Thursday, December 26, 2013

No Post Today

Hi all.  I had been planning to go ahead and do a post today, but recovering from the holidays seems it's going to need to take priority, so I'll see you all again next week!

Thursday, December 19, 2013

"If You Cannot Afford an Attorney..." - Court Appointed vs. Pro Bono Attorneys

As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link.  As always, all legal principles discussed in this post apply only to the Commonwealth of Virginia.

Note:  This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.

Introduction

It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot.  Within the legal profession, the distinctions are fairly clear.  It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.

The fact is there are two completely different kinds of "free" attorneys.  The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate).  The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client.  A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney.  A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney.  Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.

Right to Be Provided an Attorney vs. Right to Have an Attorney

So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney?  Well, let me explain what I mean first.  The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office).  The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.

So, first of all note that the former is a subset of the latter.  In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono.  The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.

While there are exceptions, you virtually always have the right to have an attorney.  In any legal predicament you are in, you can consult an attorney if you wish.  You also always have the right to have an attorney if you are in front of a court.  If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.

Of course, the big question this leaves is, when do you have a right to be provided an attorney?  Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney.  Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.

The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail.  In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence.  You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example).  That's really it - unless you are in those situations, you do not get a court-appointed attorney.

Guardians ad Litem

There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem.  I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case.  They are worth mentioning briefly, however.  A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself.  It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants.  While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case.  Note, however, that the last category is very hard to get a guardian ad litem appointed for.  I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!

How to Get a Pro Bono Attorney

So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys.  The answer, unfortunately, is not simple - and can often take a good bit of searching.  Most areas have a local legal aid organization.  If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look.  Beyond that, it can be a crap shoot.  If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them.  I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.

Conclusion

There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you.  If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you.  If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.

Wednesday, December 11, 2013

Sitting at Home Collecting Checks - Vocational Experts and Support Payments

As always, before reading this post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

After nearly a month of doing landlord/tenant blog posts, I decided today I would break off and get back to other areas of law.  For today's topic I've chosen an issue that comes up with a great deal of frequency in the family law field.  What happens if someone asking for support, or paying support, knows that their income will affect what they pay or what they get, and so they decide to either quit their job, take a lower paying job than they should, or not pursue increased income opportunities that they reasonably should pursue?  The fact is, if you believe the other party in your case is doing this, you do have a way to either force them to take higher paying work, or get the court to treat them as though they are paid more.

The Law of Underemployment and Support

In a case involving child support, spousal support, or both, if either party is unemployed, or accused of being underemployed, it is that party's burden to prove that they are not.  That is - it is that party's burden to prove that their unemployment or underemployment is through no fault of their own.  There are many reasons that someone could be unemployed or underemployed through no fault of their own - they were laid off and have not had enough time to find a new job, they were a stay-at-home parent for 15 years by agreement of the parties and now have been out of the job market too long to get a new job, they are disabled, etc.  Nonetheless, it is frequently very challenging to prove to a court that your unemployment or underemployment is involuntary.  If you were fired for cause, if there are jobs that you can still do despite your disability, if you have not been applying for jobs frequently enough, etc., the court may very well find you voluntarily unemployed or underemployed.

So, what happens if the court does find that someone is voluntarily unemployed or underemployed?  In that case, the court has the right to "impute" income to the person.  What this means is that the court for calculating support will treat that person as though he or she earns more money than they actually do.  That, however, is where the simplicity ends.  This is because while it is the burden of the person who is under or unemployed to prove that this is involuntary, once the court finds it voluntary, it is the burden of the other party to prove what the voluntarily under or unemployed person should be earning.  If your ex is found to be voluntarily unemployed, but you cannot convince a judge of what he should be making instead, the judge will still treat him as though he earns nothing.

