Contempt motion on support issue must be signed by a lawyer

For those in VA that might have been following the Briggman case over the years. I can only wonder how this decision will play out over time in Virginia

 

Judge: Contempt motion on support issue must be signed by a lawyer
By Alan Cooper

Staff members of the Virginia Division of Child Support Enforcement no longer are signing motions to hold in contempt parents who are delinquent in their support obligations.

The decision to abandon the practice was made after Kimberly J. Daniel, a juvenile and domestic relations district judge in Fairfax County, ruled that Virginia Code Sect. 8.01.271.1 requires such pleadings to be signed by an attorney.

The absence of a lawyer's signature makes such pleadings void ab initio, Daniel ruled on Oct. 30.

Craig M. Burshem, a senior assistant attorney general who represents DCSE, said he disagrees with Daniel but does not want to run the risk that a DCSE employee could be charged criminally with the misdemeanor of practicing law without a license. One of the 45 attorneys who routinely represents the division will sign such motions, he said.

John L. Bauserman Jr., the attorney who represented the father, and David B. Briggman, a father who believes he has been abused by the failure of DCSE to follow what he views as the law, contend that Burshem's change of position comes 20 years too late.

And they argue that the logical extension of their position has truly staggering consequences. They contend that the absence of a signature by an attorney on motions to establish child support, modification of existing orders and the enforcement of existing orders means that those pleadings are a legal nullity.

As a result, they contend, courts lack the authority to enforce tens of thousands of orders ostensibly obtained by DCSE over the past 20 years.

Briggman has filed a pro se complaint in U.S. District Court in Harrisonburg asking a federal judge to make such a ruling. Judge Glen A. Conrad heard arguments last month on the Virginia attorney general's office's motion to dismiss Briggman's suit.

He had asked the judge to bar non-lawyers from filing such pleadings, but an assistant attorney general told Conrad that they would no longer do so.

The AG's office contends that Code Sect. 16.1-260(A)(ii) authorizes non-lawyers to file such pleadings. A formal attorney general's opinion in 1988 reached that conclusion, but Bauserman and Briggman emphasize a significant qualification in the opinion. Filing such pleading is not the practice of law only "to the extent that the information provided by such employees is limited to facts, figures or factual conclusions and does not include legal arguments or legal conclusions."

Any motion to hold a parent in contempt is making a legal argument and asserts a legal conclusion that the parent is delinquent in his support obligations, Bauserman said.

Briggman filed a complaint with the Virginia State Bar's Standing Committee on the Unauthorized Practice of Law, which agreed with Briggman that completing and filing form pleadings by lay employees is the unauthorized practice of law.

But the committee found in February 2006 that Code Sect. 16.1-260(A)(ii) "authorizes the DCSE to file such pleadings on its behalf, through its lay employees and, therefore, that the conduct complained of is the authorized practice of law by such employees."

Bauserman contends that is an erroneous reading of the statute. The law requires most proceedings in juvenile court to go through an intake officer and lists three specific exceptions in which pleadings can be filed directly with the clerk: petitions from the commonwealth's attorney or county attorney, petitions by an attorney on behalf of a client, and support petitions by the Department of Social Services on its own motion.

Allowing the department to file motions with the clerk does not mean that an employee rather than a lawyer can do so, Bauserman said.

One case permitting

In what is apparently the only circuit court ruling on the point; Judge William D. Broadhurst of Roanoke interpreted the statute in September 2006 to allow employees to file pleadings on behalf of the department. Because an attorney can file pleadings under the exception that allows any attorney to file directly with the clerk, the special provision for the department would be superfluous if it needed an attorney as well, Broadhurst wrote in Commonwealth ex rel. Brazell v. Doss (VLW 007-8-274).

Bauserman is unpersuaded and says having laymen rather than lawyers investigate the basis for a pleading can have real consequences.

He cited as an example the year-long incarceration of a father on what he contends was an outdated administrative order from the department. After the mother obtained an administrative support order, the father went to court and won custody of the child. The father then obtained an amended administrative order eliminating any future support obligation and noting arrearages of less than 12 weeks.

A few months later, the mother regained custody but Bauserman contends that the amended support order was never withdrawn nor changed. Nevertheless, years later, DCSE sought and obtained a contempt citation based on the original order. Bauserman contends that a lawyer was more likely to have caught that error than a layman.

The father's attorney did not raise the issue at the contempt proceeding, and the judge ordered him to jail. The father could not appeal because he could not post a bond to cover the arrearages that the judge found to have accrued.

"On the face of it, this is not a popular group of litigants," Bauserman acknowledges.

But the law specifies that the signature of an attorney on a pleading certifies that he believes its contents to be well-ground in law and fact. When a non-lawyer is allowed to sign a pleading, no one is accountable—ethically or otherwise—for an inadequate investigation, he said.

Burshem, the DCSE attorney, said Bauserman's position is "strictly an ethical argument. … Nobody is making an allegation that the substantive law has been violated."

Bauserman responds that the law still is being violated, and "we don't get to pick and choose which laws we can follow."

Burshem said DCSE has several options to address the complaints of Bauserman and Briggman, including seeking legislation or a Supreme Court rule change to allow staff members to sign such pleadings. No decision has been made on what approach to take, he said.