The Texas Lawyer’s Creed — voluntary standards for attorney professionalism and civility (Part 3 of 4)

Texas Lawyer’s Creed

The Texas Lawyer’s Creed was adopted by the Supreme Court of Texas and the Court of Criminal Appeals of Texas in 1989, then reaffirmed in 2013. Amendments were passed in 2016 to update the creed. Civility is at the heart of the creed – suggesting that the conduct of a lawyer should “be characterized at all time by honesty, candor, and fairness.” It reminds lawyers that we owe, not only a duty to our clients, but also to the legal system as a whole. Designed by Justice Eugene Cook, with the assistance of James “Blackie” Holmes III and Fred Hagans, the Texas Lawyers Creed came about due to an increase in “Rambo” obstructionist tactics, numerous motions for sanctions, and generally petty behavior that concerned high level members of the Texas Bar.

In 2015, Governor Greg Abbott signed into law a civility oath to be added to the oath that every lawyer takes when being admitted to the Texas bar. The oath adds that the individual will conduct oneself with integrity and civility in dealing with the court and all parties.

Justice Anthony Kennedy described civility as, “not some bumper-sticker slogan… but the mark of an accomplished and superb professional… with deep roots in respect for the individual.” (Kennedy, Anthony, 1997 Speech, ABA Annual Meeting.)

The Creed contains four focuses of civility:

  • Our legal system – A lawyer owes to the administration of justice personal dignity, integrity, and independence.
  • Lawyer to client – A lawyer owes to a client allegiance, learning, skill, and industry.
  • Lawyer to lawyer – A lawyer owes to opposing counsel courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings.
  • Lawyer to judge – Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack.

The Creed is completely voluntary, with no means of enforcement. Involuntary enforcement operates contrary to the purpose of the creed. We as lawyers should desire to achieve the goals of the creed, without such actions being a requirement.

To read the entire Texas Lawyer’s Creed, click here.

Civility and Family law — are the two concepts compatible? (Part 2 of 4)

Family law, like no other practice area of law, is fraught with emotion, tension, and discourse. After all, if the parties could get along and reach civil resolution, they would probably not need family law attorneys, right? But does the parties’ incivility have to pass along to the lawyer’s behavior toward one another?  In fact, family law attorneys must work harder than lawyers in other practice areas to remain civil to each other because our duty as lawyers is to be a neutral voice of reason that sees beyond and above the emotion of the case.

Here are 10 suggestions a family law attorney can use to help the client remain civil in an emotional situation:

  • Set reasonable expectations for the client – give clients an accurate assessment of the worst possible outcome and the best possible outcome for all of the issues in the case and help them to understand where their expectations may lie outside of those ranges.
  • Explain the alternative to litigation – discuss with clients up front the downside to litigation, including the unretractable consequences of a contested trial, and suggest ways to resolve the case without going to those extremes. Discuss settlement possibilities, mediation, and other methods of resolution.
  • Do not involve family members. Often ancillary parties can stir emotions and tension in a case without fully understanding all of the issues at play. Keeping third parties out of the discussion as much as possible encourages the people who are directly involved in the problem to deal with each other.
  • Discourage revenge tactics – this is where the lawyer has to be the voice of reason. Often emotions give a desire for revenge. But revenge tactics will not be effective in the long run of the case and may increase the tension and certainly the cost.
  • Take the high road – Maintain perspective on the ultimate goal of resolution of the case and don’t engage in tactics that do not further the goal of resolution.
  • Do not engage in name-calling or making extreme statements – remember that these people have to interact and deal with each other long after the case is over so engaging in extreme behavior is seldom warranted or conducive to the goal of resolution.
  • Avoid burdensome discovery requests – By utilizing unnecessary discovery requests, an attorney raises the cost of litigation and looses focus on resolution of the case.
  • Do not take the client’s case personally – I frequently tell younger lawyers to remember the euphemism “not my case, not my monkeys”. We didn’t marry the opposing party or have babies with him/her. The lawyer goes home at night to his/her own family and problems. Don’t take the clients with you.

Hat tip to Lisa DuFour and Carol Bailey and their article Civility and Family Law – Not an Oxymoron in the August 2017 edition of Family Lawyer Magazine.

