Lawyers Against Access to Justice – a business problem.
This article is what happens when Lawyers don’t look at their practice as a Business. It’s wrong on several levels, and I will dismantle it in a moment, but the author is starting with the premise justifying his high cost, and mostly fails to acknowledge the problem. If you start with the problem, then distill it to a market need, basic business sense fills in the rest.
1) If you break wealth down into 5 groups (quintiles), only the top 20% can afford legal help with guys like this, doing what they do. The bottom 20% can get some free legal help as indigent. That leaves 60% in the middle – and that’s 60% of incomes, not population! This is a very large group.
2) Access to Justice is about lowering the total cost of legal services. Lawyers like Mr. Glover are fixated on justifying their hourly billing rate, but don’t look at their business efficiency. It’s the total cost of litigation that kills people, not the actual hourly rate of the attorney (but that rate is a factor).
3) Every lawyer who commits to making legal services available to the middle income groups, manages to do so without falling into poverty themselves. It’s a matter of the Lawyer making the decision to recognize a problem, and then to do something about it.
Now, for Mr. Glover:
A) “Even $400 is too expensive” So we know that a huge majority can’t produce the $6000 most lawyers want up front, and he cites half who don’t have $400 – but ignores the 30% who have maybe $1-2K. He jumps to the bottom to rationalize not doing anything to help those who have assets, but need a lower cost solution. The people who can’t put together $400 are likely to qualify for free legal aid, so they aren’t the problem that Access to Justice is designed to solve. Straw-Man argument.
B) “Value, Not Affordability” This is a sales pitch used by premium luxury automobiles, and that makes sense because that’s what most lawyers have become. It’s an easy insulation to say, “they just don’t recognize the value” – but this falls apart when you compare legal costs in different regions. In Houston Texas, you can take a dispute all the way to resolution for less than $5000, but in Phoenix, it’s north of $7000 – for the same legal conflict! That’s a market failure, not a value problem.
Most people recognize the value of something they can’t afford – I can’t afford a new Mercedes. I simply do not have the money. It’s not failure to recognize the value of the luxury car, it’s the fact that in Phoenix, there is only the luxury cars and the city bus, and nothing in between. I recognize the value of having more price-points in the market.
C) “DIY Fail” This is a non sequitur. The problem is NOT a lack of do-it-yourself forms. Arizona has great DIY forms, that is not legal assistance. Access to Justice is about contact between middle income clients and licensed attorneys, not forms.
D) “Pro Se by Choice?” Non-argument. He states that 80% are pro se (no lawyer, representing self), so maybe all of them are doing that by choice? No. No they are not. I deal with these people every day, and it’s apparent that Mr. Glover has never had a conversation with any of these people. In the end, he concedes that some percentage don’t want a lawyer; no one argues otherwise, we are dealing with those who WANT help, and have money, but advice is too expensive.
E) “Who Really Wants a Cheap Lawyer” I would think that Mr. Glover was, at one point, a salesman for a luxury car dealership – this is exactly what you are trained to do to keep a fence-buyer (one who can just barely afford your luxury model) at your dealership and away from the Chevy dealer across the street. Mr. Glover is more likely familiar with this pitch, because he upgrades luxury cars every year. He uses the word “Cheap” to indicate something shoddy, of poor quality, rather than what the issue is – Less Expensive. Let’s try it with the word-change: “Who really wants a less expensive Lawyer (fully licensed and qualified, just like Mr. Glover)?” A lot of hands go up.
People want help with their problem. They need a solution, and they need market-priced options. Who really wants a cheap car? People who need to get to work so they can feed their kids. Who really wants a cheap parachute? Well, my other option is assured death, so yes, I will take a cheap parachute over nothing. When I meet a client with less assets, I tell them where we are going to cut corners so they can get what they need. These clients are grateful.
F) “It’s Complicated” No. No it is not. It’s a matter of taking a few business classes to understand how to manage expenses. Lawyers get to pass 80 – 90% of all expenses on to clients, so they don’t even look at their expenses. Most lawyers don’t know a fixed cost from a variable cost, and they haven’t been trained to streamline a process to cut down overhead. I learned this starting companies back in the 90’s, and it’s basic stuff for any business other than a law firm.