Simple Proofs of Earning Capacity

Sometimes there are easy ways to prove what a voluntarily under or unemployed person should be making.  For example if someone was fired for cause or quit without good reason just a couple months earlier, a judge will likely accept the person's prior income.  Similarly, if the person turned down higher paying jobs without a good reason for doing so, the court will likely accept that income.  But what happens when you don't have that situation?  What happens when someone was fired for cause five years ago, and has simply refused to look for new work ever since?  A judge certainly is not going to impute five year old income, so where do you go from there?

Vocational Experts

What may surprise people to know is that there is an entire class of expert witnesses out there who can speak to this exact issue.  These people are known as vocational experts, or vocational rehabilitation specialists.  These individuals have spent their adult lives studying job markets, job skills, etc. and are able to calculate earning capacity, along with the availability of jobs at that earning capacity.  A vocational expert will interview the allegedly involuntarily under or unemployed person, investigate their work history, and put together a report indicating whether the person is employable, and if so, what they should be making and how many jobs are available at that income level.

There are a very small number of these experts in any given area, so it is likely that your judge will know your expert.  Evidence presented by vocational experts is frequently accepted by judges and used to impute income.  Best of all, in the grand scheme of legal expenses, vocational experts are not all that expensive, running around $3,000 to $5,000 if they have to testify in court (considering the amount you could save on support or increase you could get in receiving support, the expert really pays for herself).

What If My Ex Doesn't Cooperate?

So, you will note that the vocational expert's work includes an interview with the person.  So, what if your ex simply refuses to be interviewed?  Fortunately, the General Assembly has recognized how important a part of the support process a vocational expert is, and in 2010 it adopted Virginia Code Section 20-108.1(H) which allows you to file to get a court order requiring your ex to cooperate with the vocational expert's evaluation.  Moreover, this provision allows you to seek the costs and fees associated with this process - a useful tool to hold on to in order to encourage cooperation.  As a result, your ex refusing to submit to the interview could result in a finding of contempt of court, which will only help your case.

Conclusion

If you are involved in a spousal or child support situation and your ex is voluntarily under or unemployed, the burden is on you to prove what he or she should be making.  Fortunately, vocational experts exist to help guide you through this process and come out with a number a court is highly likely to accept.  If you are in a support situation involving voluntary under or unemployment, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Wednesday, December 4, 2013

Avoiding Tenant "Self-Help" Part 3 - Ordinary Lawsuit

As always, before reading today's post, please review my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

As you know, I have been conducting a multi-part series on options tenants have when their landlord is in violation of their lease that can allow the tenants to avoid the pitfalls of self-help.  In part 1 I discussed use of a "Tenant's Assertion" and in part 2 I talked about what I call "notice termination."  Today's post, which I anticipate will be the last in the series, discusses what may at once seem the most obvious approach, but also one that most people don't desire for a number of reasons.  That approach is, of course, an ordinary lawsuit.

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers of my blog should be well-trained by now to know that the first question you always need to ask in a landlord/tenant matter is if it matters whether you are dealing with a lease covered by the Virginia Residential Landlord and Tenant Act, or one that is not.  In the past two parts, I have mentioned that really the only difference is that in a non-VRLTA lease it is possible (though not guaranteed) that a lease could waive the tenant's rights to use that process, while VRLTA leases could not.  Today, the difference is, well, different.  First, I do not believe a non-VRLTA lease can waive a tenant's right to file a lawsuit for damages unless that lease preserves at least one other method for a tenant to assert his or her rights.  This is because courts frown upon contracts that prevent one party from suing for a breach but allow the other party to do so.  While nothing is a guarantee, I would expect a clause waiving a tenant's right to sue for breach of contract - the remedy I am discussing today - would be found invalid in court.  That being said, much of the caselaw on this point is now outdated because prior to 2011 a lawsuit like this was the only remedy available to non-VRLTA tenants.  Now that the Tenant's Assertion and notice termination rights exist for non-VRLTA tenants, a clause waiving the tenant's right to sue but preserving the tenant's right to engage in those two actions will probably survive.

