Tainted Trials, Tarnished Headlines, Stolen Justice, Part Six – Minors Counsel
Editors Note: Part Six of this investigative series will be broken into three parts in order to effectively report on the payments and practice of appointing lawyers to represent children during their parents’ divorce or custody case in family court.
By Susan Bassi and Stephen James
If you watch the news, or follow current events on social media, you know that lately there has been a lot of debate and controversy around the issue of parental rights. While much of the current parental rights outrage is Astroturf-generated and patently misguided, over a dozen United States Supreme Court decisions dating back to 1923 recognize parents’ constitutional rights to the care, custody, and control of their children
Imagine that, in the course of going through a stressful divorce, you received a letter from a lawyer with whom you were unfamiliar. The letter noted that a superior court judge had issued an order that your child would be represented by the attorney who wrote the letter. The three-page letter included these paragraphs:
“As [your child’s] attorney, I have a confidential and privileged relationship with her. I trust that you will ensure that [your child] is given complete privacy when I speak
to her, whether it is at either of your homes or anywhere else. You are not to listen in on our conversations nor ask [your child] anything about what we discussed.
Suppose either of you attempts to infringe on the privileged and confidential communications I have with [your child] by listening in on our audio or video calls or questioning her about our discussions. In that case, I may bring the matter before the court and request sanctions against you.
In contrast to [your child’s relationship], I do not have any contractual relationship with either of you or represent your interests. Anything that either of you discusses with me is not confidential or privileged. I can disclose all our communications to [your child] or the court at any time.”
In addition, the legal fees for this lawyer likely will be paid by you and the other parent. Legal fees that in many cases reviewed by the Vanguard can run into six figures. In fact, family court whistleblowers allege that the court ordered appointment of an attorney to represent a child in a divorce case is just another way for lawyers to loot the bank accounts, home equity, and other assets of divorcing couples.
What is a “minors counsel” and why are they controversial?
Unlike criminal defense, where individuals have a constitutional right to a lawyer, no such right exists in family court. However, family court judges have the unique power to designate an attorney to represent children during their parents’ divorce or custody court case. With or without the consent of the parents.
In California, these judge-appointed attorneys are commonly known as “minors counsel” and they are brought into a case at the whim of a family law judge. Consequently, the court effectively becomes the employer of private attorneys, with judges assuming the role of bosses and supervisors. This arrangement also grants these lawyers immunity from being sued for malpractice for potential mistakes made while representing children. Once appointed, minors counsel’s bills for legal fees are typically rubber-stamped by judges without thorough review to ensure the fees are justified.
Parents and family court watchdogs continue to voice concerns over unreasonable and exorbitant fees charged by minors counsel. These court appointed lawyers regularly use their appointments to influence a judge in order to shift custody entirely to one parent. In many cases, minors counsel have an undisclosed relationship – a conflict of interest – with one attorney in a divorce case, and will help that attorney’s client in a child custody dispute by portraying the other parent as, for example, abusive or mentally unstable.
Parents’ complaints often get ignored by the court and state bar, leaving parents effectively court-ordered to pay whatever amount a minors counsel demand. In the rare case where parents are deemed unable to pay these lawyers, the county pays the minors counsel legal fees and taxpayers end up shouldering the costs.
When appointing an attorney to a potentially lucrative minors counsel position in a family court case, judges often choose a lawyer with whom they socialize, play golf, or owe a favor to. Many judges ignore state law which requires courts to maintain a list of qualified minors counsel. Judge appointments are supposed to rotate through the list. Court whistleblowers allege that minors counsel appointments are rife with cronyism and undisclosed conflicts of interest.
“In terms of playing favorites with certain attorneys, minors counsel appointments are easy for a judge to abuse,” said Ulf Carlsson, a family court whistleblower. “A judge issuing an order for an attorney friend of the judge to be minors counsel is a textbook conflict of interest, a conflict that a judge is required by law to disclose to the other lawyers and parties in the case.”
Minors counsel appointments recently garnered widespread attention in the Kassenoff divorce case after it was reported that the minors counsel in the case, Carol Most, charged $270,000 to “act” in the best interest of the Kassenoff kids, which she determined meant keeping the children from their mother.
In the month since the Kassenoff case reached the public consciousness, experts in the legal, medical and academic professions are noting the Kassenoff case should “Alarm America”.
Minors Counsel in California: Bill Padding, Conflicts of Interest, Unethical Conduct
According to records obtained by the Vanguard, attorney Heather Allan ranks among the most frequently appointed minors counsel in Santa Clara County. Allan like many other minors counsel, had little incentive to resolve the parent-child family friction or similar issues for which she was ostensibly appointed to sort out because remaining in a case until the children turn 18, allows her to bill and collect thousands in fees.
Similar to what was reported in the Kassenoff case with minors counsel lawyer Carol Most, Heather Allan’s bills do not exhibit complex legal work. Instead, they indicate she, like Carol Most, charges parents to monitor court proceedings, read emails and implement barriers to family communications.
In a case similar to the Kassenoff matter, Heather Allan billed over $60,000 over a three-year period for her legal services as minors counsel. Legal “services” which included erecting barriers to the mother’s relationship with her children, according to court observers.
In that single case, Allan persuaded a family court judge to issue custody orders that included limiting a mother to seeing her children only under court supervision, which she would have to pay for. An additional litigation expense that the mother had no ability to pay.
Minors counsel Allan further recommended payment to a “reunification therapist” after she had spent years justifying to a family court judge why the children she represented should not spend time with their mother. Allan billed for work to reunite and repair a parent–child relationship she had used the family courts to destroy.
