Category Archives: Professional Responsibilities

For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

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“Scenarios” To (Almost) Insure You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril) – Scenario No. 1

On October 30, 2008, I made an ethics presentation to our Anderson, South Carolina Inn of Court during which I presented 18 different “scenarios” of varying fact patterns regarding real-world issues encountered in family court litigation.  What remains fascinating to me, however, is that in the 6+ years following that presentation, I still continue to see (and to encounter in my mediations) those identical problems and pitfalls.  So I thought it might be interesting to share these “scenarios” with a wider range of family law attorneys to see whether and how you address them in your family law practices.  At the very least, I hope that some of you will find this informative (and maybe, at times, even helpful).  Here’s the first one:

Scenario No. 1:

The husband and wife are both represented by attorneys in their divorce action. You represent the wife. The parties have reached an agreement which is approved by the family court judge at their final, uncontested hearing. The judge signs the divorce decree which provides for a merger of the agreement into the decree.

The agreement provides, in part, that the parties will sell “by owner” a 20-acre tract of land and divide the net sales proceeds equally. This tract is titled solely in the husband’s name.  Aside from this “marital asset”, which is the most valuable one to the parties, the other marital assets were several bank accounts and the furnishings, all of which have already been divided between the parties prior to their final divorce hearing.

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Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 3: The Client’s Dilemma – “Placing Your Future Into The Hands Of Strangers”

In Parts 1 and 2 of the posts in this series I discussed the “mediator’s dilemma” and the “attorney’s dilemma” inherent in the paradox of the family court system; and it was my intent (1) to try and raise several very real-world problems which we encounter almost daily in the difficult practice of our profession, and (2) to force us to think or re-think how we prepare for, approach, and participate in, the mediation or settlement process which is so critical in providing the clients/parties/litigants with some measure of control over their lives.

With that stated, and in repeating a point I made in Part 2 of this most recent post, it is easier (but not necessarily more lucrative, and with a path certainly more fraught with risks than rewards) for a family law attorney to go to trial on every case than it is for that attorney to make the necessary efforts to negotiate a resolution (settlement) of that same case.

Think of it this way: by your going to trial in every one of your family court cases you’re completely eliminating ever having to worry about having those difficult conversations with your clients regarding the “best case – worst case” scenarios which could result from that trial.  And you’re also going to be able to place the entire blame on your trial judge for any poor or unexpected outcomes … but you’ll be able to take the complete credit for any “victory” (in whatever form a “victory” may seem to your client and you).

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 2: The Attorney’s Dilemma – “The Attorney’s Notion Of Fairness – Trying To Attain The Unattainable”

In Part 1 of this series post I tried to frame a “dilemma” that family court mediators frequently encounter in their efforts to reach the shared understanding with the parties and their attorneys that achieving a satisfactory (and satisfying) resolution of the litigants’ case has very little, if anything, to do with the “cosmetics of fairness” (e.g., the “look” of fairness versus the actual substance of a workable agreement).  And I had provided a “link” to an amazing Oklahoma family court case where the wife was awarded one billion dollars in cash and other assets, but was not at all “satisfied” with the decision, finding it to be inequitable (in other words, it didn’t look fair, based, apparently, on the total approximate value [$18,000,000,000] of the husband’s “worth”).

I concluded Part 1 by including an excerpt from the April, 2014 South Carolina Court of Appeals opinion in the case of Simcox-Adams v. Adams; and in transitioning into Part 2 in this series, I want us to “revisit” an interesting part of that excerpt:

“Finally, we believe equity dictates this result … ‘stating the time honored equitable maxim that all courts have the inherent power to (do) all things reasonably necessary to ensure that just results are reached to the fullest extent possible.'”  (All case citations are omitted.)

