Isn't this a conflict of interest? (attorney question) -- Smallish update post #16

[simba20]

Setting: Small town

Background: Husband and wie have been having marital issues. They have two small kids. Husband abuses wife, who had documentation of said abuses (evey occassion) and has taken husband to court before. Husband was issued to anger management classes, counseling, gets put on bi-polar meds, etc. Wife leaves, but comes back because with all the mandadted stuff husband has to do, she feels he will get better and things will improve. After a year, husband, over time, stops doing things he is supposed to (comes up with excuses) and gets violent again. Wife leaves, takes kids to her parents, and is not coming back (she now lives in a different county).

No divorce is filed yet, but through the courts, the husband is granted unsupervised visitations with the kids. Husband still continues to be abusive (verbally) to the wife. Wife records every phone call/takes notes on in person meetings/etc.

Husband now threatens wife DAILY with divorce and says he will seek full (sole) custody of the kids. Wife and kids live with wife's parents and wife has been seeking employment since she moved out, but hasn't found anything yet.

Wife's parents finally tell her enough is enough and to file for divorce, but she has to wait for June (perhaps residency inthe county she is in) and she wants to file first between the two of them in the county she lives in*. Turns out husband has retained his BROTHER IN LAW who is a the local DA.

Can the DA really represent the husband? I know he's not blood related, but he's still a family member of the abusive husband.

*she also wants to file in her county as this is a small town and her husband's family (well soon to be ex) is known here. She feels the court would be biased towards him (even though she has documented evidence) as the judge is an old family friend.

Sorrry to be long winded. It's a long story, but I really feel for my friend.

 

[mickeylove2]

Setting: Small town

Background: Husband and wie have been having marital issues. They have two small kids. Husband abuses wife, who had documentation of said abuses (evey occassion) and has taken husband to court before. Husband was issued to anger management classes, counseling, gets put on bi-polar meds, etc. Wife leaves, but comes back because with all the mandadted stuff husband has to do, she feels he will get better and things will improve. After a year, husband, over time, stops doing things he is supposed to (comes up with excuses) and gets violent again. Wife leaves, takes kids to her parents, and is not coming back (she now lives in a different county).

No divorce is filed yet, but through the courts, the husband is granted unsupervised visitations with the kids. Husband still continues to be abusive (verbally) to the wife. Wife records every phone call/takes notes on in person meetings/etc.

Husband now threatens wife DAILY with divorce and says he will seek full (sole) custody of the kids. Wife and kids live with wife's parents and wife has been seeking employment since she moved out, but hasn't found anything yet.

Wife's parents finally tell her enough is enough and to file for divorce, but she has to wait for June (perhaps residency inthe county she is in) and she wants to file first between the two of them in the county she lives in*. Turns out husband has retained his BROTHER IN LAW who is a the local DA.

Can the DA really represent the husband? I know he's not blood related, but he's still a family member of the abusive husband.

*she also wants to file in her county as this is a small town and her husband's family (well soon to be ex) is known here. She feels the court would be biased towards him (even though she has documented evidence) as the judge is an old family friend.

Sorrry to be long winded. It's a long story, but I really feel for my friend.

Just because the DA is the husbands attorney, while it really sucks, I don't think there is anything wrong with it. It all depends on the statutes for her state though. I would suggest that she get a really good attorney asap! Now 1 thing she might have going for her is that since the DA is related to her too, she and her lawyer may be able to fight that because the bil will have a personal connection to her as well. Get what I'm saying? When I was going through my divorce, my ex's attorney had met with me on something totally different previously and when it came time for us to go to court I was shocked that he had agreed to take my ex as a client, my attorney said we could fight it and win and he would have to recuse himself, but there was no reason to do that because he wasn't a very good attorney and my lawyer mopped the floor with him. But, that was definitely an option. So I would think that the friend can fight the bil as the husbands attorney, it might not matter but, it's worth a shot.

 

[simba20]

It all depends on the statutes for her state though. I would suggest that she get a really good attorney asap!

