Something bothered me about the commercial where a woman said it was her job to keep her husband from leaving the house in pajamas, but I didn't know what it was until Bonnie Algera put her finger on it:
"Really? That's not his job? Did you ever think that infantilizing your spouse is why you feel like you are responsible for everything on earth and can't catch a break?"
That is at the root of so many problems in people's marriages. It's also a problem to be the kind of person who would do that, but it doesn't help that we're in a culture that encourages it.
Virginia's former Attorney General Ken Cuccinelli has launched "Virginia Self Defense Law: Defending Those Who Defend Themselves", a law firm that describes its services as, "If you have a retainer agreement with Virginia Self Defense Law PLC and you have a self-defense or law enforcement harassment situation, arising out of the use of your firearm, in which you or a family member end up being a named defendant in a Criminal, Civil, or administrative proceeding Virginia Self Defense Law PLC’s experienced trial ready attorneys will step in and defend you for no additional legal fees!"
My state legislator said yesterday on his Facebook page, Patrick Hope for Congress:
"I am absolutely appalled to see the news that former VA Attorney General Ken Cuccinelli has founded a new law firm to specialize in defending people who commit crimes with guns. His website even highlighted George Zimmerman as the kind of defendant they could help. Even worse, the firm is soliciting payments of around $10 a month as a retainer should their client commit a crime with a gun.
At a minimum this type of behavior is unethical for an attorney to be paid in anticipation of a crime- especially one with guns. I believe we can outlaw this in the U.S. Congress by passing a bill that would prohibit such arrangements in criminal cases.
Tony Soprano might appreciate this type of legal offering, but we need to outlaw this type of solicitation before it encourages more people like George Zimmerman to commit a crime with a gun.
Several Virginia State Bar Legal Ethics Opinions, culminating in the comprehensive Opinion 1606, allow non-refundable "retainers" to guarantee future availability for unknown future legal work, but say they are refundable 'advance" payments if they are for a specific job that is already planned. However, the nonrefundable retainers allowed by those opinions were only for "availability," and there were further charges for the actual legal work. With Virginia Self Defense Law there are not any further charges. The closest thing to that in Opinion 1606 is a "retainer" which is later credited toward the actual fees, and 1606 says that that must be treated as an "advance fee", which must be refundable, and not a "retainer". But what Virginia Self-Defense Law's retainer really is like is "prepaid legal", which is not covered in 1606 and was not common in this area in 1994, when 1606 was issued. But it is very common now. There is one Virginia State Bar Legal Ethics Opinion that mentions a prepaid legal services arrangement, but it focuses on a few specific questions that arose in it that were not related to prepayment, and does not even question the overall propriety of the arrangement. (LEO 1453).
I'm sensitive about this kind of thing, as a former campus ACLU chapter president. And because when I was growing up, my father and law partner defended people from all kinds of constitutional ourtrages, in criminal, civil and administrative litigation. And as a family law attorney, who sees every day the effects of the ruinous cost of private legal representation, not only for lower-class, but even middle-class people. And as a member of the Council of the Virginia State Bar, where we are preparing to tackle that very problem, and hoping that the Bar can be part of the solution to it, not part of the problem. Too often, court rules and sometimes even ethics rules have made affordable legal representation impossible for most people.
Comments on Delegate Hope's post include:
I'm posting this because family law attorneys need to know about it, or more to the point, need to THINK about it even though we already know it. But it's something that everyone should be concerned about.
"Problem gambling among vulnerable older women is strongly linked to the proliferation of the modern slot-machine-dominated casino.
"Simply put, the new slot machine is engineered to addict people. It produces a mesmerizing experience of sound, lights and repetitive motion that makes both time and money vanish. Players talk of disappearing into the machine and getting into a zone.
"Seniors, who may suffer from physical, mental and emotional health problems, are especially at risk of succumbing to computerized slots. Medication, cognitive impairment, depression and just plain sadness can interfere with judgment and decision-making. And the casino itself dark, smoky, and filled with incessant noise, pulsating light and dizzying carpet patterns and layout can contribute to mental confusion and disorientation. It is not uncommon for older people to suffer sudden heart attacks while playing the slots."
If you have opinions about "the government getting involved in marriage", you need to get some facts about it, too. I can't think of a better place to start than this article by Scott Stanley. Dr. Stanley had been a leader in marriage skills education, and in studies of its impact, long before conservatives or the media ever heard of it.
The image of officious moralizers "promoting marriage" to the great unwashed is what political people on both extremes WANT to have a debate about, but it has no relation to what the people who design and deliver these services actually do. They actually help couples improve their marriages and other relationships, and also teach individuals relationship skills to help them build healthy relationships - - but just as often, to avoid or end bad relationships.
