end of relationship, as I observe not infrequently, people seek out lawyers to act as destroyers and imagine courtrooms as the place to accomplish revenge, they are already living within a self-imposed world of divorce jihad. Indeed, I have written much about how "people blow themselves up in divorce all the time." Considered from that perspective, the self-centeredness that devalues the lives of others and goes to war with each and every other person's right to seek happiness becomes the soil in which we figuratively begin to plant roadside bombs within our own communities.
The good news for those who find such thoughts depressing is that with a click of the finger you can vote to relocate your attention elsewhere in an instant! : ) For those for whom the tone of this website resonates, I'd like to deepen our relationship.
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I remember with great fondness and gratitude many of the lessons of Richard "Dick" Flacks, a sociology professor at the University of California at Santa Barbara (now retired), who made his mark on me back in the 1970's when we lived in a seemingly kinder and gentler world that was nonetheless beset by challenging and scary transitions.
Everything that we worried about and foresaw at that relatively innocent time of our cultural and even global development has unfolded in ways consistent with our darkest fears. And yet, the seeds of all of the glimmerings of hope and social responsibility remain with us and have sprouted in equal measure. This tension between polar extremes seems to be the battle that we are waging today, whether as individuals and nuclear and non-nuclear family units or 'tribes' of people. These are difficult and frightening times. People at the end of relationship and families in transition are the microcosm that collectively mirrors our experience as individuals in a larger way. Society's successes and failures tend to match our individual interpersonal successes and failures - and this interdependency ought be noticed, honored, and managed carefully - for the future of us all. If we cannot regulate our choices and behaviors in positive ways when we come together in twos and threes why should we expect different results en masse?
One of the most enduring principles that Richard Flacks taught was the idea of "making personal history", a concept that was not based upon a vision of egoistical success of becoming an 'historical figure' as the words seem to suggest, but which referred instead to the idea that each one of us can make our own small contribution to improving the circumstances of others (and therefore ourselves), one person at a time, by incorporating morality and ethics into the decisions and choices our daily lives. The fact that Dick was one of the founding members of the 1960's movement known as the SDS (Students for a Democratic Society) made him something of a radical, authoritative, and inspiring figure (I remember meeting with him once after class about a paper I was writing, and having him point to an indentation in his skull received by a gun butt when the FBI raided the SDS offices - or at least, that is my memory of what I was told).
Relationship transitions and the struggles of families managed by adult human beings struggling with conditioned minds that easily slip into trance (fear, resentment, the imperative to control) is where the rubber hits the road in terms of our impacts upon others and our own happiness. And in terms of charting our way through the trainwreck of our times. How we manage divorce and family law trauma can enslave or redeem us.
My desire is for all of us to speak the truths more often than not. For those people in the midst of a divorce or custody crisis, and for purposes of this Blog article, who have found themselves questioning the legal advice and performance of the family law or civil attorneys upon whom they are forced by circumstance to rely upon, or for those others who cannot afford counsel and just don't know what to do, my wish is that something in these pages gives you some insight or inspiration to do things better than might otherwise be the case.
But my greatest desire is that the lessons of Richard Flacks live on through your decisions and choices - for you and your family, that you decide to make "personal history" in ways distinct and more evolved than what you did before, or what your parents did. Divorce trance is generational: It passes from parent to child until someone questions and betrays the cycle of unthinking insanity. True, you must not sacrifice your safety. But safety is not always that image that our fears first cause our minds to define.
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One of the aspects of the practice that I greatly enjoy is weighing in on how you might better navigate whatever path lies before you and helping to evaluate the professionals that you must employ. I do it for a fee, but if I hit the lottery I promise to devote myself to public service (sound familiar? I've never won more than $2!). In the meantime I am available for Skype and phone and office consults for those who otherwise don't wish to or cannot retain my services directly.
I do my best to answer emails for those simply seeking free advice, but please don't be offended if I do not respond to you directly. Hopefully the articles and blogs contained herein serve you and make some small difference!
