(from the Florida Bar News APRIL 1, 2019 letters)
How often have you found out that a family member got a speeding ticket before they revealed it to you? Your intuition was likely borne out of the fact that attorney solicitations filled your mailbox.
Now, imagine that you have been retained to represent a victim of domestic violence who has finally gathered the courage to leave a toxic, abusive marriage. Your client discloses years of physical abuse and threats. You assure your client that the minute the divorce case is accepted by the clerk, you will give your client a heads-up to activate her/his/their safety plan to leave the home before the abuser is served. Two days later, before you even have the summons back, just hours before your client is set to leave the house, you get a frantic call that an attorney has alerted the abusive spouse by mail that the divorce was filed. Your client suffered yet another beating; this time thankfully escaping with her life.
Now, like de minimis traffic ticket cases, when a family law case is filed, the parties are mailed lawyer solicitations advising them that a family law case has been filed against them. Our family practice at Coast to Coast Legal Aid of South Florida focuses on the representation of victims of intimate partner violence and has for the past 30 years. It is important for attorneys who do not regularly represent victims of intimate partner violence to not only be educated about the dynamics of domestic violence and know where to refer clients for a lethality assessment and safety plan, but also to understand that separation has been identified as an important risk factor for lethal violence and injury to a victim. Domestic violence is about power and control. When abusers feel their control slipping away, they act violently in an attempt to hold on to what they want to control, their spouse.
It is understood that family law is a rich source of revenue for attorneys. However, the advertisements being sent in these family law cases serve to alert the abuser, bypassing our client’s ability to initiate their safety plan. The results could be dire. When the perpetrator of domestic violence becomes aware that the victim intends to permanently separate, it is a period of high lethality not only for the victim but also the parties’ children.
The preliminary statement in the Family Law Section’s Bounds of Advocacy — “Goals for Family Lawyers” — states that the practice of family law is different from other areas of the law: “The intent is to suggest a higher level of practice than the minimum baseline of conduct required by the Rules Regulating The Florida Bar.” Indeed. Helping families through one of the most difficult time of their lives should “not subvert our fairness, honesty, civility, respect, and courtesy throughout the process… [W]e must model appropriate behavior.” As family law attorneys, we should care about keeping family law litigants safe. Mail solicitation is simply not appropriate in family law cases, especially when it puts victims of intimate partner violence at risk.
So the question now is, do we need the Bar to step in to regulate this area of solicitations? Should the Bar consider imposing an ethical obligation in family law cases to require attorneys to do their due diligence and confirm that a Temporary Injunction for Protection action is neither pending, nor a Final Judgment of Injunction issued, prior to solicitations being sent? Should attorneys be required to look up whether a spouse has been charged criminally with a domestic violence offense before alerting him/her/them about a family action filed against them? Legal resources such as restraining orders can effectively reduce victims’ exposure to violence by an intimate partner. While we know that most victims of intimate partner violence choose not to pursue an injunction, at least taking the step to look up whether there is an injunction or a criminal case would serve to protect those most vulnerable in our community.
Could we self-regulate this and do our due diligence? Will it take a lawsuit against an attorney who sent an advertisement to an abuser with a final judgment of injunction and pending criminal charges for domestic violence for these to stop? Will it take being threatened or harmed by an abuser yourself? We hope as ethical professionals, you’re better than that. Let’s be proactive on this issue rather than reactive.
([Florida Bar News] Editor’s Note: Rule Regulating The Florida Bar 4-7.18(b)(1)(G) prohibits lawyers from sending direct mail to a respondent in an injunction for protection against any form of physical violence if the lawyer knows or reasonably should know that the respondent has not yet been served.)