On the other hand, there is one important other distinction between the VRLTA and non-VRLTA leases for tenant lawsuits.  The VRLTA contains Virginia Code Section 55-248.40 which allows any person adversely affected by the landlord's breach of the VRLTA (note this is only for breaches of the VRLTA, not breaches of the lease that are not also VRLTA breaches) to file suit and recover damages.  A lawsuit in a non-VRLTA lease can only be filed by one or more tenants if the person filing suit is a party to the lease.  Under the code section I just mentioned, however, for a VRLTA lease, authorized occupants, guests, and anyone else who may be affected but did not sign the lease has a remedy available to them as well.

What Can I Actually Sue For?

So, saying you can file an ordinary lawsuit sounds simple enough, but the follow up question should be what kind of lawsuit can you file?  Well, as you might guess, the lawsuit you can file is one for breach of contract.  Note, however, that this is pretty much the only type of lawsuit you can file.  If, for example, a landlord's failure to maintain the pipes in your rental causes a hot water pipe to burst which scalds you, you cannot sue for personal injury.  There is a long-standing common law rule that states that a lease does not create tort liability (liability other than just plain breach of contract) by a landlord, and the courts have recently held that this rule still applies even to VRLTA leases.  As a result, your only lawsuit available is breach of contract.

Now, for your breach of contract lawsuit, you can receive as compensation any damages that someone would ordinarily expect their breach of contract to cause.  This includes property damage (unless your non-VRLTA lease waived this right), costs incurred by you due to the breach (for example, if you had to stay in a hotel, if you paid to do the repair yourself because your landlord wouldn't, etc.), and loss of use damages.  The last one usually makes up the bulk of such lawsuits.  If, for example, your rental becomes uninhabitable, you should be entitled to a refund of your rent during that time frame.  If only part of the house becomes uninhabitable, then you should get a partial refund.

Now, the final question is attorneys' fees.  I have successfully argued in the past that the attorneys' fee provision of Virginia Code Section 55-225.13 and Virginia Code Section 55-248.21 (the notice termination statutes) apply to regular lawsuits for damages, too, but there's no guarantee that this will always work.  As a result, whether you are entitled to fees is a bit of a toss-up.

As a final note, for VRLTA leases, the aforementioned Code Section 55-248.40 gives you the right to also sue for an injunction requiring the landlord to cease his or her breach of the VRLTA.

What Situations Warrant a Lawsuit?

To me, an after the fact lawsuit is usually the least desirable of the big three tenant options.  This is because you do not have a guaranteed pool of money from which to collect a judgment (such as the escrow account you have in a Tenant's Assertion) and you don't get to potentially avoid court altogether (as you do with a notice termination).  However, a lawsuit is warranted, in my opinion, in the following circumstances:

  • The breach of the lease is not "material," does not create a "condition" on the property (so, for example, the landlord's failure to return a security deposit, or to reimburse you for a repair you already did, or to abate your rent for the portion of property use you have lost due to a fire or flood), and/or the "condition" caused by the landlord's breach has already been repaired.  In this situation, neither a tenant's assertion nor a notice termination is possible.
  • You conducted a notice termination, but you do want to also be reimbursed your damages.
  • A tenant's assertion is possible, but you fear retaliatory conduct if you engage in one and want to wait until your lease ends to recover your damages.
  • For a VRLTA lease, the potential plaintiff is not a party to the lease, and the conduct is also a violation of the VRLTA itself.
That's about it.  This does, however, actually encompass a decent number of situations.

When to File Lawsuit

With the exception of a VRLTA lawsuit under Section 55-248.40 seeking an injunction, a lawsuit needs to be filed after the fact.  Failure to wait until after the fact could open you to a whole range of defenses from the landlord, and end up being a big waste of time and money for you.  Worse, it may limit the amount you can recover (you can only sue for damages you've suffered as of the date of filing - if those damages continue to accrue, you may be out of luck).

Conclusion

An after the fact lawsuit is the last of what I consider to be the big three remedies tenants have for breach of a lease by a landlord that allow the tenants to avoid self-help.  If you are trying to figure out what remedy is best for you, or you want to file a lawsuit against your current or former landlord, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!