As always, before reading my post, please review my disclaimer by following the link above or by clicking on this link. As always, legal policies discussed here pertain only to the Commonwealth of Virginia.
Introduction
Unless you've been living under a rock today, you know that the Supreme Court issued its rulings in United States v. Windsor and Hollingsworth v. Perry. The former found the federal Defense of Marriage Act ("DOMA") unconstitutional, and the latter found that the petitioners lacked standing to fight to support Proposition 8, preventing the Court from reaching the merits of that case. Most people seem to recognize that the Prop 8 ruling basically has no meaning outside of California, but what about the DOMA ruling? If you are a homosexual living in Virginia, what does the ruling in Windsor mean to you?
No Nationwide Same-Sex Marriage... Yet
The first thing to realize is that Windsor did not, in any way, find that there is a constitutional right to same-sex marriage. That issue was not even technically before the Supreme Court in this case (it theoretically could have been in Perry, but as discussed above, no "merits" decision was issued in that case). As a result, if you are in a same-sex relationship living in Virginia, don't rush off to your local courthouse to get married - Virginia's ban on same-sex marriage remains on the books. While the Supreme Court might some day rule that there is a constitutional right to same-sex marriage - and some have suggested that the language of Windsor implies there are five votes to go that way if the issue is squarely presented to the court - it did not do that today.
The Feds Must Recognize Your Legal Same-Sex Marriage
Now, let's say you go off to Vermont, where same-sex marriage is legal, and marry your same-sex partner, even though you are both residents of Virginia. Well, unless Vermont has a law that I'm unaware of about residency requirements, you will then be legally married under Vermont law, regardless of Virginia law. Today's ruling in Windsor means the federal government must recognize that marriage. This means you can now file joint tax returns, get the benefit of the marriage exclusion from estate taxes (the actual issue that brought Windsor to the Supreme Court), sponsor your non-American same-sex spouse for immigration, and you can get access to the myriad other rights that the federal government confers on married couples. However, in all of this, I want to emphasize the word "federal."
(UPDATE: Please read the comments to this blog post for a brief discussion of this issue. While I stand by my belief expressed above, the fact is even this "victory" for same-sex couples is not guaranteed and is debatable, and we will not be certain of this until the new regulations are released.)
Virginia Is Not Required to Recognize Your Legal Same-Sex Marriage
Even though the Federal government must now recognize same-sex marriages that are legally performed in states that allow them, states do not necessarily have to follow suit. This is because DOMA actually had multiple sections. The issue before the Court in Windsor was Section 3. That's the Section of DOMA that forbade the federal government from recognizing same-sex marriages, even if they were legal and legally performed in the state where entered into. Section 2 of DOMA, which was not before the Supreme Court and was not struck down today, allows states to disregard same-sex marriages legally entered into in other states if those states so choose. Virginia has so chosen, and Section 2 remains on the books.
Of course, Section 2 will be thrown out if same-sex marriage is found to be a constitutional right. Similarly Section 2 could be in danger due to the Full Faith and Credit Clause of the Constitution, but again, it is currently the law of the land. As a result, using the example from above, just because you can file a joint federal tax return doesn't mean you can file a joint state one, or get any of the myriad benefits Virginia confers on married couples.
Divorce
Because Family Law is one of my primary practice areas, I, of course, cannot stay away from the topic of divorce. Let's use our above example again. You go to Vermont, you get married to your same-sex partner, you return to Virginia, you stop working since your same-sex partner makes more than enough to pay for you both, you buy a house together, you adopt a child who you stay home to raise, you do all the normal things married couples do, then suddenly you find out your spouse is cheating on you. You confront your spouse and your spouse kicks you and your child out of the house since the house is in only your spouse's name. You come back to the house, your spouse calls the police, you read my first post on my blog about how your spouse can't just kick you out of the house, so you tell the police you're married, the police officer laughs in your face because Virginia doesn't recognize your marriage and forcibly removes you, and you're stuck living in a hotel. You want to file for divorce, you want spousal support, you want custody, you want child support, and you want your share of the house - all of which you would definitely have a strong case for if you were in a heterosexual marriage. What can you do?
One option would be to return to Vermont to file for divorce there, but residency requirements, personal jurisdiction problems and other problems may very well make that impossible. Suddenly, you find yourself without luck. Can you file for divorce in Virginia, when Virginia does not recognize you as married to begin with?
There are two approaches you can take. First, you can file for an annulment. In Virginia, when a marriage is "void" (as in, was never legal in the first place), you can still file for an annulment to allow for a "clarification" of your marital status, and to decide some property rights. The odds are, however, your recovery in an annulment case would be limited, you almost definitely cannot get spousal support, and, possibly most frustrating of all, you would have to acknowledge that your marriage was not valid to begin with.
