Table of Contents
- Report from the Chair – Laura Page, J.D.
- Editorial – The changing times – Ann Gushurst, LLB.
- What is the Solution to the Pro se Crisis? - Terri Harrington,
- Reclaim the Name – Simplified Name Change After Divorce – Marte B. Timmers,
- Top Ten Pointers From the Denver County Brown Bag Lunch – Robin Beattie, Esq.
- Case Law Summaries – Xakena Henderson
- Meet the New Magistrate – Kristi Anderson Wells, D.
- Human Trafficking Survivors’ Unmet Family Law Needs – Kristen Berq, D.
- Divorcing Your Mortgage – Jodi Bruns, CDLP
- Unbundling Family Law Services: Why More Family Law Attorneys Should Do It – Judge Angela Arkin (Retired)
Report from the Chair:
Hi everyone and welcome to a new “year.” I’m excited to be the Chair of the Family Law Section this year and am looking forward to a great year! While I may be biased, this year’s Family Law Institute was a great success. While Beaver Run can be confusing and the weather was a bit rainy, Breckenridge was a fun change of pace. We had a record number of attendees and the reviews have been very good. Jennifer Feingold is planning the 2017 Institute and I wish her the best of luck!
Each year, the FLS is charged with addressing issues that affect the practice of family law. We are routinely looking at new legislation, appellate cases, and issues related to bench/bar relations. A big part of the FLS is also the CLEs that we put together. They are great ways to learn something new and to socialize with colleagues.
If you have any ideas for presentations at FLI, our lunches or any other CLEs, please reach out to us. All of these events are planned well in advance, so you want to be sure to get in early. Here’s a list of who to contact for the various CLEs:
Family Law Institute: The current chair-elect, which is Jennifer Feingold this year
Fall Update: Robin Beattie and Peter Franklin
Basic Skills: Brenda Storey
Spring Update: Bill King and Steve Epstein
Evidence Practicum: Kelly Southerland and Courtney Cline
Monthly Lunches: Brenda Storey
Young Lawyers: Kate Lewis and Jamie Rutten
You can also reach out to Todd Stahly. As the Immediate Past Chair of the Section, he is the current Chair of the Education Committee.
The Executive Council of the Section meets on the 3rd Friday of the month, September through May and is made up of 20 elected members and 5 officers (Treasurer, Secretary, Chair-Elect, Chair and Immediate Past Chair). These meetings are open to all FLS members, so please be sure to attend if you would like to get involved. We encourage everyone to get involved. Please reach out to any current or former members of the Executive Council to find out how you can be more active in the FLS!
Thanks! Laura Page
By Ann Gushurst
You know you’re getting older as a divorce attorney when you recall, fondly, the good old days when the judges seemed to actually understand the law, everyone was mostly courteous and justice seemed to usually get served. I hear some of these sentiments in my own conversations lately which lets me know that I may be nearing the end of my ‘best before’ date.
There’s not much we, as a profession, can do about the appointment of judges other than to start taking an interest in the appointments. (Which, by the way, your family law section has tried to do by advertising the committees who make the recommendations and by trying to get lawyers interested in signing up…). Although I will (again) point out that family law problems deserve at a minimum equivalent periods of time and respect from judicial administration. Consider, for a moment, that Family law (including juvenile law) makes up 35% of the overall docket caseload in Colorado District Courts according to last year’s Judicial Branch Statistical Report and then think about whether or not family law cases get 35% of the resources…
When you think about it, if these statistics are correct, family related cases impact a greater number of Colorado citizens than any other type of court cases in the docket.
There are some real problems with resources these days (aside from the reality that family law cases often get the “newest” judges so they can “learn”). Repeatedly we are hearing about hearings that are cut off or unduly limited, discovery that is denied, and other problems that are fundamentally a result of not enough resources going to family law cases. This results in the denial of Due Process. Only this month, one of my associates just recently was given TWO hours to try a permanent orders’ hearing that was set before a Magistrate. I recently was involved in a case where the Permanent Orders was set for a day. One of the clients then sued the attorney for malpractice; that case was set for a week. You just cannot help but wonder where are our priorities as a society?
