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April 1, 2019 Letters

Letters

Paternity Leave

Yes, I took paternity leave (and I’m not afraid to admit it).

I am a husband. I am a father. I am a lawyer. I am those three things in that order. Yet often times in the midst of dealing with clients and deadlines, I forget about the true order of my life priorities. That said, I have never been ashamed of my priorities.

In my nine years practicing law, I have never taken an entire week off from work. When I got married, I only took the Thursday and Friday off before my wedding. When I planned my honeymoon, I made sure to schedule it around the Christmas and New Year holiday when my office was closed. When my wife and I had our first son last year, I only took two days off from work.

So this past November when we had our second son, I decided it was time to actually take one full week away from the office and spend it with my family. I put up an out-of-office email message and left a message on my voicemail stating that I was on paternity leave. (I actually worked the entire week I was on “leave,” simply working remotely).

While I fully expected to face a challenge having two boys who are only 14 months apart, I was not at all prepared to face the negative and condescending reaction to my use of the term “paternity leave” during my time off.

I was ridiculed by one counsel for openly admitting that I was on paternity leave. I was told by another attorney that putting paternity leave as a reason for being out of the office was a sign of weakness. And then, of course, I heard from multiple older attorneys that they were back in the office the same day their children were born. I’m fortunate to be part of a firm that doesn’t feel this way. But I’m in the minority.

This was not a piece I ever thought I would write, but enough is enough. Whether you are a lawyer or an NBA superstar, no father should ever be stigmatized for admitting that he prioritizes his family over everything else in his life.

If you’re reading this and thinking to yourself, “typical millennial,” then you’re missing the point. First of all, I am unfortunately too old to be a millennial. Second, and more importantly, I understand not every father in our country is in a position to even consider taking time off from work for a vacation, let alone for paternity leave. My point is if you can take off a week to go frolicking around Europe, why should you feel ashamed to instead use that week to spend time with your wife and newborn? The answer is you shouldn’t.

If you’re reading this and thinking to yourself, “we need to focus on maternity leave first,” well Amen. I am a huge proponent of women being entitled to maternity leave and this is something we should continue to focus on. But the fact is that men face a real backlash for taking any time away from work and calling it paternity leave, which also discourages healthy family support practices. My goal is to begin to chip away and eventually eradicate that stigma.

I am a husband, a father, and then a lawyer. It’s important to know your priorities, but it’s also important to be able to say them out loud without fear of criticism.

 

Family Law Mail Solicitation

How often have you found out that a family member got a speeding ticket before they revealed it to you? Your intuition was likely borne out of the fact that attorney solicitations filled your mailbox.

Now, imagine that you have been retained to represent a victim of domestic violence who has finally gathered the courage to leave a toxic, abusive marriage. Your client discloses years of physical abuse and threats. You assure your client that the minute the divorce case is accepted by the clerk, you will give your client a heads-up to activate her/his/their safety plan to leave the home before the abuser is served. Two days later, before you even have the summons back, just hours before your client is set to leave the house, you get a frantic call that an attorney has alerted the abusive spouse by mail that the divorce was filed. Your client suffered yet another beating; this time thankfully escaping with her life.

Now, like de minimis traffic ticket cases, when a family law case is filed, the parties are mailed lawyer solicitations advising them that a family law case has been filed against them. Our family practice at Coast to Coast Legal Aid of South Florida focuses on the representation of victims of intimate partner violence and has for the past 30 years. It is important for attorneys who do not regularly represent victims of intimate partner violence to not only be educated about the dynamics of domestic violence and know where to refer clients for a lethality assessment and safety plan, but also to understand that separation has been identified as an important risk factor for lethal violence and injury to a victim. Domestic violence is about power and control. When abusers feel their control slipping away, they act violently in an attempt to hold on to what they want to control, their spouse.

It is understood that family law is a rich source of revenue for attorneys. However, the advertisements being sent in these family law cases serve to alert the abuser, bypassing our client’s ability to initiate their safety plan. The results could be dire. When the perpetrator of domestic violence becomes aware that the victim intends to permanently separate, it is a period of high lethality not only for the victim but also the parties’ children.