The second approach would be to file for divorce anyways. The court cannot ban you from filing a case to begin with, it can only dismiss the case after it's filed. This means, you could file for divorce, and then argue that Virginia's same-sex marriage ban is unconstitutional, there's a constitutional right to same-sex marriage, DOMA's Section 2 is unconstitutional, or some combination thereof. Just be ready that if you do this, you will have to face the full might of the Commonwealth of Virginia in court, and you're talking about a protracted battle - easily four or five years if the case ends up in the United States Supreme Court. However, every major Supreme Court ruling has a real person at the heart of it (Edith Windsor today, and in the past Richard and Mildred Loving, Oliver Brown, Fred Korematsu, Homer Plessy, William Marbury and so on), and it's not inconceivable you could find yourself on that list.
Conclusion
If you are in a same-sex relationship in Virginia, you have a lot to celebrate today, but you also still have a long way to go before your relationship is recognized in Virginia. If you marry in another state, the federal government must now recognize your marriage, but Virginia does not have the same obligation. If you are in a same-sex marriage and want to discuss what rights you now have and how to protect your rights in the future, or if you are contemplating a divorce, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. It's free for up to half an hour! Please be aware, however, if you do retain me or my firm for representation in a divorce or other court action based on your same-sex marriage, the expense might be higher than usual due to the protracted nature of a constitutional challenge.
Wednesday, June 26, 2013
Thursday, June 20, 2013
You Don't Have the Right to Remain Silent - Until After You Talk
As always, before reading my blog post, please review my disclaimer by clicking on the link at the top of the page or following this link. As always, any legal issues discussed are applicable only to the Commonwealth of Virginia.
Introduction
Before I start, I want to give a warning. This blog post will be different from my other posts to date. First, I will do something in this post that I have tried to stay away from in my previous posts, and will try to stay away from in most of my future posts - I will express my personal opinions. They are too strong on this matter not to come through. Second, this post will be discussing a legal practice area (criminal law) that neither I nor any attorney in my firm practices, and as a result, it will not include my usual solicitation of your business at the end. Nonetheless, I feel this topic is so important, and has been so largely ignored by the press, that every lawyer with a legal blog should be posting about it.
Now, we've all grown up hearing that famous phrase after an arrest "You have the right to remain silent." What many of you may already know is that this phrase is a direct result of a Supreme Court case called Miranda v. Arizona, thus the term for the warning: Miranda warnings. Prior to Miranda, the Supreme Court had already ruled that the Fifth Amendment's ban on compelled self-incrimination meant you had a right to remain silent - the problem was, most people didn't know about it. The whole point of Miranda is that police officers are required to tell you that you have this right before anything you say after being arrested can actually be used against you.
What many people don't understand, however, is that Miranda warnings only apply when you have been arrested, and are "in custody." If you are taken to the police station merely for questioning, you still have the right to remain silent, but you don't get Miranda warnings first. This has probably led to many of your high school government teachers telling you "don't talk to the cops without a lawyer, period." That was good advice, until this week.
A gentleman named Genovevo Salinas, suspected of but not arrested for a double homicide, was brought into a Texas police station for questioning. Likely to have remembered this advice, he did, in fact, remain silent, and refused to answer police questions. He was later charged and at trial, a major component of the prosecution's case against Mr. Salinas was his refusal to answer police questions, and the supposed "implication" of guilt that came with that refusal. This argument was allowed and Mr. Salinas was convicted. This past Monday, in the case of Salinas v. Texas, by a 5-4 decision the United States Supreme Court upheld Mr. Salinas's conviction. Their basis? That Mr. Salinas did not "expressly" invoke his Fifth Amendment right to remain silent.
Practical Effect of this Ruling
I have yet to encounter a practicing attorney that was not blown away by this ruling. It seems so contrary to the very purpose of the Fifth Amendment and the right to remain silent as to be mind-boggling. What this in effect says is that in order to exercise your right to remain silent, you must first state that you are exercising that right. So yes, in order to not talk, you must talk, and remember, if you're not in custody, you don't get a Miranda warning to tell you about this right first, either.
So, now if the police try to question you, what should you do? Obviously the old rule of just not talking to them isn't a good idea anymore, and it will take some time to work through the mess that the Salinas ruling will create to figure out exactly what needs to be done, but we have some good ideas. My advice is simple. If questioned by the police, simply state "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney." Unless the Supreme Court comes up with some new ridiculous rule, that should still be sufficient to "expressly" invoke your rights, and subsequently prevent your silence from being used against you.
Conclusion
I know this is a shorter blog post than usual because there just is not much to say, but as I said, it was too important for me to not say something. The ground has shifted in a somewhat dramatic way regarding your rights in a criminal investigation, and the shift is not in your favor. Please make sure you know and understand your rights so that you don't find yourself in trouble just because you didn't understand your rights. Memorize the phrase "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney," and if ever questioned by police, be prepared to state it over and over again if necessary.
Introduction
Before I start, I want to give a warning. This blog post will be different from my other posts to date. First, I will do something in this post that I have tried to stay away from in my previous posts, and will try to stay away from in most of my future posts - I will express my personal opinions. They are too strong on this matter not to come through. Second, this post will be discussing a legal practice area (criminal law) that neither I nor any attorney in my firm practices, and as a result, it will not include my usual solicitation of your business at the end. Nonetheless, I feel this topic is so important, and has been so largely ignored by the press, that every lawyer with a legal blog should be posting about it.
