“I do solemnly swear that…I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect, and honesty.” That is part of the oath of admission that I took in Colorado to receive my license to practice law. My practice has focused almost exclusively on family law matters, and so far, the firm that I have spent the longest time at was an immigration-focused firm.
What that meant as a domestic relations practitioner was there were many state court custody orders as a predicate to Special Immigrant Juvenile Status applications. These clients are the family members of children from impoverished nations, many of whom flee gang violence because these gangs extort and threaten these children and their families. In addition to those heart-wrenching cases, of my remaining caseload of divorces and custody cases, I would estimate that at least half were Hispanic clients. Another facet of this is that about 85 to 90 percent of my clients at this firm were not English speakers.
“How is this fair?”
“In my country, this situation would result in [insert favorable outcome here.]”
“Why does the parent need access to internet, fax, and a notary?”
These are the questions that I would get in my practice of law, as I have had the privilege of working with clients from different countries and cultures. The ethical and practical considerations of such work often cause tension with clients. This article discusses some of the tensions I have dealt with.
While it may seem easy to treat persons you encounter with fairness, the question is: What is fair? The attorney may see something as fair, but the client may not. This is where country of origin and different cultures has, in my opinion, the most influence. Take for instance a divorce. In many legal systems outside the United States, a party is entitled to a divorce only in limited circumstances. That is not unfamiliar to us as prior to 1970 every state required that a spouse prove fault to obtain a dissolution of his marriage. Today, under the Uniform Dissolution of Marriage Act (UDMA), which was adopted by Colorado, a court need only find that the marriage is “irretrievably broken” to dissolve the union. E.g. Colo. Rev. Stat. § 14-10-106(1)(a)(II).
Delving further into the example of a divorce, in terms of property division, the UDMA instructs the court to justly set apart property to each spouse “without regard to marital misconduct.” Colo. Rev. Stat. § 14-10-113(1). Advising any client that their spouse’s infidelity is irrelevant, while validating their feelings toward what everyone would likely agree is misconduct, is often the most difficult part of any dissolution case. It is made harder in cases where the client is from another country and attaches different cultural significance to the misconduct. While most clients whose primary experience is American culture can more easily move past the subject of marital misconduct, many clients of different cultural backgrounds spend the whole case reminding me of the fact of the other party’s misconduct or infidelity. Their perception of fairness and justice is influenced heavily by the fact that fault is central to relief in their native countries’ systems of justice and they do not fully accept that under the laws applicable in U.S. states and in American court systems, fault and misconduct are not central to the issues.
I am going to skip over courtesy and respect for now and talk about honesty. Honesty is often tough in the practice of domestic relations. It is difficult in the sense that the practitioner enters an emotional situation and often the truth is not what the client wants to hear. Using the example of obtaining a state court custody order for a juvenile who wishes to seek Special Immigrant Juvenile Status, honesty about what society thinks is fair, and therefore the statutory framework that the juvenile must navigate, more often leads to the conclusion that there is little to no chance of success.
First is the problem of personal jurisdiction. The UDMA requires personal service upon the respondent(s) or waiver and acceptance of service in an Allocation of Parental Responsibilities (APR) case, colloquially known as a custody case. Often, the juveniles involved have made the journey to the United States alone and one or both parents lives in a place where the nearest notary, internet café, or store with fax capabilities is an hour’s bus ride or more away. I personally do not have connections to process servers that could make achieving personal service for these cases an easy task. Having those conversations with clients and ensuring that the respondents understand the importance of a waiver of service, while fulfilling ethical obligations as counsel for a family member who wants to take custody from that parent, is vital. After all, it is in the child’s best interest to not have United States Citizenship and Immigration Services challenge the validity of the predicate custody order.
The second problem that often comes up in these cases is that the juvenile wanting assistance is 18 or 19 years old (and one or two were even 20). These “children” were usually enrolled in a program in which a GED certificate or high school diploma is the result of successful completion. In terms of subject matter jurisdiction, at least until a binding case was announced by this state’s intermediate court of appeals, this was a gray area. Was that juvenile emancipated? Arguably not. Therefore, did the district (trial) court have subject matter jurisdiction?
These situations called for honesty with the client and equally with the court. Model Rule of Professional Conduct Rule 1.1 requires competent representation, which means “legal knowledge, skill, thoroughness, and preparation.” Additionally, Model Rule of Professional Conduct Rule 3.1 states that “a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”
A final rule I would like to mention is the duty of candor toward the tribunal. In fulfilling his duty as an advocate, a lawyer shall not knowingly make a false statement of fact or law, fail to disclose directly adverse legal authority, or offer evidence that the lawyer knows to be false. Model Rule of Professional Conduct Rule 3.3.