Part 2 of 4 in the series Civility in Law.

Is civility on the decline? (Part 1 of 4)

This week marks the declared Texas Day of Civility in the Law, according to a joint proclamation by the Texas Supreme Court and Texas Court of Criminal Appeals, the two highest courts in Texas. This begs the question, do we need a day of civility? As if we’ve checked that one off for one day, the rest of the year is for incivility.  A recent study by the University of Chicago found that 74% of Americans believe that manners and behavior have deteriorated in the U.S. over the past several decades. Many believe that politicians should be held to a higher standard of civility than the general public.

The study finds that people generally agree as to what is unacceptable:

  • Use of cell phones in restaurants;
  • Swearing in public or online;
  • Remarks or jokes based on race, gender, or sexuality.

Some differences emerged in the study based on age. With technology, half of younger people believe it is acceptable and not rude to use a cell phone in a restaurant, while only 22% of older Americans agree. This same division is seen with issues of profanity or discussing sex in public.

Most Americans believe political campaigns are more rude than the average American. However, of the people surveyed, they reported that Republicans are more rude that Democrats.

So, we basically agree that there has been a decline in civility in our society and among our politicians. But, where does that come from? My take… the decline in civility in society reflects what we seen on television. (Or, some would say, television reflects society. Chicken? Egg?)

With the modern 24/7 news cycle and reporters on the constant watch for anything unusual to make a story out of, examples of incivility are often highlighted and maybe overstated. Let someone have a cross word in Washington and it becomes a major event, replayed on-the-hour, with pundits weighing in on all sides of the political/racial/gender spectrum to opine about who was right and who was wrong.

Also, reality television shows have heightened our focus on incivility. Think back to the first example that I can remember of incivility on television – The Jerry Springer Show. For the first time on modern, daytime tv, a show gained ratings because people acted badly. Fast forward that to today, with reality tv, a show has to have drama – incivility – to get ratings and attention. Then, when the dust settles they have a reunion show to replay all of the drama and incivility and rehash it all over again. Bloggers blog about the drama and entertainment shows gossip about it. Modern culture feeds off of incivility.

I mean, face it, civility is boring. Or, at least, it’s boring where tv ratings are concerned.

So, as society, if we all agree that we have become increasingly uncivil, and we none prefer for us to act that way, then what do we, as a society, do about it? What are your ideas – tell us in the comments.

 

Part 1 of 4 Civility in Law series.

A place to look for hidden money

I read an article in the Fall 2017 Family Lawyer Magazine (yes, I’m behind on my reading pile) that talks about away to hide income – at the IRS. Husband owed wife spousal support, which was calculated on his actual net income. After receiving a raise, Husband increased his federal withholding taxes above the amount that should have been withheld. This had the effect of reducing his new pay to his pre-raise level and hiding his annual pay increase. He used this decreased net income evidence to influence the court to order less in spousal support.

This same Husband also sent a lump-sum estimated tax payment to the IRS while the divorce was pending, which resulted in an over-payment. Husband elected in his tax return to use the refund to carryforward to next year’s taxes. Combined with the over-withholding from his income and the secreting lump-sums at the IRS over the course of a couple of years, a pretty sizeable asset accumulated.

There are two reasons why this type of scheme would be difficult in Texas. First, all support payments in Texas are based off of gross income. While child support percentages apply against net income, there is a mandatory calculation for taxes to be considered based on a single person claiming one exemption so no “funny business” can be done to manipulate the taxes withheld.

Second, in a divorce, previous years’ tax returns are discoverable, and most lawyers are astute enough to look at any tax carryforwards.

Even so, somone who wants to try this type of scheme should also be warned that the IRS would deem such a scheme to be a frivolous filing and could asses a penalty. (See IRC 6702(a)(22). The penalty for filing a frivolous tax return si $5,000.

If you or your lawyer aren’t familiar with how to read tax returns and find these types of schemes, consult with a forensic accountant for help.

 

Hat tip to Harriet Fox, CPA and her article Hiding Income and Assets at the IRS.

Agreement to an order — when does it matter for appeal?