I take a client from start through trial and full resolution for about half of what the other side charges. My rate is a little below the other lawyer, but it doesn’t account for the huge savings my client enjoys – that’s just my firm managing excess costs. My take-home pay is in line with where a solo in his second year should be. I’m not starving myself, I’m not suffering, I’m just being smart about how I spend my client’s money. This isn’t complicated at all. It’s taking my client’s financial problem as seriously as I take their legal problem, and I acknowledge that the problems are related.
Also, I win. I cost half as much, and I win. That’s Value.
Are you part of the 80%? You make too much income to qualify for free legal aid but not nearly enough to afford a high priced attorney. If this describes you, then welcome, you are part of the vast majority who need what we in the legal community calls, “Access to Justice”.
Modest Means isn’t in every state, but it’s a widely available resource. If your income qualifies (that’s an annual income of $60,624 for a family of four), you can get a low price, one-hour consult with an attorney practicing in the area you need. In Arizona, that one hour costs only $75. If you are prepared, have done your research, and have your questions ready, you can get a lot out of an hour with an attorney. The consult is usually done at the lawyers office, so you are just like any other client, getting that same level of counsel for your troubles. Many experienced lawyers are a part of Modest Means – it’s a way to give back and to promote better access to the law.
Unbundled services (aka Limited Scope)
To save some money (if you have the time to devote to it), you can take on some of these jobs, and reserve the attorney work for the things you cannot do. If your attorney is open to an unbundled services arrangement, be realistic about what you can handle, and what you need the attorney to do. If you are going to use the lawyer to consult with as you prepare to represent yourself, do the homework and be prepared to use the consulting time well. If you want to do the pre-trial work yourself, be careful, you can lose a case before you ever see a trial if you don’t meet all the deadlines. Litigation is complex, but with guidance, you can take on some of the tasks, and save a lot of money.
Flat fee services
There are legal services that it makes sense to offer a flat fee. Simple wills, default divorce, Chapter 7 bankruptcy, contract review, and the ever effective Scary Lawyer Letter. Each of these services are usually a one-time shot or on an as-needed basis. Remember that flat fee services are only available in situations where there is a clear end point. Court conflicts can go on as long as the other side wants to fight.
Sliding scale hourly rate
There are many reasons why an attorney will take less than their standard hourly rate on a case. Maybe your legal issue is something they are passionate about. Or maybe your case holds a particular interest. Sometimes an attorney will discount your rate because you are a referral from a previous client. The possibilities are endless but you will never know that if you don’t ask. Just because an attorney quotes a standard hourly rate, it doesn’t mean that is the last word on the matter. Attorneys are people too.
I believe in Access to Justice and serve the 80%. Contact PotterLawAZ.com “We’ll get you through it.”
Getting an Order of Protection
The courts make it very easy for a person to get an Order of Protection against a spouse, former spouse, or intimate partner. This is good, in that it allows someone who feels in danger to get help without long delays or the need for professional help. This is in line with Arizona’s goal of allowing the people to be able to solve their own problems without incurring high legal costs. However, there is a downside to to the ease of being a “Pro Per” litigant (meaning, you represent yourself without an attorney).
The normal process of getting a court order is to make a request to the court in a Petition, which then leads to a hearing where the other party can answer, and give reasons why the petition should not be granted. The court then renders a decision based on what has been presented. The legal process of an Order of Protection (OOP) is a little different than the usual petition to the courts – and that can lead to some confusion for the Pro Per petitioner.
With an OOP, the requesting person fills out the petition, and the order is then granted automatically. However, the other party – the one whose behavior is being restricted, must be informed of the OOP, and given an opportunity to challenge it. If they challenge the OOP, then a hearing is set, and the petitioner must then convince the court to retain the OOP, and the responding party may present evidence for reasons not to grant.
This hearing will follow the usual rules of court procedure. You may represent yourself, but if you haven’t spent time in court, these rules and procedures can be difficult, and it’s a good idea to get representation before your hearing. A lawyer will make this go easier and a lot less scary for you – but that lawyer is going to be limited by what was in the petition you originally submitted. If that petition was written poorly, even a good lawyer may not be able to save your OOP, and you could have it dismissed.
So while you can Do It Yourself, it’s also a good idea to get professional help. The more important your legal issue is, the more you should think about getting an attorney to make sure it’s done right. With many legal cases, if you lose, you don’t get to try again.