Now, we've all grown up hearing that famous phrase after an arrest "You have the right to remain silent." What many of you may already know is that this phrase is a direct result of a Supreme Court case called Miranda v. Arizona, thus the term for the warning: Miranda warnings. Prior to Miranda, the Supreme Court had already ruled that the Fifth Amendment's ban on compelled self-incrimination meant you had a right to remain silent - the problem was, most people didn't know about it. The whole point of Miranda is that police officers are required to tell you that you have this right before anything you say after being arrested can actually be used against you.
What many people don't understand, however, is that Miranda warnings only apply when you have been arrested, and are "in custody." If you are taken to the police station merely for questioning, you still have the right to remain silent, but you don't get Miranda warnings first. This has probably led to many of your high school government teachers telling you "don't talk to the cops without a lawyer, period." That was good advice, until this week.
A gentleman named Genovevo Salinas, suspected of but not arrested for a double homicide, was brought into a Texas police station for questioning. Likely to have remembered this advice, he did, in fact, remain silent, and refused to answer police questions. He was later charged and at trial, a major component of the prosecution's case against Mr. Salinas was his refusal to answer police questions, and the supposed "implication" of guilt that came with that refusal. This argument was allowed and Mr. Salinas was convicted. This past Monday, in the case of Salinas v. Texas, by a 5-4 decision the United States Supreme Court upheld Mr. Salinas's conviction. Their basis? That Mr. Salinas did not "expressly" invoke his Fifth Amendment right to remain silent.
Practical Effect of this Ruling
I have yet to encounter a practicing attorney that was not blown away by this ruling. It seems so contrary to the very purpose of the Fifth Amendment and the right to remain silent as to be mind-boggling. What this in effect says is that in order to exercise your right to remain silent, you must first state that you are exercising that right. So yes, in order to not talk, you must talk, and remember, if you're not in custody, you don't get a Miranda warning to tell you about this right first, either.
So, now if the police try to question you, what should you do? Obviously the old rule of just not talking to them isn't a good idea anymore, and it will take some time to work through the mess that the Salinas ruling will create to figure out exactly what needs to be done, but we have some good ideas. My advice is simple. If questioned by the police, simply state "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney." Unless the Supreme Court comes up with some new ridiculous rule, that should still be sufficient to "expressly" invoke your rights, and subsequently prevent your silence from being used against you.
Conclusion
I know this is a shorter blog post than usual because there just is not much to say, but as I said, it was too important for me to not say something. The ground has shifted in a somewhat dramatic way regarding your rights in a criminal investigation, and the shift is not in your favor. Please make sure you know and understand your rights so that you don't find yourself in trouble just because you didn't understand your rights. Memorize the phrase "I invoke my Fifth Amendment right to remain silent, and I request the presence of my attorney," and if ever questioned by police, be prepared to state it over and over again if necessary.
Monday, June 10, 2013
Roommates: Can't Live With Them, Can't Afford to Live Without Them - The Law of Renting with a Pal
As always, please review my disclaimer before reading this blog post. It can be found by following the link at the top of this page or by clicking on this link. As always, any legal principles discussed involve only the laws of the Commonwealth of Virginia.
Introduction
Fresh out of college and ready to face the real world, many of us face that most basic of questions - where are we going to sleep at night? With a mountain of student loan debt, practically no job security, and probably about $0 to your name, buying a home probably is not your immediate plan, so renting seems the way to go. In today's market, however, especially in higher demand areas, renting on your own just may not be feasible either, so now you need a roommate.
What you may not realize, however, is that having a roommate may not be as simple as it seems. For example, if both of you sign the lease, that does NOT mean that you are each legally responsible for half the rent. In fact, unless the lease says otherwise, if your roommate skips town you could suddenly become responsible for the whole rent, and continuing to pay only half the rent could result in your eviction, a judgment against you, and a nasty notation on your credit report that follows you for years and makes finding your next rental apartment next to impossible.
There are two ways to potentially protect yourself from this problem, however. First is to insist that the lease you sign with your landlord delineate which roommate is responsible for what - including a breakdown of who owes how much rent. This is usually not practical, however, as it shifts the burden of resolving conflicts between you and your roommate to your landlord. As we are largely in a landlord's rental market today, finding a single renter would just be easier, so most landlords will be unwilling to do this. Second, then, is to require your roommate to sign a Roommate Agreement, which creates a contractual relationship between the two of you and provides at least some protection in the event of a dispute between you.
In this blog post, I hope to provide some basic advice regarding Roommate Agreements, why you need them, and what should be in them.
Why a Roommate Agreement?