Re-read that excerpt again very carefully.  Where would the word “fair” fit into this maxim?  Could “fair” be inserted in place of the word, “just” (e.g., “…to ensure that fair results are reached to the fullest extent possible”).  But wait a minute, why would this maxim include the words “to the fullest extent possible“?  Why would we need to conditionally qualify the terms “just” or “fair” with the words “fullest extent possible”?  After all, fair means fair, doesn’t it?  And as a family law attorney, certainly we know what “fair” means in the resolution of family court litigation … and your clients certainly know what “fair” is supposed to look like.

And so we have now arrived at every family law attorney’s dilemma – the “crossroads” where the attorney’s notion of fairness must square up with the client’s … where the attorney is compelled by circumstances only marginally within his or her control to attain the unattainable – perfect fairness.

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 1: The Mediator’s Dilemma – “The Fallacy Of Fairness”

I’m hoping this new post will find you interested enough to spend some of your valuable time traveling down this road with me; and I, of course, always hope that you’ll ultimately find it to be beneficial to your clients and you.

You’ll first need to read the following recently published article to understand what I intend to accomplish with this latest post (this series will be in at least two, if not three, separate parts):

“Ex-Wife Of US Oil Baron To Appeal $1 Billion Divorce Award”

And then read this “follow-up story” which was printed several days later:

“Oklahoma Oilman’s Ex-Wife Plans To Appeal Nearly $1 Billion Divorce Settlement”

Briefly, in Oklahoma after a 9-week trial, the family court judge awarded the wife one billion dollars [if I’m counting the zeroes correctly, I believe that’s $1,000,000,000] … and her attorney stated that this amount was “not equitable” to his client, because the husband’s current worth was approximately $18,000,000,000, and that the wife would appeal the family court judge’s decision.

In an effort to create some measure of scope as to the size of the wife’s award, Forbes Magazine listed the 1000th wealthiest person in the world as having an estimated “worth” of $1.8 billion dollars.  I’ll also break it down this way: if your gross income was $100,000 a year, it would take you 10,000 years to earn one billion dollars.

However, in this Oklahoma case, as in so many others in South Carolina and across this nation, the amount of this award had absolutely nothing to do with this wife’s ability to sustain and enjoy the quality of her life and her lifestyle, at its maximal level, forever … rather, it had everything to do with this “fallacy of fairness” which every family court mediator encounters in virtually every mediation where the parties are dividing up “things” which they possessed “as of the commencement date of (their) marital litigation”.

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Practing Family Law In The 21st Century – Series Post No. 2: “In The Law The Power Of Clear Statement Is Everything”

A number of years ago I wrote an article for a legal publication, and in that article I made the following statement:

“First of all, there is one universal maxim in the practice of family law: The judges’ orders are the beating heart of every case…no other documents in the case file are more important. You can have a “banker’s box” full of pre-trial motions, discovery, and work product, and you can try a case for days on end, but at the conclusion of that case (and every hearing involved in that case) nothing happens until your family court judge both signs and enters his or her order in the clerk’s office.”

If at the conclusion of your family court hearing (either at a pendente lite stage or after a multi-day trial) you are the “prevailing attorney” and you’ve been instructed by your judge to draft his or her “proposed order”, the following should be your mindset throughout your “crafting” process: Continue reading

Practicing Family Law in the 21st Century – Series Post No. 1: South Carolina’s “365-Day Family Court Benchmark” – Tick, Tick, Tick

I would like to begin a series of posts which focus on how we might become better prepared to effectively practice family law in South Carolina in the 21st century (or at least through the rest of this decade), and I’m interested in focusing on practical ways in which you can use the existing “patchwork quilt” of family law statutes, appellate court opinions, court rules, and administrative orders to increase your chances of achieving a successful result for your clients, while also protecting your attorney-client relationship.

