What About the Children? Are Family Lawyers the Same (Ethically) As Criminal Lawyers? A Morality Play

Authors

Robert H. AronsonFollow

Publication Date

10-1-1996

Introduction

ACT ONE

SCENE: Small law office of Michelle Jones, a sole practitioner. Ms. Jones is 38 years old, but has only been in practice for three years. She raised a family and held a number of jobs before deciding to attend law school. She is five feet, eight inches tall, with light brown, shoulder length hair. She is attractive but not beautiful - in fact, she looks a lot like Anne Kelsey.

Her office "suite" contains three rooms - a reception area, where her one employee, Audrey Burke, serves as receptionist, secretary, paralegal, confidante and friend. Audrey is a five foot, six inch, 45- year-old African-American. She bears a perpetual expression that is part skeptical and part inquisitive, as if she is not willing to accept any person or statement without substantial explanation. In fact, one might wonder whether it is she who is the lawyer.

In addition to Michelle's office and the reception area, there is a very small law library - just large enough to contain those volumes essential to Michelle's practice: sets of the state statutes and regional law reporters; a few hornbooks and treatises on family law; notebooks and articles picked up at continuing education programs; and several shelves of assorted course texts from her law school classes. [Even though she had no use for them, nobody else wanted the books, and she couldn't bear to throw them away after spending so much to purchase them. Besides, they did look impressive, and added variety to her collection.]

In law school, Michelle could not bring herself to join the hordes of students seeking jobs in large commercial law firms. She had signed up for a few interviews, but started having dreams of herself and her colleagues rushing Lemming-like over a precipice. Even working for Legal Aid or the Public Defender - jobs that more suited her personal and political beliefs - did not seem attractive to her. She had always worked best on her own, without someone else telling her what to do and how to do it. She knew that the first few years of a solo practice would be difficult, both personally and financially; but, in the end, that appeared to be the only way she could practice law the way she wanted.

Michelle lost money the first year, broke even the second, and now, in her third year, she had finally established a practice that seemed likely to assure her a decent, albeit not lavish, life style. She had originally handled virtually any legal matter she could obtain: trusts and estates, consumer complaints, and uncomplicated contract, personal injury and family law issues. She had a particular aptitude for family law cases, however, and for about a year now, her practice had become increasingly devoted to divorces, adoptions, guardianships, and other family law matters. Having raised three children, and with a natural ability to listen to and empathize with clients, both men and women, of all ages, ethnicities and backgrounds, her practice had begun to thrive.

Just when everything seemed to be coming together the way she had envisioned when she started her practice, however, she became embroiled in the "Joanne Doe Matter. " Joanne had found Michelle's name in the Yellow Pages, attracted by the "motto" contained in Michelle's advertisement: "I'm good, and I listen." [After some consideration as to whether "I'm good" was a qualitative claim that could not be objectively substantiated, the local bar attorney had decided to let it go.] Joanne was seeking a divorce from John, her husband of seven years. The case seemed pretty straightforward - what few assets they had were all marital property, and John and Joanne appeared to be in agreement that they should have joint custody of their five-year-old daughter, Jill.

But a few days ago John had filed a motion to obtain sole custody of Jill on the ground that Joanne was living with a young man who was a "bad influence" on Jill. After questioning Joanne and conducting a brief investigation, Michelle believed that Joanne's "live-in", Sam, although a bit hot-tempered, was not such a bad influence as to overcome the very strong legal presumption in the state that the mother should have at least equal custody. But something about Joanne's reticence to discuss Sam or his relationship with Jill troubled Michelle. She had urged Joanne to tell her "everything ", even if it was difficult to discuss, assuring Joanne that nothing she said would ever be revealed unless authorized by Joanne.

Early this morning, Joanne had called and seemed very distraught. She insisted that she speak with Michelle right away. ACT ONE opens with Audrey showing Joanne into Michelle's office.

MICHELLE: Joanne, come in. What seems to be the problem?

JOANNE: I'm worried about that motion John filed to keep Jill from living with me.

MICHELLE: I told you that you didn't need to worry about that.

JOANNE: But I have been living with Sam, and he does have a temper.

MICHELLE: Under State law, the fact that you are living with somebody following a legal separation does not warrant taking away custody of your daughter. But I'm concerned about Sam's "temper." Is it in anyway harmful to Jill?

JOANNE: Well, Sam likes things neat. If the house isn't cleaned up, he can get pretty angry. It doesn't happen very often, but sometimes, particularly after he has had a couple of beers, he has thrown things around.

MICHELLE: Has he ever hit you or Jill?

JOANNE: Does that matter?

MICHELLE: Of course it matters! He has no right to hit you and you shouldn't put up with it. And Jill's only five.

JOANNE: I mean, can John take Jill away if Sam has hit me or Jill?

MICHELLE: It's possible, particularly if Sam is abusing Jill.

JOANNE: I didn't say he was abusing Jill; it's just that he gets upset sometimes. It's my fault for not keeping things neater and not making sure that Jill puts away her toys and stuff.

MICHELLE: Joanne, she's only five; and if Sam likes things neat, why doesn't he clean up? In any event, I need to know more about these violent episodes. How many times has he hit Jill, and how severe were the beatings?

JOANNE: I don't want to talk about this anymore. I shouldn't have come. I can deal with Sam, so forget I said anything about this. If John can't take Jill away just because I'm living with Sam, then let's leave it at that. John doesn't know anything about Sam's temper, and I know Jill won't say anything.

MICHELLE: Joanne, this is too important to ignore. I am worried about Jill's safety - and yours. I can't represent you properly if you don't tell me everything. You can trust me.

JOANNE: Okay .... [starting to cry] Sam's usually alright to live with. But, when he gets in one of his "moods," it can get pretty unpleasant. He has hit me on a number of occasions, and has hit Jill three times. Each of those times, I was able to stop him before Jill was seriously hurt, but I worry what might have happened if I hadn't been there. I've begged Sam to see someone - a doctor or therapist. But he won't go. He has promised never to do it again.

MICHELLE: We need to do something about this. Sam needs to get counseling or move out. Or else I'm going to have to report Sam's abuse.

JOANNE: [Very agitated] But you said you would never tell anyone what I told you! I trusted you. They'll take Jill away from me.

MICHELLE: Not if Sam moves out, or maybe if he gets counseling. But if it is reasonably likely that he will kill or inflict substantial bodily injury on Jill, I have an ethical duty to reveal that information to the appropriate tribunal.'

JOANNE: What? Sam's not going to kill Jill. And he said he wouldn't even hit her again. You can't tell anyone. I know I never should have told you. I'm leaving....

MICHELLE: Joanne, wait. Let me review the law, find out what options we have, and see if we can't find a way out of this without risking harm to your or Jill - and without causing them to take away Jill. Give me a couple of days, okay?

JOANNE: Alright... but don't tell anyone about Sam.

MICHELLE: And, until I get back to you, don't leave Jill alone with Sam.

[Joanne leaves office. Michelle drops her head into her hands. Lights fade to black.]

Recommended Citation

Aronson, Robert H. (1996) "What About the Children? Are Family Lawyers the Same (Ethically) As Criminal Lawyers? A Morality Play," Journal of the Institute for the Study of Legal Ethics: Vol. 1, Article 10.
Available at: https://scholarlycommons.law.hofstra.edu/jisle/vol1/iss1/10