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Tag: representation

Is appointing a guardian ad litem helpful in custody cases?

Is appointing a guardian ad litem a positive tool to help with custody cases? 

[I will respond to your question based upon my experience with guardians ad litem in Utah, where I practice divorce and family law. Each jurisdiction will have a different system governing the appointment, use, and powers of a guardian ad litem, so understand that in reading my response.] 

In my professional opinion, rarely. 

It is not worth the risk, in my experience. There is too much of a chance of the GAL being more of a detriment than benefit to anyone. What do I mean? 

Nobody and no thing is perfect, but as long as you meet certain minimal, essential standards, you’ll stay out of jail and stay employed. As long as institutions meet certain minimal, essential standards will do and continue to do more good than harm.  

But there are many things that sound good in concept, yet just clearly don’t work well in practice. The guardian ad litem (GAL) is such a thing.  

So why do GAL programs still exist? Why are GAL’s appointed so frequently still? Two big reasons stand out in my mind: 

1) In my experience, courts like appointing GAL’s to relieve themselves of some of the fact-finding burdens. That’s not an inherently bad idea, if a GAL could be counted on to bear those fact-finding burdens competently. But they usually don’t. 

and  

2) The idea of a child having his/her own attorney to “stand in the child’s shoes” and “give the child a voice” sounds noble, perhaps even crucial. And I am sure that if one looked hard enough, one could find a GAL who accomplishes such objectives. In my experience, however, GAL’s are too afraid and/or apathetic to do their jobs well and are incentivized (or dis-incentivized, as the case may be) by the legal system to do minimal, mediocre work yielding equivocal results that keep the GAL out of hot water. And that’s the best I can say about GALs. Worse, most GAL’s are among the least competent attorneys and are often motivated by self interest to recommend what they subjectively want done, as opposed to where the evidence points. In my experience, the GALs don’t perform with due diligence or provide insightful, impartial analysis. Instead, they base their ostensible findings and recommendations upon personal biases, agendas, and lazy (but safe-sounding) assumptions. I find many (not all, but many) GALs to be extremely petty and judgmental. Be or do something irrelevant, but that the GAL disapproves of (like holding certain political, religious, or other views contrary to those of the GAL), and don’t be surprised if the GAL’s recommendations aren’t in your favor, regardless of the actual factual and legal merits of your case. 

——— 

When a proposal is made to appoint a GAL, I oppose it. There are far better, far more reliable, less time-consuming, and less expensive ways to obtain accurate, useful information that a GAL is intended to produce, but rarely, if ever, does produce. There is no need to appoint a third party to “give the child a voice,” when the child can speak for himself/herself. If the child is too young to talk or to testify competently, there is little that a GAL could provide of any substantive value anyway. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Is-appointing-a-guardian-ad-litem-a-positive-tool-to-help-with-custody-cases/answer/Eric-Johnson-311  

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Law from a legal assistant’s point of view, week 29: Be Smart

By Quinton Lister, legal assistant 

The lesson I have been learning in my time working as a legal assistant is how important it is to have legal representation. Not just legal representation, good legal representation.  

I have by now witnessed firsthand the many, many flaws and broken parts of the legal system and I am convinced that I would never want to represent myself in a lawsuit if one was ever filed against me.  

Ignorance is most definitely not bliss when it comes to the law, and trying to defend yourself when the cards are stacked against you (and trust me, it hasn’t taken me long to discover the cards are stacked against you) rarely ends well. Happy endings make for good movies, but self-represented people (also known as pro se) don’t see many happy endings.  

I think that one reason why we like those “against all odds” movies is because it helps us believe things that make us feel better about ourselves and our circumstances. At some point or another in our lives, we all find ourselves unable to handle the truth that the system is broken, and that justice is too often hard to come by. So we latch on to the fantasies where things turn out well and they all lived happily ever after.  

I am not trying to be a “Debbie Downer” or prophesy of forthcoming doom in your particular case (if you are unfortunate enough to be proceeding pro se in a lawsuit), but the realities are that 1) the legal system is in major need of reform and 2) your best protection in and against a broken system is an honest, skilled lawyer who knows both the written and the “unwritten” rules that govern it.  

