9: Family Law
- Page ID
- 318105
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)What is Family Law?
The practice of Family Law deals with laws, regulations, and court procedures that impact both marital and non-marital family units. The laws dictate how certain relationships are created, the rights and obligations arising from those relationships, and how those relationships are terminated. The types of relationships impacted include those between married and unmarried adult partners, between parents and children, and between other “parent-like” adults and children. When people need information about family law, it is usually because they are going through—or considering—significant changes in their lives, such as getting married, divorced, or separated; becoming a parent; or adopting a child.
In Wisconsin, Family Law generally includes the following topics:
- Requirements for marriage
- Premarital, post-marital, cohabitation, and separation agreements/contracts
- Treatment of income and property during marriage
- Rights and obligations of parents and children in marital and non-marital relationships
- Determination of parentage outside of a heterosexual marital relationship (paternity, adoption, surrogacy)
- Treatment of income and property upon termination of marriage
- Rights and obligations of parents, children, and other adults upon termination of marriage
Legal practitioners engaged in family law practice may also provide legal services related to
- Actions relating to abused or neglected children
- Actions relating to juvenile crime and justice matters
Typical Paralegal Family Law Tasks and Responsibilities
As with most litigation-based practice areas, paralegals working with family law attorneys are responsible for many different types of tasks, including:
- Pre-client screening and conflicts-checking
- Client interviews
- Opening and managing the client’s internal file
- Assisting the client with locating, obtaining, producing, and organizing information and documentation relevant to the client’s legal matter
- Drafting legal correspondence to the client, witnesses, court personnel, and other parties/counsel involved in the client’s legal matter
- Conducting factual investigation and legal research regarding the client's legal matter
- Drafting contracts, pleadings, discovery, and other documents necessary to fulfill the agreed-upon legal services to the client
- Receive, organize, and summarize documents and other information received from third parties in response to document requests, interviews, and discovery
- Liaison between the client and the attorney with respect to providing legal information to the client and requesting legal advice from the attorney
- Maintaining contact with lay witnesses, expert witnesses, agencies, and other personnel as needed to effectuate the attorney’s plan and client’s wishes
- Assisting the attorney with court proceedings, negotiation/mediation, and preparing the client for court hearings/trials
- Managing deadlines, calendars, and tasks lists relating to the client’s legal matter
- Staying current in State and Federal laws, regulations, and case law impacting the client’s legal matter
- Maintaining awareness of current trends in technology and social media that may impact the client’s legal matter
Family Law is one of the most client-contact intensive practice areas for paralegals. It can also be one of the most emotionally charged practice areas. As such, successful family law paralegals have strong empathy and interpersonal skills, as well as the ability to set aside personal biases toward various situations or diverse persons. Maintaining a healthy work/life balance by placing appropriate boundaries and compartmentalizing is also key to a rewarding practice. Other personal attributes and skills necessary to providing effective legal services include strong written and oral communication skills, attention to detail, time management skills, ability to work independently and as a member of a legal team, flexibility, adaptability, ability to work in a fast-paced and sometimes stressful environment, and well-developed research and investigation skills.
Ethics in Family Law Practice
As with all practice areas, the American Bar Association’s Model Rules of Professional Conduct and Wisconsin’s Rules of Professional Conduct apply to Family Law practice. Attorneys are responsible for their own conduct and have the duty to ensure personnel they supervise – associate attorneys, paralegals, and other legal staff – do not engage in conduct that would violate the rules. While all of the rules apply, it is helpful to examine the rules that come up the most often and that can be particularly troublesome in a Family Law practice.
Rule 1.1: Competence
This Rule requires legal practitioners to provide clients with competent representation, which is defined as “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (Wisconsin Supreme Court Rule 20:1.1). As mentioned above, family law matters can sometimes implicate other areas of law; thus, it is important that legal practitioners do not attempt to represent clients in complex legal matters requiring legal knowledge and skill outside of their actual competence. For example, Bankruptcy is a highly specialized area of law that often comes up in family law matters involving a significant amount of debt. Legal practitioners without training and experience in Bankruptcy law should consider referring family law clients with potential Bankruptcy concerns to a bankruptcy attorney.
Rule 1.4: Communication
This rule requires legal practitioners to keep clients informed about their legal matters by promptly communicating and consulting with clients and providing information as requested. (Wisconsin Supreme Court Rule 20:1.4). Especially in an emotionally charged family law matter, clients are much more satisfied with their representation – and much less likely to lodge ethical complaints – when they are regularly informed about the status of their case.