Almost every day in my practice area, lawyers are faced with the dilemmas:

  • When should you agree to an order, especially after a contested hearing?
  • What is the difference between “agreed as to form” versus “agreed as to form and substance”?
  • Is there ever a time to not sign off on an order even as to form?
  • Is there ever a time that a lawyer should agree to the substance of an order instead of the client?

I recently read an interesting blog post by the TexAppBlog.com guys on this topic Agreed as to Form and Substance: An Appellate Kiss of Death?

Consider that you have a contested hearing over an issue. You disagree with the judge’s ruling. You may even think this issue could be something appealable. The judge requests that the attorneys agree on the order. Opposing counsel presents an order that has the language “agreed as to form and substance” at the end by your signature blank. What do you do?

There is a split in the courts of appeals as to the effect of the language “agreed as to form and substance”. One view, according to Dallas, Texarkana, El Paso, and San Antonio, is that signing off on such language equates to a consent judgment that cannot be appealed. These courts distinguish between the phrases “agreed as to form” versus “agreed as to form and substance”. Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537, 544 (Tex. App.—Texarkana 2006, pet. denied); Office of Attorney General of Texas v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ); Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

On the other hand the two Houston courts, Corpus Christi, Austin and Fort Worth find that the language “agreed as to form and substance” is not enough to rise to a consent judgment. Standing alone, without other indications, the language is not enough to suggest that the matter was settled by agreement. Andrew Shebay & Co., PLLC v. Bishop, 429 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Chang v. Nguyen, 81 S.W.3d 314, 316, 319 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 WL 349510, at *2 & n.5 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.); Cash v. Cash, No. 03-04-00563-CV, 2005 WL 1787552, at *3 & n.7 (Tex. App.—Austin July 27, 2005, no pet.); Leeper v. Woodrick, No. 2-04-371-CV, 2005 WL 1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.).

Seems to me that there is an important distinction between the langauge “agreed as to form” versus “agreed as to form and substance”. The word form denotes the form of the order — does it meet the requirements of formatting, language, and content per the Judge’s ruling? The word substance indicates that the heart of the matter, the substance, what the hearing was about, is agreed. Using Jimmy Buffett as an example… If he were the judge, he would rule that a cheeseburger should come with lettuce, tomato, Heinz 57, french fried potatoes, kosher pickle and a beer. I disagree and prefer my cheeseburger with mayo, lettuce,

The best practice is to never agree to “form and substance” unless you actually agree to the content and subject matter underlying the order. At most, only agree to form. However, many times when the order results from a contested hearing, the result of which I disagree, I will not even agree to form to avoid any ambiguity in my position. As to substance, it is the client’s agreement to substance that matters, so many times even if agreeing to the matters underlying the order — the substance — the client should be the one signing off on that, not the lawyer.

 

Five Divorce Truths — featured on DMagazine

Shareholder Michelle O’Neil was featured on DMagazine with her article Five Divorce Truths. Check it out!

Here’s a synopsis of her five points:

  1. The divorce will take twice as long as you think it will.
  2. It is going to cost twice as much as you think it will.
  3. There will be bad feelings between you and your ex.
  4. The ex’s family will probably hate you too.
  5. You will feel awful during your divorce.

What do you think? What are the things you wish you  knew during your divorce? Comments welcome!

International Women’s Day: Right to Divorce

Happy International Women’s Day!

Of the many big and small inequalities, we cannot overlook the right of a woman to end a difficult marriage. While divorce may be common place and social acceptable for women today, it has not been that way in history.

Throughout modern time, divorce could only be granted if one spouse proved “fault” – usually either adultery or cruel treatment – in a court of law. Some states in the US went further and required that a divorce be approved by the state legislature!In order to have such a contested type of suit, in a male-dominated arena with male lawyers and male judges, a woman would first have to have the guts to tell her business in public, then she would have to find the financial mean to hire a (male) lawyer to handle her case. In the good-old-boy system that existed back then, she couldn’t be sure that the male lawyer she hired wasn’t one of her husband’s social buddies. In short, only women who had wealth could effectively get divorced. A woman who was from a lower socio-economic situation would be stuck in a bad marriage with a violent man without much recourse.

In the 1970’s, with the advancement of women’s equality, along came no-fault divorce. This means that a woman could just say she wanted a divorce, without having to “prove” anyone did something wrong, to get released from a bad marriage. She wouldn’t have to “air her laundry” in public. She wouldn’t have to prove that her husband had sex with the secretary. She wouldn’t have to document her bruises from the last beating he gave her.