Imagine, if you will, that you and your best friend decide to live together. You both agree to split the rent, and you both sign a lease and move into your new apartment. Suddenly, your best friend loses her job, and can't afford to pay her share of the rent anymore. You continue paying your half, hoping that she and the landlord can work something out - after all, she is your friend. Then, suddenly, you get served with court papers seeking to evict both of you. You go to court, argue that you were only supposed to pay half the rent, so nothing should happen to you, and yet judgment is entered against you both for your roommate's unpaid rent, and you are both evicted. Then, a month later, you get notice from the court that, as your landlord knows your friend is unemployed, your wages are being garnished to pay the judgment.
As shocking as it may seem, this happens every day, and when you sign a lease with a roommate, this is exactly what you open yourself up to. Moreover, if you do not have a roommate agreement, you may have no right to recover any of that money from your roommate. You can file a suit against your roommate seeking contribution, but without a set contract a court may very well only give you a partial judgment or no judgment at all. A roommate agreement can help protect you by requiring your roommate to reimburse you for any damages you suffer as a result of her non-payment of her share of the rent.
What Should Be In a Roommate Agreement?
So, now that you understand why a roommate agreement might be necessary, you might be wondering what it should contain. Remember, first and foremost, a signed roommate agreement is a legally binding contract like any other, so do not sign one that contains provisions you are uncomfortable with - chances are they will be enforced if necessary.
The first provision every roommate agreement should have is a payment clause. This clause should break down who is responsible for what share of the rent, utilities, late fees, and any other costs associated with your living arrangement. This clause should also detail deadlines to pay your share, and to whom you pay. Will one of you be responsible for paying the whole amount to the landlord while the other pays that person back for her share, or will you both pay the landlord directly? Think about what works easiest for you. If one of you is much more reliably prompt than the other, that may be the best arrangement, but if you don't like the idea of harassing your friend for money, each of you sending rent straight to the landlord may be better.
The second provision every roommate agreement should have is an indemnity clause. In an indemnity clause, each of you will promise to be responsible to the other for any damage they suffer as a result of your actions. This goes beyond mere payment. If your roommate violates the lease in another manner that causes you both to be evicted, you could then go after your roommate for your costs in finding a new place, the difference in rent you are paying, lost wages if you had to miss work, etc. This is an additional layer of protection if your roommate's actions cause problems for you.
Depending on your situation, it may not be necessary to have provisions beyond those two, but provisions regarding chores, household responsibilities, and other relevant matters are certainly allowed as well. Just beware that remedies for breaches of those provisions (for example, if your roommate doesn't do the dishes when she's supposed to under the agreement) might be minimal, and not worth the cost of pursuing.
Dangers of Roommate Situations
Even a Roommate Agreement cannot protect you from all possibilities. The scenario outlined in the "Why a Roommate Agreement" situation above could still happen if you have a roommate agreement. Then, when you pursue your (presumably now former) roommate for her share, she could declare bankruptcy, flee to a location such that you cannot find her, or simply remain a judgment debtor from whom judgment is basically uncollectable (because she makes too little money, for example). As a result, you would still get stuck with the bill, even with a very well written roommate agreement.
Because of this risk, you should assess carefully who you are considering rooming with. How well do you know this person and his or her payment history? How reliable are they? In the end, a roommate situation will always entail some risk, no matter how well you prepare.
Conclusion
Renting with a roommate is a risky proposition, but in this day and age, it is often necessary. A roommate agreement can protect you from many of the dangers associated with this situation, however. If you would like to put together a roommate agreement, review one that has been proposed to you, or are otherwise in a dispute with a current or former roommate, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an appointment with me. Your initial consultation is free for up to half an hour!
Introduction
Fresh out of college and ready to face the real world, many of us face that most basic of questions - where are we going to sleep at night? With a mountain of student loan debt, practically no job security, and probably about $0 to your name, buying a home probably is not your immediate plan, so renting seems the way to go. In today's market, however, especially in higher demand areas, renting on your own just may not be feasible either, so now you need a roommate.
What you may not realize, however, is that having a roommate may not be as simple as it seems. For example, if both of you sign the lease, that does NOT mean that you are each legally responsible for half the rent. In fact, unless the lease says otherwise, if your roommate skips town you could suddenly become responsible for the whole rent, and continuing to pay only half the rent could result in your eviction, a judgment against you, and a nasty notation on your credit report that follows you for years and makes finding your next rental apartment next to impossible.
There are two ways to potentially protect yourself from this problem, however. First is to insist that the lease you sign with your landlord delineate which roommate is responsible for what - including a breakdown of who owes how much rent. This is usually not practical, however, as it shifts the burden of resolving conflicts between you and your roommate to your landlord. As we are largely in a landlord's rental market today, finding a single renter would just be easier, so most landlords will be unwilling to do this. Second, then, is to require your roommate to sign a Roommate Agreement, which creates a contractual relationship between the two of you and provides at least some protection in the event of a dispute between you.
In this blog post, I hope to provide some basic advice regarding Roommate Agreements, why you need them, and what should be in them.
Why a Roommate Agreement?