Rule 1.5: Fees
This rule requires legal practitioners to charge reasonable fees based on time, labor, and skill required to competently perform the desired legal services (among other factors). The rule also requires that the scope of the representation and how the fee is calculated be explained in writing unless the total cost will be less than $1,000. Finally, with respect to Family Law matters, contingent fees are prohibited. (Wisconsin Supreme Court Rule 20:1.5). Most fee agreements for Family Law matters are based on hourly charges for attorney and paralegal time. Additionally, a chargeable advance fee (also sometimes called a retainer fee) is typically collected when the client signs the fee agreement. The amount of the advance/retainer fee varies, but its purpose is to act as a “deposit” sufficient to cover anticipated costs and time required for at least the early stages of the representation. Fees for time spent by attorneys and paralegals are deducted from (or charged against) the advance/retainer fee at first, and then are typically billed to the client monthly.
Rule 1.6: Confidentiality
This rule prohibits legal practitioners from ever revealing or disclosing any and all information relating to the client’s representation, regardless of the source of the information, without the client’s express consent. There are circumstances, however, that require legal practitioners to reveal otherwise confidential information. (Wisconsin Supreme Court Rule 20:1.6). Sometimes during a family law matter it becomes clear that the client intends to commit “a criminal or fraudulent act that … is likely to result in death or substantial bodily harm or … substantial injury to the financial interest or property of another.” For example, a client may communicate a threat to physically harm someone or to fraudulently dispose of assets; in that situation, the legal practitioner is required to take action to prevent those circumstances from occurring, or, if they have already occurred, to rectify or minimize the damage. A related rule requires legal practitioners to prevent perjury (lying under oath) or to reveal to the Judge when perjury has occurred. (Wisconsin Supreme Court Rule 20:3.3: Candor toward the tribunal.)
Attorney-Client Privilege
Although not technically an ethical rule, the attorney-client privilege is one of the ways confidential client communication is protected. The privilege prohibits disclosure of any communications (written or oral) between the client and the attorney or the attorney’s staff that relates to legal services provided to the client. This privilege becomes effective if confidential information is obtained, even if the person does not subsequently retain the law office in the legal matter. For that reason, it is important not to obtain confidential information from persons until they have signed our fee agreement officially establishing a paid attorney-client relationship.
Attorney Work Product Protection
The attorney work product rule protects activities performed by the legal team on the client’s behalf from disclosure. Protected activities include factual investigation, legal research, notes, memoranda, strategies, preparation and organization performed by the attorney, paralegal, or other legal staff.
Rule 1.7: Conflicts of Interest – Current Clients
This rule prohibits representation that is adverse to or could injure the interests of another client. The rule requires legal practitioners to avoid situations in which they may need to choose between the interests of:
- Multiple current clients
- A current client and a former client or other person from whom the legal practitioner has obtained confidential information
- A current client and the business or personal interests of the legal practitioner
(Wisconsin Supreme Court Rule 20:1.7).
Tricky situations arise when multiple persons involved in a Family Law matter want to use the same attorney for legal advice/representation; this is known as multiple representation. Most often, this occurs when both spouses want a divorce and they have no children and no marital assets to divide, which is sometimes called a “friendly” or uncontested divorce. Even in this circumstance, the representation of both parties is ill-advised, even if both parties sign a statement explaining and waiving this conflict of interest. Unanticipated conflicts can arise during or after the divorce proceedings, putting the legal practitioner in jeopardy of violating this rule.
Rule 1.9: Duties to Former Clients
Equally important is the need to avoid the former client/current adversary conflict of interest. In Family Law, the two most common ways this conflict arises are:
A new client wishes to hire the legal practitioner to modify or challenge an order or judgment previously entered in a case in which the legal practitioner represented the opposing party (the former client). For example, suppose that our office represented Lia in her divorce from Shaun; five years later, Shaun wants our office to represent him in requesting a reduction in the amount of child support he was ordered to pay to Lia. Even though our representation of Lia terminated five years ago when the judgment of divorce was entered, we would be using confidential information we obtained from Lia during the divorce proceedings against her in the post-judgment proceedings.
An employee of the law office represented the opposing party while employed with a different law office in the same legal matter or in a legal matter substantially related to the current legal matter. For example, suppose that after our office represented Lia in her divorce from Shaun, we hired Mateo, a paralegal who previously worked for the law office that represented Shaun in the divorce action. Three years after the final judgment was entered Lia again retains our office to seek an increase in her spousal support. The confidential information Mateo obtained from Shaun travels with him, again making Shaun a former client/current adversary, even though our office never represented Shaun. This would be the case even if Mateo’s previous employer represented Mateo in a personal injury claim that occurred while Lia and Shaun were married. Because a judgment in the personal injury claim might impact a claim for spousal support, the matters are closely related and Mateo may possess confidential information obtained from Shaun that could be used against Shaun in the spousal support claim. In that case, our office would need to inform Shaun of the potential conflict and take steps to screen Mateo from any involvement in the spousal support claim. This is accomplished by implementing an ethical wall around Mateo so that he never works on the spousal support case and does not discuss any aspect of either that case or Shaun’s personal injury case with anyone.