Thurman Arnold, C.F.L.S. |
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| August 16, 2011 |
| Marriage of MARGULIS - Fiduciary Duties of MANAGING SPOUSES |
| Posted By Thurman Arnold, CFLS |
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Marriage of Margulis, Part 2 - Duties of Managing Spouses
Please see Part I of my evaluation of
IRMO Margulis as the launching point for understanding the appellate court's outline of interspousal fiduciary duties.
The Margulis rule states that once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse postseparation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets.
The rule is justified by examining the scope of fiduciary duties imposed by the California Family Code. Interestingly, the trial court had found that the Husband (Alan) had breached his fiduciary duties to Wife (Elaine) "to maintain proper records of all community assets which he had exclusive control and management over...." Yet, other than imposing $20,000 in sanctions and assessing $30,000 in attorney fees against Alan, the trial court did not believe Elaine had produced sufficient evidence to explain what had really happened to the deposit accounts that were at issue beyond Exhibit 18, 'the smoking gun'. $50,000 in sanctions was a cheap price to pay relative to the disappearance of hundreds of thousands of dollars. It was reversed for applying too narrow a breach of fiduciary duty and applying the wrong remedy.
Since Margulis contains a great explanation of how statutory fiduciary duties operate I quote the decision as follows:
"Family Code provisions detailing the fiduciary obligations between spouses provide strong support for shifting the burden of proof to the managing spouse when determining the value and disposition of missing assets. The starting point is section 721, which provides that accountability for the management of community assets is a fundamental aspect of the fiduciary duties owed between spouses.
Section 721, subdivision (b), states, in relevant part: between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following: ¶(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. ¶(2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions. ¶(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.
Section 721's specific incorporation of the same rights and duties of nonmarital business partners, as provided in• section 16403 of the Corporations Code, makes clear that the duty to disclose relevant information concerning transactions affecting the community property is an affirmative and broad obligation. Corporations Code section 16403 requires each partner to furnish to a partner ... [¶] (1) Without demand, any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties under the partnership agreement or this chapter.... (Corp. Code, § 16403, subd. (c), italics added.)
Section 1100 further delineates the scope of a managing spouse's accountability. That statute not only prohibits a spouse from engaging in certain conduct, such as making a unilateral gift of community personal property or disposing of it for less than fair and reasonable value, without the written consent of the other spouse (§ 1100, subd. (b)), but it also requires each spouse to act as a fiduciary toward the other in the management of community assets in accordance with the general rules governing fiduciary relationships ... as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest.... (§ 1100, subd. (e).)
Importantly, section 1101 creates a right of action and specific remedies for the breach of fiduciary duty between spouses. Subdivision (a) of section 1101 gives each spouse a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate.... The statutory remedies for a breach of fiduciary duty, specifically including a breach of those [duties] set out in Sections 721 and 1100, include a mandatory award of 50 percent of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs.... (§ 1101, subd. (g).)
If the nondisclosure or wrongful disposition of community property falls within the ambit of Civil Code section 3294 (punitive damages upon clear and convincing evidence of oppression, fraud or malice), the court must award to injured spouse the entire value of
the asset (§ 1101, subd. (h)).
Finally, section 2100 makes clear that these fiduciary obligations of disclosure and accounting continue to bind spouses after separation until final distribution of assets. Section 2100 states: [A] full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties.... Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts. (§ 2100, subd. (c), italics added; see also § 2102, subd. (a)(1) [from date of separation to date community assets are distributed, spouses are subject to § 721's fiduciary duty to disclose assets and update material changes].)
Taken together, these statutes impose on a managing spouse affirmative, wide-ranging duties to disclose and account for the existence, valuation, and disposition of all community assets from the date of separation through final property division. Simply put, these statutes require the spouse to account for his or her management of the property. The managing spouse must reveal if the community property changes value, ceases to exist, or is transferred for less than its worth, thereby depriving the nonmanaging spouse of his or her half-interest. Because of the fiduciary relationship between spouses, the managing spouse must reveal any self-dealing or other conduct that impaired the value of the property and entitles the other spouse to compensation.
Applying these statutes to the facts of this case, a trial court could conclude Alan breached his fiduciary duties of disclosure and accounting. A court could find he breached his duty to provide full and accurate disclosure of all community assets when in pretrial exchanges he failed to inform Elaine that $20,000 was in the Charles Schwab IRA's, asserting that the only existing community property was the Sycamore house. A trial court similarly could find Alan breached his duty to disclose immediately and fully any material changes in the community property (§ 2100, subd. (c)), by failing to tell Elaine until just before trial that all the community investment and checking accounts he had managed were virtually empty. Additionally, by refusing to provide Elaine with any documentary or other corroborating proof of what actually happened to the money that had once been in those accounts, Alan may have breached his duty to furnish to Elaine any information concerning the [community's] business and affairs reasonably required for the proper exercise of [her] rights (Corp. Code, § 16403, subd. (c)(1); § 721, subd. (b)), which included her right to pursue a claim against Alan for impairment to [her] ... one-half interest in the community estate (§ 1101, subds. (a), (g) & (h)).
The trial court, however, found a single, narrow breach of duty by Alan: a breach of the duty to keep and provide adequate records. In so ruling, the trial court impliedly found Alan did not owe broader fiduciary duties of disclosure and accounting. The trial court's erroneous finding on the scope of Alan's duties led it to apply the wrong remedy. Instead of awarding Elaine at least 50 percent of the value of undisclosed or wrongfully transferred assets (§ 1101, subds. (g) [50 percent], (h) [100 percent upon proof of oppression, fraud or malice]), the trial court ordered Alan to pay Elaine $20,000 as sanctions, plus attorney fees.
The trial court's failure to find Alan breached his broader fiduciary duties of disclosure and accounting stemmed from the court's denial of Elaine's request to charge Alan with the exhibit 18 asset values unless he disproved those values or proved he properly disposed of those assets. Although the trial court found that Elaine had satisfied the requisite foundation to admit the exhibit, it accorded the document little or no weight because Elaine had not prepared it and had no evidence to support it. Consequently, according to the trial court, Elaine failed to carry her burden of proving the accounts itemized in exhibit 18 ever had the values listed in that document, and Alan could not be charged with wrongfully disposing of assets he never possessed. But, as discussed above, the trial court misapplied the burden of proof.
Elaine's introduction of exhibit 18, which Alan conceded he prepared, satisfied her initial burden. The statutory fiduciary duties of disclosure and accounting then effectively shifted the burden to Alan to rebut the presumption he should be charged with the assets listed on exhibit 18, a document that was prima facie evidence of the account values it stated."
Based upon the foregoing the case was reversed and remanded to the trial court. The sanctions award of $20,000 plus $30,000 was also reversed "so that the court may revisit the question of the appropriate remedy should the evidence establish Alan's breach of fiduciary duty" - in other words, the appellate court is directing the trial court to hit Alan harder than was amounted to a slap on the wrist. As Justice Aronson wryly directs:
"Alan's cross-appeal merits little discussion. His challenge to the trial court's finding that he breached his fiduciary duties to Elaine is meritless. Likewise, his additional challenges to the award against him for sanctions and attorney fees fails, given the clear statutory authorization for both awards in light of Alan's breach of duty.... Nevertheless, we reverse the attorney fees and sanctions award so the court may revisit the question of the appropriate remedy should the evidence established Alan's breach of duty." Elaine is to be awarded her attorney fees and costs for this appeal.
Margulis also contains an excellent discussion regarding Epstein credits, debt payment in lieu of support, and tracing issues. I will endeavor to blog that portion of the decision in Part III.
Thurman W. Arnold, III, C.F.L.S. |
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| August 16, 2011 |
| Thurman Arnold Comments Featured in August, 2011, CALIFORNIA LAWYER MAGAZINE |
| Posted By Thurman Arnold |
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We are pleased to announce that Thurman W. Arnold, C.F.L.S. was interviewed for the August, 2011, publication of California Lawyer addressing the consequences of the Elkins changes to California family law - something that we have written about extensively on this website.