Imagine, if you will, that you and your best friend decide to live together. You both agree to split the rent, and you both sign a lease and move into your new apartment. Suddenly, your best friend loses her job, and can't afford to pay her share of the rent anymore. You continue paying your half, hoping that she and the landlord can work something out - after all, she is your friend. Then, suddenly, you get served with court papers seeking to evict both of you. You go to court, argue that you were only supposed to pay half the rent, so nothing should happen to you, and yet judgment is entered against you both for your roommate's unpaid rent, and you are both evicted. Then, a month later, you get notice from the court that, as your landlord knows your friend is unemployed, your wages are being garnished to pay the judgment.
As shocking as it may seem, this happens every day, and when you sign a lease with a roommate, this is exactly what you open yourself up to. Moreover, if you do not have a roommate agreement, you may have no right to recover any of that money from your roommate. You can file a suit against your roommate seeking contribution, but without a set contract a court may very well only give you a partial judgment or no judgment at all. A roommate agreement can help protect you by requiring your roommate to reimburse you for any damages you suffer as a result of her non-payment of her share of the rent.
What Should Be In a Roommate Agreement?
So, now that you understand why a roommate agreement might be necessary, you might be wondering what it should contain. Remember, first and foremost, a signed roommate agreement is a legally binding contract like any other, so do not sign one that contains provisions you are uncomfortable with - chances are they will be enforced if necessary.
The first provision every roommate agreement should have is a payment clause. This clause should break down who is responsible for what share of the rent, utilities, late fees, and any other costs associated with your living arrangement. This clause should also detail deadlines to pay your share, and to whom you pay. Will one of you be responsible for paying the whole amount to the landlord while the other pays that person back for her share, or will you both pay the landlord directly? Think about what works easiest for you. If one of you is much more reliably prompt than the other, that may be the best arrangement, but if you don't like the idea of harassing your friend for money, each of you sending rent straight to the landlord may be better.
The second provision every roommate agreement should have is an indemnity clause. In an indemnity clause, each of you will promise to be responsible to the other for any damage they suffer as a result of your actions. This goes beyond mere payment. If your roommate violates the lease in another manner that causes you both to be evicted, you could then go after your roommate for your costs in finding a new place, the difference in rent you are paying, lost wages if you had to miss work, etc. This is an additional layer of protection if your roommate's actions cause problems for you.
Depending on your situation, it may not be necessary to have provisions beyond those two, but provisions regarding chores, household responsibilities, and other relevant matters are certainly allowed as well. Just beware that remedies for breaches of those provisions (for example, if your roommate doesn't do the dishes when she's supposed to under the agreement) might be minimal, and not worth the cost of pursuing.
Dangers of Roommate Situations
Even a Roommate Agreement cannot protect you from all possibilities. The scenario outlined in the "Why a Roommate Agreement" situation above could still happen if you have a roommate agreement. Then, when you pursue your (presumably now former) roommate for her share, she could declare bankruptcy, flee to a location such that you cannot find her, or simply remain a judgment debtor from whom judgment is basically uncollectable (because she makes too little money, for example). As a result, you would still get stuck with the bill, even with a very well written roommate agreement.
Because of this risk, you should assess carefully who you are considering rooming with. How well do you know this person and his or her payment history? How reliable are they? In the end, a roommate situation will always entail some risk, no matter how well you prepare.
Conclusion
Renting with a roommate is a risky proposition, but in this day and age, it is often necessary. A roommate agreement can protect you from many of the dangers associated with this situation, however. If you would like to put together a roommate agreement, review one that has been proposed to you, or are otherwise in a dispute with a current or former roommate, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an appointment with me. Your initial consultation is free for up to half an hour!
Thursday, June 6, 2013
Your Lawyer's First Duty Isn't To You - A Primer on Legal Ethics
As always, before reading my post, please review my disclaimer by following the link on the top of the page or clicking on this link. As always, the legal rules outlined here are applicable only to the Commonwealth of Virginia.
Introduction
Despite the legal profession's unfortunate and, in my opinion at least, undeserved reputation to the contrary, you will often be hard-pressed to find attorneys of poor moral character. A major reason for this is that the legal profession has some of the most extensive ethical rules of any profession in the world. In the United States, nearly every law school requires passage of a Professional Responsibility class prior to graduation, and every state except for Maryland, Washington, Wisconsin, Connecticut and New Jersey requires its attorneys to pass the Multistate Professional Responsibility Exam (MPRE) - and Connecticut and New Jersey only waive the requirement if the attorney received a minimum grade in his Professional Responsibility class.
Beyond those requirements, however, come the ethical rules of the State Bar itself (called Rules of Professional Conduct in many states). These rules are extremely strict, and can result in disbarment for an attorney - and an accompanying loss of the attorney's entire career - for behavior that would not only not be criminal, but isn't even behavior for which the attorney could be sued.
Now, you might be wondering "Ok, great, lawyers aren't the scum of the earth, why does a non-lawyer like me need to know anything about legal ethics?" Well, if you are reading this blog, I presume there is a possibility you will consider hiring a lawyer at some point, or being involved in a case in which a lawyer might be involved. There are few things more frustrating to clients than when they ask their lawyer to do something, and the lawyer says no. There are even fewer things more frustrating to someone when they try to communicate with an opposing attorney and get flat-out ignored.
