September 30, 2010 § 1 Comment
In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.
Some out-of-district lawyers question why we deem this necessary.
Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day. Spirits are high and festive. A new member of the family is about to be welcomed in. Or maybe not.
The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute. Or your pleading is inadequate under the new jurisdiction statute.
So your clients’ happy day turns to ashes and you are embarassed.
With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy. When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible. When the judge gives you the green light, you can set it for final presentation to the court.
If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.
September 29, 2010 § Leave a comment
An item on the national news yesterday piqued my interest.
The Pew Forum on Religion and Public Life has sponsored a quiz testing people’s awareness of and knowledge about other religions. You can take the quiz yourself here. It’s only 15 questions and has no political content. The questions are exclusively about the beliefs and practices of various religions. After you take the quiz, you can compare your results with others by religion, education, socio-economic group, etc.
What fascinates me about the results is how uninformed so many people are. The median score is only around 50%. In other words, most Americans are unaware of the majority religion in India, or what exactly is it that Catholics believe about the Eucharist that might be different from their own religion, or even whose writing sparked the Protestant Reformation.
Religion plays such an important role in American culture, and is even a crucial factor for many in making poiltical decisions and voting. You would think that people would make it their business to be better informed about other religions so they could make better decisions.
Understanding world religions is also critical to understanding the rest of the world. We make a serious error in thinking that people in Pakistan or Egypt or France or Argentina think and believe like we do when we have no idea what their belief systems are. No wonder there is so much misunderstanding and suspicion among the nations.
As a lawyer, you need to comprehend the forces that shape your clients’ lives and influence their thinking, and religion is one of the most powerful of those forces. The more you know about what is behind what your client is thinking and being guided by, the better you will be able to communicate and advise. And that’s what you’re there for, after all.
September 28, 2010 § Leave a comment
From the Mississippi Bar’s BAR BRIEFS …
October 1 Is Deadline to Submit Comments on Proposed Mandatory Pro Bono Rule
The Mississippi Supreme Court Rules Committee on the Legal Profession seeks comments on two proposed rule changes. The first proposed change would amend Rule 6.1 of the Mississippi Rules of Professional Conduct. As proposed the change would make pro bono service mandatory, and would increase the fee to be submitted in lieu of performance from $200 to $500. The second proposed rule change is to Rule 46 of the Mississippi Rules of Appellate Procedure. The proposed change would increase pro hac vice admissions fees from $200 to $500. These proposed rule changes may be found on the Supreme Court website at http://www.mssc.state.ms.us/rules/rulesforcomment/rulesforcomment.html . The deadline for filing comments is October 1, 2010. Comments are encouraged and should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P. O. Box 249, Jackson, MS 39205-0249.
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I have read reports that only around 100 lawyers, out of 5,000 or so members of the Mississippi Bar have submitted comments. That’s pretty pathetic … and apathetic. This is a proposal that will impact your practice. At the risk of being boringly repetitious, I beg you to submit your comments. Just click on the link and fire away. You don’t even need to spend a postage stamp.
September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
September 27, 2010 § Leave a comment
Unanimously, yet. This from the Bar’s BAR BRIEFS …
Board of Commissioners Unanimously Oppose Proposed Rule 6.1 Changes
By a unanimous vote, the Bars Board of Commissioners voted to oppose the proposed amendments to Rule 6.1. The Board of Bar Commissioners expressed its collective opinion that the proposed changes would be counterproductive to the goal of increasing delivery of legal services to the poor. The Bars opposition to the proposed changes in Rule 6.1 is being filed with the Clerk of the Mississippi Supreme court.
September 27, 2010 § 3 Comments
The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence. You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.
Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration.
Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude. In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect. The law is a profession and not a business. Lawyers have a duty to the administration of justice.
The Preamble to the Rules of Professional Conduct states: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” [Emphasis added] It goes on to say: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.” [Emphasis added]
Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner. That practice persisted until counties began hiring public defenders to do the job. Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it). Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility.
I also do not understand the significance of the point that no other state has MPB. How does that matter?
As for the other arguments, I think they are sound and need to be considered. I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar.
It does seem to me that two things are necessary before a final decision is made on MPB: First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard. The silence on the subject is baffling to me.
September 27, 2010 § 20 Comments
- _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
- _____ Oath of Executor/Administrator filed.
- _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
- _____ Letters Testamentary or of Administration issued.
- _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
- _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
- _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
- _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
- _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
- _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
- _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
- _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.
September 26, 2010 § 1 Comment
The renovated “old courtroom” upstairs in the Clarke County Courthouse was dedicated today in a program attended by Clarke Countians and elected officials.
This is what the official program said about the renovation:
“Clarke County’s present Court House was constructed in the heart of the county seat in 1912. Nearly 60 years later, in 1969, the courtroom was remodeled, closing in the full-length windows on the east and west walls, and covering the balcony by the addition of a suspended Celotex ceiling. This provided a location for the large boiler system to heat and cool the building, since the third floor offices were no longer in use, except for use as storage space.
“By the year 2000, county officials discovered the availability of federal and state grants to be used for improvements to government buildings. Through grants provided by the Mississippi Department of Archives and History and the Historic Preservation Division of the “Save America’s Treasures” Act, work was begun to restore our historic 1912-era courtroom to its original grandeur.
“In 2008, Supervisor Tony Fleming organized the demolition process, using county employees and inmates from the Clarke County jail, to gut the area so that accurate blueprints could be produced. By January of 2009, local architect David Henderson of AEDD Plus and contractor BP Roofing and Construction of Laurel, Mississippi, had begin work.
“Since all historic structures are required to adhere as closely as practicable to the original design, every effort was made to replicate the original handiwork. Most of the flooring is original to the building, as are the large ceiling beams. The metal ceiling panels are exact duplicates of those used in the original construction.
“Today we proudly present our newly-restored courtroom to the people of Clarke County. Let us remember to be grateful for the foresight of our county officials in providing a stately and securebuilding in which to conduct our county’s business.”
My previous post about the renovation is here.
Photos from the program: