Lawyers Sanctioned For Insults

From the ABA Journal

The Legal Ethics

Lawyers Sanctioned for E-Mail Insults, Including ‘Scum Sucking Loser’ Comment

When hiring a divorce attorney, put "ability to get along with others" on the list of top traits.

It's natural that in a divorce case, the parties hate each other. From my experience, that alone won't bar settlement. It also won't necessarily drive up the fees.

What WILL, however, is how your attorneys handle the case.

I have had many, many cases where opposing counsel and I differ on our interpretation of the law, and facts. But because of our maturity (We are all grown-ups!!!), the case was still able to settle.

Unfortunately, I have also had opposing counsel who 1) do not educate themselves on the law and misguide their clients; and 2) were raised in a barn.

HOW MUCH YOUR CASE WILL COST IS DIRECTLY RELEVANT TO WHETHER YOUR ATTORNEYS CAN GET ALONG.

Below is an article which appeared in today's ABA Journal. I wish more Judges would do this.

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Two Florida lawyers who called each other a “retard” and “scum sucking loser” in escalating e-mail insults have been sanctioned by the state supreme court.

Nicholas Mooney of Tampa, a lawyer representing Volkswagen of America, received a public reprimand and must take a class on professionalism, according to the St. Petersburg Times. He is identified as a former partner at Hinshaw & Culbertson and a lawyer for Bromagen & Rathet on the law firm’s website. Kurt Mitchell of Palmetto, an accident lawyer who is identified as “an experienced litigator and biker” on his website, was suspended for 10 days and must attend an anger management class, the story says.

The St. Petersburg Times cites e-mails quoted in the bar complaints against the men. At one point, Mooney called Mitchell a jerk; at another, Mitchell called Mooney an "old hack." Later e-mails went so far as to insult wives and children. They story cites these exchanges:

• From Mooney to Mitchell, written after an accusation that he couldn’t handle the pressures of litigation: Mooney said he was handling more than 200 cases, "many of which were more important/significant than these little Mag[nuson] Moss [warranty] claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself."

• From Mitchell: Mooney displays symptoms of a disability marked by "closely spaced eyes, dull blank stare, bulbous head, lying.”

• From Mooney: Mitchell should look in the mirror to see signs of a disability. "Then check your children (if they are even yours. … Better check the garbage man that comes by your trailer to make sure they don't look like him)."

• From Mitchell, after learning Mooney's son suffers from a birth defect: “While I am sorry to hear about your disabled child, that sort of thing is to be expected when a retard reproduces.”

Divorce Law 101 with Ms. Kelly Chang Rickert

Divorce Law 101 with Ms. Kelly Chang Rickert from Avvo on Vimeo.

Going to Court? Ten Do's!

Ok, before we start, let me share a secret with you. Attorneys like me LOVE LOVE LOVE the courtroom! Some of us thrive on the thrill of getting into our Armani suits, lugging our LV briefcases straight through security, through the elevators up to that beautifully organized courtroom. It's soooo deliciously exciting to hob-nob with our cohorts and respected judicial officers. I LOVE IT!!!





Everyone loves it, and TV continues to prey on our passion for the courtroom by putting out hit after hit: Law and Order, The Practice, and Ally McBeal...





But here is another secret: it's GENERALLY not in anybody's best interests but the paid attorneys to go to court.



In one word, here is why: TIME. Attorneys bill by the 6-minute increment. If someone says X, and the other immediately says, "Yes!", that takes no time and everyone is happy and attorney only gets paid 10 minutes. (Well, typically more, because we have the burden of preparing lots of paperwork...but you get my point.)



However, in a divorce case, it's not ever "Yes, OK!" So there is the back and forth, back and forth - and EVENTUALLY, you both get to Yes. (hours later).



Even more frequently, you don't ever get to Yes...and so you end up in the courthouse next to your attorney in the Armani suit and LV briefcase who didn't explain what happens. (many, many hours later)



Here are some tips for surviving your first court appearance.



DO'S





1. Do appear timely. If your appointment is 8:30 am...don't show up at 8:35 am. Be there at 8:15 am. Arrange for childcare months in advance. Make sure you have reliable transportation. Get adequate rest and nourishment. (I always make sure I have my cup of coffee in the morning before court.)