The purpose of this blog post is to give you a basic understanding of some of the more important ethics rules in Virginia when it comes to working on your behalf so that you have reasonable expectations of attorneys, and have a better understanding of what they will and won't do. First and foremost, though, understand your attorney's first duty isn't to you - it is to the justice system, and if your attorney has to choose between doing right by you and doing right by the legal system itself, the attorney will generally choose the latter.
Lying
Perhaps the most common ethical violations that attorneys are asked to engage in by their clients involves some form of lying. Most clients seem to not recognize that lawyers cannot lie, at all, period, end of discussion. If you are trying to find out where someone works in order to do a garnishment, your lawyer cannot call the person, pretend to be a recruiter, and ask for the person's current job information. Your lawyer can't tell an opposing party that a settlement offer is a "final offer" if he* knows at the time you'd be willing to go further. Your lawyer can't give an opposing attorney an excuse for why you haven't completed discovery yet when he knows the excuse isn't true. If you ask your lawyer to lie for you, he's going to say no.
The prohibition on lying, however, goes further than you might think. An attorney is also not permitted to make statements or engage in actions that are intentionally misleading. We've all seen those movies - an attorney is questioning an adverse witness on the stand, trying to get them to admit they confessed to their wrongdoing, and then suddenly the attorney holds up a cassette tape (obviously this is from a bygone era) and without saying it, strongly implies that the statement was recorded. The witness breaks down and confesses, and after the trial, someone asks the attorney "where did you get that tape?" and he says "oh, I bought it from the drug store five minutes before trial, it's blank!" Everyone has a good laugh, and the movie ends. Well guess what, in the real world, that attorney's going before the state bar and could have his license to practice law suspended or revoked. Don't expect your lawyer to engage in those kinds of theatrics.
Further, a lawyer is not permitted to let you lie to the court. The rules create an odd panoply of rules about this, but the basics are that if you are on the stand, and you are committing perjury, and your lawyer knows it, he cannot allow it to continue. Generally, first he will ask for a recess and will talk to you to make sure you correct yourself. If you still insist on lying on the stand, he may try again. If you continue, the lawyer likely will ask to withdraw as your attorney, and may have an off-the-record discussion with the judge explaining why.
Finally, if your lawyer is aware of a controlling legal opinion ("controlling" being key, so it must be from a higher court, in the same state [or the U.S. Supreme Court], it must not have been overturned or distinguished later, it must be directly on point, and the portion at issue must be part of the ruling, not dicta) that is adverse to your case, and the other attorney does not raise it, your attorney must bring it to the judge's attention. Further, if you are in an ex parte proceeding (a proceeding where the other side is not present), your attorney must present all facts to the judge, even adverse facts.
The rules on dishonesty by an attorney are where clients get tripped up most often in my experience, so understanding these rules is key to fostering the best relationship you can with your attorney.
Judicial Harassment
Another issue I see come up fairly often is when clients want their attorney to engage in what I refer to as judicial harassment of the other side to bully them into a settlement. For example, telling the other side "we will press charges for assault if you do not agree to this property settlement" in a divorce. Another is to tell an opposing attorney that we will press disciplinary charges against him for some perceived wrong if he doesn't advise his client to settle. However, the rules on this are clear - an attorney may not present, or even threaten to present, criminal or disciplinary charges just to gain an advantage in a civil matter.
Now, there are exceptions to this. First of all, your attorney can advise you of what criminal charges you have the right to press, and if you decide to take that action on your own, regardless of the reason, that is your right - but your attorney will not be involved. Second, an attorney can threaten criminal charges against someone when that threat is not designed to gain an advantage in a civil case, but rather to prevent a crime from happening in the first place. The most common situation in which I've seen this in the family law context is when a non-custodial parent with visitation refuses to return the child to the custodial parent. Then your attorney probably can say "we will have you charged with kidnapping if you do not return him." In that case, you are seeking to prevent the commission of a crime, not merely gain an upper-hand in litigation.
Communication with Opposing Attorney
The last topic I want to cover today (in order to keep this post of a reasonable length - if I feel a need I might cover more ethics-related topics in the future) is communication between an attorney and the other party. There are a lot of rules here, and it is easy to come to think of an opposing attorney as "sleazy" just because he is following those rules and you don't know it.
The first thing to understand is that the rules are very different depending on whether or not you yourself have an attorney. If you have an attorney yourself and that attorney has not given the other attorney permission to communicate with you, the other attorney cannot talk to you about the case, or anything remotely related to the case. If you try to engage the other attorney in a conversation that even resembles being about the case and you have an attorney, the other attorney is acting absolutely properly by turning his back to you and refusing to say anything. There is a recent ruling in the Virginia courts that the rule does not require the attorney to be rude and the attorney can give a response of "I cannot talk to you about this," but that is a very new ruling that has not been fleshed out yet, so most attorneys will still take the safe approach and flat-out ignore you.
