Recent Posts in Substitutions of Attorneys Category
| December 05, 2010 |
| ATTORNEY FEES In CUSTODY Cases: 2011 Family Code Amendments |
| Posted By Thurman Arnold III, CFLS |
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Along with other changes to the California Family Code brought about by the Elkins Committee's recommendations, Family Code section 3121 has been amended to make its language consistent with revised section 2030. Amended Family Code section 3121 is effective January 1, 2011.
Family Code section 3121 has always been more liberal than other attorney fees provisions in the California Family Code, but in my experience most lawyers, parties, and judges have acted like it did not exist. I have rarely seen an attorney argue for attorney fees under this section, probably because such arguments historically fell on deaf ears. That may be changing.
Section 3121 authorizes attorney fees in certain types of cases that are otherwise not mentioned in §2030, like paternity cases. It applies whenever custody is at issue.
An important difference between section 3121 and Family Code section 2030, besides the fact that 2030 deals with actions generally (dissolution, annulment, and legal separation) while 3121 is aimed at custody proceedings taking place in an OSC (Order to Show Cause) or NOM (Notice of Motion) format, is that attorney fee requests can be made "by an oral motion in open court" either at "the time of the hearing" or at any other time before entry of a judgment against a party whose default has been taken.
In other words, the request can be made without prior notice for the first time when the parties appear in court on a custody related application. However, I have never seen a Court willing to grant such an oral request, although clearly trial courts are directed to consider them. Possibly this will change, and certainly attorneys and parties seeking to get money to hire an attorney should be arguing the Elkins changes to stubborn judges. The likelihood that these judges will be reversed on appeal now for refusing to award fees to needy parties in appropriate cases is vastly improved beginning in 2011.
For more information about the grounds and procedures for seeking attorney fees in family law cases, please try my on-site search engine.
Thurman W. Arnold III, CFLS*
*State Bar of California, Board of Legal Specialization
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at
www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| April 08, 2010 |
| What happens to FEES I deposited if I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. What are the refund policies if I reconcile with my spouse or switch attorneys?
A. Attorneys are required by California State Bar rules to refund all unused fees promptly, for whatever reason, when the relationship ends unless you have a Flat Fee arrangement where all the monies have been earned upon retention.
Attorneys are required to provide your original file to you, after they copy it at their own expense. Attorneys cannot hold a file hostage for unpaid fees. They must sign a Substitution of Attorney withdrawing from the case upon demand, regardless of whether or not they claim you owe them money. They are required to give a full statement and explanation of your fees and charges upon request. Refusal to do within 10 days or less may be a cause for State Bar Discipline. |
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| April 07, 2010 |
| How do I FIRE my ATTORNEY? |
| Posted By Thurman Arnold |
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Q. How do I fire my attorney?
A. You are free discharge your attorney, and terminate his or her services, for any reason and at any time. Attorneys cannot require that you first pay off your bill, or that you reimburse them for expenses (including any costs associated with copying your file) before they will withdraw. In California this is accomplished with the Courts by both you and your attorney signing a Substitutions of Attorney which is then filed with the clerk of the Court where your case is pending. Simply download this form, fill it out, and take it to your attorney's office for their signature. Usually they will get it filed and send you a "conformed" copy (i.e., one that bears the filing stamp of the court).
If you do not have a pending case, you need simply write your lawyer an email or letter telling him to cease all efforts on your behalf.
She must return your entire file, except her notes, within 10 days of a written request. The California State Bar will discipline lawyers who fail or refuse to comply. She must also give you a final accounting on his bill within that time, and return all unused fees to you. Unless you have a true flat fee arrangement, she cannot keep the balance of your retainer and must turn over to you all unused funds within a reasonable time.
One important bit of advice, however: Be careful how you time firing your lawyer. He or she is "on the hook" insofar as the Court is concerned so long as they remain your attorney of record. There may be reasons why you should wait until after a hearing takes place before signing the Substitution.
In the event you choose not to sign a Substitution of Attorney - where for instance it is the attorney who is firing you - that attorney remains on the hook until an Order for Withdrawal is signed by a Judge, which can only occur after a Notice of Motion is filed by the attorney to be relieved as your counsel. The motion process takes at least 25 days and you are entitled to oppose it. The lawyer must provide a declaration stating that the attorney-client relationship is broken between you, but they are not required to say why (for instance, that you lied to them or were uncooperative). Unfortunately, however, I see many lawyers who sloppily do tell the court something that may hurt your case or the court's perception of you. Frankly, if they do that it may be grounds for a State Bar Complaint.
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!
Thurman W. Arnold III
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