Family Law Conference to delve into developments, ethics

Issue September 2003 By Andrea Barter, Esq.

In the area of family law practice, there is something to learn literally every day, whether through practice journals, advance sheets or through judges.

Delving into topics as varied as tax laws to visitation rights is both necessary and tedious, which is why the upcoming 13th annual Family Law Conference is an important tool for attorneys to stay on top of pertinent issues they face every day. The conference takes place Sept. 19-20 at the Nantucket Inn & Conference Center.

"The value of this seminar is that practitioners who are busy with day-to-day aspects of practice will have opportunity to have a consolidated, comprehensive, condensation of materials," said Susan Huettner, chair of the MBA Family Law Section Council. "It will be an infusion of information plus the opportunity to network with others in same field of practice and meet with judges in an informal setting."

Huettner's goal is to promote the interests of the bar through education, attention to legislation relevant to the practitioner's field and to elevate the level of discourse. As the practice of domestic relations law becomes increasingly complex and demanding, it is essential that counsel keep pace with new law and developing trends affecting this field.

Family law attorneys will have an exceptional opportunity to interact with a panel of eminent judges and family law experts at the two-day event. Issues to be addressed include drafting durable separation agreements, a role-playing exercise on 209A advocacy, jurisdiction issues in divorce and custody actions, children's issues in divorce and recent developments in family law.

Among the distinguished jurists speaking at the conference are Chief Justice Sean M. Dunphy of the Probate and Family Court and Associate Justice Jay D. Blitzman of the Middlesex Juvenile Court.

Dunphy will open the conference with a review of the last year's activities in probate court, highlighting new rules and procedures that have gone into effect, improvements to the guardian ad litem system and new informational materials available to the bar and the public.

His comments will include statistics for the past fiscal year. In particular, new fees enacted by the legislature generate revenue that benefits the court through retained revenue accounts. The primary objective is to use the funds to retain existing employees so as to avoid further layoffs.

"Early projections are that it will be accomplished across the Trial Court," Dunphy said. "(Whether there will be) any funds to replace employees is a challenge that has not been answered yet."

Dunphy said he is grateful to the Legislature for the flexibility they've provided the court in regard to the opportunity to use retained revenue accounts to meet needs and retain existing employees.

"I'm hopeful we can maintain our current level of services with that source of funding," he said. "It's been a difficult time for all of us as we've suffered the loss of senior employees to early retirement and other employees to layoffs and the fact we've been under a hiring freeze for the last three years. But we have committed employees who make it possible to carry on despite those losses."

Dunphy noted the increasing volume of business makes the current staffing situation even more challenging. Furthermore, the Probate Court also is dealing with a large amount of litigants who are not represented by attorneys.

"We don't have the opportunity to appoint counsel for unrepresented litigants," he added.

Dunphy finds the annual family law seminars a helpful exchange between bench and bar to learn the feelings and observations of lawyers about court and how to better serve the bar and public. He looks forward to those exchanges and the substantive law discussions as well.

This seminar will "provide all of us with the advantage of an informal opportunity to hear from the bar about their suggestions and concerns," commented Dunphy.

Blitzman shares Dunphy's appreciation for the chance to informally dialogue with members of the bench and bar. He believes this program will be a "good vehicle for the communication of issues between juvenile and probate court."

Blitzman will be part of the panel speaking on children's issues in divorce. He will provide a view from the bench on The Care and Protection of Georgette, 439 Mass. 28 (2003), a case concerning the obligations of trial counsel to represent a child's expressed custodial preferences when there is compelling evidence demonstrating parental unfitness, and one or more of the child clients want counsel to advocate for return to the parent.

In that case, the SJC stated there was no question the children were entitled to counsel, and that their positions, based on mature expression, were entitled to weight in custody proceedings. However, even where it is undisputed that a child and the attorney disagree, the law is unclear as to whether the attorney is always bound by a minor client's decision when the attorney feels that the child's decision is not in his or her own best interests.

When an attorney may deviate from seeking the objectives of a minor client has been the subject of considerable comment and the expression of various standards. Due to the array of conflicting standards, the SJC referred the issue to its standing Advisory Committee on the Rules of Professional Conduct for the committee's study and the formulation of new or revised rules, commentary or guidelines derivative of the rules.

Blitzman is particularly interested in this case because of the provocative questions it raises. In addition, he has concerns about how any new rules will apply in juvenile court due to the procedural differences in family court versus juvenile court. In juvenile court, the child is statutorily entitled to council when a petition is filed. In probate, a child may not necessarily have counsel.

"The court may appoint a GAL, but they have different ethical obligations in representing the client," said Blitzman. "The manner in which some issues can be resolved is somewhat different where there is not a statutory right to counsel, such as custody disputes or pro se litigation. The context in which different courts hear from children varies depending on whether the child is entitled to counsel."

He is wary of hearing a child ex parte or in chambers unless recorded or both parties are present. "We have come up with variety of well-intentioned means to allow kids to provide their opinion, to give them a voice, but the question remains as to what is the ethical role of counsel in these kinds of cases."

Blitzman is pleased the MBA invited him to participate. He does not "intend to use the fact that I was invited to speak as a pulpit for a predetermined point of view. I volunteered for this mission to provoke debate, not resolve the issues."

Huettner believes this type of seminar is a great return on an attorney's investment in an MBA membership or the price of the program.

"(Attorneys) can really enhance their practice because they have heard it straight from the judges and know the direction their practice must go in," Huettner said. "This is not just looking up statutes; an attorney has to have a solid grounding in tax laws, visitation, how judges are treating alimony and recent changes to child support guidelines. Attorneys have to hear it from informed sources so they know how to address an issue when it comes up in practice."