In applying all these obligations, a lawyer advising a client about obtaining a custody order at age 18 or older is often “between a rock and a hard place.” Prior to the adverse authority from the Colorado Court of Appeals, arguing that someone 18 or 19 was not emancipated and the district court could enter an order allocating parental responsibilities over that juvenile was an intensely fact-specific argument over interpretation of the UDMA.
The child support guidelines provide that emancipation occurs at age 19 “unless … the child is still in high school or an equivalent program, support continues until the end of the month following graduation.” Colo. Rev. Stat. § 14-10-115(13)(a)(III). Often, given the lack of opportunity that these juveniles face in their native countries, they have only completed what we would consider middle, or junior high, school. Thus, historically, they could often enroll in a program equivalent to high school. The issue is honesty about the facts and whether the child is enrolled, planning to enroll, or simply wants to state he is enrolled.
Counsel has a professional obligation to advocate for the client if there is an argument that the juvenile is not emancipated and the trial court has subject matter jurisdiction to enter an order regarding that juvenile’s custody. Fulfilling this obligation requires honesty about the facts, and based on that, honesty about the probability for success of obtaining an “Order Allocating Parental Responsibilities” as it is termed in my state. Prior to the adverse opinion from the Colorado Court of Appeals, some trial courts sided with the petitioning family member seeking custody of the juvenile or “minor” that a juvenile age 18 or 19 was not emancipated and therefore the court was not deprived of subject matter jurisdiction to enter an order regarding custody. Other trial courts took the position that age is determinative of its subject matter jurisdiction.
There were the cases where the juvenile was not in a program working toward a GED certificate or a diploma. The recommendation of counsel was usually that the juvenile should enter a program quickly. Often, the juvenile and the client would not understand the importance of this despite counsel’s attempt to stress it. As time would pass and the juvenile inched closer to the immigration deadline for submission of the application, the family would hope that counsel could simply represent to the court that the juvenile was in school. That was another cultural difference regarding the client’s understanding of the U.S. courts’ system and an attorney’s role and duties within the system.
Many clients I have served come from places where “money talks.” Their perceptions, formed by their experiences, were that the simple transaction of paying my firm for my services meant that I would guarantee an outcome. Certainly, some thought that because they were paying my firm, I would represent whatever necessary to achieve the desired outcome. The unfortunate truth is that the legal systems in these clients’ home countries do operate that way. Thus, the amount of honesty that counsel has with clients and the courts, first out of obligation, and secondly just out of basic human decency, often shocked many clients.
I have since moved on to another firm, and in writing this article and citing the pertinent statutes, I discovered a change in law that might make at least allocation of parental responsibilities for Special Immigrant Juvenile Status cases easier for the practitioner faced with a “child” 18 or older. The statute regarding commencement of an allocation of parental responsibilities case contains the following provision of which I was unaware: “For purposes of this subsection (1.5) only, ‘child’ means an unmarried individual who has not attained twenty-one years of age.” Colo. Rev. Stat. § 14-10-123(1.5)(a). That subsection goes on to permit a court to enter an allocation of parental responsibilities order if the “child” resides with and is dependent upon a caregiver and a request has been made for findings to establish eligibility as a Special Immigrant Juvenile. Colo. Rev. Stat. § 14-10-123(1.5)(b).
Courtesy and Respect
Lastly, courtesy and respect go hand-in-hand. No matter the practice area, all lawyers should strive to exhibit the utmost courtesy and respect possible. Particularly in family law, the conversations had, and the advice given, is often negative from the client’s perspective. Every so often, clients react emotionally. That is human nature. I hope that I am courteous and respectful of clients. Even if I am, there is always room for improvement.
In terms of multicultural awareness in the practice of law, what is considered courtesy and respectful in my view may be different from a client who was raised in a different culture. Certainly, the nature of the practice of law, with one eye often always toward the clock, does not ring as courteous to many clients, even if not of a different national culture. Being aware that your client may not have the same cultural upbringing as you experienced can go a long way in building the trust and rapport that is essential to a functioning attorney-client relationship. This relationship with your client will influence their willingness to be open and honest with you and make it easier for you to be honest with your client, even if it is a tough truth. This will hopefully result in the fairest possible outcome.
Many considerations are at play when dealing with a client from another country. You may even be that client’s first exposure to the American legal system. Your client’s perceptions of law, justice, and fairness are often quite different from ours as attorneys. Being aware of this is the best possible way to afford your client competent legal representation and use your knowledge of the law for the betterment of society and the improvement of the legal system. Even I learned something new—about a change in the law—as I was writing this article for you all.
© 2020 Ricardo Vasquez, Esq. This article was originally published in the September/October 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.