The newsletter of the ISBA’s Standing Committee on Women and the Law
A best practices guide for attorneys representing victims of domestic violence
Over the years, I have represented numerous victims of domestic violence in all types of legal matters. From my early years as a domestic violence staff attorney at Land of Lincoln Legal Assistance Foundation to my years in private practice, I have represented victims of domestic violence in civil order of protection cases, divorce and custody litigation, and immigration to name a few. During my practice and participation in various local and statewide committees dedicated to serving victims of domestic violence and their children, I, along with other highly knowledgeable professionals, have encountered various problems and issues that are relevant to the effective representation of victims of domestic violence. The purpose of this article is to identify those issues and provide lawyers with insight and practical suggestions on how to most effectively represent victims of domestic violence.
American Bar Association’s Commission on Domestic Violence
Recently, the American Bar Association’s Commission on Domestic Violence published a document titled “Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault, and Stalking in Civil Protection Order Cases”2 (hereinafter referred to as “ABA Standards of Practice”). I believe that the ABA Standards of Practice is a good reference for lawyers who may choose to represent victims of domestic violence, specifically in civil protection order cases. I will refer to this document whenever applicable, however, the purpose of this article is to provide lawyers with practice suggestions for representing clients who are victims of domestic violence in all types of legal matters, not just civil orders of protections only.
Best Practices Guide for Lawyers Representing Victims of Domestic Violence
Question #1: To enter or not to enter?
Like any other case, a lawyer must first decide whether or not to represent this particular client in the type of legal matter involved. In deciding whether or not to represent a victim of domestic violence, the lawyer should have competent knowledge in at least four areas: (1) competent knowledge of the law, (2) competent knowledge of domestic violence and its dynamics, (3) competent knowledge of cultural issues relating to representation, and (4) competent knowledge of collateral legal issues and litigation.
Competent knowledge of the law. All practicing attorneys are ethically bound to have competent knowledge of the applicable law before representing any client in any type of legal matter.3Depending on the type of legal matter involved, the lawyer should read the relevant statutes and case law so as to be able to adequately and ethically advise the client regarding his or her legal options and their respective consequences. For example, as referenced in the ABA Standards of Practice, before representing a client in a civil protection order case, “the lawyer should have, at a minimum, basic litigation skills, an understanding of the burden of proof, knowledge of the requirements to obtain a protection order and remedies available to victims under the statutes of their particular jurisdiction.”4In Illinois, the law governing civil orders of protection is found in the Illinois Domestic Violence Act. (hereinafter referred to as the “IDVA”).5 Thus, before representing a client in a civil order of protection matter in Illinois, the lawyer should be thoroughly familiar with the IDVA and any case law relevant to the client’s particular facts and legal issues in the case.
Competent knowledge of domestic violence and its dynamics. Beyond the duty to have competent knowledge of the law, a lawyer representing victims of domestic violence should also have competent knowledge of domestic violence and its dynamics. This aspect of a lawyer’s representation of a client who is a victim of domestic violence is a vital component of effective representation. The ABA Standards of Practice suggests that “the lawyer should understand the potential risk of escalated violence due to litigation, and how the experience of domestic violence, sexual assault and/or stalking may affect the client-lawyer relationship, including the process of establishing rapport with and gathering information, evidence and case direction from the client.”6 At a minimum, the lawyer should be familiar with basic statistics regarding the incidence of domestic violence, the dynamics of power and control in abusive relationships, common characteristics of an abusive relationship,7 common factors that increase the risk of lethality in an abusive relationship, and the effects of domestic violence on the victim and children. There are many resources available to the practitioner including local domestic violence shelters and social service organizations such as the Illinois Coalition Against Domestic Violence,8 the US Department of Justice,9 the Illinois Criminal Justice Information Authority,10 and the American Bar Association’s Commission on Domestic Violence.11
Competent knowledge of cultural issues. The ABA Standards of Practice provides good suggestions for lawyers when representing culturally diverse clients who are victims of domestic violence. Specifically, the ABA Standards of Practices states “Cultural differences exist in the ways in which survivors of domestic violence, sexual assault and stalking react to the violence they experience; interact with police, lawyers and judges; describe events which have transpired; communicate needs and goals; and make decisions about how best to address the situation. While lawyers need to develop cultural awareness, it is important not to reinforce stereotypes in the process. In order to enhance cross cultural communication, lawyers should (1) refrain from making assumptions about a client based on the client’s cultural affiliation(s); and (2) refrain from generalizing based on the lawyer’s own experience. Instead, the lawyer must learn about the individual client’s values, experiences and priorities through sensitive questioning and perhaps more importantly, through careful listening and attention to verbal and nonverbal cues.”12 For an excellent discussion on cross-culture lawyering see “the Five Habits: Building Cross-cultural Competence in Lawyers” written by Susan Bryant.13
