III. ETHICAL CONSIDERATIONS
A. Fee Arrangements
1. The attorney may not withhold a client’s file until the bill is paid. Academy of California Optometrists, Inc. v. Super. Ct. (Damir) (1975) 51 Cal. App. 3d 999, 124 Cal. Rptr. 668
2. It is improper to take security interest in a client’s property without appropriate safeguards, including written agreement and affording client meaningful opportunity to seek advice of another attorney. Hawk v. State Bar (1988) 45 Cal.3d 589, 247 Cal. Rptr. 599, 754 P.2d 1096 The attorney must fully explain the transaction, the terms must be fair and reasonable, the the agreement must be in writing with the client’s being given a copy, and the client must be given the opportunity to seek independent legal advice.
3. The independent counsel requirement not satisfied by referring client to member, associate or partner of same law firm. Connor v. State Bar of Calif. (1990) 50 Cal.3d 1047, 269 Cal. Rptr. 742, 791 P.2d 312.
4. Family Code §2030 et seq. provides for the “family law attorney’s real property lien” [FLARPL] to secure fees and permits objections thereto.” General statutory authority for attorney fee award is Cal. Fam. Code §2030 which provide. “During the pendency of a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, upon (1) determining an ability to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights, order any party, except a governmental entity, to pay the amount reasonably necessary for attorney’s fees….”
5. Parties may be liable to District Attorney for expenses incurred in locating missing child. Family. Code §3134. “When the district attorney incurs expenses [to locate a missing child], …  ®he court in which the custody proceeding is pending or which has continuing jurisdiction shall, if appropriate, allocate liability for the reimbursement of actual expenses incurred by the district attorney to either or both parties to the proceedings ….” Cal. Fam. Code §3134.
6. Fees and expenses in custody action involving wrongful taking authorized by Parental Kidnapping Prevention Act of 1980. 28 U.S.C.C. §1738 A
7. Family Code §3153 permits court to order parties to pay fees to counsel appointed for children.
8. The court may order county to pay all or part of fees for counsel appointed for child. Cal. Fam. Code §3153
9. Parties may not adversely affect rights of children or State by agreeing to limit either child support or attorney fees for issues relating to children. In re Marriage of Joseph (1990) 217 Cal. App. 3d 1277, 266 Cal. Rptr. 548
10. The UCCJA authorizes attorney fees and other costs in certain situations (with fault implied). Cal. Fam. Code §3407(q)
11. The court may award attorney fees, travel and other expenses against person violating custody order in other state; must be enforced in Family Code §3416 (b)
12. The court may order attorney fees, travel and other expenses when California court refuses to exercise jurisdiction. Cal. Fam. Code §3408
13. A party can be required to pay to District Attorney costs incurred in recovery of child taken in violation of valid custody order. Cal. Fam. Code §3134 Cal. Fam. Code §3130 requires the District Attorney to take “all actions necessary” to locate person who violated valid custody decree and child, and to assist in enforcement of the custody decree.
14. It was held proper to award fees to Wife after Husband’s petition was dismissed on due process grounds, despite finding of no personal jurisdiction over Husband. In re Marriage of Malak (1986) 182 Cal. App. 3d 1018, 227 Cal. Rptr.841
15. The court may award fees for motion for motion for compensation relating to failure to exercise scheduled visitation or custody rights. Cal. Fam. Code §3028
16. The court may award fees for motion for compensation due to one parent’s thwarting visitation or custody rights of other parent. Cal. Fam. Code §3028 change former Civil Code section 4700 (b), which was repealed effective 1/1/94.
17. There are ethical considerations in taking security for fees in form of security interest in residence when standard property TRO in effect. Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 283 Cal. Rptr. 584, 812 P.2d 831}).
18. Necessity of awarding fees against spouse to prosecute the litigation. In re Marriage of Hatch (1985) 169 Cal. App. 3d 1213, 215 Cal. Rptr. 789, card
19. The Rules of Professional Conduct, rule 4-100 governs the maintenance of trust funds and an attorney’s use of a client’s funds to pay the attorney’s bill. Funds received by an attorney from a client as an advance on fees and costs, or held for the benefit of a client, must be segregated from the attorney’s general funds in a trust account. If the arrangement is that the attorney may withdraw funds from the account as they are earned, then the attorney must do so as soon as his/her interest therein becomes fixed. But, when the client disputes all or part of a bill, then the disputed monies must be left in trust until the dispute is resolved. There are also requirements relating to record keeping, accounting to the client and prompt delivery of the client’s property, upon request. Although not explicitly required by the Rules, it is imperative that the attorney have the client’s written permission before withdrawing [any] funds from the client’s trust account. This includes disbursing funds to the client. Since Business & Prof. Code §6148 requires that most clients have written fee agreements, this is the place to cover the issue of automatic withdrawal of funds from trust for services rendered and costs advanced. In Magee v. State Bar (1975) 13 Cal.3d 700, 119 Cal. Rptr. 485, 532 P.2d 133.
B. The Right of Attorney to Withdraw From Representation
Attorney of record may withdraw from the case by filing notice thereof after entry of judgment. Code Civil Procedure §285.1 This a good practice in all your cases. It absolves any legal obligations to the client.