California – and future President Ronald Regan – passed the first no-fault divorce statute in the United States in 1970. Most other states, including Texas followed suit shortly thereafter.  New York became the last state to pass no-fault divorce in 2010! (See Wikipedia on no-fault divorce.)

President Regan later regretted his favor for no-fault divorce because he felt that it weakened the institution of marriage, making it too easy to divorce. Statistics support his regreat:

  • From 1960 to 1980, the divorce rate more than doubled — from 9.2 divorces per 1,000 married women to 22.6 divorces per 1,000 married women.
  • While less than 20% of couples who married in 1950 ended up divorced, about 50% of couples who married in 1970 did.
  • And approximately half of the children born to married parents in the 1970s saw their parents part, compared to only about 11% of those born in the 1950s.

(See W. Bradford Wilcox The Evolution of Divorce, Fall 2009, National Affairs.)

Many women who are now able to get out of bad marriages that they couldn’t have before would disagree with his regrets!

Betsey Stevenson, an economist at the University of Pennsylvania who has studied divorce extensively, believes that the introduction of no-fault divorce benefits women. “It leads to a 30 percent decrease in domestic violence. Not only is it easier for the abused to escape their marriages, but potential abusers are also less likely to act because they’re aware that their spouses can leave them. No-fault divorce also makes women less likely to commit suicide.” (See Jamie Kapalko, No-fault divorce: Good for women?)

So, in honor of International Women’s Day, be grateful that you live in a country where you have the RIGHT divorce your husband for a good reason or no reason at all – just because you want to. Like many things… it is OUR choice for what’s best for us, not the government or a man or the church or whoever else wants to meddle. You get to decide whether to stay in your marriage or leave it.

 

See History of Divorce Law in the USA, History Cooperative.

 

When can private school tuition be ordered?

The Texas Family Code awards child support based on the monthly net resources of the obligor.  Tex. Fam. Code §§154.125-.126.  The calculation of net resources includes 100 percent of all wages and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses).  Tex. Fam. Code §154.062(b)(1).

The Texas Family code presumes that child support according to the guidelines is in the best interest of the child, the court can deviate from the guidelines or order additional child support as deemed in the child’s best interest. The Family Code provides a bifurcated analysis in setting child support, depending on whether an obligor has net monthly resources above or below $8,550. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993); Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Tex. Fam. Code §§154.123, 154.125,154.126.

In applying the bifurcated analysis, the Texas Family code provides that when obligor’s net resources fall below $8,550 per month, the court may  deviate from the presumptive guidelines when setting child support in the following manner:

(a) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.

(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:

(1) the age and needs of the child;

(2) the ability of the parents to contribute to the support of the child;

(3) any financial resources available for the support of the child;

(4) the amount of time of possession of and access to a child;

(5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6) child care expenses incurred by either party in order to maintain gainful employment;

(7) whether either party has the managing conservatorship or actual physical custody of another child;

(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9) the expenses for a son or daughter for education beyond secondary school;

(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12) provision for health care insurance and payment of uninsured medical expenses;

(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14) the cost of travel in order to exercise possession of and access to a child;

(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16) debts or debt service assumed by either party; and

(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Tex. Fam. Code §154.123.

When the court finds that a child support obligor’s statutory net resources exceeded $8,550 per month, section 154.126 of the Texas Family Code applies. This statute provides:

(a) If the obligor’s net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

(b) The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor’s net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Tex. Fam. Code §154.126(a) & (b)

To establish private school as a proven need, the evidence must show something special that makes the particular child need or especially benefit from some aspect of non-public schooling. In re M.A.M., 346 S.W.3d at 17. In M.A.M, concluded specifically that there was no evidence that private school was a proven need where the parties testified that they were looking into available public schools. Id at 18.

The Texas Supreme Court has declined to define the term “needs.” But it does not include lifestyle or ability to pay. The proven needs of the child includes more than the bare necessities of life. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993).