I’d like to begin by asserting there are (at least) three irrefutable “truths” associated with the practice of family law in South Carolina:

  • Policy has always been driven by the “politics of the moment” (which means that, especially in the area of family law and because our family courts are “courts of limited jurisdiction”, the enactment or creation of statutory policy is more often “reactive” than “contemplative”).
  • In the practice of family law, there are three distinct “tracks” in play in every domestic relations action filed in every county throughout the State: the “legal track”, the “track of the practical result”, and the “track of unintended consequences”.  And with rare exceptions (and there are exceptions), every new statute, family court rule, and administrative order always perfectly addresses – at the moment of its effective date – the “legal track” (e.g., the intended legal result of that specific act or action at that specific moment is “perfect”); however, rarely, if ever, do the “legal track”, the “track of the practical result” and the “track of unintended consequences” meld effectively together for any extended period of time.
  • A family law attorney can never control that single factor which always drives your case forward – the emotions or the emotional state of your client throughout the litigation.

Using that as our backdrop, let’s begin with an analysis of the “365-day Family Court Benchmark” which became effective on August 27, 2014 (with emphasis added):

  • “… all domestics relations and juvenile cases … shall be disposed of within 365 days of filing … “.
  • “Once a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial.”
  • “In the event no request for a final hearing is received by the Clerk of Court within (365 days from the date of filing) and there is no order by the Chief Administrative Judge extending the case, the Clerk of Court shall prepare an Order of Dismissal without prejudice and provide the order and file for review by the Chief Administrative Judge. If it is determined that dismissal is appropriate, then the Chief Administrative Judge shall sign the Order of Dismissal.  If a case is continued for any reason past 365 days (from the date of filing), the Order of Continuance must include a time and date for rescheduling the case.
  • ” … in the event an action is dismissed without prejudice pursuant to this Administrative Order, any existing orders in the affected case file which were not final (note: meaning every pendente lite order) will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.

This 2014 Administrative Order superseded the May 9, 2006 “Family Court Benchmark” which simply stated:  ” … all domestic relations and juvenile cases in South Carolina … shall be disposed of within 365 days of their filing.  … within each county, the Chief Administrative Judge for Family Court shall direct and oversee the monitoring of all cases which are older than 365 days, and for which no final hearing has been requested.  The Clerk of Court for each county shall provide all necessary reports and information as requested by the Chief Administrative Judge to assist in the timely disposition of cases as set by this Order.”

If the intent of the 2014 Family Court Benchmark is to place pressures on the family law attorneys to bring about a final resolution of litigation within this finite period of time, and if it is believed that a full calendar year is more than enough time to accomplish this purpose, then the “legal effect” of this Administrative Order is perfect.  The clock starts “ticking” from the moment you file your complaint in your Clerk of Court’s office, and you have 365 days with no exceptions, reasons, or excuses to file your request for your final hearing in your client’s case; and, even if your Chief Administrative Judge gives you a “get out of jail free” pass, and extends your case “for any reason”, that order of continuance is required to “include a time and date rescheduling the case” (for a final hearing).

The “practical effects” and the “effects of unintended consequences” of this new Benchmark are more far-reaching both for you and certainly for your clients (I’ll give you just four examples, obviously assuming that you would have not yet filed your request for a final hearing):

  • If you’re now going to engage in “open discovery”, then you’ll need to fully complete your discovery well prior to your trial date (forget about filing “motions to compel” at the last minute because that motion may not be scheduled for weeks or longer, and the clock keeps ticking).
  • If you’ve “won too big at your temporary hearing”, and your client has a terrific pendente lite order in effect – e.g., sole custody, substantial child support, alimony, the other spouse is saddled with paying all the monthly expenses, etc. – you can no longer “slow play” your case beyond the 365-day deadline, because ” … all existing orders which were not final will be considered null and void …” [also see: Terry v. Terry, 400 S.C. 453, 734 S.Ed2d 646 (2012) ].  Conversely, be careful about the opposing attorney who has “lost too big at the temporary hearing”, because as you approach the 365-day deadline, that attorney (who wants all of those pendente lite orders to go away) is going to do everything possible to lull you into delaying your filing a request for a final hearing.
  • In a mandatory mediation county, in the event of an impasse in your mediation, your mediators are now required, at the time they file their mediation report(s) with the clerk’s office, to indicate the amount of “trial time” necessary to complete your case.  Consequently, you may have no choice but to accelerate the date to mediate your case even though the case and the parties are “not ready” for mediation.  Furthermore, you’ll most probably have to guess as to the amount of time you’ll need to request for your final hearing.  And the clock keeps ticking.
  • As you approach your 365-day deadline without having requested your final hearing, you’re going to have to be careful about filing subsequent motions for temporary relief requesting a modification of an existing temporary order, because you may not have enough time to do so.