Pursuant to California Rules of Court, Rule 376, and California Code of Civil Procedure §284(2), the court has the discretion to permit the attorney to withdraw as Petitioner’s attorneys of record. Code of Civil Procedure §284(2) provides, in pertinent part, as follows:
The attorney in an action … may be changed at any time before or after judgment or final determination, as follows: … 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.
Rule 3-700(C)(1)(f) of the Rules of Professional Conduct provides that counsel may request to withdraw from an action if his client does not pay his fees and costs pursuant to a fee agreement. Rule 3-700(C)(1)(f) states, in pertinent part, as follows:
(C) Permissive withdrawal … a member may not request permission to withdraw in matters pending before tribunal, … unless such request or such withdrawal is because: (1) the client … (f) breaches an agreement or obligation to the member as to expenses or fees.
C. Attorney Contact With Children
Although unusual, it is possible to take the deposition of a child in a custody proceeding. Mark S. Guralnick, in Interstate Custody Litigation, Tools and Techniques, Section of Family Law, ABA, 1993, [Sec. 9.05, 9.12-9.15] describes the process of preparing for a child’s deposition, how to question the child, and specific questions to ask.
Often the outcome of a custody case depends on the wishes of the child. We rely on the custody evaluator and/or the judge to determine the child’s wishes. In some cases careful practice may warrant taking the deposition of older children where a parent may have “persuaded” them to testify in a certain way.
It is far more common for the attorney to interview the child involved in a case to determine what the child wants, to prepare the child for the custody evaluation, or the meeting with the judge. It would be improper to coach the witness what to say. I would instruct the child as to the procedures involved, tell them to tell the truth, and generally reassure them. An evaluator or judge is more than likely to ask the child if they have been coached. If the answer is yes, it may generate a report to the state bar, as well as adversely impact your case.
In some cases in where the child’s testimony is essential, I have obtained the declarations of the child when the child is of sufficient maturity to testify. Often the child is the only witness to abuse or other extreme behavior.
D. Special Concerns for Guardians Ad Litem Who Are Attorneys and for Attorneys for Children
With increasing attention to children’s rights, such protection has become much more common. Advocates for children’s rights hold that the child should be represented by counsel in divorce. The guardian may be a lawyer, but a layperson may also serve as a guardian ad litem. The federal guidelines for abuse and neglect statutes provide for a guardian ad litem in each case that comes before the court. When the parents are indigent, the court at public expense may appoint the guardian ad litem.
In California family law a relatively new approach has been the utilization of Special Masters in the most difficult of child custody and visitation cases.
The basic notion underlying the appointment of a Special Master in highly conflicted custody and visitation cases is that the Special Master brings certain specialized skills and expertise to the case. By establishing and working through an on-going relationship with the parents, the Special Master attempts to de-escalate the high level of conflict; bring about greater stability for the child(ren); improve the decision-making process; and reduce the need and expense of non-productive litigation. In addition, having a Special Master appointed on a case allows for closer monitoring of problematic family situations and provides opportunities for educating parents and producing therapeutic effects within the family system.
The legal authority for the appointment of a Special Master by a judicial officer is somewhat unclear see: In re Marriage of Matthews (1980) 101 Cal. App. 3d 811, but clearly parties may stipulate to the appointment of a Special Master in their case. Pursuant to the stipulation by the parties, then, the authority of the Special Master is defined with the parties agreeing that the Special Master may make orders which are subject to judicial review within a specified number of days.
One should consider the utilization of a Special Master when other attempts at conflict resolution have failed rendering the parents incapable of making decisions around their children. Sometimes when a child custody evaluation has been completed, or when an order is being made, there is concern regarding the safety or well being of the child(ren). In such instances it may be appropriate to have a Special Master assigned to the case. In other cases when visitation schedules need repeated adjustments, perhaps due to the young age of the child or when other factors, such as therapeutic interventions are made in re-unification efforts, a Special Master may be indicated.
The actual process of the Special Master’s work typically includes meeting with both parents; meeting with the child(ren); reviewing documents (i.e., previous orders, evaluations, etc.) and possibly interviewing collaterals (i.e., therapists, teachers, etc.) and sometimes the child(ren). Through a mediation process particular issues may be resolved as they are brought up; or if agreement cannot be reached, the Special Master then makes the decision. The Special Master’s decision is provided in writing to both parents, and their counsel, and either party may file a motion to contest the Special Master’s decision if done so within the defined period of time.
While either an attorney or mental health professional may serve as a Special Master it is more common that the Special Master is a mental health professional. The Special Master’s specialized skills and knowledge in the areas of crisis intervention; psychotherapeutic practices; mediation; the developmental needs of children; family evaluation and assessment; along with familiarity with family law codes and procedures are essential in alleviating and resolving conflict between parents on child related issues.
The fees for the Special Master are typically divided between the parents, either equally or proportionately. An initial retainer fee deposit is typically required and the parents are billed at an hourly rate. It is assumed that by having one fee, jointly shared and at a lower rate than charged by most attorneys, along with reducing the frequency of court appearances; possibly eliminating the cost of a child custody evaluation and possible trial; the utilization of a Special Master may be more economical and a less acrimonious way of addressing these problem cases in the legal system.
It is important that we recognize significant options in our attempts to serve the families that enter the family law system. The most problematic of cases are often families where the children are most seriously at risk. In those cases that are not resolved through mandatory mediation or where cost factors are too great Special Masters should be considered as a reasonable and viable alternative.
(See sample Stipulation, Appendix A.)