2. Do dress for success. Gentlemen, no hats, jeans, shorts, or T-Shirts. Ladies, no hats, jeans, shorts, low-cut anything. NO open-toe shoes. Remember, you are in a court of LAW. Respect that.



3. Do bring all of your paperwork, in an organized manner. If it's a custody case, bring a calendar of events. Trust me, if you already have a semi-faulty memory like mine, being in the spotlight of the courtroom won't help you. You will need refreshers. If it's a support case, bring all of your bank statements, organized chronologically. If you have time, prepare an Excel spreadsheet summarizing payments, etc. Make sure you bring copies of the documents filed by your attorney and the opposing counsel. Bring all receipts.



4. Do remind yourself of the purpose of the hearing. Is the hearing an OSC for spousal support? Remember, the goal is to obtain spousal support based on proper documentation of both sides income. If the hearing is specifically for support, do NOT bring up irrelevant issues not previously discussed in the paperwork. WHY are we in court? Remember the purpose and stick to it.



5. Do speak clearly and look at the Judge when he/she speaks to you. The Judge may want to speak to YOU, not your attorney. Though you have hired an attorney, YOU are still your best representative. If your attorney fails to mention facts, specifically request that before the hearing is over, he or she pause and ask you if everything is covered. Most Judges will allow a brief meet-and-confer session with counsel before concluding.



6. Do remember to summarize. One of my favorite Judges had this sign in his courtroom, "Brevity is next to Godliness". True that!!! Judges are people. Judges are people with limited time slots. Just look at the daily calendar. Most judges have at least twenty (20) matters to rule on. This means you need to tell your attorney to kick some butt on PAPERWORK...because most Judges have already made the decision based on paperwork. There are people with amazing oratory skills, but you will have VERY limited time to impress the Judge, as he/she has other matters that day.



7. Do prepare yourself for alternative solutions. Yes, you should aim to get all your requests granted. But make sure you also have secondary solutions in case the Judge denies your first request. In my experience, Judges want what's fair to both sides. So be prepared to make an offer of compromise if your first solution isn't granted. Be detailed in your requests, i.e. - instead of saying, "I want full custody"....say, "I believe it is in the children's best interests to spend weekdays with me, and weekends with the mother." Instead of saying, "I cannot live on anything less than $5000 a month, say, "I have properly submitted an Income and Expense declaration, and my expenses are approximately $5000 a month. I have always stayed home with the children so I do not have an earning potential right now, although I am sincerely looking for a job. Respondent earns approximately $12,000 a month as submitted, and has no other expenses."



8. Do let your inner light shine. In Sunday School, I sang this song, "This little light of mine, I'm gonna let it shine!" Believe that you are a good person, and be reasonable to the other side. Don't call it, "MY child", but "our child"...don't be accusatory or speak inflammatory words. Contrary to popular belief, the courtroom is not where you want to insult people. Remember your goal. Remember you ALWAYS catch more flies with honey than vinegar.



9. Do work with your attorney. On that day, your attorney is your voice. Remember, you made the choice in the beginning to work with him/her. Don't start doubting your decision on the date of court. If you trust him/her, then you trust they have your best interests in mind. Trust and rely on them that day to represent you.



10. Do respect the Judge, and everyone in the courtroom. The Judge is always, "Your Honor". All of his/her Orders are to be received with a "Thank you, Your Honor."

Christie Brinkley's Divorce Tactics

Recently, I appeared on TV Guide again to discuss Christie Brinkley's divorce tactics. Apparently, she is determined to air Peter Cook's dirty laundry. That begs the question - Why?

In a divorce case, does infidelity play a role? The answer turns on fault v. no-fault divorce, which this article shall discuss.

First thing to know: California is a no-fault state. ("But why are there so many earthquakes?!", interjects my witty and incredibly handsome husband).

Seriously now: No-fault, in legal terms, means that a dissolution of a marriage (divorce) does not require a showing wrong-doing of either party nor any evidentiary proceedings at all. In the olden days, Judges would only grant a divorce upon a showing that one of the parties committed some type of wrongdoing: adultery, abuse, abandonment, etc. If the Judge decided that the alleged wrongdoer didn't commit the wrongful acts, the divorce would be rejected.