Some lawyers will offer what is commonly called “unbundled services” – meaning that the lawyer is willing to do work on a portion of your case. This can include the drafting of your petition or motion, or just reviewing what you are going to submit to the courts, or even coaching you on representing yourself in a hearing.
A little guidance in the beginning can save you a lot of pain and grief later. Consider contacting an attorney for a review or some counseling. If the lawyer you used in the past doesn’t do unbundled – don’t be discouraged, there is always a right attorney for your needs. We’ll get you through it.
When you reach that point where you know you can’t get out of the financial hole on your own, you start looking for options. If you think Bankruptcy is the worst thing that can happen, you might look for other ways to get the debt under control. It’s easy to find companies that perform an array of services, including Debt Consolidation, Debt Management, and Debt Settlement. It’s not always clear what these are, so let’s go over them –
Debt Consolidation is where you take out a lower interest loan to pay off all the higher interest loans – turning many debts into one debt. This lowers your interest, but not the principal, and you are still making payments, and subject to collection efforts. In most cases, you are also paying a fee to the company that is buying your debt, in addition to paying the debt and the new interest to that same company.
Debt Settlement is getting creditors to accept less than the full amount. This is attractive, but it will be reported to the credit agency that you paid less, and this will have a negative effect on your credit rating. In most cases, you are paying a fee to the settlement company for their negotiation on your behalf.
Debt Management is where you agree to financial counselling, and a debt management company will negotiate with your creditors. You pay the debt manager, they pay your debts, and maybe along the way they can negotiate some better terms, or arrange for debt settlement. In most cases, you will pay a fee for these services, in addition to your payments to your creditors.
When facing pressure from creditors, you may think about one of these debt services as a less drastic measure compared to Bankruptcy. And while this may be a good option in some circumstances, it’s important to get the facts. First of all, understand what debt consolidation will NOT do.
You are not under any legal protection with a Debt Service Company. When you file for Bankruptcy, your creditors must stop all collection efforts. The Bankruptcy process protects the Debtor, and insures that all harassment stops, under civil penalty for any creditor who contacts you.
In Bankruptcy, your communications with your attorney are privileged. This means that anything that is said between you and your lawyer are private, and no one can break that confidentiality. You do NOT have this confidentiality with a debt service, and anyone you talk to with the debt service can be called to testify against you in court.
Consolidation does not eliminate your debt, and neither does Settlement. In most cases, the debt service will ease your monthly burden – either by reducing the principal or the interest. That sounds good, but it will still appear on your credit report if the full amount was not paid, which will hurt your credit score. Reducing the interest is a good thing, particularly if you were holding some debt at maximum penalty rates – but this still doesn’t relieve you of the debt.
Bankruptcy sounds like the worst option – but it’s a widely misunderstood legal action. Bankruptcy puts the power of the law on your side, and protects you. Bankruptcy attorneys are your advocates, and they fight for you, while you concentrate on rebuilding. In most cases, a Chapter 7 Bankruptcy will eliminate a lot of your debt. If there are debts that cannot be discharged, the reorganization process will give you an opportunity to structure a better payment plan on the remaining debt. After a Bankruptcy, you can still use a Debt Service to work through the remaining debts.
I realize that Bankruptcy is a drastic measure – but if you are in real financial trouble, drastic measures will yield real results. You will have most or all of your revolving credit debt discharged (there are exceptions to dischargeability, please consult an attorney), and you will have a fresh start. Your credit score will improve, and you can start rebuilding your financial foundation. If you are worried about how the Bankruptcy will affect your credit score – remember that debts that have gone into collections will remain on your credit report for years, but getting those debts eliminated through a Bankruptcy makes you more credit worthy – as it is more likely you can pay off a new loan (and you can’t declare Chapter 7 Bankruptcy again for 8 years). Debt consolidation is a half-solution at best – you will still be in debt, and your credit score will not improve – you just change who you pay each month.
Talk to a Bankruptcy lawyer, and get the facts. Lawyers are required by law and the ethics of the profession to tell you the truth about the law, and your rights. Lawyers are trained and licensed by the state to insure that clients understand their situation – this is not true for debt consolidation. After consulting an attorney, if you still want to seek consolidation, you will be smarter about the options, and better equipped to make the right decision. Contact me at Potter Law Firm. “We’ll get you through it.”
What do you think of, when you think of the Constitution? Freedom of speech? Right to Bear Arms? Unlawful Search and Seizure? None of these are in the Constitution – they were added later, in the Bill of Rights.
