Attorney Competence in
Domestic Relations &
Domestic Violence Matters
University of Cincinnati
College of Law
November 16, 2005
Mike Brigner, J.D.
mbrigner@sinclair.edu
Author, Ohio Domestic Violence Benchbook for Judges
Former Ohio Domestic Relations Court Judge
Session Objectives

Upon completing this session you will be able to:
1.
Recognize how attorney competence in
domestic relations & domestic violence matters
can improve client service, client safety, and
community safety
Understand critical issues about victims,
abusers, and children domestic violence cases
Identify the legal system’s best tools to protect
battered women and their children
Identify a lawyer’s best tools to protect battered
women and their children
2.
3.
4.
2
Professional Competence

Lawyering in all
types of cases

Lawyering in
family law cases

Lawyering in
domestic violence
cases
3
Abraham Lincoln

“Persuade your neighbors to
compromise whenever you can.
Point out to them how the
nominal winner is often a real
loser --- in fees, expenses and
wastes of time. As a peacemaker
the lawyer has the superior
opportunity of being a good man.
There will be business enough.”
4
Chief Justice Warren Burger
“The obligation of
our profession is, or
has long been
thought to be, to
serve as healers of
human conflicts. . .
5
Chief Justice Warren Burger
“To fulfill our traditional
obligations means that we
should provide
mechanisms that can
produce an acceptable
result in the shortest
possible time, with the
least possible expense and
with a minimum of stress
on the participants. That is
what justice is all about.”
6
Elihu Root
• American Statesman, Nobel
Peace Prize winner:

“Half the practice of a
decent lawyer consists in
telling would-be clients
that they are damned
fools and should stop.”
7
“Professionalism
and the Z-Factor”


Canon 7:
“A lawyer should represent
a client zealously within
the bounds of the law.”
BUT: The 39 Ethical Considerations and 11
Disciplinary Rules (plus subparts) proscribe
OVER-zealous as well as UNDER-zealous
conduct
• Judge Thomas Patrick Curran, For the Record, Ohio
Judicial Conference (May/June 1999)
8
Professional Competence

Lawyering in all
types of cases

Lawyering in
family law cases

Lawyering in
domestic violence
cases
9
“A Better
Way to Divorce”


Shift away from the
adversarial context for
resolving family law cases
“I saw that when people have
more choices, most of them
would choose a divorce that
builds a new future instead of
one that rehashes the past.”

“Perhaps my
greatest joy is in
reducing the
trauma to children
and seeing them
thrive even during
a divorce.”
Forrest S. Bayard, ABA Journal
(Dec 1998)
10
“Family Law,
A View from the Bench”
“Blessed are the attorneys who:”

Preparation 
Tell the judge
what has to
be decided,
the client’s
position &
what evidence
supports the
position
Pragmatism
Realistically
prepare
clients, picks
the real
disputes,
stipulates the
rest
Professionalism
Recognize that
courtesy,
cooperation and
integrity are the
tools of the trade
Louise Scrivener,
Trial (June 1993)
11
“Tossing
Mud in Court”



IN CHILD CUSTODY CASES:
Ducks fly with ducks: One parent trashing the
other discredits BOTH in the eyes of the judge
Acknowledge own shortcomings: Thus
demonstrating the capacity to grow and learn
Relate the other parent’s virtues: A sign of
enormous parenting strength. Tells judge this
parent will permit children to love & respect the
other parent
• Hon. Anne Kass, FairShare (Jan 1977)
12
Professional Issues
Specific to Family Law







Avoid Communication with Adverse Party
Refuse Custody Fight for Coercion
Advise Client to Seek Professional Help
Report Threats of Crimes:
Domestic Violence & Child Abuse
Report Child Abuse
Oppose Delay, Frivolous Conduct
Volunteer Prompt Complete Discovery
13
Bounds of Advocacy
Professional Goals for
Family Lawyers
 Created by American
Academy of Matrimonial
Lawyers (AAML)
 Aspirational Standards
 Not just zealous advocacy,
but “constructive advocacy”


http://www.aaml.org/
14
Bounds of Advocacy
SECTIONS
1. Competence
and Advice
2. Communication
and Decision
Making
Responsibility
3. Conflict of
Interest
4. Fees










5. Client Conduct
6. Children
7. Professional
Cooperation and
the Administration
of Justice
8. Attorney as
Mediator
9. Attorney as
Arbitrator
15
Bounds of Advocacy:
Remarkable Concepts