Family law attorneys do not see themselves as civil rights attorneys. In fact, I was initially denied fees on the recent marriage equality case because I was a family attorney and not a civil rights attorney. But family law is, in so many ways, all about civil rights. It is about the right to be safe, and financially secure. It is about the right to have property not taken away unreasonably. It is about the constitutional right to parent, and the as of yet unrecognized constitutional right to be parented and to be connected to your family.
So, when you start thinking about what we can do to change the system, part of what is required is for attorneys to boldly remind everyone that family law is about human rights. Family law attorneys need to remind themselves that they too (like criminal and civil rights attorneys) are protecting our democracy by ensuring that justice serves everyone equally. Family attorneys can, and should, defend the rights of their clients to have due process. I’ve heard attorneys say that they don’t want to rock the boat, by filing motions or complaining about judges, but I’ve been personally told by Chief Justice Rice, that no attorney should tolerate actions by anyone that calls into disrepute the system that we all should cherish. The next time you feel that your client isn’t able to protect themselves in a restrictive time frame, or that a denial of a motion is the result of bias, or that due process demands something other than what your client is getting, do something. No one is going to take us seriously until we take ourselves seriously.
One last thought. The problems in the family law courts are only made worse by bad practices in the family law bar. We need to clean our own house. Practice civility. Confer with your opponents. Try (hard) to make your clients take reasonable positions. Refuse to ask for things that are unjust. If we want, we can as a bar, eliminate what we used to call “sharp” practice… the type of behaviors where we let our clients take advantage of unrepresented or poorly represented opposing parties.
Lastly, I just wanted to give you a link to an editorial in a leading LGBT publication that I thought would be of interest to our members. http://ebar.com/columns/column.php?sec=guest_op&article=592 My thought is that if they can fight to have their constituency finally gain equal rights, we had better make sure that the bar they are trying to get to actually is something worth achieving.
Happy Holidays everyone!
WHAT IS THE SOLUTION TO THE PRO SE CRISIS?
By Terri Harrington, Esq.
Harrington Brewster & Clein, P.C. and the Denver Center for Mediation and Collaborative Divorce
The percentage of pro se parties divorcing in Colorado is anywhere from 60% to 80% and rising depending on the jurisdiction. This means that the courts are dealing with cases where the parties come into court with little or no understanding of their legal rights. The courts then are faced with the difficult and time consuming task of having to make decisions for parties who might have come to their own agreements without court intervention if they had some legal help.
If the Courts continue to provide websites, forms and instructions to pro se clients aren’t they encouraging them to avoid attorneys? Is that serving them? It is difficult if not impossible to educate a divorcing person in all the legal rights and other pitfalls of divorce by having them read a Court website.
Granted, there are people who cannot afford even one hour of an attorney’s time. But there are thousands who can afford some amount of legal advice, but choose not to hire attorneys at all.
What should the Courts and family law attorneys do to help this situation? There is currently a proposal that the court develop a small claims court for people with less than $100,000 in assets. Attorneys would not be allowed to participate. This process will require more forms, more courtrooms, more clerks and more paperwork. But the parties will still lack the legal advice missing from the current situation.
Some say that people are not hiring divorce attorneys because they don’t want to fight and believe that hiring attorneys is expensive, increases conflict, and can drag the case on forever. We need to examine our intentions, encourage our clients to find common interests, and to take the high road. We need to examine our desire to defeat and devastate the other spouse, especially when something about the case triggers our emotions. We need to ask ourselves the questions, “Do we want to punish rather than resolve?” “Do we try to “hurt” the other spouse rather than help the family heal?”
I don’t believe more courts, more rules, more procedures, more forms and more websites are the answer. In fact I think that the small claims solution would increase the problem. Courts have never been a good option for most families. Some of the most intractable families need someone to make a decision, but I believe the majority of cases do not need a Courtroom. We know this because when parties do hire lawyers, most cases actually settle out of court.