If you are not represented by an attorney, you can communicate with the other side's attorney, but the rules are still restricted. The opposing attorney can explain his side's position, explain the legal process, and make settlement offers. He cannot, however, suggest you accept the offer, even if he thinks it's very generous. This is because an opposing attorney even in this context cannot give you any advice whatsoever, except the advice to hire an attorney.
A Side Note About Police
There is an important side note I want to cover very briefly - specifically regarding police. You've probably heard before that you should never talk to the police without a lawyer. I would like to emphasize the importance of that rule of thumb. While all the ethical rules I outline here apply fully to prosecutors, they do not apply at all to police. Police officers absolutely can lie to you in order to try to elicit a confession. They can not only hold up the cassette tape I talked about earlier, they can flat-out tell you it has a recording of you confessing on it. Moreover, police officers have absolutely no authority to "cut you a deal," no matter how strenuously they might claim otherwise (see my previous sentences about police officers' right to lie to you) - only a prosecutor can do that.
Many people think that police are held to similar ethical rules as attorneys, and this simply isn't the case. If you are in a police situation, get an attorney, and better yet, insist on speaking only to a prosecutor.
Conclusion
Most people when they hire an attorney incorrectly assume that the attorney's first duty is to them. An attorney's first duty is to the legal system itself, and a good attorney will not violate his ethical commitments just because you ask him to. If you are concerned that an attorney may be acting unethically, I would encourage you to contact the state bar. In Virginia, the information you need for doing that can be found here. If you are considering changing attorneys, for ethical or any other reasons, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour. Please be aware, however, that if you are switching attorneys for ethical reasons, but do not want to report that attorney to the bar, other attorneys are actually required to report unethical behavior by another attorney to the state bar - so if you discuss the unethical behavior with your potential new attorney, a report might be made whether you want one to be or not.
* - Male pronouns used in this post purely for convenience.
Introduction
Despite the legal profession's unfortunate and, in my opinion at least, undeserved reputation to the contrary, you will often be hard-pressed to find attorneys of poor moral character. A major reason for this is that the legal profession has some of the most extensive ethical rules of any profession in the world. In the United States, nearly every law school requires passage of a Professional Responsibility class prior to graduation, and every state except for Maryland, Washington, Wisconsin, Connecticut and New Jersey requires its attorneys to pass the Multistate Professional Responsibility Exam (MPRE) - and Connecticut and New Jersey only waive the requirement if the attorney received a minimum grade in his Professional Responsibility class.
Beyond those requirements, however, come the ethical rules of the State Bar itself (called Rules of Professional Conduct in many states). These rules are extremely strict, and can result in disbarment for an attorney - and an accompanying loss of the attorney's entire career - for behavior that would not only not be criminal, but isn't even behavior for which the attorney could be sued.
Now, you might be wondering "Ok, great, lawyers aren't the scum of the earth, why does a non-lawyer like me need to know anything about legal ethics?" Well, if you are reading this blog, I presume there is a possibility you will consider hiring a lawyer at some point, or being involved in a case in which a lawyer might be involved. There are few things more frustrating to clients than when they ask their lawyer to do something, and the lawyer says no. There are even fewer things more frustrating to someone when they try to communicate with an opposing attorney and get flat-out ignored.
The purpose of this blog post is to give you a basic understanding of some of the more important ethics rules in Virginia when it comes to working on your behalf so that you have reasonable expectations of attorneys, and have a better understanding of what they will and won't do. First and foremost, though, understand your attorney's first duty isn't to you - it is to the justice system, and if your attorney has to choose between doing right by you and doing right by the legal system itself, the attorney will generally choose the latter.
Lying
Perhaps the most common ethical violations that attorneys are asked to engage in by their clients involves some form of lying. Most clients seem to not recognize that lawyers cannot lie, at all, period, end of discussion. If you are trying to find out where someone works in order to do a garnishment, your lawyer cannot call the person, pretend to be a recruiter, and ask for the person's current job information. Your lawyer can't tell an opposing party that a settlement offer is a "final offer" if he* knows at the time you'd be willing to go further. Your lawyer can't give an opposing attorney an excuse for why you haven't completed discovery yet when he knows the excuse isn't true. If you ask your lawyer to lie for you, he's going to say no.
The prohibition on lying, however, goes further than you might think. An attorney is also not permitted to make statements or engage in actions that are intentionally misleading. We've all seen those movies - an attorney is questioning an adverse witness on the stand, trying to get them to admit they confessed to their wrongdoing, and then suddenly the attorney holds up a cassette tape (obviously this is from a bygone era) and without saying it, strongly implies that the statement was recorded. The witness breaks down and confesses, and after the trial, someone asks the attorney "where did you get that tape?" and he says "oh, I bought it from the drug store five minutes before trial, it's blank!" Everyone has a good laugh, and the movie ends. Well guess what, in the real world, that attorney's going before the state bar and could have his license to practice law suspended or revoked. Don't expect your lawyer to engage in those kinds of theatrics.