But you know what IS in the original draft? The right to Bankruptcy. Article I, section 8, Oversight of Bankruptcy is a required duty of Congress. The ability to start over, with a financial clean slate was so important, it was in the original draft – before freedom of speech, before the right to bear arms, before the guarantee of a jury trial, the framers made sure you could declare bankruptcy. Please keep that in mind.
You have a right to get the protection of the court against your creditors. In a lot of situations, you can have your debts eliminated, and you will have an opportunity to renegotiate the repayment, and at least get a break from the harassment. With so much debt collection abuse – why don’t more people take advantage of the Bankruptcy process? Yes, it’s complicated, but not more difficult than most other legal procedures. I think it’s the stigma – the shame of having to surrender, or the feeling that you have failed in your obligation by not repaying the debt.
If you are avoiding the phone because of creditors, you may be able to get some help before the holidays. The process was established in this Nation by the Founders; it is your absolute right. This
process may be the way you can start over, get a grip on your finances, or just give you some room to negotiate. Your creditors know you can get protection from the court, so they aren’t going to make deals with you until you do.
Here’s some insight on Creditors:
- High Interest Rates are the reward the lender gets for taking the risk that you will default. If you were guaranteed not to default, your interest rate would be tiny – like the kind of interest you get on a Treasury Note or US Savings Bond. High Interest means that they assume some are going to default, so they are getting their piece with every interest payment.
- Your Credit Score is a very complex calculation, and it takes into consideration what kind of debts you have, and what assets you have. If you have a lot of debt that can be discharged in a bankruptcy, and you don’t have substantial assets (like a house, or investments), then you are a candidate for an easy Chapter 7 bankruptcy. The system then ASSUMES you are going to file for a Chapter 7, and it’s the reason your score is so low. The credit reporting agency is telling potential lenders that you will likely file, and once you do file, your score will go up.
- Bankruptcy will do a lot to protect you, but it’s still going to change your life. If you are still paying on a car loan, you may be able to get out of the loan – but you will likely lose the car. Yes, it gets rid of the debt, but if that debt has collateral, like a lien on the car title, you could lose that asset. There are ways to keep the car – so this isn’t an absolute rule, but you need to know how to keep the asset, and plan for it.
- Chapter 7 is a cleaner way to do it, as it will wipe out many different kinds of debt, but you can only do this once every 8 years. So if you declared a chapter 7 a few years ago, and disaster struck again, you can still file for Chapter 13. This is a much more complex process, and it’s going to cost more to do it – but if you have been backed into a corner again, it’s an option you can exercise.
- When you file for Bankruptcy, the creditors have to stop their collection efforts, and deal with your attorney.
If you are in the Greater Phoenix area, the Potter Law Firm may be able to help you. “We’ll get you through it.”
“We are a debt relief agency. We help people file for bankruptcy relied under the bankruptcy code.”
(Why I will do a default divorce for less than $1000)
At the State Bar Convention this last summer, we had a session on the high cost of lawsuits, ability to retain lawyers, and the general problem that lawyers are available to the rich and the poor – but not the vast majority who fit in between those two stations. Within the legal community, we call this “Access to Justice”, and it’s a serious problem.
Approximately 14% of the residents of Maricopa County can qualify for free legal aid. This is a little higher than the rest of the country, as parts of the metro area are still in recovery from the economic crash. On the other end of the spectrum, only 5% of the people can afford to pay an attorney the average hourly rate of $250/hr, without going into debt. This leaves 80% of the people of this county, stuck with few options for getting legal help: they can represent themselves without help and risk making a serious mistake in court, or they can go into debt and possible bankruptcy by hiring a lawyer. As a Family Law Attorney, I know the risks of representing yourself, particularly when the other side has a lawyer working for them. But if I’m asking for a $5000 retainer up-front, only 5% of the population are going to benefit from my counsel without going into debt, even if this could be a simple default matter.
A lot of people seeking legal help will then turn to a Document Preparer to help with their divorce paperwork. While many of these services will get your divorce completed, they are not permitted to give out any legal advice about what you should do. A default divorce between two people with no children is a relatively simple task – if you know what you are doing. If you DO NOT know what you are doing, you can leave yourself in a very bad position as far as your property rights and taxes go. If there are children, it gets more complex, and if you fail to consider all of the rights and responsibilities, it makes co-parenting a much harder job. These are issues that are more about getting help making decisions, based on your rights and responsibilities – this is Legal Advice, and you need it. You need to talk to a Lawyer, before things get complicated.