Alternative dispute resolution of all kinds helps families stay out of the courtroom. The courts know this and make ADR mandatory in most cases. And ADR is successful a very high percentage of the time. We need to strongly encourage families to consider the benefits of mediation, med/arbitration, Early Neutral Assessment, Collaborative Law and Unbundled Legal Services instead of going to the courtroom unprepared. Could the government money spent on courtrooms and judges be spent on some of these alternatives? Hennepin County in Minnesota pays professionals to conduct Early Neutral Evaluations at no cost to the parties.
One very good option for clients is when they hire an attorney who is hired to represent the client for the purposes of settlement only. Litigators can always be employed as necessary but shouldn’t that be a last resort? This allows parties the benefit of a settlement expert as well as a litigation expert if necessary. We need an evolution in family law; not more of the same. We need more peacebuilding, more respect, more understanding, and more legal education from the family law bar not the Courthouse. We need attorneys to model efficient problem solving behavior not adversarial behavior.
Settlement expertise is a very practical and successful business strategy that I have used for years now. I have been mediating family law cases since 1997 and resolving cases with Collaborative Law since 2001. Many attorneys may not even be aware they are being adversarial much less being aware of the impact they are having on their client and their client’s future. Sometimes attorneys cannot see the big picture and fight over even the smallest issues which only increases the fees and discourages clients.
Clients need and want healthy and emotionally healing support. Lots of attorneys are able to provide that to clients. We need all attorneys to develop true awareness of non-adversarial ways to help clients.
One way to encourage clients to get legal help but stay out of the Courtroom is to work with attorneys that have made a paradigm shift from the battlefield of courtrooms and discovery to sitting down over a conference room table to talk respectfully about fair settlement options. Because of my training in Collaborative Law I work with counsel on the other side rather than against them even if they are known to be a powerful litigator.
I believe the Colorado Bar Association and all attorneys should support passing laws like the Uniform Collaborative Law Act. Fourteen states have already passed the legislation and 4 more have introduced it. Colorado needs to pass the Collaborative Act to let families know we care about them and that we can help them do so without the courtroom.
Reclaim The Name - Simplified Name Change After Divorce
By Marte B. Timmers, Esq., Baker & Hostetler LLP
In April 2016, the Colorado legislature passed House Bill 16-1085, nicknamed “Reclaim The Name.” The new law and procedure allows for a person who did not request her maiden name to be restored in the divorce action to file a simple pleading and proposed order requesting the name change, rather than filing the expensive and time consuming action for a civil name change.
The impetus for the bill was to find a way for women to avoid the lengthy and costly civil name change process, which made women feel like they had to “ask permission” to get a maiden name back. The civil name change procedure required fingerprinting and background checks with the FBI and CBI, as well as multiple publications of the intended name change, and waiting months for the process to be completed. Under the civil name change procedure, it was almost as if a woman was punished for not deciding to restore her maiden name during the dissolution process. However, as most practitioners know, the dissolution process is often wrought with emotion and uncertainty as to one’s future. Some clients just simply cannot ask to restore their maiden name at that time—it seems daunting amidst uncertainty about how children will fare after divorce and how one will move forward in establishing a new “unmarried” identity.
Now, if a woman who did not ask to restore her maiden name during the dissolution determines within 6 months of the entrance of the decree that she would like to restore her name, she can file for a name restoration without even incurring the filing fee. If 6 months have passed, a filing fee of $105.00 is assessed.
The new name change pleading is found at JDF 1824 and is called a Verified Motion and Affidavit for Name Restoration After Dissolution of Marriage/Civil Union or Legal Separation. This simple motion is filed in the domestic relations matter in the court where the decree for dissolution or legal separation was entered. Additionally, JDF 1825, Order for Name Restoration After Dissolution of Marriage/Civil Union or Legal Separation, must be filed. The motion may be filed unilaterally: No conferral with opposing counsel or the opposing party is necessary and no hearing is set.
I recently filed a Verified Motion and Affidavit for Name Restoration After Dissolution of Marriage for a client in a case that ended three years ago. We received the Order from the Court within thirty days of the filing. My client was relieved that it was so easy! Of course, now she has to approach the DMV, social security office, get a new passport, etc., but at least she avoided background checks, publications and more attorney time.