Studies portrayed as finding that the programs didn't help actually found, in one case, a 20 percent increase in family stability after three years, and in the other case, "modest" positive impacts. Which sounds, well, modest, but when you actually look at researchers' definition of "modest" and compare it with all other studies of government programs, it's about as much impact as any government program ever has on individuals' outcomes.
Much more is at "About Those Controversial “Marriage” Programs Funded by the Government", by Scott Stanley on the "Sliding Versus Deciding" Blog.
I and other practicing lawyers rarely seek out student law review articles. I always thought they were too trivial, academic and/or political to be useful for working lawyers. My father told me so. So it was only when googling something completely different that I found this 50-year-old article, dealing with the same themes that have animated Dad's entire career — the rights and integrity of families; the civil liberties of criminal defendants and all Americans; and the nightmares visited on real, everyday people when "helping professionals" ignore those values in the belief that their benevolence and expertise justify whatever they do.
"Procedural Problems in Virginia Juvenile Delinquency Hearings" by Richard E. Crouch, 5 Wm. & Mary L. Rev. 76 (1964). http://scholarship.law.wm.edu/wmlr/vol5/iss1/5
I generally don't agree with Kathryn Jean Lopez on politicized "social issues". But in this interview with National Review Online, she is unusually realistic and insightful about what really happens in divorce, and how it compares to, and is worsened by, the stilted, cornball, anachronistic discourse on marriage, separation and divorce, which dominates both media and professional discussions of them:
We tend to view divorced couples in one of two ways: either as two impetuous adolescents in adult bodies who argued too much and made the best choice to move on, or as two unfortunate souls who simply “fell out of love.” My observation of many divorced couples suggests a third scenario that is far more common: A couple is married with children. One spouse is frequently (but not always) from a home where one parent abandoned the other. Their level of conflict is within the range of normal. There are no red flags that the marriage is floundering until around the time when an adulterous relationship begins, and at some point is revealed. Once this happens, the spouse who is having the affair is usually supported by his or her parents and adult siblings, and if not explicitly encouraged to leave the marriage, is enabled by them to do so. A divorce lawyer is hired, and the process of dismantling the marriage and the family (which is virtually inevitable at this point) begins.
Here is the part that may surprise people: It is the abandoned spouse who is frequently ready and willing to forgive the infidelity and go to marriage counseling to save the marriage. It is the abandoned spouse who often puts his or her personal anguish and betrayal aside for the sake of the commitment they have made. In the old days, we called this emotional maturity; it was a desirable trait. Today resisting a divorce because it runs contrary to your religious beliefs (or for any reason, for that matter) brings mockery and ridicule. It can cost you your children and your livelihood.
... Young people, in particular, deserve to hear the truth about what to expect from a vocation to married life at this time in history. It can be the most fulfilling, joyful part of your entire life, and yet it is so very hard! At some point (and for many couples, extended periods of time), it will hurt if you’re doing it right.
... The theme that always seems to emerge in my discussions about, and observations of, marriage is community. Who we associate with — those with whom we share our intimate thoughts, beliefs, and dreams — these are the folks who influence the most important decisions we make. This means our clergy, our friends. Frequently (and perhaps surprisingly) it also means our family of origin: our parents and our siblings. And I wonder sometimes if parents realize the power they have over their adult children to influence their decisions for good or for bad. They can often be the deciding factor in whether a son or daughter chooses to abandon a marriage, or instead sets about the hard task of putting an end to an adulterous relationship, asking for forgiveness, and going home to start again. ... Every one of us is susceptible to peer pressure, of either the positive or the negative variety. In generations past there was a natural sort of positive peer pressure within families, churches, and communities to conform to basic standards of integrity, maturity, and sexual restraint in (and prior to) one’s marriage. Of course people didn’t always meet these standards, but they existed and they served a very important function for marriages — a safety net, if you will.
As a divorce lawyer I see first-hand how badly people need marriage, so I read the Bostic v. Rainey opinon by Norfolk federal judge Arenda Wright Allen to see how it affects government's role in all marriages, not just gay marriages.
Judge Allen emphasizes that an expansion of the fundamental right to marriage, "the right to make a public commitment to form an exclusive relationship and create a family with a partner", is "not some new creation", nor "any dilution of the sanctity of marriage":
"We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold, [citation omitted].
The parties before this Court appreciate the sacred principles involved in our fundamental right to marry. Each party cherishes the commitment demonstrated in the celebration of marriage; each party embraces the Supreme Court's characterization of marriage as "the most important relation in life" and "the foundation of family and society, without which there would be neither civilization nor progress". . . . Plaintiffs honor, and yearn for, the sacred values and dignity [of] marital vows . . ."