Recommendations and suggestions:

1.  In those counties where you routinely practice family law and file your cases, find out from that county’s clerk of court whether the clerk can implement an emailed “early warning alert” once a case hits, for example, 270 days from its file date.  In various counties the clerks have provided this service in the past, and I can find nothing in the new Family Court Benchmark which prohibits that activity. This could also apply to those cases filed by self-represented litigants (the clerks can, or most already do, require an email address from these litigants).

2.  To protect yourself professionally, attach a copy of this Administrative Order to your detailed attorney-client retainer agreement, and make certain that your client initials this attachment.  Put a provision in your retainer agreement which acknowledges (a) that you have informed your client of the critical importance of working within this 365-day timeline, and the legal consequences in the event the client’s case is dismissed pursuant to this Administrative Order, (b) that your client agrees to fully and timely cooperate with all of your requests for information, documents, and materials, and (c) that your client will at all times keep you informed as to his/her residence address, mailing address, current email address and current cellphone or telephone number.

3.  If you have not already been using some type of computer-based or internet-based “case tracking” system, then you might want to create one within your office, where you will immediately enter the filing (commencement) date of every new family court case, with a “notification” automatically sent you on the 270th day of filing.

4.  This Administrative Order expressly states that “[I]f it is determined that dismissal is appropriate … “.  Perhaps your county or circuit has a family court liaison committee which could meet concurrently with your current Chief Administrative Judge and your clerk of court in an effort to put together some type of protocol that will provide clarity to your family court bar as to how, and under what circumstances, your Chief Administrative Judge would “determine that dismissal (or a continuance) is appropriate”.

5.  As strange as this sounds – and as counter-intuitive as this may seem to a family law attorney – as soon as you’ve completed your mediation (you can’t wait until the bitter end to mediate your case), or even as soon as you’ve completed your first temporary hearing, send in your request for a final hearing.

6.  And, in tandem with No. 5, if you practice law in a county which has a court coordinator who then sends you an email to inform you that your filed final hearing request is premature because the case has not yet been mediated, then at the very least you’ll have written confirmation that you made this filing (if that sounds like a stretch, so what…and it may show just enough due diligence on your part to convince your Chief Administrative Judge that you made a good faith effort to comply with this Administrative Order).

In the months ahead, as this 365-Day Family Court Benchmark is put into practice, then I’ll want to revisit it and discuss how this particular Administrative Order has affected your family law practice, if at all.  However, I’m going to stop at this point because this seems to be a good stopping point [and I also want you to know that future posts in this series will be much more succinct and more tightly focused on one particular family law issue].


CYA – Do You (Now) File A Motion For Temporary Relief In Every Case?

To all of my fellow family law attorneys, the following excerpt is from a March, 2014, unpublished opinion of the South Carolina Court of Appeals (the case was an attorney malpractice action, and, presumably as of this date, it continues to be wending its way through the appellate courts):

“As to Client’s assertion that she would have received separate maintenance and support during the pendency of the divorce litigation had Attorneys sought this relief, we agree. As with permanent alimony, an award of separate maintenance and support is within the family court’s discretion after considering the factors listed in section 20-3-130(C). However, at the beginning of her separation from Husband, Client did not have access to the funds she later received as advances on property distribution. Further, while Husband eventually provided ample funds for many, if not most, of Client’s expenses, this primary source of her income did not possess the stability that court-ordered separate maintenance and support would have possessed. When we view the evidence in the light most favorable to Client, it shows that she most probably would have received court-ordered separate maintenance and support, along with the stability that comes with a court award enforceable by contempt, had (the attorney) obtained a temporary hearing to pursue this relief soon after Husband left the marital home. Therefore, we reverse summary judgment on Client’s malpractice claim as it pertains to her loss of court-ordered separate maintenance and support.” (Emphasis added)