Thanks. Now how can she find a KILLER lawyer with expertise in family law/domestic violence. I think with all the documentation she has, she'd definitely have things go her way in court, but she wants someone who is ruthless and GOOD. I know one can look in directories/phone book/bar association directories, but that doesn't really tell you if they are GOOD YKWIM?

 

[mickeylove2]

Thanks. Now how can she find a KILLER lawyer with expertise in family law/domestic violence. I think with all the documentation she has, she'd definitely have things go her way in court, but she wants someone who is ruthless and GOOD. I know one can look in directories/phone book/bar association directories, but that doesn't really tell you if they are GOOD YKWIM?

Honestly, I went by word of mouth, and my lawyer's reputation. He's known as a pit bull! I would have her ask around, even go to the courthouse and talk to some of the women there and get some feedback from real people. A phone book or ad is just going to give basic info, she needs someone's personal experience to go by.

 

[Eeyore'sthebest]

Have her go to a woman's shelter for counseling or advice. Ask the people that run the shelter this question "If I was your sister, who would you refer me to?" My Dsis works in the family court and was able to refer our other Dsis to an awesome lawyer.
Your friend wouldn't happen to live in Jersey would she? I can get you some good names!!

 

[Mrs.Toad]

I don't know about the DA BIL attorney, I would think the judge being a family friend would be a huge problem. The case needs to be heard by a different judge.

 

[momof1princess]

former legal secretary here...if the judge on the case is a family friend, he SHOULD recuse himself. if he doesn't, the wife's attorney needs to file a motion to recuse, or a motion for a change of venue, if the county only has one circuit judge. now, to my way of thinking, if the wife were to press criminal charges against the husband for the harassing phone calls and abuse, the husband's attorney, as the local DA, would need to recuse himself from the criminal case. this does not, however, necessarily mean he couldn't represent his BIL (the husband) in the divorce. in the county in which i live, this would be considered unethical and the husband's BIL would be required to stay away from the situation entirely (the judge would also automatically recuse himself), but this may not be the case in the wife's area. the wife needs to get a SHARK of an attorney, and FAST. even if it requires borrowing money from her parents to pay the retainer, it will be worth it. as a PP suggested, getting an attorney recommendation from a local women's shelter is an excellent idea.

 

[Imzadi]

(Not a lawyer.) I don't think the BIL being a DA is a problem as he's not representing the state. This is a private (civil?) case. He's still a lawyer. In the end, a lawyer is a lawyer, is a lawyer.

On the other hand, the BIL's specialty is not divorce and that may work against the DH, as someone else pointed out, it is more important to be well versed in court strategies for divorce & domestic violence, than simply knowing the law.

A lawyer I once hired spent the bulk of MY money trying to get me to understand this one point. Laws are purposely written very loosely to be open to interpretation. That's why lawyers present court arguments. They argue what and which laws pertain to their case and how a law should be interpreted for their matter. It is up to a court or judge to ultimately decide whether they presented a good enough case to win their argument.

So having someone with years of court strategies under his/her belt, in the specialty needed is KEY. He can present more arguments & shoot down the oppositions arguments better. Since the BIL is a prosecutor & not an defense attorney, he may actually be at a disadvantage having to defend his client against the domestic violence charges as he's not use to putting on a defense. That may work in the wife's favor, if she has a great lawyer who has a lot of trial experience with domestic violence issues.

The judge, however should probably be asked to recuse himself.

 

[N.Bailey]

I think they are trying to scare your friend. A DA is a governmental official, and is supposed to represent the state in which he is employed.

It's all smoke and mirrors, IMO.

 

[Allison]

In many counties in my state, the county attorney is a part-time position and the attorney also has a private practice. The divorce is not a criminal case so it probably wouldn't be a conflict.

 

[darlak]

The only way I can see it being a conflict is if any of the husband's prior domestic violence cases were prosecuted by the DA’s office, as they are in my county. Even if he wasn’t the prosecuting attorney, if his office (any attorney in the DA’s office) prosecuted the DV case, then no attorney from the DA’s office should be able to represent either party in the divorce action.

 

[N.Bailey]

Since the OP is from the state of Georgia, I took the liberty of looking up code for that state.