My hope for you is that you may avoid exactly the types of disastrous financial consequences that the Elkins Amendments may cause to divorce litigants, not to mention the usual (financial and emotional) cost of high-conflict divorce litigation to parties and their families and children!
Thurman W. Arnold, III, C.F.L.S.
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| August 15, 2011 |
| IRMO MARGULIS - Managing Spouse Has BURDEN OF PROOF To Explain MISSING ASSETS |
| Posted By Thurman W. Arnold, C.F.L.S. |
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Marriage of Margulis (8/11/2011) 198 Cal.App.4th 277
Part One
I am always pleased to report cutting edge rulings by our appellate courts, and this is one of the most important decisions in recent years affecting who has the burden of proof to explain what happens to assets that disappear after marriage partners separate, and what the consequences are for managing "in-spouses" who cannot explain what happened to liquid (or other assets) that existed at separation but seem to have evaporated in the meantime. While upon reflection it is hard to imagine how this decision could be news because it makes such perfect sense, the Fourth Appellate District's pronouncements (by the Honorable J. Aronson) are indeed a new extension of existing law - which is why the trial court in this case was reversed.
Special kudos to Attorneys Stephen Temko and Dawn Gray on behalf of the Association of Certified Law Specialists (an organization serving the public interest that I am proud to be a member of) for weighing in with amicus curiae briefs that probably helped to inform the appellate justices in positive ways.
Because this case is important I am going to help it be digested in two gulps - this is Part I.
The root holding of IRMO Margulis is this: Once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse postseparation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets. It is now clear that managing spouses have the burden of proof to account for missing assets that they controlled.
Family Code section 1100 states that "either spouse has the [right of] management and control of the community personal property, ..., as the spouse has of the separate estate of the spouse."
But when parties separate the more empowered partner often grabs or already manages all the marbles, and then enjoys the advantage of continuing to carry those marbles around and even spending them down until the community property pot is ultimately divided. Without accountability this frequently led to abuses and misappropriations that - in the absence of this new rule - favored that party and facilitates their practical ability to defraud the community property estate, notwithstanding a legal duty per Family Code section 721(b) to account for what went where. Until now. The
Margulis rule is necessary to protect the rights of an "out-spouse" as a matter of basic fiduciary protections.
The facts of the case as set forth in the appellate decision are these (and are reminiscent of the facts of the Davenport decision): Alan and Elaine separated after 33 years of marriage in August, 1996. Alan moved out of the parties' Irvine home and moved to Chicago to start a new job. Elaine remained in the family residence. They owned a home in Palm Desert, California.The marriage yielded two children who are now adults.
During the marriage Alan was the sole working spouse and exercised "complete control" of the couple's finances - sound familiar? This included retirement, bank, and investment account personal property assets. Although Alan moved out in 1996, Elaine did not file for divorce for another six years - in 2002. Five more years passed before Alan even filed a response in those proceedings. Throughout this period Alan paid Elaine just enough, evidently, for her to be satisfied with the financial status quo so that she undertook no steps to move the divorce towards a conclusion. I can only speculate what psychological and emotional dynamics were at play in these people's lives, but infer that Elaine trusted Alan enough that she did not perceive that she needed to take vigorous steps to protect herself. Which gave him free reign for a long, long time.
Once the case did begin to move forward, as often happens when there is a significant power imbalance in relationship, it began to move quickly and that pace certainly further advantaged the husband. Commonly it is the in-spouse who is rushing the case to trial while the out-spouse plays catch-up and the parties, or the in-spouse, play discovery games and hide and seek with assets, disclosures, and backup. Bank accounts are easily susceptible to this type of abuse because they are document intensive, and expensive to evaluate. In and out transactions (deposits in, transfers out) must each be traced in order for forensic experts and the court to know how to characterize and characterize transactions and the flow of cash. Here Alan filed his Response to Elaine's 2002 Petition on February 21, 2007, and the parties found themselves in a pre-trial Mandatory Settlement Conference only six months later. This means that Elaine's team had very little time to prepare since Alan knew where the marbles were but elected not to share their identity and location.