Rule 4.2: Communication with Person Represented by Counsel and Rule 4.3: Dealing with Unrepresented Person
These rules govern contact with persons involved in the legal action who are not clients. Typically, these are opposing parties. If the opposing party is represented by an attorney, all communication between our law office and that party must occur through and be directed to that party’s attorney. When the opposing party is pro se (self-represented without an attorney), our office is required to inform that party that we do not represent that party and cannot give that party legal advice of any kind (other than advice to retain another attorney). (Wisconsin Supreme Court Rules 20.4.2 and 20:4.3). Many times one of the parties in a family law matter may decide not to hire their own attorney as a way to save money. In that situation, it is imperative to inform that party in writing that we do not represent that party, that our client’s interests may be adverse or in conflict with that party’s interests, and that we are prohibited from representing that party or providing legal advice.
Unauthorized Practice of Law
As you’ve learned in other classes, there are certain tasks and activities that can only be performed by a licensed attorney; anyone else who performs them has engaged in unauthorized practice of law, or UPL. Non-lawyers are prohibited from doing the following:
- Accepting or rejecting a client/legal matter. In other words, establishing the attorney-client relationship, communicating an intent to establish (or not establish) it, and signing fee agreements, contracts, or correspondence relating to establishing (or not establishing) an attorney-client relationship
- Setting legal fees. Only the attorney is allowed to decide the amount and manner (hourly, flat fee, task-based, etc.) in which to charge a client for legal services.
- Providing legal advice. Legal advice includes recommending actions or inactions, interpretation of law or documents, evaluation of legal claims or likelihood of success, explaining legal rights or obligations, and the like.
- Preparing legal documents without attorney supervision. In other words, any document, pleading, letter, etc., must be reviewed and approved by the attorney before it leaves the law office.
- Representing clients in Court. This not only includes personal appearances at hearings or trials but also signing pleadings, motions or other legal documents to be filed in the Court.
- Terminating the attorney-client relationship. Only the attorney can determine whether a legal matter has been concluded according to the retainer/fee agreement and communicate its completion with the client. This restriction especially applies to decisions to terminate the attorney-client relationship before the conclusion of the legal matter, for whatever reason.
Ethical Use of Social Media and other Electronic Data in Family Law
The advent of social media has added a whole new dimension to ethical family law practice, and it is continuously evolving. Legal practitioners need to be aware of the evidentiary implications of social media and other electronically stored information on clients in family law matters.
Social media posts, texting, and other forms of electronic messaging are notorious for causing damage to marital and other family relationships. Increasingly, they are also becoming potential sources of evidence for contested cases involving parental fitness, child custody, child placement/visitation, child support, spousal or child abuse, and other legal issues. Care must be taken to make sure clients do not erase or delete electronic information, as that could result in penalties being imposed against the client by the court on the basis of spoliation of evidence (intentionally destroying, altering, or concealing evidence).
As a result, with respect to social and electronic media, legal practitioners frequently advise their clients to
- Change their social media privacy settings to “private” and block opposing parties from accessing their social media pages
- Change all of their passwords for social media and email to prevent others from accessing them
- Refrain from posting any information (positive or negative) that relates to the relationship with the other party, children, or matters involved in the legal representation
- Set as private (but do not remove or delete!) past posts to social media
- Do not delete past emails, text messages or other electronic communications with the other party or with other persons that relate to the relationship with the other party, children, or matters involved in the legal representation
Additionally, caution must also be exercised to stay within the limits of the ethical use of social media by legal practitioners during the pendency of a family law matter. As previously mentioned, social media can provide a treasure trove of information that often cannot be accessed through traditional means of discovery such as depositions and interrogatories.
Deposition: Oral questions to another person that must be answered under oath.
Interrogatories: Written questions to the other party that must be answered under oath.
While it is perfectly ethical and acceptable for a paralegal to access and use information that is “public” on social media platforms, it is less clear when the information is “private” or accessible only to “friends.” Would it be ethical for a legal practitioner to “friend” the person with the sole intent of gaining access to otherwise private information? On the one hand, it could be argued that anyone who accepts what appears to be a random friend request does so at their own peril. However, the ethical rules would likely prohibit this contact if the person is an adversary party represented by an attorney. Additionally, legal practitioners have an ethical duty to refrain from engaging in deceptive practices, particularly with respect to non-represented persons. As such, it is probably unethical for a legal practitioner to send a “friend” request that would not have been sent for reasons unrelated to the family law matter. An even murkier question arises if the client is the one who sends the “friend” request. Although the legal practitioner would not be ethically responsible if the client does so without the legal practitioner’s knowledge, it would likely be unethical to direct the client (or any other person) to do so. The rules are definitely not always black and white.
Now you have a basic understanding of what is involved in an ethical Family Law practice. The next chapter will introduce you to the sources of law relevant to family law matters, as well as some of the interplay between other practice areas and Family Law.