O.C.G.A. § 15-18-10 (Copy w/ Cite)
Pages: 2

O.C.G.A. � 15-18-10

GEORGIA CODE
Copyright 2009 by The State of Georgia
All rights reserved.

*** Current through the 2009 Regular Session ***

TITLE 15. COURTS
CHAPTER 18. PROSECUTING ATTORNEYS
ARTICLE 1. GENERAL PROVISIONS

O.C.G.A. � 15-18-10 (2009)

� 15-18-10. Compensation of district attorneys; supplementation; disposition of fees and costs; private practice of law prohibited

(a) Each district attorney shall receive an annual salary from state funds as prescribed by law. Such salary shall be paid as provided in Code Section 15-18-19.

(b) The county or counties comprising the judicial circuit may supplement the salary of the district attorney in such amount as is or may be authorized by local Act or in such amount as may be determined by the governing authority of such county or counties, whichever is greater.

(c) All fees, fines, forfeitures, costs, and commissions formerly allowed district attorneys for their services as district attorney or as solicitor of any other court shall become the property of the county in which the services of the district attorney were rendered. The clerk of court shall collect any such fees, fines, forfeitures, costs, and emoluments and remit the same to the county treasury by the fifteenth day of each month.

(d) No district attorney receiving an annual salary under this Code section shall engage in the private practice of law.
http://www.lexis-nexis.com/hottopics/gacode/default.asp

Like I said, all smoke and mirrors, IMO. It's illegal in many states, for a DA to even give legal advice, let alone represent someone.

 

[N.Bailey]

You might find the site easier, but even a ADA and DDA are bound by the same conduct. Same code, different site:

15-18-21.
(a) Any assistant district attorney, deputy district attorney, or other attorney at law employed by the district attorney who is compensated in whole or in part by state funds shall not engage in the private practice of law.
(b) Any assistant district attorney, deputy district attorney, or any other attorney at law employed by the district attorney shall be a member of the State Bar of Georgia, admitted to practice before the appellate courts of this state, shall serve at the pleasure of the district attorney, and shall have such authority, powers, and duties as may be assigned by the district attorney.
(c) Any investigator employed by the district attorney´s office and authorized by the district attorney to carry weapons or to exercise any of the powers of a peace officer of this state shall meet the requirements of Chapter 8 of Title 35 and shall serve at the pleasure of the district attorney.
http://law.justia.com/georgia/codes/15/15-18-21.html

 

[sparklynails23]

Can't she just file in an adjoining county?

 

[Allison]

When you say local DA are you talking about a state employee or a county employee?

 

[simba20]

Hey guys,

Thanks for all the advice. I sent her some of the info I received yesterday and she replied to me.

Her ex has retained a different lawyer from out of our area, but is seeking advice from his borther-in-law (our county DA -- I am assuming our county DA as his office is in the courthouse).

The local judge travels a circut in our part of the state.

And she did meet with a good lawyer where she lives, but he didn;t want to represent her, because he didn't want to travel should the case be tried here (if her soon to be ex files first). She wants to file where she is at, because she has to live in that area for six months to establish residency -- she moved out just before Christmas.

In all seriousness though, I live in a tiny, tiny town. We have to travel 30 minutes to a Wal-Mart. We have a few fast food restaurants and dollar stores and that's about it. Her ex works for the school system (the biggest source of town gossip) and she was also a teacher up until two years ago when all this mess began. Her husband was also married before and his ex wife runs the local flower shop and HER family is well known around town as well. Ex and Wife#1 also had a child together, so ex is still in contact with Wife#1. Word around here just spreads like crazy. Being a small town, several roads and businesses carry his family name. Hopefully things can hold out until June when she can file far away from here. Otherwise the courthouse will be packed for the entertainment value.

 

[N.Bailey]

Well, you really need to know what his position is. My posts all went on the assumption that he was the DA. My guess would be, if he is employed ONLY by the state, he's forbidden from giving legal advice to anyone (though proving a family member is committing such acts would be pretty hard to do). Top that off with the fact that he works hand in hand with the people who would be responsible for the investigation and well, it would be worthless, IMO, to even pursue such an allegation.

BTW, there are a lot of people who work for a DA's office who are not the actual DA.