Competent knowledge of collateral legal issues and litigation. Finally, before deciding to represent a client who is a victim of domestic violence, the lawyer should identify any collateral legal issues and potential litigation in order to adequately advise the client regarding potential legal consequences of the instant matter. For example, in deciding whether or not to represent a client in a civil order of protection case, if the client has children, the lawyer should advise the client about correlative legal issues regarding potential divorce, paternity, child support, and custody litigation. As a personal general rule, when there is a dissolution of marriage pending, I will not routinely represent victims of domestic violence in order of protection cases when children are involved unless the client is also prepared to have me represent him or her in the divorce action. Because the IDVA has available remedies regarding temporary custody, visitation, and child support, whatever happens in the order of protection case will invariably impact a dissolution of marriage. In my personal view, it is difficult to adequately address the needs of the client in one matter without addressing the needs of the client in the other matter. I have a particular personal “pet peeve” when certain lawyers tell the client that he or she will only represent the client in a divorce but not an order of protection (particularly when there are children involved). The client then comes to me asking for representation in the order of protection even though they already have a lawyer in the divorce. In my view, the lawyer refusing to represent the client in the order of protection matter after having entered into an attorney-client relationship in the divorce is acting precariously if not unethically. There are several possible consequences to having two different lawyers representing the client: (1) the client may receive very different advice from the two different lawyers (which exposes both lawyers to potential malpractice issues) and (2) as an order of protection case is generally an expedited proceeding whereas a divorce can drag on for years, any findings or rulings in an order of protection case can set the tone for future litigation in the divorce case (which may be favorable or unfavorable to your client).
Other collateral legal issues that may affect your representation of a client who is a victim of domestic violence include, but are not limited to, criminal issues such as when the abuser (or the victim) is being prosecuted for domestic battery and the client may be called as a potential witness, juvenile court issues such as when the client (and/or the abuser) may be investigated by the Department of Children and Family Services for potential child abuse, and immigration issues that may impact your client’s immigration status. In any of these cases, the lawyer should have a ready list of referrals of service providers, including other attorneys who specialize in these legal areas, to address all of the potential needs of the client.
Question #2: Once I decide to take the case, how do I effectively represent the client?
Once a lawyer decides to represent the client who is a victim of domestic violence, there are several vital steps that a lawyer should take with each prospective client. First, the lawyer must clearly define and communicate with the client the scope of representation and the lawyer should have the client sign an employment agreement for legal services memorializing same. Second, the lawyer must discuss the safety of the client and any children with respect to the representation. Safety should always be the primary factor in any decision made by the client. As mentioned previously, a client (and his or her lawyer) needs to understand that a client is often in increased danger for escalating violence after a separation from the abuser (this is commonly referred to as “separation violence”). The assessment of a client’s safety and the threat of escalated violence will impact vital decisions that the client must make with respect to any legal course of action or strategy. In order to assess the safety of the client, the practitioner should refer the client to community-based advocates and local domestic violence social service organizations or shelters to discuss the client’s individual safety plans. Safety planning is essential to effective representation of a client who is a victim of domestic violence. As referenced in the ABA Standards of Practice, “a domestic violence safety plan may include (but is not limited to): methods for limiting harm during a violence incident; keeping children safe from abuse; preserving assets; minimizing opportunities for abuse at court, at home, at work, online, or at school; planning before leaving an abusive relationship; and enforcing a protection order… The lawyer should always discuss with the client the safest way to conduct the client-lawyer relationship. For example, it may not be wise for the lawyer to call the client at home, leave messages, send mail or be seen publicly with the client. The lawyer should notify the client in advance of legal developments, e.g. when the perpetrator will be served so the client can adapt the safety plan.”14
After referring the client to community-based advocates to assist in safety planning with the client, the lawyer should gather all relevant facts from the client regarding the nature of the abuse and the relationship, significant events, and other relevant information. It is often useful for the lawyer to assist the client in making a timeline of events starting from the beginning of the relationship to the present in order to understand the progression of the relationship and the abuse. The lawyer should be careful however not to focus solely on physical abuse. Often times the significant events that a client may relate to the lawyer don’t involve physical violence at all, but rather, certain types or patterns of behavior that have particular significance to the client as it relates to her own assessment of her safety. It is crucial to ask the client about any such behavior and ask the client the question “what did that behavior mean to you?” For example, I once had a client who left her husband after 30 years of marriage and horrible physical abuse who told me that she knew she had to leave or she would die after he started gambling and drinking. Because her husband was a pastor and was presumably afraid of any potential consequences the abuse would have on his job or standing in the community, he always beat her in places that were not easily seen by others such as her stomach and top of her head under her hair. Even though he wasn’t particularly physically violent during the time he started gambling and drinking, when I asked her what that behavior meant to her she responded that because he was a pastor at their church and such behavior was “forbidden,” that she believed that he was starting to act without regard to any authority or any consequences and she became convinced that he would kill her. Had I not asked her what that particular behavior meant to her, I would not have had a full understanding of her assessment of her own safety at that particular time when she first decided to seek my legal advice. Without that understanding, I may not have been able to fully advise her as to her specific legal options taking into account her own safety assessment.