A competent matrimonial lawyer should:
§1.3 - Refuse vindictive conduct; lower
emotional level
§2.4 - Not abdicate responsibility for
propriety of objectives sought or means
employed
§2.5 - Protect client from harmful effects
of own impaired decisions
§4.6 & 4.7 - Represent paying clients
§5.1 - Not condone dissipation of assets
16
Bounds of Advocacy:
Remarkable Concepts


A competent matrimonial lawyer should:
§6.1 “Consider the welfare of, and seek to
minimize the adverse impact of the
divorce on, the minor children”
17
“The World Would Be a
Different Place if Children
Paid Attorneys.”
--Nancy Grigsby,
Executive Director,
Georgia Coalition Against
Domestic Violence
18
Bounds of Advocacy:
Remarkable Concepts




A competent matrimonial lawyer should:
§6.2 Not permit client to contest custody
or visitation issues for financial leverage
or vindictiveness
§6.3 Not communicate with child
§6.4 Not call a child to court
19
Bounds of Advocacy:
Remarkable Concepts




A competent matrimonial lawyer should:
§6.5 Disclose information necessary to
prevent substantial physical or sexual
abuse of a child
§7.1 - Lower the emotional level of
matrimonial disputes
§§7.2 through 7.14 - Behave like a true
professional and create peace on earth
20
Professional Competence

Lawyering in all
types of cases

Lawyering in
family law cases

Lawyering in
domestic
violence cases
21
Shall We Dig
36,000 More
Graves?
Why 36,000?



In the past 25 years, men
killed an average of 1,440
women a year in DV cases
“It is insanity to do the
same thing over and over
and expect different
results” –Albert Einstein
If we don’t change what we
are doing, we will dig 36,000
new graves for battered
women in the next generation
23
Is the justice
system failing
battered women?
24
What Have We All
Accomplished?



In the quarter century since
the U.S. started working on
DV, the answer is NOT MUCH
The DOJ did a study on DV
fatalities 1976-98
You are going to be surprised
by what they found
25
National Success Rate in
Reducing DV Deaths
-18%
-62%
26
Fatality Numbers
1,600
1,400
27
A Boston Surprise




In one recent year, Boston
homicide detectives opened 150
case files
That would be an all-time record
high for murders in that city
BUT: It turned out the city did not
actually have a record number of
homicides that year
WHY?
28
A Boston Surprise




In 82 of those 150 cases the victim
did not die as originally expected
Boston’s medical care system
saved 55% of potential homicide
victims
Those 82 cases became aggravated
assault files, instead of homicide
files
Many victims are alive today who
would have been a death statistic
25 years ago
29
Numbers
18%
55%
30
What Has the Justice System
Accomplished?
Maybe, the Answer is ‘Not Much’



If the medical community is arguably saving 55%
of battered women who would have died a quarter
century ago
And women’s death statistics have fallen by only
18%
Two logical, incredible conclusions:
 1. Serious domestic violence incidents are
actually increasing!
 2. The justice system has had NO impact upon
lethal domestic violence, and possibly has
contributed to its increase!
31
Lethal Violence Incidents
Actual Change
If Trauma Care Saved 55%
3500
3000
2500
2927
2000
1500
1600
1000
500
0
1976
1317
720
1998
32
Is the justice system
irrelevant to battered
women?
Is the justice system
dangerous to battered
women?
33
What Could the Justice
System Do?







Protocols for processing domestic violence
cases
Risk assessment at every stage of system
Domestic Violence Courts
Law office screening procedures
Legal services for all battered women
Judicial competence
Attorney competence
34
Why is attorney competence in
DV matters so important?

DV affects most other family
matters

Lawyers may be the most
important link between DV
victims and safety

Lawyers may be the weakest link
35
Experts tell us domestic violence
negatively impacts many of
society’s worst problems
suicide
 Substance abuse
 Suicide
 Mental illness
 Violent assault
 Homelessness
 Juvenile
 Workplace
delinquency
violence
 Child abuse
 Jail overcrowding
 Child abduction
 Rape
 Child runaways
 Kidnapping
 Homicide
 Child
36
And DV Kills Our Friends

State DV Coalition of Washington
Did a study of fatality review files for
the last five years. They found:
37
police
neighbors
relatives
children
good samaritans
co-workers
19%
38

The lives we save when we work against
domestic violence are not just battered women
and their abusers, but children, neighbors, and
police officers
• Source: Sue Parrott, Domestic Violence Can Hurt
Victims’ Supporters, Too, The Bellingham Herald
(Bellingham, WA) Opinion Section, Pg. 9A (Apr. 7, 2004)
39
Are Lawyers
The Most
Important Link?
A recent study found:
Legal services for battered
women are the ONLY
community services that
actually reduce the incidence of
domestic violence
40
Legal Services Reduce
Violence

“Because legal services help women
with practical matters such as
protective orders, custody and child
support, they appear to actually present
women with real, long-term alternatives
to their relationships.”

Farmer & Tiefenthaler, 2002 study based upon US
Department of Justice report, due to be published in
Contemporary Economic Policy
41
Are Lawyers
“The Weakest Link?”



Lawyers will make themselves scholars in
medicine, tax, engineering, whatever it
takes to represent some clients
But even “family lawyers” generally remain
ignorant of domestic violence
Lawyers rarely screen clients for domestic
violence
42
Are Lawyers
“The Weakest Link?”



Lawyers rarely know what to do when they
discover domestic violence
Lawyers will not force reluctant trial judges
and appellate judges to deal with domestic
violence issues
The criminal defense bar takes no
professional responsibility for discouraging
criminal careers or encouraging treatment43
A
New
England
Tale
44
“Battered Women and
Family Lawyers: The Need for
an Identification Protocol”

Lawyers who represent
female clients in any kind
of practice encounter
battered women
 10% are being abused
now
 50% are abused at
some time during their
lives
Psychiatrist: “How
do I know a female
patient has been
abused? I assume
she has been abused.
Then, at least 4
times out of ten, I’ll
be right.”
45
Fatality Numbers
2,000
1,400
46
“Battered Women and
Family Lawyers: The Need for
an Identification Protocol”




EVERY FAMILY LAWYER NEEDS AN OFFICE
PROTOCOL FOR IDENTIFYING CLIENTS
WHO ARE NOW - OR HAVE BEEN - ABUSED
COMPETENCY: To be effective advisors and
advocates, lawyers must have command of the
facts
SAFETY: Client’s safety and welfare may turn
on whether the lawyer asks the right questions
SILENCE IS THE VICTIM’S ENEMY: A
lawyer’s silence confirms the batterer’s control
47
“Battered Women and
Family Lawyers: The Need for
an Identification Protocol”

MEDICAL PROFESSIONALS DO IT: And have
learned that it works to change lives of battered
women and their children

HOW TO DEVELOP AN IDENTIFICATION
PROTOCOL FOR YOUR OFFICE?
 Start with AMA guidelines
 Add your own questions
• Kathleen Waits, 58 Albany Law Review 1027
(1995)
48
Law Office Screening:
Domestic Violence Screening For
Identifying Domestic Violence Victims


Questions Family Lawyers Should Ask
Every Woman Client
--Screen every
woman client
--Nonjudgmental
attitude
--Convince
yourself she
has not been
battered
--Expect reluctance
to disclose
--Look for child
abuse
49
“Some Ethical
Aspects of Representing an
Abused or Abusive Spouse”


Obvious anger & explosiveness:
 Require counseling or withdraw
Denials of past abuse not credible:
 Attorney’s actual knowledge of falsehood =
fraud
 Competency requires advice that story not
believable + rigorous test cross-examination
 Withdrawal if client wants legal services that
are criminal, fraudulent, repugnant,
imprudent
50
“Some Ethical
Aspects of Representing an
Abused or Abusive Spouse”

Spurious custody claim for vindictiveness or
advantage:
 AAML Bounds of Advocacy forbids such
conduct
 Rules forbid means used to embarrass,
delay, burden a third person, & dilatory
tactics
 At least counsel the client of adverse effect
of custody fight on children, possible
coercion claim which could void any
agreement
51
“Some Ethical
Aspects of Representing an
Abused or Abusive Spouse”

Veiled threat of violence against spouse:
 State codes vary as to permitting disclosure
of intention to commit crime, & information
necessary to prevent the crime
 Many states require reporting of child abuse
• Disclosure = risk of complaint against
lawyer
• Non-disclosure = risk of harm to client
• Lewis Becker, FairShare (April 1999)
52
“Reap What You Sow”