TOP TEN POINTERS FROM THE DENVER COUNTY BROWN BAG LUNCH - Submitted by Robin L. Beattie
NOVEMBER 9, 2016
- As of September 1, 2016, all post decree actions that are two years post decree or older will go to Magistrate Hubler and Magistrate Lord-Blegan. Post decree matters less than two years old will go to the judges.
- As of January 1, 2017, the following judges will be on the domestic bench:
• Judge Lemon will be the presiding judge.
• Judge Torrington.
• Judge Laff.
• Judge Brody.
- Denver judges treat emergency motions pursuant to CRS 14-10-129(4) differently than other jurisdictions. If you file such a motion, the judges want you and your client to come in immediately, and would like to talk to both parties, if possible. The judges do not want these motions to be used as weapons and do not like the ex parte nature of the motions. They would prefer that you either file these motions in person or at the very least call the clerk.
- Unfortunately, the family law section continues to be known for having some very unprofessional lawyers. Please remember than the case is not about the lawyers and develop distance. You can treat opposing parties and counsel with respect even if you disagree with their actions and positions.
- If you are through with a case, you are encouraged to withdraw from the case. If you do not withdraw and a pleading is filed, you cannot just file a Notice of Withdrawal. Instead, you will remain the attorney of record until you file a Motion to Withdraw and it is granted.
- If you have discovery issues or problems with another lawyer, you should do the following:
a. Judge McGahey – Call and he will set an in-person hearing.
b. Judge Torrington – File a short statement requesting a TSC, and state how much time you need.
c. Judge Brody – File a brief motion, then call
d. Judge Laff – Call and ask for conference, then he might make you come in.
- When you are trying a case, focus on the factors that affect your case. You can use the Bench Bar book as a guideline. Efficient presentation is preferred.
- Please stipulate to the authenticity of a document, unless you truly believe that it is not
- Motions for continuance should only be filed for good cause.
- And finally, remember this: “Relaxed rules of evidence does not mean comatose.”
CASE LAW SUMMARIES FROM Xakena Henderson
In re the Marriage of Rooks: Deciding the fate of post-dissolution embryos
In a recent Colorado Court of Appeals case, the court affirmed the trial court’s finding that a couple’s cryogenically frozen embryos should be destroyed per the husband’s request on the dissolution of their marriage. In re the Marriage of Rooks, 2016 COA 153. This issue of who gets a couple’s cryogenically frozen embryos upon dissolution is one of first impression in Colorado and, indeed, a particularly interesting one. In the opinion, issued October 20, 2016, the Court relied on a “balancing of interests approach” to hold in the husband’s favor, concluding that where the parties do not already have an agreement, courts must balance the parties’ interests to decide the fate of their embryos upon the dissolution of their marriage.
The Rooks, who had married in 2002, already had three children together who were all conceived using in vitro fertilization techniques. As a result of this process, the couple had six additional embryos remaining and placed them in cryo-storage. In doing so, the couple signed two agreements: one giving them the option to indefinitely store, or donate or discard the embryos, and another addressing the embryos’ disposition if one of the parties died or they divorced. When the husband petitioned for dissolution in 2014, he argued that the embryos should be discarded. Because the embryos were products of her last eggs, the wife wanted the embryos to remain frozen so that she could have another child in the future.
The Court first noted that Colorado law does not consider human embryos “persons” or “children.” Id. at 11 (citing section 13-21-1204, C.R.S. (2016)). It then cited both the Uniform Parentage Act, § 19-4- 106(7)(a), C.R.S. (2016), and the Colorado Probate Code, § 15-11-120(9), C.R.S. (2016), which provide that a former spouse will not be the parent of a child born from an assisted reproduction post- dissolution without expressly consenting to it. Id. at 12. Without additional guidance from Colorado law, the Court turned to other jurisdictions.
Other jurisdictions take three approaches: the contract approach, the balancing of interests approach, and the contemporaneous mutual consent approach. Id. at 14. The contract approach presumes that agreements regarding disposition of the embryos in the event of divorce are valid and enforceable. Id. at 15 (citing Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992)). When parties have not entered into such an agreement, the balancing approach seeks to resolve the dispute by balancing the parties’ interests, with the balance tipped in favor of the party who wishes not to procreate. Id. at 20. Last, the contemporaneous mutual consent approach leaves the onus on the parties to reach a decision.