Because of these strict requirements, married couples who had absolutely committed no wrongs, but were just sick of being married to each other, would begin to lie about who committed faults in order to obtain a divorce. In 1950, the most popular allegation for grounds of divorce was "cruelty", apparently cited by 70% of divorce cases. So, things begin to change. In the 1960's, proponents argued that the law should adapt by providing a straightforward procedure for ending a marriage, rather than forcing a couple who couldn't get along to choose between living together in "marital hell" or lying under oath in open court.

So our wonderfully innovative of State of California, in 1970, pioneered the first "no-fault" divorce, signed in by Ronald Reagan.

I conducted cursory research on this topic, and discovered that now, in 49 states, there is an option of no-fault divorce. New York is the only state that remains strictly fault.

That may help explain Christie Brinkley's determination to air the lurid details of her husband's affair. Arguably not, because everyone already knows about that, and the grounds for a divorce have already been established.

What is a Post-Nuptial Agreement?

Although my office doesn't draft post-nups, I do get frequently asked questions on this topic.

I found a wonderful article on-line which can address some of these concerns.

A Mid-Marriage Change in the Rules May Make Sense
By Abigail TraffordTuesday, May 27, 2008;

A friend telephones me with the news: She and her husband are back together. Both are academics, and they've had a rocky few years. She came to Washington to pursue a dream of working on health-care policy. He was left in his university town. Her one-year fellowship turned into a five-year sabbatical. A commuter marriage, she said. Abandonment, he said. They were inching toward the edge of the divorce cliff.

Now they are starting over. They've settled their arguments over money. They've divided up some of their assets. They are maintaining two households but agree to try to spend no more than 10 days apart in a month. They are about to celebrate their 40th wedding anniversary. "Deep down we really do love each other," she says. "If you once loved in a passionate way, you can reclaim that."

The news is the tool this 60-something couple used to reclaim their marriage: the post-nuptial agreement.

The post-nup is a contract signed during marriage to manage financial affairs and divide income and assets in the event of death or divorce. Unheard of 25 years ago, this mid-marriage document is gaining a foothold in American matrimonial culture. It was even featured on the television program "Boston Legal." In a recent survey of members of the American Academy of Matrimonial Lawyers, 49 percent said they had seen an increase in post-nuptial agreements in the past five years.

Like its better-known cousin, the prenuptial agreement, the post-nup is responding to two demographic trends: the overall aging of the population and the increasingly common pattern of marriage, divorce and remarriage along with its complicated legacy of children from different relationships.

One purpose of the post-nup is estate planning. "That is a perfectly good reason to do it," says Jeff Atkinson, principal author of "The American Bar Association Guide to Marriage, Divorce & Families" (Random House, 2006). It is a way to direct retirement benefits to children of a previous marriage, or to an adult child with special needs. Or to make sure a beloved summer cabin stays in the family by making it separate from the couple's community property.
For my friends, the post-nup removed money as an issue in their marriage and allowed them to focus on their relationship.

To be sure, many couples fight about money -- one is a spendthrift, the other a saver. He buys a new car without consulting her. She resents the money going to college tuition for his children. And in late-life marriages, what's fair when one spouse earns more money than the other? A post-nup can give couples predictability and a sense of security about their financial future.
But using a post-nup to heal a troubled marriage is controversial.

"There are cases where that's advisable," says Gregg Herman, a family law attorney in Milwaukee. "But I only recommend it where there is an equal desire to stay married and work on the marriage." These are committed couples with "soft" problems of incompatibility, from struggling with retirement issues to coping with boredom. "Counseling and joint therapy are critical to these people," Herman says.

