Family law is often stereotyped as rife with unethical, overly zealous practitioners; Jerry Springer-type proceedings; difficult clients; and case files that read like soap opera scripts. Those of us who live in the family law trenches acknowledge we are confronted with clients experiencing what is often the most difficult period of their lives. Clients come to us vulnerable, embarrassed, and deeply concerned about the most precious parts of their lives: their children and families.

Unfortunately, domestic violence (also known as intimate partner violence) is an unwelcome feature of too many families’ lives. Competent and ethical representation of survivors and batterers is critical to moving families through our domestic relations courts in a dignified manner. This article focuses specifically on how practitioners can ethically represent alleged, convicted, or admitted batterers while at the same time promoting the safety and security of the entire family during these difficult proceedings.

DOMESTIC VIOLENCE: THE INCONVENIENT TRUTH

According to the National Coalition Against Domestic Violence (NCADV), on average, nearly 20 people per minute are physically abused by an intimate partner in the United States. One in four women and one in nine men experience severe intimate partner physical violence, intimate partner sexual violence, or intimate partner stalking. One in three women and one in four men have experienced some form of physical violence by an intimate partner. One in ten women have been raped by an intimate partner.¹

The NCADV defines domestic violence as a pattern of behaviors utilized by one partner (the batterer or abuser) to exert and maintain control over another person (the survivor or victim) where there exists an intimate and/or dependent relationship.² Michigan law defines domestic violence as the occurrence of any of the following acts by a person that is not an act of self-defense:

• causing or attempting to cause physical or mental harm to a family or household member;
• placing a family or household member in fear of physical or mental harm,
• causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress; and
• engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.³

IDENTIFYING A BATTERER

Although there is no “typical” batterer, a well-trained lawyer may observe signs that a client is or may be a batterer. Batterers may appear charming and well-spoken, be successful at work, or involved in their community and children’s school. When asked whether they abused their partner, they may minimize the abuse, deflect blame onto their partner, or admit to a one-time event triggered by another. Often, the denial or deflecting behavior is intended to earn the trust of the professional, who should avoid being manipulated.⁴

COMPETENT REPRESENTATION REQUIRES TRAINING AND SCREENING

MRPC 1.1 states, in part, that “a lawyer shall provide competent representation to a client, and that a lawyer shall not … handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.”⁵

As the intimate partner violence statistics show,⁶ the practice of family law necessarily involves providing counsel and advice to individuals who have experienced domestic violence either as the survivor or the batterer. Simply put, an attorney cannot practice family law competently without a firm understanding of domestic violence.

Perpetrators of domestic violence are unlikely to be honest about the existence of violence in their relationships. Intimate partner violence is so insidious that many times, survivors do not even recognize it as occurring in their relationship. Batterers may admit to intimate partner violence but minimize the frequency or extent, shift blame to the victim, contend the violence was “mutual,” or blame the violence on alcohol or drug use.⁷

Lawyers should avail themselves of the wealth of training opportunities available regarding domestic violence. The State Bar of Michigan Family Law Section, the American Bar Association Domestic iolence Commission, the Battered Women’s Justice Project, and State Court Administrative Office (SCAO) Friend of the Court Bureau have worthwhile trainings on their websites.⁸

Screening protocols can cut through some of the denial strategies and are useful tools for attorneys to get underneath preconceived notions of what may or may not constitute domestic violence. The SCAO Office of Dispute Resolution publishes its Domestic Violence Screening Protocol for Mediators of Domestic Relations Conflicts.⁹ Although the screening tool is intended for mediators, practitioners can use it as a template during intake interviews with potential clients to determine if domestic violence is a factor.

Screening a client for the presence of domestic violence rarely leads to an admission of battering behavior; therefore, it becomes necessary to review other sources. You can search for the client’s name in criminal court dockets for cases that might show or suggest domestic violence. When doing so, be broad in your search. A charge of interference with an electronic device may look innocent, but a deeper dive into the circumstances may reveal that the client smashed their partner’s phone in the midst of a 911 call, an indicator of domestic violence. A similar conclusion could be made if the client was charged with destruction of property or assaulting a police officer. The presence of any criminal record should warrant further investigation, including accessing police reports.

FAILURE TO SCREEN MAY BE DETRIMENTAL

Some lawyers may believe that to effectively represent a batterer, they must ignore the signs of domestic violence and that competent representation actually requires them to stick their heads in the sand and simply believe a client’s denial. However, ignoring the existence of domestic violence can lead to unintended consequences for both the client and the attorney in the form of unexpected or prolonged litigation, surprise disclosures, and potential malpractice.

For example, in Pohlman v. Pohlman, the plaintiff asked the trial court to set aside an agreement reached at mediation because the mediator failed to conduct the mandatory screening for domestic violence pursuant to MCR 3.216(H)(2).¹⁰ The trial court denied the motion and the Michigan Court of Appeals affirmed. In spite of the outcome, this case underscores the importance of lawyers and mediators not only knowing their ethical and legal obligations, but also understanding the genesis of the rules favoring or requiring screening. Domestic violence is common. Mediation, in cases involving domestic violence and/or patterns of power and control, is likely to pressure litigants into reaching a compromise they might not otherwise desire. Legal competence requires that all attorneys and mediators understand the potential ethical and legal ramifications for failing to properly screen for domestic violence.

