Prosecutorial Misconduct Derails Pursuit of Justice

Check out this article from LawReader  citing a study by the Center for Public Integrity.  One reason why justice remains elusive is that some attorney’s ignore their code of ethics.  The above article focuses on prosecutor’s ignoring their ethical guidelines but such abuse is not limited to those lawyer’s only. 

Denial of a petition to terminate parental rights appealable

In their ‘to be published’ K.R.L. v. P.A.C. et al, 2006-CA-0364-ME decision, the Kentucky Court of Appeals ruled KRS 625.110 unconstitutional to the extent that it prohibits the right of appeal from a denied petition for termination of parental rights.  The mother of a child sought to terminate the parental rights of the biological father involuntarily.  The trial court denied her petition and she sought to appeal.  KRS 625.110 only provides for the appeal of a granted petition but the mother argued that Section 115 of Kentucky’s Constitution provided her right to appeal and the Court agreed.  She still lost the case but succeeded in opening up an avenue of appeal for similar cases in the future. 

Merry (belated) Christmas

My aplogies.  I had some last minute Christmas shopping to do which took precedence over blogging – just ask my three children.  My wife and I, for the first time in a long while, stuck to a very modest budget for Christmas.  It felt really good to keep our priorities in line.  After all, Jesus Christ was the ultimate gift and our custom of exchanging gifts is only a pale shadow of His example. 

I know that the politically correct thing would be to talk about the holiday season without mentioning the origin of Christmas.  It would even be more acceptable to name Chanukahh or Kwanzaa than to discuss Christmas as the day we recognize Jesus’ birth.  However, political correctness has been the slowest lesson for me to learn.  I do honor everyone’s right to choose their own spiritual and religious beliefs and I expect the same in return but that has nothing to do with political correctness. 

Anyway, one of the biggest imports of Christmas, and to a lesser extent New Year, is to examine our priorities and refocus on giving and service.  Lawyering is a service profession although the jokes indicate otherwise.  We have an honorable code of ethics that can be entirely consonant with the core principles of Christianity (and I would venture to guess with other religions though my knowledge is limited).  During this season, I urge my colleagues to revisit their ethical base and remember that ours is a service profession.

Victims’ Rights Groups!?

I am anxious to hear from anyone with first hand knowledge of this phenomenon.  There are a number of victims’ rights groups set up that contact the victims and families of victims immediately (within days) of a major catastrophe, such as Flight 5191, offering “help”.  Some of these groups are likely legitimate and concerned.  Others have a less benign purpose in mind.

Those non-benevolent groups receive considerable funding from large plaintiff attorney firms and were most likely caused to be created by those firms.  The firms call this funding “charitable donations” but is actually an unethical form of fee sharing.  The groups “help” to the victim or family is to refer them to their sponsor firm for representation and tell them they need to protect their rights quickly.  Often, the firm is in a different state.  Often these firms expect fees of 40 to 45% (excessive in my opinion) of any recovery before expenses are taken out.  They then contract with a local attorney in the state of the catastrophe and give them a slice of that fee (why not cut out the middle man?).

So, if you are contacted by a victims’ rights group and they quickly refer you to an attorney or firm, please ask them some questions.  Ask if the firm they are referring you too is out of state, and if so, are they aware of a good in state attorney.  Ask them if the firm they are referring you to regularly donates to their group and how much.  Beware if they cannot or will not answer either of those queries. 

$1.7 Million Sponge

A jury in Lexington recently returned a verdict of $1.7 million to a woman because of sponges left in her during a surgery and the resulting complications.  See Lawreader for more details.  This large verdict is unusual for Lexington, Kentucky.  What struck me more, however, was that the nurses were held liable along with the hospital, but not the physician.  Now I know that what we learn in law school is not necessarily how things work in the real world, but what happened to the physician being the captain of his surgical ship?  In a surgery, the surgeon has traditionally been held responsible for the actions of the nurses and technicians because he has absolute control over what they do. 

This struck me more than the size of the verdict because my lovely wife is a nurse.  I don’t know the specifics but I seriously doubt these nurses carried their own liability insurance.  Physicians carry liability insurance because they have traditionally been the parties held responsible as the professionals.  I also seriously doubt these nurses retained their own counsel.  They most likely relied on the attorney’s representing the hospital and retained by the hospital’s insurer. 

