In my last post, I bragged about how close I was to getting my own, self hosted website online. That site will become the new home of this blog. The plan has not changed, but let's be real here for a minute… My timeline was pure folly. It was a mirage. It was the quixotic impulse of an over-eager legal imagination to think I could juggle my caseload and summit those last few IT mountains so quickly.
I will say that nirvana is tantalizingly close. I have to edit a few more pages and imbed some cool functions I have yet to master, but the website will be up soon. For now though, here are some thoughts on a recurring conundrum family lawyers face.
There is an inevitable intersection between family law and criminal law. Eventually, you will have clients who either commit criminal acts or get wrongfully accused of them. In those cases, some family law attorneys decline to enter criminal court, compelling their clients to retain a separate criminal attorney. The charge could be simple assault, assault on a female, communicating threats, or one of a dozen other charges endemic to toxic family conflicts.
There is an inevitable intersection between family law and criminal law. Eventually, you will have clients who either commit criminal acts or get wrongfully accused of them. In those cases, some family law attorneys decline to enter criminal court, compelling their clients to retain a separate criminal attorney. The charge could be simple assault, assault on a female, communicating threats, or one of a dozen other charges endemic to toxic family conflicts.
As for myself, I have always tried to remain a general practitioner at heart, and that means rolling up my sleeves in criminal court on a regular basis. Either way, family lawyers of all stripes sometimes find themselves in the position of putting their clients on the stand in situations where they may have to either admit criminal wrongdoing or plead the Fifth Amendment and decline to answer questions.
Something important to understand if you are involved in a family law case is that yours is a civil matter. The Fifth Amendment privilege does not always apply, and the presiding judge has the authority to compel you to answer questions or hold you in contempt if you refuse, even if the answer implicates you in a criminal act.
One example that comes up often is adultery, which is still a crime on the books in North Carolina. In over 10 years of legal practice I have yet to see a prosecution for adultery by any district attorney. This is a good example of an instance where a judge my compel you to talk even if you want to assert your Fifth Amendment privilege.
There are also times when more serious crimes like assault or illegal firearm possession come into play. A witness may be allowed to take the Fifth, but of course the judge is entitled to make assumptions about what the testimony would have been.
One example that comes up often is adultery, which is still a crime on the books in North Carolina. In over 10 years of legal practice I have yet to see a prosecution for adultery by any district attorney. This is a good example of an instance where a judge my compel you to talk even if you want to assert your Fifth Amendment privilege.
There are also times when more serious crimes like assault or illegal firearm possession come into play. A witness may be allowed to take the Fifth, but of course the judge is entitled to make assumptions about what the testimony would have been.
The decision lawyers face is whether to tell the client to plead the Fifth, or go ahead and answer the question. I have no data to back this up, but I would expect the large majority of family lawyers would tell their client to keep quiet. While sometimes I agree, I prefer to evaluate each case on its merits. Practicing criminal law on a regular basis, I know the odds you will face arrest for admitting to a low level misdemeanor made while testifying in civil court are low. Often, the judge is not interested in having you charged with a crime, the judge is interested in resolving the domestic issues in front of him or her.
It occurred to me recently that the decision to plead the Fifth is very much like the decision NFL coaches face when deciding to go for it on fourth down. The statistics would tell you to be bold and go for it (i.e. answer the question) a lot more often then what you see happen in actual practice. Maybe it's because this is one of those situations where you as the coach/lawyer make the call... the consequences could be disastrous or highly profitable, and in those moments a lot of people become risk-averse.