Until then, the embryos must remain in storage indefinitely. Id. at 21.
The Court held that the contract approach is appropriate, and when the parties have no contract, the balancing approach. Id. at 24. The Rooks’s agreement proved to be insufficient, and thus unenforceable, as it did not clearly provide who should receive the embryos. Id. at 32. While the Court declined to adopt the trial court’s findings under the contract approach, it affirmed the trial court’s application of the balancing test. In so doing, the Court first held that the trial court did not abuse its discretion in concluding that where the parties already had three children, the husband’s interest in not producing more children outweighed the wife’s interest in having a fourth child, particularly when considering the husband’s emotional and psychological well-being since he would likely feel a moral and social obligation for the fourth biological child. Id. at 45-46.
Second, the Court found that the trial court did not abuse its discretion in finding that the “inevitable financial consequence” for husband also weighed against wife’s interest in having a fourth child. The trial court finding was based on the fact that wife was relocating with the children to a state that, unlike Colorado, does not have a statute to relieve husband of the financial responsibility for a future child born from an embryo without his consent. Id. at 48 (citing §§ 19-4-106(7) and 15-11-120(10)). Lastly, the Court agreed with the trial court that her constitutional rights (such as her rights to equal protection of the law, due process, and “procreational automony”) were not being violated in ordering the embryos to be discarded; the Court also noted that husband has corresponding and equal rights. Id. at
52-53. Ultimately, the Court concluded that the decision becomes a discretionary one, and thus the trial court appropriately considered the potential impact of various factual circumstances on the parties and the parties’ existing children. See id. at 52-57.
It is unclear yet whether Mrs. Rooks will seek writ of certiorari from the Colorado Supreme Court.
Meet the New Magistrate
Lisa Teesch-Maguire - Coming Full Circle By Kristi Anderson Wells
It's only about sixty-five miles as the crow flies, but Lisa Teesch-Maguire decided to take the long route from her hometown of Longmont, Colorado, to her current position. Along the way she has travelled the world and sampled a variety of professions, ultimately crystallizing her commitment to access to justice in her current position serving as a magistrate in Division 35 of Arapahoe County District Court.
The Magistrate was drawn to law because she says she has always been passionate about helping others. “The practice of law provided me with excellent intellectual challenges and fantastic opportunities for helping others,” she said.
Despite her relative youth, Mag. Teesch-Maguire has managed to accumulate an impressive list of credentials. In addition to her law degree, she also has a Master’s in Business Administration from the University of Colorado. She’s been an executive at Target, done a brief stint as a middle school teacher, been a civil litigator, and provided pro-bono victims’ rights legal services – just to name a few.
Her work history reflects her passion for helping others. Before accepting the magistrate position, Mag. Teesch-Maguire most recently served as a Deputy District Attorney in the 18th Judicial District specializing in victim’s rights legal enforcement for prosecutors. She spent three and a half years prosecuting the Aurora theater shooting case. Prior to that she was the Legal Director for the Rocky Mountain Victim Law Center in Denver. In that roll, she provided pro-bono victims’ rights legal representation for victims of violent crime.
In her current position, Mag. Teesch-Maguire’s docket is made up entirely of domestic relations and paternity actions. The Magistrate sees some big differences between sitting on the bench and practicing in front of it. The most notable difference is that Mag. Teesch-Maguire was not aware of how difficult it would be to make decisions that affect people’s lives with so little information.
“As a prosecutor, if you needed more information you could go get it, or have an investigator go get it. You know your case so well that you sometimes forget that the judge or magistrate doesn't know everything you know,” Mag. Teesch-Maguire reports. “You really need to make sure when you are running your case that the judicial officer has all the information that they need to make a difficult decision.”
The Magistrate feels that the best part of her job is working with parties to create a parenting plan that is really in the very best interests of minor children. The hardest part? “Working with very good people who are struggling financially and emotionally and who are unable to compromise to make decisions in the very best interests of their children.”
Mag. Teesch-Maguire says that sometimes she notices a real lack of professionalism in the domestic relations bar. She thinks it may have to do with the fact that the attorneys become overly connected to the parties’ conflict. She also appreciates when it is clear that attorneys have worked very hard to work with high-conflict parties and represent their client’s very best interest.