In that same case, Allan appeared to exhibit racial and cultural bias toward the mother by recommending the mother should not be allowed to speak to her children in Chinese, her native language, nor vacation with them to see her family in China. Whereas Ms. Allan supported the father traveling to his family in France without limitation, language restrictions, or oversight.
Perhaps the most revealing alleged bias Allan exhibited toward the mother in the case was seen when Allan advocated in open court for a court order permitting the mother to attend her daughter’s eighth grade graduation but obstructing the First Amendment right of speech and association. Allan’s recommended order prohibited the mom from speaking to her own children, other parents and children when she attended the event. The mother had no criminal history. Her only “crime” was alleging her former husband had been abusive to her and the children.
Seven years after Heather Allan’s appointment to act in the children’s best interest for a young boy and girl, their mother, due to the endless demands and stress imposed upon her by the family court, lost her job, was unable to pay an attorney, went on public assistance, and was declared to be a vexatious litigant for repeatedly seeking more custody time with her children. Allan’s involvement in the case for nearly a decade raises doubt as to how her actions were in the best interest of her young clients.
In another case where Allan was appointed as minors counsel, a mother who sought help from WomenSV, was ordered to send her three daughters to Family Bridges Reunification Camp, at the recommendation of Allan, despite claims the father had been abusive to his children. Reunification camps in general have been highly controversial. Information on social media about the practices of the camps shows children being taken by private security companies and removed from a protective parent who seeks to expose abuse inflicted by the other spouse. These private internment camps are not licensed or regulated and are fed significant business from family law attorneys linked to high asset divorce cases.
As Heather Allan billed excessive fees, she ignored her young clients who repeatedly stated they wanted to see the parent whom Allan recommended be stripped of all custody. In a manner similar to Carol Most, Heather Allan ignored letters her young client sent to the judge that seemingly exhibited the emotional trauma the child had experienced as a result of the separation from her mother and the family court proceedings tortuously prolonged by Heather Allan’s involvement.
In another disturbing case, Heather Allan argued that granting full custody of a child to a father who had been convicted of felony domestic violence on the mother, and corporal punishment on a child, and who had violated his probation in the state of Georgia, was a more suitable parent than the mother. Allan’s reasoning was that the mother had made negative remarks about the father and was therefore alienating the child against the father, debunked and discredited legal rationale known as “parental alienation.”
Lawyers Price Gouging Children
Minors counsel are paid a reasonable sum for their work (Family Code § 3153), however a lack of standards and oversight results in wildly divergent fees that range from $60 per hour, if paid by taxpayers, to as much as $1,200 per hour if parents privately pay the costs.
In one Santa Clara County family law custody case, Judge Roberta Hayashi found that Ms. Allan inflated her bills as minors’ counsel. However, instead of referring Heather Allan to the State Bar or the local district attorney, the judge ruled that the parents were not required to pay the excessive fees. This conduct mirrored the claims of bill padding reported in the Kassenoff divorce, specifically regarding Carol Most’s bills.
Complaints about attorneys overcharging for minors’ counsel representation during divorce cases are increasing in nearly every county in California. However, the State Bar, the lawyer watchdog agency, presently dealing with public corruption tied to disgraced attorney Thomas Girardi, has yet to take formal disciplinary action against family law attorneys who excessively bill parents as minors counsel.
All attorneys in California are obligated to adhere to ethical standards and the Rules of Professional Conduct enforced by the State Bar, including Rule 4-200, which relates to attorney’s fees. While few attorneys acting as minors’ counsel face public discipline at the State Bar, Rule 4-200 states the following:
“A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.”
Of the dozens of parents and children interviewed for the Vanguard’s report on minors’ counsel, virtually all asserted that attorneys overbilled parents or taxpayers when one or both parents could not afford to hire an attorney themselves. Parents and court records confirm that appointments for minors counsel often led to cases dragging out for years, as minors counsel are known for fostering conflicts to prolong the proceedings in order to increase their personal profits.
Attorneys Creative Accounting
When seeking approval to be paid, court documents show Ms. Allan knew the parents of the children she was appointed to represent had been ordered to pay $36,558.24. However, Ms. Allan appears to have sought to inflate her payment, by claiming the parents collectively owed $57,960.12, a mathematical impossibility.
Through creative accounting, and effort to collect payment, Ms. Allan inflated the amount she sought to collect from a mother who had been stripped of custody and was on public assistance in Santa Clara County, the heart of Silicon Valley.
Watching Attorneys Charging Children
California’s state bar has oversight of lawyers as a matter of public protection on ethical matters, and the local district attorney has oversight over public corruption in the courts, and of the legal profession. As seen in Kassenoff, Carol Most faced no consequence for inflating her bills by $100,000 and was not charged with any criminal wrongdoing.
Attorneys in California are required to adhere to ethical standards set forth in the Rules of Professional Conduct. Rule 4-200 states that the unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Minors counsel appointments are not voluntary, but the rules that govern fees for lawyers apply to court appointed attorneys who must demonstrate;
(1) The amount of the fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
(5) The amount involved and the results obtained.
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required.
(11) The informed consent of the client to the fee.
As concerns over the excessive assets from families transferred through the family court to minors counsel continue to mount, family court reporting remains a priority for the Davis Vanguard.
If you have tip or family court experience you wish to share with the Vanguard, please contact Susan Bassi for this project. To support this investigative series, please subscribe, donate and ask your company to match your contributions to the Vanguard’s expanding coverage of California’s Family Courts.