There was a single "smoking gun" in the case which consisted of what became at trial "Exhibit 18." This was a two-page document that was entitled "confidential personal financial statement" for "Alan/Elaine Margulis," dated February 1, 1999. It reflected total assets of $1,305,500. The liquid (i.e., cash) portion amounted to more than half of that number.
At trial Elaine testified that, as the nonmanaging spouse, she had no personal knowledge or records of the value of the accounts at any time. This was the sole extent of her evidence at trial about the status of the assets near the date of separation, and essentially Alan's attorneys argued that this proved nothing. Elaine's attorney responded insightfully that the effect of this document was to shift the burden of proof to Alan to explain and show that he had properly disposed of those assets, or that the stock holdings lost their value as a result of market conditions - as opposed to them having been withdrawn or mismanaged by him or for his sole benefit. But the trial judge disagreed, which set up this reversal in favor of Elaine.
The trial court explained "I don't believe it supports, standing alone [that] your assets listed did, in fact, exist." Wife had no other evidence to prove that they did - hence, without the rule established by Justice Aronson in this case, she would be out of luck. Her proof would have failed on the contested issues, and it did fail at the trial court level. Before this decision the trial court's perspective was a bit shallow but not surprising. It takes bold judges with considerable family law experience to read the sub-text.
Who has the burden of proof on a topic is often key to which party wins or loses on a given issue. This is why Marulis is important to control of asset cases.
Shifting the Burden of Proof
There are two common principles linked to the concept of the "burden of proof." One is the burden of persuasion and the other is the burden of producing evidence. Often if a party cannot produce evidence on a subject that the law imposes a burden upon them to produce in order to prevail, they lose. Irmo Margulis has implications beyond family law.
The Margulis decision observes: "the trial court concluded that Elaine, the nonmanaging spouse who lacked both personal knowledge and records concerning the assets listed on exhibit 18, failed to meet the difficult burden of proving these now missing assets had existed....
The trial court's failure to place the burden of the duty on Alan relieved him of the duty to account for his postseparation management of these assets. Thus, Alan did not have to prove the
amounts
that had been in these accounts or that he had properly disposed of those sums. This lack of accountability poses a risk of abuse and runs afoul of the statutory scheme imposing broad fiduciary duties of disclosure and accounting on a managing spouse." [Emphasis added].
It continued: "Given that 'bedrock concerns' of 'policy and fairness' drive the analysis [citation omitted]
, it is not surprising that a common trigger for burden-shifting is 'when the parties have unequal access to evidence necessary to prove a disputed issue. 'Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.'....
Concerns over 'unequal access to evidence' [citations omitted]
are particularly pressing in the context of a marital dissolution where financial records can be crucial to ensuring the equal division of property required by Family Code section 2550.... Undoubtedly, in marriages and separations like the Margulis's where one spouse exercised exclusive control over community property, the parties will have vastly
unequal
access to evidence concerning the disposition of that property. When this occurs, fairness requires shifting to the managing spouse the burden of proof on missing assets. Moreover, ..., the statutory fiduciary duties of disclosure and accounting owed between spouses further justify that result."
The Appellate Court goes on to explain why this result is fair in light of the fiduciary obligations between spouses that I have written about so much over the past few years. I will separately blog that portion of the decision.
But as I have been trumpeting now for many months, the appellate courts are working overtime to save the existing California scheme of family law to ensure transparency - it is my opinion long overdue but much appreciated!
For those in-spouses who do act in good faith after separation and the pendency of the marital proceedings, Margulis is a cautionary tale - managing spouses had better keep records of transactions affecting the community property estate and make all required disclosures or find themselves assuming the risk of loss or diminution of the value of those assets.