It is even more highly unlikely that the nurses have any resources to begin paying such a verdict.  Most likely the hospital’s insurer will cover the verdict entirely (pending appeals).  However, insurer’s do have a habit of trying to minimize their exposure.  I would recommend that nurses get their own liability insurance, but I suspect few could afford the premiums.  I would also recommend nurses contemplate hiring their own attorney in situations like this, at least to ride shotgun and look out for their specific interests, rather than trusting entirely in the hospitals defense.  Again, this may be cost prohibitive.  I will be anxious to learn if the nurses are left to pay any part of this verdict or if there are other ramifications, such as job loss.  Then they will need counsel.

My heart goes out to the woman who was injured and I don’t disagree with her being compensated.  It is just that my heart also goes out to the nurses involved who are rarely treated as professionals by the physicians, who are not paid as professionals, but who have been left holding that professional baggage in this instance.

Adoptions & The Cabinet for Health & Family Services

In my former life I worked for over a decade in child protective services and dealt with foster care and adoption issues on a daily basis.  I am encouraged by the attention being directed at adoption and foster care recently.  See articles in Lawreader and by Diana Skaggs.  I hope the attention results in some effective changes and not just changing for the sake of good headlines. 

During the years that I worked with the Cabinet (it was called various things during my tenure but the most recent was the Cabinet for Families and Children) changes occurred so often the workers could not keep up with them all.  In fact, for a time I supervised a child protection team and I would learn about policy changes only from new workers returning from training; there was no organized dissemination of new information.  I know first hand how much is piled on to social services workers at the Cabinet, many of whom are fresh from school.  Even as a veteran of the system and working 50 and 60 hours a week regularly, I could not do everything that was required of me – no one could!

Years ago, there was a great deal of press about the Cabinet computerizing its records and how that would save so much time that it would equal 300 workers.  What a farce!  It increased our workload.  Of course politicos are fond of saying that throwing money at a problem won’t solve it and that we just need to work smarter and not harder.  Those may grab votes but they don’t protect children.  The system needs proper funding and enough workers to make the idealistic laws a reality. 

It takes a great deal of time and effort to keep children from languishing in foster care.  You must have workers with enough time to be thorough in their investigations.  If they cannot be thorough due to massive caseloads, then the safest thing in that workers mind is to remove the child in marginal cases.  Once a child is removed, the ongoing worker for that family needs time to spend linking the family up with resources, spend time encouraging and pushing them to follow through, and spend time evaluating progress.  When I was a worker, tremendous numbers of hours were spent transporting children to and from visits and supervising those visits.  These are needed services certainly but they did not factor the tasks into our caseloads. 

Next, when it becomes improbable to successfully return children home, it takes tremendous amounts of time to prepare for a termination of parental rights.  Also, tremendous time is required to recruit, evaluate, and train appropriate adoptive parents.  Most of the children up for adoption through the Cabinet are difficult children to place for a variety of reasons including:  advanced age, large sibling groups, behavioral problems and attachment disorders, etc.  Even after adoptive homes are found, they need a great deal of support to form a new family around the children to prevent disruption of the placement. 

So, I applaud the attention being given but I sure hope legislators and Kentucky taxpayers are willing to put their money behind the talk.  For every new law there must be a commensurate increase in funding to pay for the workers and other resources that it will take to make that law successful. 

Salute to Family Law

Perhaps there are colleges that focus a great deal more on family law than I experienced at my alma mater.  We had plenty of business and commerce related courses but only a single family law course.  This frustrated me somewhat sincemy first career involved counseling troubled youth and families and providing protective services for vulnerable children.  The law was very prominent in the lives of many of these families.  As I looked beyond the families I served, I saw the law directly impacting families in every strata.  Divorce comes to the rich and the poor alike.  So, it puzzled me why this area of law, that touches so many more people than any other, received such short shrift. 

But then I listened to the professors and my fellow students.  Very few entered law school actually wanting to practice family law.  We heard from professors how so many lawyers avoided or left family law practice because of the nature of the practice.  For many students, family law was seen as a last resort and certainly none of the big firms were searching for people to fill a family practice. 

There are unique stresses involved in family law.  Divorce and custody battles obviously raise peoples emotions to a fevered pitch.  A divorce goes far beyond the dissolution of a business relationship or breach of contract in reaching into ones soul and shredding it.  No one enduring a divorce or a custody battle will remain entirely rational regardless of how far gone the relationship.  These emotions spill forth onto the attorneys:  sometimes overtly but always subtly. 

Some attorneys get charged up for battle from theemotions and, knowingly or not, escalate the conflict.  These attorneys seem to prefer to file motions rather than return phone calls.  I suppose there is also the temptation to increase the conflict to increase the billable hours.  Other attorneys shelter from the emotions with great and practised dispassion.  The latter seems preferable but there is a movement afoot, collaborative law, to try and find a better solution.  Here, where the parties are least likely to be able to come to an amicable solution, the attorneys really need to consciously decide to increase the opportunities for cooperation. 

Some would say that this is not zealous representation of their client.  I disagree.  Seeing the emotional and spiritual damage to people after bitterly fought divorces does not convince me that such wreckage served the client the best.  Here, zealous representation calls for looking farther down the road and helping the client discern the best overall outcome.  This almost always means compromise.

Another source of distress in family law is the variance built in to domestic relations laws.  The statutes and cases are full of standards such as:  “best interest”, “seriously endanger”, and “just proportion”.  There really is no clear guidance here; rather, the judge has tremendous discretion and the attorney must exercise great creativity.  There is no real guarantee how a motion or hearing will turn out under these circumstances.  With less certainty there is greater distress. 

These aspects of family law are why law schools need to provide greater training in this law practice area; not reasons to avoid it.  Furthermore, they should promote the idea that this is an essential and vital area of the law instead of a dreaded practice to avoid.  Family law needs the best and brightest.  Not only because of the impact of family law, but because of how creative one must be when the law leaves so much variance.  Thanks to the family law practitioners that have found the right balance!

Yet Another Reason to go Small!

Here is a quote from a great post on MyShingle.com by Carolyn Elefant about the value one gets from a solo or small firm:

“Say you decide to charge a flat fee of $18,000 for an appeal that you predict will take you 40 hours to research, brief and argue at your most efficient.  That’s around $450 an hour, $360 even if you take 10 hours more than planned.  Moreover, a $18k appeal is a pretty good deal for a company.   Now, let’s take that same appeal to the big
Boston law firm.  Figure 30 hours for the 5th year associate to reseach and draft the brief ($14,550 at $485/hr), with 15 hours research and proofing assistance from the first year ($4125 at $275/hr).  But then once the briefs have been filed, we can assume that an upper level partner will argue the case, so he or she will need at least a conservative 8 hours of review and prep at $600/hour.  Suddenly, that appeal is up to $23,475, $5k above what you’ve offered, not to mention better value, since when you argue the case, you’ll have the benefit of having done the research yourself.”

I looked up the list that she references earlier in the post from Law.com and found a large Cincinnati firm.  This is the closest to Lexington, Kentucky that I could find:

Dinsmore & Shohl (306) ( Cincinnati)
1st	$160	5th	$200
2d	$170	6th	$210
3d	$180	7th	$215
4th	$190	8th	$225

Interesting. 

Spend a Little – Save a Lot

Two situations I encountered this past week really drove home how valuable it is to obtain a little professional advice before agreeing to something.  For privacy reasons I can only say that both of them signed away something very valuable without realizing it.  I am sure that if someone had suggested to either of them that they should consult an attorney first, their first thought would have been that the expense was too great for something that seemed so simple.  That is what most people would think.  It is something I would have thought too prior to going to law school.  Now, though, the cost to each one has grown exponentially because they are either paying to clean up the mess or have lost a right forever.

If I can convince just one person out there that it is cost effective to get legal advice on the front end of a deal, then I will be content.  This is especially true if you can locate a reputable solo practitioner or small firm.  There are a few reasons for this.   First, a solo practitioner will personally look over your circumstances rather than relegating down stream to a new associate or law student that is clerking for the firm.  Second, most solo practitioners and small firms have lower hourly fees because of their lower overhead.  Lastly, the solo’s and small firms are interested in long term business, even the small stuff, so they are more likely to give your issue the attention it deserves.  Even if they do not have the answers when you first talk to them, they have the know how to get those answers. 

Seriously – most solo’s and small firm attorneys can look over a release form, contract, or custody papers in half an hour.  In Kentucky, that would be anywhere from $75 to $100 dollars for routine issues (perhaps more for specialized issues).  That is far better than having to pay for many, many hours of legal help in trying to fix a matter once it has gone sour. 

I want to doubly emphasize this if you are an individual and the other party to the contract is a corporation such as an insurance company.  They have already spent thousands and thousands of dollars to lawyers with the end resulting being release forms and contracts that give them maximum protection and you minimum wiggle room.  So, spend a little on the front end and save a lot in the long run.