ETHICAL OBLIGATION TO CONSIDER IMPACT ON FAMILY

MRPC 2.1 states as follows:

In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.¹¹

This rule requires an attorney to use professional judgment, specifically permitting consideration of moral factors that may be relevant to a client’s situation when rendering candid advice. When representing batterers or suspected batterers, the impact of violence on minor children must be considered when determining litigation strategy. Consider trying to discover whether children were present during any incidents of abuse or violence. If the children have been exposed to domestic violence, what impact will a particular parenting time schedule have on their long-term health and well-being? Is the client being honest about harm caused to the children? Is the client willing to own the behavior and participate in ameliorative services? Is the client willing to set aside the need to control the outcome in favor of a holistic approach to move the family forward? The attorney must provide competent representation and effective counseling while discouraging the use of litigation to continue the abuse.

COMPANION CRIMINAL CASES

Representing a litigant involved in a criminal matter with allegations relevant to the domestic relations case can pose significant challenges. A typical fact pattern may involve an incident of violence that resulted in criminal charges and the initiation of divorce proceedings.

Often, a criminal defendant feels pressured to settle the criminal matter so he or she can move forward with the family law matter. This may be the case when there is a no-contact order that prevents a defendant from spending time with the children. Conversely, plea agreements that may work well to resolve the criminal matter may negatively impact the family law matter.

The decision to move forward with a trial on criminal charges will necessarily have consequences for the family law matter. Statements a defendant makes in a criminal matter can be used in the family law matter and vice versa. Likewise, a hearing on an objection to a personal protection order may yield testimony that will be harmful to the criminal proceeding. For example, although no negative inference can be made from the decision of a defendant not to testify in the criminal matter, the same cannot be said for the domestic matter.

In order to competently represent a client facing criminal charges involving domestic violence, an attorney should understand the implication of testimony, plea agreements, objections to personal protection orders, no-contact orders in both cases, and contempt in the family law cases.¹²

DUTY TO WARN: ETHICAL AND LEGAL OBLIGATIONS

If a client makes a threat to harm their former partner (or anyone else), does an attorney have an obligation to warn that client of the danger? Historically, “a lawyer who knows of a batterer’s intent to commit further domestic violence has traditionally been free from any obligation to warn the intended victim, even when she is readily identifiable and the batterer’s intent and the severity of the injury seem clear.”¹³

Confidentiality is not absolute, however. At times, ethical or legal considerations may take precedence. MRPC 1.6 states, in part, that a lawyer may reveal a client’s intention to commit a crime and the information necessary to prevent the crime. Therefore, the Michigan rule permits revealing secrets to prevent any crime, not just those that may result in death or substantial injury. However, it is permissive and not mandatory.

The California Supreme Court case Tarasoff v. Regents of University of California examined whether a therapist had a legal obligation and therefore could be liable in tort for failing to warn a “foreseeable victim” of violence.¹⁴ The California Supreme Court found that a “special relationship” existed between a therapist and a victim and the therapist could be sued for failing to warn.¹⁵ This reasoning has not yet been extended to lawyers and potential victims, but some legal scholars believe the application to attorneys is inevitable.¹⁶

If you have concluded that your client likely is a batterer — whether through an admission, criminal conviction, or other sources — the question becomes how to balance the duty to zealously represent the client with the duty to render candid advice (while doing no harm). Consider the following:

Holding the Batterer Accountable

“Accountability is a process to create pathways to responsibility, healing, hope, transformation, and, in some cases, restoration, in people who cause harm. It requires systems and communities to remedy barriers to change, and support people who cause harm to repair the harms caused by (intimate partner violence.)”¹⁷ Professionals, including attorneys, the courts, and assisting agencies, must offer ways to promote accountability.

Valuing the Survivor’s Voice

Even when representing a batterer, the attorney should attempt to understand how the survivor defines safety. This may involve considering limited parenting time for your client with a requirement for treatment or other services.

Engaging in Services

Batterers willing to try to change their behavior will require treatment and support similar to individuals with substance abuse or mental health challenges. Batterer intervention programs provide an opportunity for batterers to change their behavior and promote safety for all family members.¹⁸ While programs vary in length, the Batterer Interventions Standards for the State of Michigan recommend 52 sessions or longer, noting that longer programs allow for exposure to more material and an opportunity for greater interaction between batterers and treatment therapists.¹⁹ Some programs also offer additional classes on topics such as non-abusive parenting.

CONCLUSION

Competence in family law requires a firm understanding of the dynamics of intimate partner violence. Attorneys representing batterers have a key role to play in promoting the safety and stability of the family moving forward. Attorneys for batterers have both legal and ethical obligations that will affect the representation of their client and affect the well-being of the client and the entire family. Therefore, it is important for family law attorneys to familiarize themselves with the signs of abuse, the potential for deflection and blame from their client, and the important role they may serve in helping their client receive treatment that will minimize the risk of the behavior repeating or continuing in the future.