Wednesday, October 28, 2009

Can we hire one attorney to represent us both in our Divorce?

Don't believe everything you see in the movies. In the popular teen pregnancy flick Juno the adopting parents end up getting divorced and the Husband states "I called Gerta Rauss. She says she can represent both of us. They call it 'collaborative divorce.' It’s apparently all the rage right now."

Although, collaborative law is "all the rage" right now, it does not involve one lawyer representing both parties.

It is not ethical or practical for a lawyer to represent both parties in a Divorce, whether through collaborative law or litigation

In fact, Rule 1.7 of the Massachusetts Rules of Professional Conduct prohibits a lawyer from representing a client if that representation will be directly adverse to another client unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client AND each client consents after consultation.

Although both clients might consent, it is not reasonable to believe that a lawyer can represent two adverse clients at the same time in the same action and look out for both of their interests.

It is possible to have a lawyer act as a mediator but in that case the lawyer does not represent either party and is not looking out for either of your individual interests. It is also possible to have only one party hire an attorney, but it is important for the other party to recognize that that attorney is not looking out for their interests too.

If you'd like to learn more about hiring an attorney you can schedule an initial One Hour Consultation here.

You can also read a hypothetical example of a Collaborative Law Divorce on our blog here.

Thanks to Michelle Bernier-Capaldo for suggesting this question.

Friday, October 16, 2009

M.G.L. 93H and Data Privacy Basics

Massachusetts has enacted one of the strictest data-privacy laws in the country and is scheduled to go into effect on March 1, 2010. Any personal information that any business entity maintains or stores is subject to Massachusetts General Laws Chapter 93H, while M.G.L 93I governs the destruction of physical and electronic documents and data. Both M.G.L. 93H and M.G.L. 93I define “personal information” as a person’s last name and either his or her first name or first initial, combined with any one of the following: a social security number; driver’s license number or state-issued identification card number; financial account number, debit or credit card number, with or without any required security code, access code, personal identification number or password that would permit access to a resident’s financial account.

Guidance for business’ implementation of M.G.L. 93H can be found in 201 CMR 17.00, and creates an affirmative duty to every person that “owns, stores or maintains personal information about a resident of the Commonwealth” to “develop, implement, maintain and monitor a comprehensive, written information security program applicable to any records containing . . . personal information.” In determining whether such comprehensive security program complies with M.G.L. 93H and accompanying 201 CMR 17.00, a court will consider:
(a) the size, scope and type of business of the person obligated to safeguard the personal information under such comprehensive information security program;
(b) the amount of resources available to such person;
(c) the amount of stored data;
(d) the need for security and confidentiality of both consumer and employee information.

Any business must have a written information security program (“WISP”) that establishes security policies for the firm’s computers and wireless system, and all personal information contained therein. All personal information stored on laptops or “other portable devices” must be encrypted. All records and files, including emails, containing personal information that is transmitted across public networks or wirelessly must be encrypted “[t]o the extent technically feasible.” The written security program must include plans for systems monitoring for unauthorized use, up-to-date firewall protection, and up-to-date system security software that is set up to receive regular security updates.

Authentication protocols must include a “reasonably secure method of assigning and selecting passwords.” 201 CMR 17.04(1)(b). Assigning random complex passwords to clients would be a preferable defensive strategy. Such passwords must be controlled “in a location and/or format that does not compromise the security of the data they protect.”

With that in mind, businesses should develop a policy which includes:
(a) Encryption of all emails that contain personal information.
(b) Encryption of all personal information stored on portable devices
(c) Installation of system security agent software that is set up to receive security updates
(d) Maintenance of firewall protection for all files on a system connected to the internet.
(e) Implement a termination/Disciplinary policy for misuse of personal information.
(f) Education/Training of employees on proper use of computer security system and importance of personal information security.

Attorney Trask of Kelsey & Trask, P.C. was a cryptologic materials manager in the U.S. Marines, and has experience planning and implementing encrypted communications (voice and data) networks. If you have any questions regarding M.G.L. 93H, contact us at (508) 655-5980 or click here.

Wednesday, October 14, 2009

October is National Domestic Violence Awareness Month

President Obama on September 30, 2009 proclaimed October, National Domestic Violence Awareness Month.

As with any issue that endangers the health, safety or welfare of individuals, the first step towards ending that danger is to raise Awareness.

It seems that we are bombarded everyday with walkathons, and fund raisers, and pharmaceutical commercials that want to raise our Cancer Awareness, our Heart Disease Awareness, even our Awareness of Erectile Dysfunction. It becomes easy to forget that there are dangers in this world, and even in our own backyard, that don't stem from viruses or diseases. There are dangers, such as Domestic Violence that aren't caused by hunger or a germ, but instead by poor choices and a failure of support.

It's hard to know if there will ever be a cure for cancer, but we know the cure for Domestic Violence. A safe home and access to justice can provide victims of Domestic Violence with a voice to end their suffering.

If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

Thank you to Danielle G. Van Ess, Esq. for reminding us that sometimes there are greater issues to blog about than just questions of court and law.

Tuesday, October 13, 2009

Is there a Criminal Record of a 209A Restraining Order?

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).

There is presently no statutory provision in Massachusetts allowing these records to be expunged.

This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.

In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997)

In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating “a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.” In that case “fraud” consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006)

In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a “fraud on the court” as when it can be “demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009)

Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).

Monday, October 12, 2009

Family Law Blogs Directory and other Useful Tidbits

We'd like to thank J. Benjamin Stevens for adding us to his Directory of State-Specific Family Law Blogs. If you follow our blog and are looking for information that might be more specific to your state then check out the directory.

In addition, if you're contemplating divorce or currently involved in a divorce, there is some other great advice to be found on Attorney Stevens' website, including the latest post "Tips to Minimize the Difficulties of Divorce".

Friday, October 9, 2009

New State Median Family Income Figures Released

The United States Department of Justice has released the Census Bureau State Median Family Income By Family Size figures for means test calculations on Bankruptcy Cases filed on or after November 1, 2009. The new figures are available on the U.S. Trustee's website here.

These figures apply only to cases filed on or after November 1, 2009.

For Massachusetts, the new State Median Family Income figures are as follows:

Family of 1: $53,505
Family of 2: $69,451
Family of 3: $82,591
Family of 4*: $99,648

*Add $6,900 for each individual member in excess of 4.

Try our Chapter 7 Means Test Calculator by clicking here or on your mobile device by clicking here, now updated with a NEW feature that allows you to choose whether to use the old or new Median Family Income figures.

For additional questions regarding the new State Median Family Income figures, or any questions regarding Bankruptcy or the Chapter 7 Means Test, please contact Attorney Matthew Trask at (508) 655-5980.
Related Posts Plugin for WordPress, Blogger...