The post-nup is not recommended for couples who are confronting the "hard" problems: physical or mental abuse, infidelity, substance abuse. Nor for people who are really planning to break up and want to use the post-nup as a Trojan horse settlement in any future divorce battle.
Partners are rarely in the same place in a troubled relationship, and one spouse is often more committed to the marriage. The temptation is to use the post-nup as leverage to change behavior. For example, if one has a drinking problem or has had an affair but wants to preserve the marriage, the other makes staying together conditional on signing an agreement that says in effect: If you slip up again, you give up your rights -- you have to pay me a lot of money in support and I get the house, too! This kind of post-nup is really an ultimatum. Money becomes the glue of the marriage. As Herman says: "Money is rarely a good bond for keeping people together. People stay together because they love each other, not because of financial reasons."
States vary in how they view the legality of post-nup agreements. Spouses must fully disclose their income, assets and debts. They should each have legal representation -- and plenty of time to think about the terms so that neither is pressured to sign. And most important, the agreement has to be fair to both. Post-nups are held to a very high standard of fairness in financial matters, lawyers say, perhaps an even higher standard than are pre-nups.
These agreements are not about love. They can help couples deal with financial issues. But by itself, a post-nup cannot save a marriage.

How Much Will My Divorce Cost?

A new client had just come in to see a famous lawyer.
"Can you tell me how much you charge?", said the client.
"Of course", the lawyer replied, "I charge $200 to answer three questions!"
"Well that's a bit steep, isn't it?"
"Yes it is", said the lawyer, "And what's your third question?"

HOW MUCH WILL THIS COST ME?
As expected, I get this question on a daily basis. First of all, I can only quote what I charge. Frequently, in divorce cases, you will need to hire other professionals - such as forensic accountants, appraisers, child custody evaluators, counselors, etc. Even just for my services- here is my answer - which never changes - IT DEPENDS.

TWO VERY SIMPLE, BUT VERY IMPORTANT POINTS!

One. Lawyers, like most professionals, are high hourly workers. The product I sell is my time. You are paying for my time by the hour, which is charged in increments of 6 minutes. Thus, if you call me for 5 minutes, you are charged .1 (or $30). If your phone call is 7 minutes, that equals .2 (or $60).

Two. Unless it is a flat-fee case (possible if there are no contested issues), the more time I spend on your case, the more expensive it will be. The amount of time I spend on your case depends on you, your spouse, your spouse's attorney, and the issues involved in your case.

Keeping these two points in mind, I will now refer to my article, The Purpose-Driven Divorce, to prepare some price estimates.

STEP ONE: FILING OF PETITION/RESPONSE
Purpose: To get the process started.
California is a “no-fault” state. This means that either spouse may file a divorce
without proving someone is at fault (i.e. cheating, physical violence, etc.). Thus, in
order to start a divorce, one party simply files a Petition for Dissolution. Currently,
this petition costs $320 to file.

After the petition is filed, the party who filed it must serve the other side with the
papers in order to notify them that a divorce proceeding has been filed. I highly
recommend that prior to serving the divorce papers, you notify the other side. We’ve
all seen the video footage of the crestfallen face of Kevin Federline, who allegedly
discovered via text message that Britney filed for divorce. Divorce is difficult enough.
If there is any room for courtesy, apply it.

After the other side receives the papers, they have thirty days to respond to the
Petition by filing a Response. The Response currently costs $320 to file. If they do
not file a response within thirty days, the person who filed the Petition (called the
Petitioner), may request a default judgment. In this case, they will generally receive
everything they ask for in their papers. (with some exceptions which you must discuss
with an attorney).

In California, Judgment is entered no earlier than six months after the date the
responding party (called the Respondent) is served with papers. Why six months?
This is the waiting period created by the Legislature to encourage reconciliation. It is
also a period where you can obtain all the financial information you need before
entering into an agreement. Obviously, if you can get divorced as quickly as you can
get married, our society would have greater problems than it already does.

After the initial Petition is filed, automatic temporary restraining orders (ATRO’s) kick
in. They apply to both the PETITIONER and the RESPONDENT. Some examples of
ATRO’s are the following: 1) cannot remove minor children out of state; 2) cannot
take benefited party off of insurance; 3) cannot transfer, convey, encumber, or
conceal property; 4) cannot create probate transfer without notice. The purpose of
ATRO’s, amongst other things, is to prevent angry parties from absconding with the
children out of malice, and to waste away all community assets in order to spite the
other side.

Filing and serving divorce papers is the first step. It is by far not the last step. To get
a Judgment, you must keep going.

Attorney time: 5 -20 hours ($1500 - $6000)
Process Server: $40 - $500
Court Costs: $400
Time Factors: Is the case new, or has it gone through several attorneys and collected 1000 boxes of documents? Is your spouse cooperative, or difficult to the bone, requiring private investigators to stake-out and serve him? Are there children? Are there properties? Have you reached any agreements about anything in your case?