Lawyer ethics
could benefit from
an application of
Proverbs
 Justice
 Purity
 Mercy
 Honesty
 Civility
• Gordon J. Beggs,
ABA Journal
(March 1996)

A lawyer’s purpose
should be serving
the cause of justice:
“acquiring a
disciplined and
prudent life, doing
what is right and
just and fair.”
Proverbs 1:3
53
Lawyer’s Checklist for
Helping Victims








Emergency help
Advocate
Safety plan
Report all crimes
Protection orders
Enforce POs
Support orders
Enforce support
orders







Look for child abuse
Report child abuse
Get weapons removed
Avoid mediation
Insist on serious
batterer treatment
Security at office
Security at
courthouse
54
Lawyers Duties in
Domestic Violence Cases
Sample Community Protocols





Encourage clients to assume responsibility
Encourage clients to obtain needed
counseling
Report child abuse
Protect children from involvement in
litigation
Avoid increasing conflict between parents
55
Lawyers Duties in
Domestic Violence Cases
Sample Community Protocols




Refuse to threaten criminal charges for
divorce advantage
Discourage criminal claims brought for
divorce advantage
Discourage contesting custody issues for
leverage on other issues
Advise clients re specific: (1) conduct
required & (2) conduct prohibited by
protection orders
56
Lawyers Duties in
Domestic Violence Cases
Sample Community Protocols




Report threats of crimes
Never communicate, advise, negotiate with
an unrepresented party
It is a crime to negotiate, in a civil case,
dismissal of criminal charges
It is a crime to intimidate, influence, or
hinder a witness, including complainant,
by force or threat
57
Creating Lawyer Competence in
Domestic Violence Cases



What Every Individual Who Touches
Victims’ Lives Should Know
What Every Individual Who Touches
Abusers’ Lives Should Know
What Every Lawyer Who Touches
Children’s Lives Should Know
58
Theresa Mitchell
Time Line
Nov 1996
Sept 1997
Jan 1998
2/5/98
2/98 to 7/98
7/6/98
Tried to leave
Threat
Rings
911 Call, Criminal TPO
Numerous TPO violations
Civil Protection Order
7/12/98
????????
60
Time Line
Nov 1996
Sept 1997
Jan 1998
2/5/98
2/98 to 7/98
7/6/98
Tried to leave
Threat
Rings
911 Call, Criminal TPO
Numerous TPO violations
Civil Protection Order
7/12/98
Oscar Stabs Theresa to
Death
61
“For Theresa”
19-Minute video produced by 3
Antioch College students
Includes Theresa’s 2/5/98 call to 911
No one gets seriously injured on this
date
STRONG LANGUAGE ADVISORY
62
63
Ohio Department of Rehabilitation and
Correction Offender Data
Offense AGG BURGLARY,
AGG MURDER
Committing County MONTG
Date of Admission 1998 12 30
Institution LEBANON
CORRECTIONAL INSTITUTION
OSCAR DELANZO
MITCHELL JR
#370891
Status INCARCERATED
64
Ohio Department of Rehabilitation and
Correction Offender Data
Sentence Information
Definite Sentence
10 Years
Indefinite Sentence
Minimum: 30 Years
Maximum: Life
OSCAR DELANZO
MITCHELL JR
#370891
Next Parole Hearing Date
2028 10 05 (yyyy mm dd)
65
“City of Shelter:
A Coordinated Community
Response to Domestic Violence”
An award-winning
internationallydistributed video
training package for
professionals
working with
domestic violence
www.cityofshelter.org
66
Courthouse Myth: Victims “Abuse” The
Legal System When Initiate Domestic
Violence Cases Then Fail to Complete
Them
Reality Check
A. Don’t blame victim for what she thinks
is safest course
B. Don’t count success as failure

67
Protection Orders: Non-Returning Victims
45% = Abuser left area or stopped abuse
 25% = Victim now had safety plan & felt safe
without further court intervention
 17% = Reconciled
- National Center for State Courts Study
SO:
 87% of VICTIMS see SUCCESS
 100% of COURTS see FAILURE

68
Attorney Competence in
Domestic Relations &
Domestic Violence Matters
Concluded
Thank you
©2005 Mike Brigner, J.D.
http://people.sinclair.edu/mikebrigner/
Permission is granted to use this presentation for nonprofit
purposes, with attribution to the author.