“In criminal law you have people who are alleged to have made bad, illegal decisions who are on their best behavior in the courtroom trying to get a good outcome in their cases,” said the Magistrate. “On the other hand, in domestic relations courtroom you often have good people who are exhibiting their worst behavior. Sometimes the attorneys take it on too much.”
Conferral is not optional in Mag. Teesch-Maguire’s courtroom. She expects all attorneys to have talked before appearing in front of her on an issue: “When you come into my courtroom and tell me you’ve never talked to the other attorney, that simply can’t be in the best interests of your client.”
On a personal level, the Magistrate’s interests include travel, food and music. She is particularly proud of having travelled to 40 countries before reaching the age of 40. While this feat may seem implausible, she managed to combine her travels with her legal studies and practice in a way that permitted her many travel opportunities. For instance, Mag. Teesch-Maguire studied international affairs in the Netherlands as an undergrad and international law in Sweden, which gave her an opportunity to travel around Europe. She also served as the Criminal Division Chief of the Attorney General’s office in the U.S. Territory of American Samoa in the South Pacific, permitting her to travel to Palau, the Cook Islands, Fiji, New Zealand and Tonga.
While these experiences have allowed her to experience the broad diversity of many foreign countries and appreciate the differences in cultures, Magistrate Teesch-Maguire keeps coming home to Colorado. “I love the mountains and the outdoors,” she said, “and I’m so proud of Denver becoming a great cultural destination,
with wonderful food and music.” In other words, not just a great place to be from, but also a great place to be.
Human Trafficking Survivors’ Unmet Family Law Needs – Kristen Berg
Human traffickers enslave over 20 million people worldwide to profit $150 billion yearly from their bodies and labor. The Center for Public Policy Studies points out that the problem also hits close to home, with Colorado being a “source, destination and transit route for human trafficking” due to such factors at the state’s international airport, sizeable immigrant population and convergence of major interstate highways. Human trafficking takes many forms; in Colorado, cases have included migrant farm worker abuse, domestic servitude and exploitation in the commercial sex industry. U.S. federal law and Colorado state law criminalize human trafficking, but trafficking survivors often have legal needs beyond seeing their trafficker prosecuted. The legal community as a whole - from civil litigators to immigration attorneys to family law practitioners - have a vital role to play in holding traffickers accountable and supporting survivors.
After an individual escapes a trafficking situation, he or she often faces many challenges with limited resources - particularly with respect to domestic relations issues. For many survivors, a 30 to 60-minute consultation about their situation makes all the difference in helping them to understand what they can and cannot expect from the legal system, and to be empowered to make informed decisions in this complex area of law. As a family law attorney, your substantive legal knowledge about legal remedies can help survivors access justice and rebuild their lives, particularly as survivors may be related to their trafficker. For example, a survivor may need to divorce her husband, who is also her trafficker, and seek custody of their children. Or a survivor may simply need to speak with someone about the process for obtaining a civil order of protection against his or her trafficker. Other family law needs may include consultation or representation on child support matters, advising on charges of child abduction or child abuse or the court appointment of an advocate to protect the interests of a juvenile.
While trafficking survivors can be men, women or children, foreign-born or U.S. nationals, they share one commonality - a vulnerability that traffickers can exploit. Increased vulnerability - including the lack of a social safety net, discrimination and undocumented status - increases an individual’s risk of trafficking. In the coming months and years, the supporters of the anti-trafficking movement will need to collaborate with lawyers from all areas of law to ensure that survivors’ diverse legal needs are addressed.
At ALIGHT, we offer an easy and straightforward way to connect the legal community as a resource to the anti-trafficking community. To learn more about our work, including our current Legal Needs Matching Pilot, please visit our website: www.alightnet.org.