In addition to the timeline, it is sometimes helpful to have your client journal about the progression of the relationship and the abuse. Often, the client simply cannot recall all of the significant events of the relationship and the abuse at one time.15 Journaling may help the client recall events that will aid the lawyer in fact gathering and developing the theory and strategy of the case.
In addition to the client’s recollection of the events in the relationship, the lawyer should also try to gather as much independent evidence as possible such as photographs, physical evidence, police reports, medical records, other court orders, and prior criminal history of the parties. Make sure your client signs all of the appropriate releases regarding medical records to ensure access to vital information.
Once the lawyer gathers all of the facts and evidence of the case and decides on a case strategy with the client considering the client’s safety, the lawyer must diligently prepare and try the case as in all other types of legal matters.16 However, there are several special considerations that a lawyer representing victims of domestic violence must be cognizant of during the course of litigation. First, the lawyer should collaborate with other professionals such as community-based domestic violence advocates, counselors, legal services, etc., to the maximum extent possible. The ABA Standards of Practice refers to this collaboration as “Holistic Representation.”17 The commentary to the ABA Standards of Practice in its discussion on holistic representation notes that “Failure to coordinate with other professionals may lead to undue stress and frustration for both the lawyer and the client, resulting in impaired representation.”18 Because a client who is a victim of domestic violence invariably has a variety of needs including, but not limited to, safety planning, economic independence preparation, physical or mental health issues, or substance abuse issues, etc., the lawyer should encourage the client to reach out to these other professionals to help the client address these issues and successfully navigate through the stress of litigation. Second, the lawyer must be cognizant of the client’s confidentiality and privacy rights. As in any client representation, a lawyer must generally keep a client’s information and statements confidential pursuant to ethical rules.19However, in the case of a client who is a domestic violence victim, these rights and ethical duties are crucial as any inadvertent disclosure could jeopardize the client’s safety. For example, when meeting with the client for the first time, the lawyer should ask the client if the abuser knows the client’s address. If not, and the client wants to keep that information confidential, the lawyer should file any necessary pleadings such as a Motion for Non-Disclosure of Address listing an alternative address for the client for the court file. Similarly, the lawyer should be careful not to give the abuser any other relevant personal information of the client or children such as birth dates and social security numbers. Additionally, when working collaboratively with other professionals such as advocates, counselors, etc., the lawyer should be cautious about disclosing any information that could be used against the client such as third parties who may be mandated to report suspected child abuse to authorities. “If the client consents to the release of information to a third party, the consent should specify exactly what information may be released, that the release is time-limited, and it should be in writing.”20
Question 3: Now that the case is concluded, what are the lawyer’s responsibilities?
After the conclusion of the case, a lawyer should clearly advise the client that the client-lawyer relationship has ended and what the client’s rights and responsibilities are with respect to the enforcement, modification, renewal, or extension of any court order. With respect to civil orders of protection, the lawyer should advise the client about all enforcement remedies including criminal penalties21 for violations of orders of protection, and civil and criminal contempt proceedings. Of course, in the event of an unfavorable outcome, the lawyer should advise the client about his or her rights for appeal, rehearing or modification. The lawyer should clearly advise the client whether or not the lawyer will be representing the client in any future matters including the issues of enforcement, modification, or extension of any court orders. The lawyer should put all of this information in writing to the client in the form of a closing letter or something similar.
In conclusion, when representing a client who is a victim of domestic violence, a lawyer must be cognizant of the special circumstances and attendant ethical duties that accompany representation of these clients. It is my hope that this article has offered some practical insight and suggestions for lawyers who choose to represent victims of domestic violence. If anyone has a question or comment about any of the suggestions or information in this article, please feel free to contact me at email@example.com. I would love to share your comments with the other members of the Standing Committee on Women and the Law and possibly use them for upcoming articles on this or other related issues in upcoming editions of The Catalyst.