The preliminary statement in the Family Law Section’s Bounds of Advocacy — “Goals for Family Lawyers” — states that the practice of family law is different from other areas of the law: “The intent is to suggest a higher level of practice than the minimum baseline of conduct required by the Rules Regulating The Florida Bar.” Indeed. Helping families through one of the most difficult time of their lives should “not subvert our fairness, honesty, civility, respect, and courtesy throughout the process… [W]e must model appropriate behavior.” As family law attorneys, we should care about keeping family law litigants safe. Mail solicitation is simply not appropriate in family law cases, especially when it puts victims of intimate partner violence at risk.

So the question now is, do we need the Bar to step in to regulate this area of solicitations? Should the Bar consider imposing an ethical obligation in family law cases to require attorneys to do their due diligence and confirm that a Temporary Injunction for Protection action is neither pending, nor a Final Judgment of Injunction issued, prior to solicitations being sent? Should attorneys be required to look up whether a spouse has been charged criminally with a domestic violence offense before alerting him/her/them about a family action filed against them? Legal resources such as restraining orders can effectively reduce victims’ exposure to violence by an intimate partner. While we know that most victims of intimate partner violence choose not to pursue an injunction, at least taking the step to look up whether there is an injunction or a criminal case would serve to protect those most vulnerable in our community.

Could we self-regulate this and do our due diligence? Will it take a lawsuit against an attorney who sent an advertisement to an abuser with a final judgment of injunction and pending criminal charges for domestic violence for these to stop? Will it take being threatened or harmed by an abuser yourself? We hope as ethical professionals, you’re better than that. Let’s be proactive on this issue rather than reactive.

Coast to Coast Legal Aid of South Florida, Inc.

(Editor’s Note: Rule Regulating The Florida Bar 4-7.18(b)(1)(G) prohibits lawyers from sending direct mail to a respondent in an injunction for protection against any form of physical violence if the lawyer knows or reasonably should know that the respondent has not yet been served.)

Conflicts?

In reference to “Does the criminal conflict payment system create a conflict?”in the March News, I have been on the criminal conflict list in Pinellas County for 35 and one-half years and I have always been paid a fee based on what the client was originally charged with, and not what he/she pleaded guilty to.

Back when I first started, it was the county that paid the fee; now it’s the Judicial Administration Commission who pays the bills. And JAC has always paid me based on the original charge and not what the client pleaded guilty to. Therefore, I take issue with Mr. Blankenship’s article wherein it was said if a lawyer “pleads it down. . . the lawyer is paid the lower rate.” That has never happened to me. If it did, then there would definitely be a conflict.

As for whether conflict lawyers will seek a quick disposition because of the flat-rate being paid, and therefore have no incentive to do a thorough job, that depends on the quality of the lawyers selected to perform this work and whether she/he takes seriously the oath to zealously represent the client within the bounds of the law. A better quality attorney can be attracted to this work if the conflict list is limited to a select few lawyers who can make some money doing this work and who will do a thorough job. By opening the conflict list to all comers, no one will make much money and short-cuts may be taken.

The problem is not the flat-rate pay system, it’s the numbers on the conflict lists.

Clearwater

(Editor’s Note: The story in the March News on possible conflicts of interests on paying private attorneys who take criminal conflict cases from the state erroneously said that those attorneys earn less if they obtain a lesser charge for their clients. While the inquiring attorney did raise that question, Cris Martinez, of the Justice Administrative Commission (which handles payments to the conflict attorneys), said the reimbursement system pays the private conflict attorney according to the more serious charge on the charging document. Consequently, if the attorney succeeds in getting that charge reduced, the fee is not affected. However, she said if between the time of the client’s arrest and the charging document is filed the attorney manages to get a charge reduced, that would affect the fee. In those cases, Martinez said the JAC advises lawyers to petition the judge in the case for the higher fee.)

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