I have written other articles about how there are ways to keep these costs down, but that’s only the tip of the iceberg. We, as Lawyers, must be a part of the solution to the problem of access to justice. This is why my services in default family matters is priced at the same amount as Doc Preppers charge. Everyone going through a divorce needs some advice, and Lawyers have a responsibility to assist the 80% in the middle, even if it’s just through consultation rather than full representation.
As attorneys, it’s time we take a look at our prices. Not all matters are the same, and we shouldn’t be stuck on a fixed rate for everything. Many other professions use a sliding scale, and alter their bill rate based on what the client is capable of paying. We have a responsibility to the public at large to promote justice and a more civil society. A big part of that responsibility, is making sure that more people can talk to lawyers without fear of big bills.
I believe in Access to Justice. The Potter Law Firm will get you through it.
We know that word-of-mouth and referrals are the BEST types of advertising for small businesses/professional services. We sincerely appreciate each client testimonial from the past few months.
“I still can’t believe how well we lucked out with our referral to Potter Law Firm. My only regret is that we didn’t hire him sooner! Mr. Potter’s concern for our family is reflected in both in his words and his actions. He has navigated our case through the court system at a pace I didn’t think was possible, and I couldn’t be happier with the results. I’m fairly certain we’ll be keeping Mr. Potter on a retainer until our daughter is eighteen (and while that is a depressing
“I am pleased with the outcome in the hearing yesterday and it gives me hope that this will be settled soon. Thank you for your time and support. You have really changed my outlook of the court system and attorneys in whole. I wish all attorneys had your mindset, Mr. Potter. You and Lisa make a great team and I appreciate all of your help.” – Veronica H. 8/18/15
“I wasn’t sure what type of law Mr. Potter practices but asked him questions related to my PI case. I discovered that although he doesn’t actively handle PI cases, he helped connect me with a Personal Injury Expert who answered all of my questions and gave me sound advice. Thank you for helping me and getting back so quickly, Mr. Potter. I really appreciate it.” – Vani P. 8/15/15
A Modest Means Project Client Testimonial: “First we would like to thank you so very much for meeting with us. On such short notice to top it off. We felt very comfortable and not rushed at all. Thank you for listening and giving us the best advice we have received.” Ashley C. 7/24/15
“Mr. Potter did a wonderful job handling my divorce case even with coming in the middle of it. He and his team picked things up like they had been on board from day one, and got things moving in the right direction. They are very professional and yet friendly when dealing with such an emotional process. They made sure I understood my options every step of the way and kept me up to date on what was going on with my case. I highly recommend Potter Law Firm for any family law case.” – Rob G. 7/15/15
“Mr. Potter is an amazing attorney. I am currently utilizing him as a lawyer in a court case I have going on right now. Mr. Potter takes time out to explain, walk through, and describe how everything
“Known Mr Potter for many years. As i finish with my military career and return to Arizona he will be my attorney of choice for all my legal needs.” – Mike R. 6/30/15
The Potter Law Firm brings access to justice for regular people. We know that 80% of people think they cannot afford quality legal representa
Trouble is expensive – whether it’s car trouble, health trouble, or legal trouble, it’s going to cost you. Knowing how expensive it is, and knowing how little you have in the bank for such emergencies, makes most reasonable people want to hide under the blankets and hope it goes away. Most of the time, the trouble doesn’t go away – it usually gets worse. It can be a toothache, a funny rattle under the hood, or process server handing you papers; you know it’s going to be an expensive problem.
The median hourly rate for an attorney in Arizona is $255 per hour. Just knowing this is enough to discourage a lot of people from even picking up the phone for a free consultation. And then there is the advance deposit, which could be more than a year’s worth of discretionary income. Some matters can be dealt with using a contingency fee arrangement (where the payment is made only after the case is resolved), but this is only available in some areas of law. Family law and criminal matters cannot be paid for on contingency. If you do make it through the consult, the payment options may leave you feeling that legal help is out of your range. You do have options – maybe more than you think.