Unbundling Family Law Services: Why More Family Law Attorneys Should
Angela R. Arkin District Court Judge (Retired)
Judges sitting in family court in Colorado are encountering a large and ever growing number of self-represented litigants. Many of these parties are not indigent, but they are not hiring lawyers to assist them. These non-indigent litigants generally fall into three categories: 1. They can’t afford traditional legal representation because of their financial circumstances (low wages, significant consumer debts, high student loans, etc.); 2. They are of moderate means, but do not wish to spend all of their disposable income on legal fees; or 3. They wish to reach an amicable resolution of their family law matter, and are afraid that hiring an attorney will make their case more complicated and/or expensive.
If a family court case is litigated, Judges have a duty to enter equitable rulings regarding financial issues and support for dependents, to act in the best interests of children when their parents cannot agree, and to protect children who are being harmed by their parents’ actions or inactions. In cases that settle, family court judges cannot reject separation agreements or stipulated parenting plans unless the financial provisions are extremely unfair to one spouse, the parenting provisions would endanger the minor children, or the support provisions would deprive dependents of legally required support. The court interventions that are mandated do not include the duty to reject ill- advised or poorly written agreements that could prove impractical or unenforceable in the future. Indeed, the court is prohibited from providing the parties with legal advice. Therefore, from the judge’s side of the bench, self-represented litigants bring many challenging concerns:
- They do not know the law, so they are unable to determine whether their wishes for the resolution of the case are reasonable, equitable, or allowed by This can increase the likelihood of litigation, which can be difficult for parties and harmful to children.
- They do not know the rules of evidence, so they struggle to prepare their case in a way that allows the court to admit the evidence necessary for the court to do equity. The court cannot issue good decisions when the judge does not have sufficient information to determine what is
- They do not understand the rules and procedures that must be followed by litigants to participate in the process, meet court deadlines, and timely complete required disclosures and any discovery Sherlocks, Family Court Facilitators, judicial assistants and judicial officers often spend significant court time and resources helping self-represented litigants understand the litigation process.
- They do not understand when experts need to be appointed to assist the court in understanding and evaluating contested issues, and/or what the experts do in their If there is a significant contested issue, such as abuse allegations against a parent or valuation of a significant asset, when there is no expert, the court is left to guess at an appropriate resolution.
- They do not know how to draft an agreement resolving their contested issues that is clear as to their intent, and is specific enough to be enforceable by the court if one or both parties fail to The court cannot reject or unilaterally revise written agreements absent a serious legal, equitable, or child protection flaw.
These litigants need affordable legal advice.
Over approximately the last 13 years, the Colorado Bar Association(CBA), the Colorado Judicial Branch (Court), and Colorado Legal Services have made great efforts to address the problems caused by and to the rising tide of self-represented litigants. The most prominent step was the joint effort to create one of the first Access to Justice (ATJ) commissions in the United States. The Colorado ATJ has taken countless actions to assist self-represented litigants, including holding hearings on the access to justice crisis, creating local ATJ Committees throughout the State, and creating significant incentives for lawyers to do 50+ hours per year of pro bono work. The local ATJ Committees have also had a great impact, including recruiting volunteer lawyers to provide legal information and advice to litigants at clinics, self-help centers and local bar events.
The Court has created a state-of-the-art website with lots of user-friendly forms and instructions. They also hired an ever-increasing number of Court Facilitators and Self Represented Litigant Coordinators (Sherlocks), made changes to rules and procedures to give courts more flexibility in assisting self-represented litigants, and have made countless other efforts to assist self-represented litigants through Supreme Court commissions and committees. Despite these efforts, currently, according to the Court, approximately 70% of Domestic Relations (DR) and Allocation of Parental Responsibilities (APR) cases filed in Colorado have zero or only one attorney involved. However, self-represented litigants, especially in the family law area, have become too numerous and too needy to be fully served by volunteer lawyers, Sherlocks or Court Facilitators.
The CBA has created a “Toolkit” for attorneys wishing to provide unbundled legal services, and has an “Unbundled Legal Services Roadshow” which has made countless presentations on these issues to lawyers and law students throughout the state. There is a “Modest Means Committee,” that has implemented countless legal services projects, and continually seeks new ideas on how to provide services to self-represented litigants. A small but growing number of family law attorneys have embraced unbundled legal services, based on these efforts.