Further, a lawyer is not permitted to let you lie to the court. The rules create an odd panoply of rules about this, but the basics are that if you are on the stand, and you are committing perjury, and your lawyer knows it, he cannot allow it to continue. Generally, first he will ask for a recess and will talk to you to make sure you correct yourself. If you still insist on lying on the stand, he may try again. If you continue, the lawyer likely will ask to withdraw as your attorney, and may have an off-the-record discussion with the judge explaining why.
Finally, if your lawyer is aware of a controlling legal opinion ("controlling" being key, so it must be from a higher court, in the same state [or the U.S. Supreme Court], it must not have been overturned or distinguished later, it must be directly on point, and the portion at issue must be part of the ruling, not dicta) that is adverse to your case, and the other attorney does not raise it, your attorney must bring it to the judge's attention. Further, if you are in an ex parte proceeding (a proceeding where the other side is not present), your attorney must present all facts to the judge, even adverse facts.
The rules on dishonesty by an attorney are where clients get tripped up most often in my experience, so understanding these rules is key to fostering the best relationship you can with your attorney.
Judicial Harassment
Another issue I see come up fairly often is when clients want their attorney to engage in what I refer to as judicial harassment of the other side to bully them into a settlement. For example, telling the other side "we will press charges for assault if you do not agree to this property settlement" in a divorce. Another is to tell an opposing attorney that we will press disciplinary charges against him for some perceived wrong if he doesn't advise his client to settle. However, the rules on this are clear - an attorney may not present, or even threaten to present, criminal or disciplinary charges just to gain an advantage in a civil matter.
Now, there are exceptions to this. First of all, your attorney can advise you of what criminal charges you have the right to press, and if you decide to take that action on your own, regardless of the reason, that is your right - but your attorney will not be involved. Second, an attorney can threaten criminal charges against someone when that threat is not designed to gain an advantage in a civil case, but rather to prevent a crime from happening in the first place. The most common situation in which I've seen this in the family law context is when a non-custodial parent with visitation refuses to return the child to the custodial parent. Then your attorney probably can say "we will have you charged with kidnapping if you do not return him." In that case, you are seeking to prevent the commission of a crime, not merely gain an upper-hand in litigation.
Communication with Opposing Attorney
The last topic I want to cover today (in order to keep this post of a reasonable length - if I feel a need I might cover more ethics-related topics in the future) is communication between an attorney and the other party. There are a lot of rules here, and it is easy to come to think of an opposing attorney as "sleazy" just because he is following those rules and you don't know it.
The first thing to understand is that the rules are very different depending on whether or not you yourself have an attorney. If you have an attorney yourself and that attorney has not given the other attorney permission to communicate with you, the other attorney cannot talk to you about the case, or anything remotely related to the case. If you try to engage the other attorney in a conversation that even resembles being about the case and you have an attorney, the other attorney is acting absolutely properly by turning his back to you and refusing to say anything. There is a recent ruling in the Virginia courts that the rule does not require the attorney to be rude and the attorney can give a response of "I cannot talk to you about this," but that is a very new ruling that has not been fleshed out yet, so most attorneys will still take the safe approach and flat-out ignore you.
If you are not represented by an attorney, you can communicate with the other side's attorney, but the rules are still restricted. The opposing attorney can explain his side's position, explain the legal process, and make settlement offers. He cannot, however, suggest you accept the offer, even if he thinks it's very generous. This is because an opposing attorney even in this context cannot give you any advice whatsoever, except the advice to hire an attorney.
A Side Note About Police
There is an important side note I want to cover very briefly - specifically regarding police. You've probably heard before that you should never talk to the police without a lawyer. I would like to emphasize the importance of that rule of thumb. While all the ethical rules I outline here apply fully to prosecutors, they do not apply at all to police. Police officers absolutely can lie to you in order to try to elicit a confession. They can not only hold up the cassette tape I talked about earlier, they can flat-out tell you it has a recording of you confessing on it. Moreover, police officers have absolutely no authority to "cut you a deal," no matter how strenuously they might claim otherwise (see my previous sentences about police officers' right to lie to you) - only a prosecutor can do that.
Many people think that police are held to similar ethical rules as attorneys, and this simply isn't the case. If you are in a police situation, get an attorney, and better yet, insist on speaking only to a prosecutor.
Conclusion
Most people when they hire an attorney incorrectly assume that the attorney's first duty is to them. An attorney's first duty is to the legal system itself, and a good attorney will not violate his ethical commitments just because you ask him to. If you are concerned that an attorney may be acting unethically, I would encourage you to contact the state bar. In Virginia, the information you need for doing that can be found here. If you are considering changing attorneys, for ethical or any other reasons, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour. Please be aware, however, that if you are switching attorneys for ethical reasons, but do not want to report that attorney to the bar, other attorneys are actually required to report unethical behavior by another attorney to the state bar - so if you discuss the unethical behavior with your potential new attorney, a report might be made whether you want one to be or not.
* - Male pronouns used in this post purely for convenience.
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