The leading case addressing needs of the child when the child might suffer from learning disabilities is In the Interest of Pecht, 874 S.W.2d 797, 801–02 (Tex.App.-Texarkana 1994, no writ). In that case, the children had a very long list of diagnoses and treatment recommendations:

  • Both children required psychotherapy;
  • Both children diagnosed with ADHD;
  • One child had numerous issues:
    • a severe language learning disability;
    • suffered from an inability to control his nervous system;
    • was aggressive with others;
    • and unable to manage his emotional state.
  • Both children needed family therapy sessions on a continuing basis.
  • Both children needed group therapy on a continuing basis.

The court found that ordering child support above guidelines was appropriate under those facts.

Who gets the sick kids after Thursday overnights?

You’re the possessory conservator of your children and it’s Friday morning. You’ve just had your kids overnight for your Thursday period of possession, and the kids are sick.  No school for them that day. You’re willing and able to stay home with the kids to care for them, and it’s your weekend possession beginning later that day after school anyway.  Can you stay home with your kids?

It depends. First and foremost, you need to read your order carefully. It likely contains a notice provision that states that if the children are not returned to school the next day, that you must notify the other conservator immediately.  Also, if your period of possession ends at the time school begins, then from the time school begins until the time it ends that day is not your period of possession. The children must be returned to the other conservator.  Look for language in your order that states all periods of possession not specified as yours are the other parent’s periods of possession by default, or something to that effect.

It may be that a text or email to the other parent to obtain their agreement (get it in writing!) for you to keep your kids that day will solve things. However, if the other parent does not agree, you will need to return the kids to him or her at the time school would resume for the day and then pick them up later at the time school ends at his or her residence.  Failing to notify the other parent, and failing to return the children to the other parent, may subject you to an enforcement action.  It’s not worth it.

There is some disagreement among practitioners on this issue. Some feel that the possession automatically reverting back to the primary conservator is nonsensical.  There is perhaps an argument to be made here that the change is not in the child’s best interest, especially if the child is sick. However, it is still safer to stick to the provisions as they are contained in your order rather than risk an enforcement. Also, if you are the primary parent and your child has not been returned to you in this type of situation, you may want to have a conversation with the other conservator prior to filing an enforcement. Judges would much rather parents work these things out than waste the court’s time.

Divorce the house or the spouse

Is it easier to get rid of the spouse or the house? 

In many Texas divorces, the house is one of if not the major asset to divide in the property division part of the divorce. And it causes some of the most friction between the divorcing spouses. Maybe the spouse wants to try to keep the house; or, maybe the spouse wants to sell the house and take a share of the sales proceeds to buy a new house. It is important to make decisions about the house that are not based on pure emotion. The financial realities are important as well.

Here are some questions important to making decisions about what to do with the house in divorce:

  • What is the fair market value of the house?
  • How much equity is there in the house (value less debt)?
  • How much is the monthly payment on the house?
  • Are taxes and insurance escrowed or will those need to be paid annually from other funds?
  • Is the spouse that wants to keep the house employed making sufficient income to meet the financial commitment of the house?
  • What other assets are available in the division to accommodate awarding the house to one spouse?
  • Are there cash assets available to cover other emergency expenses?
  • How will maintenance be handled?
  • Is there a reason to refinance the mortgage?

Sometimes it is helpful to have the spouse who wants to keep the house meet with a financial planner to evaluate cash flow and asset management. This person can help the spouse decide if keeping the house meets with that spouse’s long term financial goals.

In Texas, generally a judge cannot order a spouse to refinance the house. Where the mortgage debt is incurred by both parties, both parties will continue to be named on that debt afterwards. The spouse agreeing to pay for the house will usually execute a deed of trust to secure the assumption of the mortgage. This document gets filed in the deed records and provides the exiting spouse a remedy if the other spouse fails to make the payments.

Another problem to consider in deciding what happens to the house is that post-divorce, many people — especially women — have a lower credit score after divorce than during the marriage. Combine this with the reality that a single person has one income versus the possible double income of two working spouses, so after divorce, it may  not be as easy to get approved for the mortgage to buy a new house.

There are many factors that need to be considered surrounding the house in a divorce. The advice of a good divorce lawyer and even a financial planner can be very helpful in making these decisions.

Hat tip: It’s Harder to Divorce the House than the Spouse by Ashley Tate Cooper

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