STEP TWO: GETTING TEMPORARY ORDERS VIA OSC
Purpose: To have a sense of peace and order by having temporary orders in writing pending the Judgment.

Because it takes six months (or longer) to obtain a Judgment, in the interim, some logistics must be sorted out. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues. You get a court date by filing an OSC. This stands for “Order to Show Cause”, and can resolve issues of Child Custody/Visitation, Child Support, Spousal Support, Attorneys’ Fees, etc., pending the issuance of a Judgment. Currently, this costs $40 to file.Filing an OSC does not mean you are trigger-happy, and immediately racing to court to win. Remember: At all stages of divorce, you always have the option to reach an agreement with the other side. You are always in control of whether you want to go to court or not. Usually, if you reach an agreement, you can file it the Court. Usually, the Judge will agree with you, and even commend you for settling. There are certain exceptions, of course. For example, in California, you can never totally take away the Court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody/visitation and support arise. Again, it takes six months or longer to obtain a Judgment. In the meantime, both parties should desire temporary orders for peace of mind.Of course, if both parties have been separated for a long period of time, and are self-supporting, and have no children, there may not be any issues to be resolved pending the Judgment. In this case, I would opt to forgo the OSC. Although the orders obtained through use of an OSC are called “pendent lite” (Latin for “while the case is pending”) temporary orders, in some cases, they may end up being the permanent orders incorporated into the Judgment. This is especially true in custody cases, because “status quo” is favored, and the longer a “temporary order” stays in place, the firmer a “status quo” arrangement becomes. It is essential to understand the important role of an OSC.

Attorney time: 10 - 30 hours ($3000 - $9000)
Court Costs: $40 per motion
Time factors: Are you cooperative and return my phone calls? Do you cooperate with my requests for documents? Are you immediately available to meet with me to go over the specifics of your case? Are you able to revise your declarations and promptly return to me? If you have witnesses, what is their availability, and do they cooperate? Is the other side represented? Is their representation well-versed with family law procedure and protocol? Does the court hearing conclude in one day? Does it get continued?

STEP THREE: DOMESTIC VIOLENCE RESTRAINING ORDERS

Purpose: In a high-conflict divorce and custody case, to protect the parties and children involved.

Unfortunately, sometimes, after a divorce or custody case is filed, someone gets angry and becomes physically or emotionally violent. This is particularly troublesome if there are minor children involved. In order to protect yourself, it may be vital to obtain a temporary restraining order against the other side.Temporary restraining orders (usually lasting no more than 20 days) may be granted without a full evidentiary hearing (based on declaration alone). Since they are granted based on one party’s declaration, they are set for hearing, where the Judge will take evidence from both sides before entering an Order for a longer restraining order. (lasting up to five years).In California, there is a rebuttable presumption that an award of custody to a perpetrator of domestic violence is detrimental to the best interests of the child. Because of the weight this carries, restraining orders are often abused in custody cases. It is essential to immediately consult with a competent family attorney if you are experiencing domestic violence in your case.

Attorney time: 15 - 40 hours ($4500 - $12,000)
Court Costs: $40 per motion
Time Factors: Domestic violence restraining orders are extremely important and take a lot of preparation. Preparation time includes setting up the case, interviewing witnesses, taking statements, preparing declarations, speaking with police officers. Are the court appearances on calendar ,and do they take place without delay? Does the Judge have time on his calendar to hear all witnesses? Do the witnesses appear? Does the other side have witnesses? Have you anticipated all issues that could be raised at the hearing?

STEP FOUR: DISCLOSURES OF FINANCES
Purpose: To Reach a Fair Settlement, and Ensure the Settlement Is Not
Later Overturned Due to Lack of Disclosure.

Frequently in relationships, one person knows more about their finances than the
other. California is a community property state. This means, all property acquired
after the date of marriage, before the date of separation, except for gift and inheritance,
is community property. Community property assumes the notion that even in
relationships where only one spouse works, the other spouse is contributing to the
marriage by staying at home and providing domestic duties.