There is also a CBA committee looking at whether Colorado should allow non-lawyer professionals to fill the market for affordable legal services, since the need continues to be overwhelming, and too few attorneys are currently providing same. Family lawyers have expressed concerns that creating a new profession such as a “Limited Liability Legal Technician (LLLT),” or other similar “paralegal plus” type professional could cause more problems for self-represented litigants than it solves, but the alternative, convincing more licensed family law attorneys to meet the needs of this ever growing moderate means population, has not yet been successful.
The Colorado Rules of Professional Conduct allow attorneys to provide ‘unbundled legal services.’ Colo. RPC 1.2(c). A lawyer may provide limited representation to self- represented parties as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b). There are three key issues for the lawyer to consider in deciding to offer unbundled legal services: (1) the limitation on the services provided by the attorney to the unbundled client must be reasonable; (2) the client must give informed consent to the limitation of services; and the attorney must advise the court if he/she is drafting or “ghostwriting” court documents, other than the state forms available on the Court Whether the limitation of services provided is reasonable will depend on the facts and circumstances of the case, but there is not a specific rule or significant body of case law that defines what is a reasonable limitation. Arguably, the reasonableness of the limited representation would require the lawyer to consider the following:
- Is the case relatively simple, or complex?
- Does the client seem capable of understanding legal advice and following instructions?
- Does the attorney have a reasonable amount of time to assist the self-represented party in addressing the matter?
- Is the client going to be comfortable with the limited communication with the lawyer that often accompanies unbundled legal services?
Family law attorneys could have more confidence that their liability does not significantly exceed the scope of the services purchased by the unbundled client if the Court provided specific guidance about the parameters of their professional duty. But lawyers could also consider other models for providing unbundled legal services as an alternative to trying to adapt standard forms of legal representation to the needs of the unbundled client. This would arguably limit the attorney’s liability while providing services to this underserved market.
There are a number of innovative ideas across the country regarding providing affordable unbundled legal services. One of these alternative models is the Self- Represented Resource Center™ (SRRC) at The Harris Law Firm. We created the SRRC to provide unbundled legal services to individuals who are considering handling their legal matters without hiring an attorney. This new legal clinic allows those with family law issues to access high level divorce and family law advice while still representing themselves. Sort of a “doc in a box” (urgent care clinic) for pro se parties.
The SRRC provides legal information and advice, but we don’t enter an appearance, we don’t prepare or file documents, and there is no ongoing relationship with the self- represented party. We offer what we consider to be reasonable rates, and the self- represented client pays as he/she goes: there is no retainer. This allows each litigant to manage his/her own legal fees and costs, and get as much legal help as he/she needs to resolve the matter in the best possible way.
The SRRC does not provide legal representation. If there is any contact with the court or court event scheduled in the case, the self-represented client is responsible for attending that court appearance. The self-represented client signs all pleadings, disclosures and discovery, attends settlement conferences such as mediation, and negotiates and communicates with the opposing party, opposing counsel and the court. The SRRC does not conduct any independent investigation into the facts of the client’s case, and clients are notified to bring any documents with them to the consultation. We are available to consult with the client about all aspects of their case, but if at any time they wish to obtain legal representation, they will need to hire an attorney.
We consider a significant focus of the SRRC to be providing services that help clients understand the laws, rules, procedures and equities of their family law case well enough to be prepared for settlement. In addition to educating clients about the legal system, we discuss costs and benefits of their financial positions, and the impact the proposals in their parenting plan may have on their children. We always talk to clients about therapeutic resources, mediation, and other kinds of professionals who might help them resolve their case. When requested, we provide our clients with lists of professionals we believe are a good fit for their case, and we make suggestions on what might be reasonable compromises that can help them, the other party, and their children move forward in an amicable way.
Unbundled services have been encouraged by the Colorado bench and organized bar to persuade lawyers to provide more economical access to justice for self-represented parties. There are many ways attorneys can provide these services to family law litigants, but not providing them is an option that is likely to have dire consequences for our profession. At the SRRC, we are excited about and enjoying this new opportunity to be of service to self-represented parties with Colorado family law matters. We invite and encourage more of our esteemed family law colleagues to join us in the effort to provide affordable unbundled legal services to self-represented litigants.