That's the kind of thing I like to hear. Removing barriers and expanding entry into traditional marriage is one thing. "Redefining marriage" - - which is how the gay marriage movement was billed when it first became prominent, in an era when even the most fundamental institutions and concepts seemed vulnerable to destruction via Orwellian "redefinition", was quite another.
More worrisome is the opinion's quote from the 2013 Utah federal court opinion in Kitchen v. Herbert, saying a right to marriage "protects an individual's ability to make deeply personal choices about love and family free from governemnt interference". I guess I should be glad that this is described only as a protected "ability", not a "right" that continues unchanged after marriage and childbirth. No one who has spent time in family court - - not just on divorce, but especially in child custody litigation - - would think that such an "abililty", nor right, is anywhere near absolute, nor could be, without drastic changes to most areas of family law. But I increasingly encounter clients who think they have such a "right". And if it grows into a full-fledged right, it will be in an irrepressible conflict with all the other values of "sanctity" and "commitment" that Judge Allen invokes. Which will dilute and diminish all marriages, gay and straight.
This will apply to all marriages that were legal where performed, even if not recognized by the state the couple lives in. Examples of situations where it would apply include retirement benefits, survivor compensation, spousal privilege against testifying in court proceedings, conjugal visits in prisons and hospitals, and bankruptcy. The Justice Department will give further details in a policy memorandum to be released Monday, Feb. 10.
We've all seen a thousand articles reminiscing about how children used to roam freely through woods and city alike, inventing their own games and choosing their own playmates. But it's rare to find an explanation of WHY that's so important for children's development.
Think about the saying, "I'm taking my marbles and going home!" Would our children and grandchildren even know what that means? It is the fact that play is voluntary - - that your playmates are free NOT to play with you - - that makes us learn lasting lessons in how to get along with others; and that requires truly voluntary play, not a "playdate" or an "activity", Peter Gray writes in The Independent:
I’m a research bio-psychologist with a PhD, so I’ve done lots of school. I’m a pretty good problem-solver, in my work and in the rest of my life, but the real problems I’ve faced in life include physical ones, social ones, moral ones, and emotional ones ... . They require the judgement, wisdom and creative ability that come from life experiences. For children, those experiences are embedded in play.
I grew up in the United States in the 1950s, at the tail end of what the historian Howard Chudacoff refers to as the “golden age” of children’s free play. School days were six hours long ... half-hour recesses in the morning and afternoon, and an hour at lunch. Teachers may or may not have watched us, from a distance, but if they did, they rarely intervened. We wrestled on the school grounds, climbed trees in the adjacent woods, played with knives and had snowball wars in winter ... we were free – free to play for hours each day after school, all day on weekends, and all summer long. Homework was non-existent in primary school and minimal in secondary school. There seemed to be an implicit understanding, then, that children need lots of time and freedom to play. ...
The most important skills that children everywhere must learn in order to live happy, productive, moral lives are skills that cannot be taught in school. Such skills cannot be taught at all. They are learned and practised by children in play. These include the abilities to think creatively, to get along with other people and cooperate effectively, and to control their own impulses and emotions.
All mammals play when they are young and those that have the most to learn play the most. ... Play is the natural means by which children and other young mammals educate themselves. ... Children everywhere are born with a strong drive to play with other children and such play is the means by which they acquire social skills and practise fairness and morality. Play, by definition, is voluntary, which means that players are always free to quit. If you can’t quit, it’s not play. All players know that, and so they know that to keep the game going, they must keep the other players happy. The power to quit is what makes play the most democratic of all activities. When players disagree about how to play, they must negotiate their differences and arrive at compromises. Each player must recognise the capacities and desires of the others, so as not to hurt or offend them in ways that will lead them to quit. Failure to do so would end the game and leave the offender alone, which is powerful punishment for not attending to the others’ wishes and needs. The most fundamental social skill is the ability to get into other people’s minds, to see the world from their point of view. Without that, you can’t have a happy marriage, or good friends, or co-operative work partners. Children practise that skill continuously in their social play.
In play, children also learn how to control their impulses and follow rules. All play – even the wildest-looking varieties – has rules. A play-fight, for example, differs from a real fight in that the former has rules and the latter doesn’t. In the play-fight you cannot kick, bite, scratch, or really hurt the other person; and if you are the larger and stronger of the two, you must take special care to protect the other from harm. While the goal of a real fight is to end it by driving the other into submission, the goal of a play-fight is to prolong it by keeping the other happy. In sociodramatic play – the kind of imaginary play exemplified by young children’s games of “house” or pretending to be superheroes – the primary rule is that you must stay in character. ... The art of being a human being is the art of controlling impulses and behaving in accordance with social expectations.
"But marriage, besides being the best arrangement for children, has the added benefit of being good for grown-ups. ... we know that being unmarried is one of the highest risk factors for poverty. And no, splitting expenses between unmarried people isn’t the same. This is because marriage creates a tiny economy fueled by a magical concoction of love, selflessness and permanent commitment that holds spirits aloft during tough times. ..."
Actually, it's not some magical mystery mojo, it's another ancient human institution known as "contract". People are more likely to be there for each other, be each other's economic safety net, and forego their own individual career goals to specialize their funcitons in a larger unit, when they are in a defined relationship with some level of clarity, reciprocity and permanence. — JC
Parker also writes:
"... Democrats avoid the M-word for fear of trespassing on important constituent turfs, especially women’s. For many women, the push for marriage is seen as subterfuge for reversing their hard-won gains. [Most Republicans] shy away from the M-word for fear of being tagged Neanderthals who are wedded to old-fashioned gender paradigms and nurse secret desires to keep women pregnant, subjugated and in the kitchen where they belong (speaking as alleged, not as is). Or, God forbid, that they be accused of waging war against women.
"Then again, perhaps it is the way some Republican men talk about women that is so off-putting, rather than what they are trying to say about the value of marriage. It is not helpful when, for example, they insinuate that single mothers are using welfare to avoid marriage. Or when some of the more nostalgic members of the GOP latch onto the idea of 'welfare queens.' See what I mean? It’s hard to separate the value of marriage from the 'mawidge' of loaded rhetoric and demeaning insinuation.
An article by Rachel Aviv in the New Yorker magazine of December 2, 2013 follows very closely and scrupulously the inexorable process our present legal system provides to turn children into adoptable commodities and parents into strangers. In portraying this process and system, the author gives a very detailed history of one case, quoting the exact words of the child, the parent, and the social workers, lawyers, judges and psychologists involved. This is supplemented by excerpts from various academic studies of the process. It also gives a brief history of how child neglect came to be viewed as a problem for the legal system and adoption came to be regarded as a “felt need” and then a right. This is a mostly unprecedented article that could prove very informative to lawyers and judges who see such cases in the course of their work. — Richard Crouch
By Richard E. Crouch
The new Virginia Legal Ethics Opinion 1870 clearly reemphasizes that a guardian ad litem is counsel for the child, and nothing else. No testimony, no cross-examination, (no report?) no delegation of judicial functions, etc. But the voluminous past definitions and rigid connotations of that powerful word, counsel, bring with them much baggage, which requires the Committee to say a whole lot more, setting the stage for unintended consequences that could be not only unwelcome, but breathtaking.
As the slavish loyalty to abstract concepts unfolds, a reader can’t help wondering if the legal profession has not painted itself into a corner insofar as practicality, and workability of the system, are concerned. Rule 4.2 and Rule 8.4 are involved here. In brief, it is now clear that no lawyer, not even a parent’s lawyer, can talk to the child without the GAL’s permission, leaving it open of course for the GAL to impose whatever conditions she chooses. The LEO clearly states that the parents can’t give their permission: “consent by the child’s parent for the parent’s attorney to speak with the child is not pertinent.” And, following the inexorable logic as dogmatically as possible, the GAL can’t talk to the parents without their lawyer’s permission.
The State Bar has previously ruled (LEO 1725 and 1729) that the GAL is subject to the Rules of Professional Conduct unless those rules are inconsistent with the duties of a guardian ad litem. But the ambiguity that left us with is now resolved. The Committee acknowledged that a GAL is ordered to interview all parties to the dispute, including the parents, but that doesn’t mean she can do it without their counsel’s permission. The GAL is not “authorized by law” to communicate ex parte with these represented persons.
And as the Bar has made clear in previous Opinions and emphasizes throughout this one, you can’t use a lay proxy to violate the ex parte rule. Can the investigating social workers, or their agency’s lawyer, talk to represented parents? To children who have a GAL? The State Bar says not unless the GAL consents, or “unless the law or court order authorizes a lawyer to communicate ex parte with the represented child.” And while the Opinion says “Rule 4.2 does not prohibit a non-lawyer social worker or investigator from independently contacting the represented child,” it does prohibit it if “a government lawyer directs or controls the content of the communication through an intermediary such as a social worker or investigator.” But given the inflexibility of all these absolute prohibitions, perhaps the looming elephant in the corner is whether the parents themselves can communicate with the child (when he hasn’t been taken away yet) without getting their own lawyer in trouble, especially if the lawyer has advised them on how and how not to talk to their child about the case or about the other parent. So everyone can stay on edge until another LEO or disciplinary case comes along.