If you are indigent, living below the poverty line, then there are legal aid organizations that can help you. But these groups rely on state funding, and are seeing their budgets reduced every year – which makes it hard to qualify if you are only *somewhat* desperate. But what about people who are working, and just aren’t making that much money? Well, since wages have been stagnant for my entire adult life, this is a common situation. You have different options, depending on where you are on the income scale.
The Working Poor – those people who are not homeless, but make under 250% of the federal poverty guidelines, can qualify for the Modest Means project. Modest Means isn’t in every state, but it’s a widely available resource. If your income qualifies (that’s an annual income of $60,624 for a family of four), you can get a low price, one-hour consult with an attorney practicing in the area you need. In Arizona, that one hour costs only $75. If you are prepared, have done your research, and have your questions ready, you can get a lot out of an hour with an attorney. The consult is usually done at the lawyers office, so you are just like any other client, getting that same level of counsel for your troubles.
After the hour consult, the attorney may offer to take on your case. If the attorney makes this offer, the representation will continue at the modest means rate ($75/hr, here in Arizona). Not every lawyer will make the offer, but there’s no harm in asking. At the very least, you can ask for another 1-hour consult later on.
Modest Means is just one way that your local state bar and legal education organization are trying to bring good legal counsel within reach of working families. And you may be surprised by the caliber of professional you are getting for this low price. Many experienced lawyers are a part of Modest Means – it’s a way to give back and to promote better access to the law.
If you don’t qualify for Modest Means, or if your state doesn’t have such a program, what do you do? There are still ways to get legal assistance in solving your problems – and dealing with trouble is a better plan than hiding under the covers. More strategies for getting good advice for less will continue in the next post.
-Trail Potter, Esq.
2015 Federal Poverty Guidelines: http://aspe.hhs.gov/poverty/15poverty.cfm
Arizona Modest Means Project: http://www.azflse.org/modestmeans/
The first thing we do, let’s kill all the lawyers.
- Dick the Butcher, Henry The Sixth, Part 2 Act 4, scene 2, 71–78
It’s no secret lawyers are disliked by a lot of people. A lot of that dislike seems to be linked to a sense that lawyers can’t be trusted. When something very cool – like Astronaut Chris Hadfield singing David Bowie on the International Space Station – gets a take-down notice and is removed from you-tube, its lawyers ruining the fun. Lawyers write those credit-card agreements you can’t understand. When something really bad happens to you, there’s a good chance a lawyer is involved with telling you how bad it’s going to be. They are often the bearer of bad news, and frequently speak in a language that sounds like English, but doesn’t make any sense. It’s why the line from Dick the Butcher is still around, despite no one ever seeing a production of Shakespeare’s Henry VI since it premiered around the year 1600.
Admittedly, what lawyers do is widely misunderstood, and I don’t expect to change anyone’s mind in this short essay. However, it may help if you know that in nearly every instance where a lawyer is doing something – they aren’t doing it for themselves. We defend and protect the rights of others, even when protecting that right means delivering bad news, or taking down an amazing version of a great song sung in outer space. Somebody else (maybe someone mean and greedy) had a right and called an attorney to enforce that right. Lawyers serve others; it’s what we do.
A Lawyer must always put their client’s needs above their own as a requirement of the profession. Always, every single time, the client interest comes first. If a lawyer intentionally misleads a client for profit, that lawyer loses his or her license – they are thrown out of the profession. Who throws them out? Other lawyers – not the police, not some government regulatory authority, not the legislature, but the other lawyers in the state will kick the bad attorney out.
Compare that to the other hired professionals you trust: your stockbroker can sell you a garbage stock, knowing it’s garbage, lie to you about how good it is, then make money while you lose money. Did any broker lose their license during the credit-default swap crisis? Or during the dot-com crash ten years before that? No, they continued to show commercials about how your investment advisor is your good friend. Just like your “good neighbor” insurance company – are they putting your interests above their own profits? Or do you have to fight with them over your legitimate claim for damage to your home, car, or body? Insurance wants to take your money, not give it back. Investment banks want to make money, not protect your interests.
A lot of investment advisors are on your side, by choice. A few people out there have had nothing but good experiences with the insurance provider, perhaps more by luck. But only your Doctor and your Lawyer have an absolute requirement of their license to protect you first – to protect your rights as best they can. Most people either have a doctor they see regularly, or they know they should have one. You probably have an insurance agent, maybe even an investment advisor – but do you have an attorney? Is it because you feel like you can’t trust lawyers? Here’s one more question: Who benefits from you NOT seeking legal advice? Does your insurance company benefit when you don’t call a lawyer? Your investment broker?