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How do I get free legal advice from a family law attorney on the custody of my 2 nieces?

In my experience, free legal advice is worth what you pay for it, but I understand that there are some (even many) who simply cannot afford an attorney (or believe they can’t) who need legal advice or assistance.

There are some sources of free or discounted legal advice and services. Generally speaking and in my experience, they are of poor quality, and if there are exceptions, they are hard to find and hard to identify.

Still, if you are desperate and feel that any advice/help is better than none (and bear in mind that in many instances bad legal advice/help can be worse than none), you can call the local or state bar association for the jurisdiction (state) where you live and ask it for a list of free or discounted legal assistance providers. That would, in my opinion, be the best place to start.

In Utah, where I practice divorce and family law, the Utah State Bar’s number is 801–531–9077. Their website can be access here: Utah State Bar | Serving The Public and Legal Professionals. Ask for reference to the free legal help services provided by or known to the Utah State Bar when you call, or visit the website to search these options.

Local law schools almost always offer some kind of pro bono legal help through programs staffed by volunteer law students or by students who, as part of their course, help find answers to legal questions or help provide legal representation.

You could also do a Google/Duckduckgo/Bing/Opera search for “pro bono legal help” or “pro bono legal assistance” or similar searches, as well as searches for “discount lawyer” or “low cost lawyer” etc. Again, be warned: cheap legal services are rarely a bargain (heck, they’re rarely any good at all). Be thorough in your search. Choose wisely.

Many who believe they cannot afford an attorney “discover”, after considering the cheap and free options, that they can (or more accurately, that they can’t afford not to spend the money on good advice/help). That’s not a knock on poor people, it’s just acknowledging that there is a reason why good legal advice/representation is expensive.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-do-I-get-free-legal-advice-from-a-family-law-attorney-on-the-custody-of-my-2-nieces/answer/Eric-Johnson-311?prompt_topic_bio=1

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When a lawyer drops a client, is the reason shared with the judge and/or opposing counsel (i.e., the client refused to be reasonable, etc.)?

When a lawyer drops a client, is the reason shared with the judge and/or opposing counsel (i.e., the client refused to be reasonable, etc.)?

In Utah, where I practice divorce and family law, the answer is: no.

When a lawyer drops a client/stops representing a client (known as “withdrawing as counsel” for that client), the lawyer is not permitted to inform the judge or opposing counsel as to the reasons why. This is due to the attorney’s duties to keep confidential 1) the communications between attorney and client and 2) the information relating to the representation of the client. See Utah Supreme Court Rules of Professional Conduct:

Rule 1.16(d):

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests[.]”

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(b)(1) to prevent reasonably certain death or substantial bodily harm;

(b)(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(b)(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(b)(4) to secure legal advice about the lawyer’s compliance with these Rules;

(b)(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(b)(6) to comply with other law or a court order; or

(b)(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/When-a-lawyer-drops-a-client-is-the-reason-shared-with-the-judge-and-or-opposing-counsel-I-e-the-client-refused-to-be-reasonable-etc/answer/Eric-Johnson-311

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When a lawyer drops a client, is the reason shared with the judge and/or opposing counsel (i.e., the client refused to be reasonable, etc.)?

When a lawyer drops a client, is the reason shared with the judge and/or opposing counsel (i.e., the client refused to be reasonable, etc.)?

In Utah, where I practice divorce and family law, the answer is: no.

When a lawyer drops a client/stops representing a client (known as “withdrawing as counsel” for that client), the lawyer is not permitted to inform the judge or opposing counsel as to the reasons why. This is due to the attorney’s duties to keep confidential 1) the communications between attorney and client and 2) the information relating to the representation of the client. See Utah Supreme Court Rules of Professional Conduct:

Rule 1.16(d):

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests[.]”

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(b)(1) to prevent reasonably certain death or substantial bodily harm;

(b)(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(b)(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(b)(4) to secure legal advice about the lawyer’s compliance with these Rules;

(b)(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(b)(6) to comply with other law or a court order; or

(b)(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/When-a-lawyer-drops-a-client-is-the-reason-shared-with-the-judge-and-or-opposing-counsel-I-e-the-client-refused-to-be-reasonable-etc/answer/Eric-Johnson-311

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