Given the vagaries and unknowns inherent during a pendente lite (temporary) family court hearing – where the family court judge’s decision following a typical 15-minute hearing is based entirely, not on “evidence” but rather, on competing and contradictory affidavits and (incomplete/inaccurate/often deliberately falsified) financial declarations from the respective parties – I have a concern that this particular holding by the COA will raise (or most probably already has raised) the spectre of “the law of unintended consequences” [see immediately below].

  • “More recently, the law of unintended consequences has come to be used as an adage or idiomatic warning that an intervention in a complex system tends to create unanticipated and often undesirable outcomes.” – From Wikipedia.

Unfortunately, in the increasingly difficult practice of family law, where your professional responsibilities require that you first must process how you deal with a distraught and emotionally fragile client before any considerations are given by you as to “trial and case-processing strategies”, you are now almost compelled to immediately file a motion for temporary relief in every contested (or even potentially contested) case, and whether or not that is a sound strategy to pursue.  The reality we face is that as the practice of family law has become more complex and much more stressful for the many excellent and highly skilled family law attorneys in this State, you are left with no reasonable alternative other than to CYA at every professional turn.





How Can You “Fire” Your Clients?

In another South Carolina appellate court opinion intended, in my opinion, to send a clear message to the bar that the practice of law in this State is first and foremost a profession with inherent professional responsibilities, on August 27, 2014, the South Carolina Court of Appeals in a published opinion in the case of Tuten v. Joel stated the following in part:

“The principle that an attorney may not unilaterally withdraw from an attorney-client relationship without notice to the client is fundamental to the fiduciary nature of legal representation (citations omitted throughout) (‘Strong policy considerations dictate that a client…must be unequivocally informed when an attorney intends to withdraw from representing a party, for whatever reason.’  ‘An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without…reasonable notice.’).

The contrary position – taken by Joel – that an attorney’s uncommunicated choice to withdraw from representation is effective unless the attorney ‘leads the client to believe he is still the lawyer’ is indefensible and fails as a matter of law.  The position is so rarely taken that courts have hardly ever been called upon to write about it.  (‘It is well settled that an attorney who wants to withdraw from representing a client must notify the client in advance and notify the client of the grounds for withdrawal even in a situation where a client ‘effectively disappeared’ and (the) attorney (is) unable to contact (the client)’).

An attorney is not free to withdraw from the relationship absent notice to his client and in determining when the attorney-client relationship is terminated, the court must point to an affirmative act by either the attorney or the client that signals the end of the relationship. (‘…most courts require that before an attorney can unilaterally sever the attorney-client relationship, he must give reasonable notice to his client of his intention to withdraw, and, noting, further requirements are necessary if the withdrawal involves a matter pending in court’).” (Emphasis added)

In protecting your professional position – in the event you have reached an irreconcilable point in your relationship with your client – I might suggest that you consider doing the following (this list is far from being all-inclusive):

  • Contact Professor John Freeman for his expert advice (of interest, Professor Freeman was the plaintiff’s expert witness in this case).
  • Craft a detailed and carefully worded retainer agreement which provides an exact template to be followed by your client and you in the event you reach a point where it is necessary to sever the attorney-client relationship.
  • “Reasonable notice” to me means that, unless your client has gone AWOL, you should conduct an in-office conference with your client, allowing the client to retrieve his/her file and sign all releases of representation previously addressed in your retainer agreement (but remember that if a case is pending in court, you must get a court order relieving you as the attorney-of-record).  If I were you, I would be careful not to interpret “reasonable notice” as meaning that you can simply send a letter, email or text message to your client.  Because there are professional risks involved when you have reached the point where you feel you have no choice but to “fire” your client, don’t take the path of least resistance when ending this critical relationship.