Sometimes, the spouse that doesn’t work stays at home and does nothing. In a
community property state, that doesn’t matter. The law assumes they are contributing
something. Thus, in a divorce, both parties are entitled to half of what was earned
during the marriage.

Because of the community property laws, the law mandates that both parties must
make extensive financial disclosures. Generally, they will come in two parts – the
Preliminary Declarations of Disclosures (served at the outset); and the Final
Declarations of Disclosures (prior to settlement or trial). Because one party may know
more than the other, these mandatory disclosures are the court’s way of preventing
foul play. You must exchange disclosures. You cannot waive them.

If you are the supporting spouse, you may wonder: What happens if I don’t disclose
my assets? He or she does not know of my offshore bank account in the British
Virgin Islands.

There are several consequences to not disclosing. The Judge may overturn your
agreement. The Judge may punish you by awarding the non-disclosed asset to the
other side. In a famous 1996 case against non-disclosure, Marriage of Rossi, Denise
Rossi won $1.3 million in the California State Lottery. 11 days later, she filed for
divorce, from her 25-year marriage, never telling her husband. Judgment was
entered. 2 years later, her ex-husband discovered that his ex-wife had won the
lottery. (They always find out.) He filed a Motion and the judge gave the ENTIRE
$1.3 million dollar lottery winnings to the husband, since the wife had intentionally not
disclosed her winnings in the divorce proceedings.

Always disclose.

Attorney Time: 10 - 50 hours ($3000 - $15,000)
Costs of subpoenas, documents: $500 - $1500
Deposition costs: $2000 - $5000
Court Costs: $40 per motion
Time Factors: Discovery is perhaps the most tedious process in a divorce case. If you have little or no assets, there should be very little to work on. However, the more assets or debts you or spouse have, the more time we will need to obtain documents necessary to determine the value for settlement, and the more time we will need to review the received documents. If your spouse is uncooperative, we may need to file court motions in order to obtain necessary documents. The time it takes to complete discovery depends mostly on the cooperation of the parties and the availability of the documents.

STEP FIVE: REACHING AN AGREEMENT OR PREPARING FOR TRIAL
Purpose: To Get the Judgment Finalizing your Divorce Case

After disclosures have been completed, it is time to start negotiating settlement. For
example, who will keep the house? How much support will you pay? And for how
long? Who will have the children for Christmas or Hannukah this year?

Because both of you have completed full and thorough disclosures, you are both now
in a good position to discuss settlement. It is a good idea at this time to simultaneous
request the court for a trial date. I do this for my clients because with a looming trial
date, both parties are more eager to resolve the case. In addition, if settlement
discussions fall apart, there is already a trial date set in the future, so as not to delay the
dissolution. Other attorneys prefer not to do this, so they will have more time to
prepare for the trial.

If you reach an agreement, you can file a Stipulated Judgment, or a Marital Settlement
Agreement (MSA). The difference between both is that in addition to being attached to
the Judgment, the MSA is also a contract, and if either party breaches it, you have an
additional remedy – to sue for breach of contract.

Once the Judgment is stamped by the Judge, you should receive a Notice of Entry of
Judgment, which gives you a date of divorce. Only when this piece of paper has been
filed is your divorce final. Congratulations!

Of course, in divorce cases, nothing is final. You may always file for Modification,
but there are legal standards you must meet before the Judge will grant you one.
Please consult with a competent family attorney.

If case settles:
Attorney Time: 5 - 20 hours ($1500 - $6,000)
Time Factors: How cooperative are the parties?

If case goes to trial
Attorney Time: 50 - 200 hours ($15,000 - $60,000)
Time Factors: Trial is no joke. You will be paying for the attorney's time day in, day out. - this includes prep time, trial time, review time, prep time...round the clock. It is not unusual for an attorney to bill 10-15 hours a day for trial. My mentor once had a trial lasting 22 days. I think it helps to think of trial as an hourglass with your money as the sand...

In conclusion, a divorce case can run anywhere from $1820 (uncontested divorce) to hundreds of thousands of dollars. There's always Britney Spears, who paid over 1 million to her attorneys for her custody case, and Larry Birkhead, who paid over $600,000 to his attorney.

Yes, lawyers are expensive. But if you find the right one, they're worth it.