Please note that the appellate Court's initial decision of August 11, 2011, was modified on August 26 and September 9, 2011. The citation to the modified opinion is Marriage of Prentis-Margulis v. Margulis (2011) 198 Cal.App.4th 1252. I have yet compare the differences in the two decisions.
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| August 03, 2011 |
| Divorce and Family Lawyers Who LIE - EQUANIMITY and DIVORCE PRACTICE |
| Posted By Thurman Arnold |
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Lawyers Who Lie
Some lawyers, like some people, lie to the Court - particularly in the more contentious of family law cases where emotions run highest. Our culture (and our lower natures) places so much value upon our sense of being entitled to getting what we want, regardless whether it is earned or deserved or the suffering it inflicts upon others when it is not, that otherwise decent, moral people disconnect from their sworn oaths, and more. I often remind my clients that while the judicial system aspires to do justice, the adversarial system only has enough time and resources to devote in any given case to approximate the appearance of justice. For those people who face dishonest lawyers, I apologize and sympathize deeply with your predicament. These men and women seem to forget that real people are involved and that outcomes ruin not on the lives of the parties themselves, but also their children. This of course models behaviors that will repeat - often for generations. I will speculate that lawyers who lie learned the related behaviors from trauma within their own families of origin.
Fortunately it is a rare event in my experience. Most attorneys are honest and ethical, at least in my small community. In 30 years of practice I can count the times that opposing counsel themselves submitted perjured testimony to a Judge. These attorneys became so personally aligned with their clients, or so egotistically challenged, that boundaries evaporated and they became willing to say anything.
There are also a middle category of divorce attorneys whose advocacy style relies upon disinformation but not necessarily outright misrepresentation. It is not uncommon to hear some story or event postured in ways that the lawyer knows are untrue and go beyond a lawyer's ethical obligation to paint his client in a favorable light. Whole stories can even be spun out and laid out before a judicial officer under the guise of "argument" even though no evidence supports the argument, and it is inflammatory, painful to listen to, and without foundation. I believe that why the public, and other lawyers and bench officers, most hold family law attorneys in lowered esteem is because such behaviors are so common among the legal brothers and sisters that it is considered as natural and even humorous. This style of practice exists in a zone of greyishness, one that is reinforced by the conditioning that lawyers receive early on and may be compounded by their own personal histories.
While the latter situations are unfortunate, they occur frequently enough that I've grown desensitized to them. Unfortunately, judges - who can't necessarily discern truth any faster than the rest of us, especially with their limited time and resources - often decline to control these situations. The California Family Code does not provide clear direction or remedies that are efficient and not cumbersome.
This is why I advocate an amendment to Family Code section 271 or a parallel statute authorizing sanctions awards directly against attorneys, and not just their clients, under circumstances and for lawyer conduct that we really could categorize easily since the legal bunch can list it easily. Caselaw is divided whether the existing section covers attorneys themselves for their own misconduct. If attorneys are not personally responsible for their actions under the umbrella of "zealous representation" then training the public to curb their attack dogs will take forever and not be successful.
Lawyers accusing lawyers of unethical behavior is painful and unseemly and this discussion is uncomfortable for lawyers. The dangers in making attorney misconduct directly sanctionable in family law cases include adding another layer where potential manipulative name-calling abuses can occur and even more court time can be consumed. But if we agree attorney misconduct should be deterred, and that the costs to clients and court that they case are equally or more substantial, how else might we achieve this? If lawyers cannot be held accountable, even as their clients may find up footing the consequences as illustrated in the Davenport decision, then we must expect more of the same.
Equanimity is difficult in such circumstances. Adversarial litigation brings the worst out of some people. Many lawyers fit that profile - and certainly many clients lost in the land of relationship end are in a deep destructive trance where the perceived benefits of the ends justify the means. Hell, we all fit that profile from time to time. Unfortunately, those ends never are grounded in anything but illusion.
"All creatures desire peace and happiness" - as your relationship ends, protect yourself but be strong and be whole.
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