Shakespeare’s Dick the Butcher was responding to a plan to overthrow the government, take away all property rights from private ownership and turn the land into a communist utopia. Dick was correct, the only way to do that, would be to take out those who protect people’s rights. Remove the safe-guards, the people who ensure a fair trial, that you were read your rights, that you get to vote, that you can’t be imprisoned without trial, and that your property rights are enforced. To take all those constitutional guarantees away, the first thing is to kill all the lawyers.
So who has your best interest?
The Potter Law Firm has your best interest. We’ll get you through it.
Before I began a sole practice in earnest, I worked a contract for the Arizona Dept. of Child Safety – more often known by their former letters: CPS. It’s close to the IRS for most maligned state agency (although the National Security Agency is trying), and like the IRS, it’s a necessity. I still don’t know the inner workings of the tax collectors, but my 9 months inside DCS gave me an insight to how the agency works, and the people who do a very hard and often thankless job. I’ve also had a view of the failings and flaws in their work. Now that my work there is done, I want to address a rare but dangerous problem: false reporting.
DCS exists to protect children from dangerous environments created directly by, or due to the neglect of, the parents or guardians of the child. This power to take a child away from the parents is in constant tension with the parents rights over and to their own child. No one is happy to have a government official take away anything of theirs, but to take away a child leaves parents scared and desperate. Often, these are temporary custody situations, where the child is placed with a relative guardian while the danger is assessed, and often returned to the parents. Many times, this danger is from drugs, and DCS provides rehab, counseling, and resources for parents who need help.
Let me assure you – there are very dangerous situations for children in the city of Phoenix, and there are parents whose behavior would terrify you. The people inside DCS all know how bad it can be – and whenever a child dies while under DCS investigation, every single employee of the agency is sent an email of what happened. It’s a constant reminder of what is at stake. Yet with so much riding on this, DCS budgets are always on the chopping block – case managers and parent aids are stretched thin and over-worked. Our new governor, Doug Ducey, has promised to cut the budgets further, leaving more children in danger, and fewer investigators to work on cases.
Although it is rare, sometimes these investigations are triggered by one of the parents against the other parent, during or after divorce, without a legitimate basis. The intent is often to use a DCS case to influence a custody outcome in family court – to move the ball closer to the goal. Sometimes this is done after a divorce, as part of a strategy to petition the court for a change in custody – and other times it’s done while a divorce is pending.
I’ve spent time preparing court documents in these cases, and it doesn’t work. A report can trigger an investigation, but the process will uncover a false report over substantial danger to a child. This discovery will be reported to the judge and any court appointed advisors in the family law case – in other words, it’s going to cause a lot of pain, expense, trauma for the entire family, and will mostly likely backfire. Filing a false report with DCS is a Class 1 misdemeanor and is punishable by up to six months in jail and a fine of up to $2,500. (Ariz. Rev. Stat. §§ 13-707, 13-802.) I’ve seen this happen.
The greater tragedy is that each false report takes attention away from real danger to children in frightening circumstances. As resources are stretched thin, the time it takes to uncover a false report drains the time and budget that should be used on cases where there is an ongoing danger to the child’s physical or emotional well being. DCS is there for the children of this state, not to be a used as a tool for parents working out their anger. Additionally, a DCS investigation won’t just stop once it’s been started, so the children will also be dealing with investigations, examinations, case workers asking them a lot of questions, and you ultimately run the risk of having the child removed from both parents, and placed into foster care.
If you are in a divorce, or have an existing custody agreement, and you have problems with the other parent – how they live or who they live with – there are other options. Mediation is a way parents can work through problems without court involvement. Private mediators can find resolutions for a lower cost than court involvement, and they can do it faster – which saves in the emotional costs to you and the children. Look into mediation before doing something you may regret. Think twice before filing a false report with DCS.
REMINDER: Mediators are NOT certified in Arizona – so ask about your mediator’s background and training. Are they knowledgeable in child issues? Are they a licensed attorney? Do they have a behavioral health background? Some conflicts are more about legal issues, and some are more about the psychology of the parents – so choose the right mediator for the problem. I am a Texas certified mediator with a high resolution rate in both civil and family matters. Contact the Potter Law Firm, we can help.
-Trail T. Potter, Esq.