Melanie E. Baillie

Although I will admit that I like catchy titles, this article is not about being “nice.” As attorneys, we cannot always be “nice,” and we are not called to be. Rather, the topic de jour is civility – or the lack thereof. Civility is conduct that is marked by “personal courtesy and professional integrity in the fullest sense of those terms.”[i] I admit that I am a work in progress.

At the recent Annual Family Law Section conference, I raised the issue of civility with colleagues. Is the lack of civility in the profession getting worse? Everyone I have spoken with seems to feel as though incivility has increased exponentially among both clients and colleagues. In a profession where the pressures are already extreme, the marked increase in hostility, insolence, and vitriol is unsustainable to the advancement of justice.

The perception of incivility among attorneys, and the call for change is not new. In 1996, the Conference of Chief Justices (“CCJ”) adopted a resolution calling for the highest courts in every state to encourage professionalism among attorneys.[ii] Despite the long-held concerns, civility in the legal profession has not only declined, but has seemingly plummeted.

Despite the pervasiveness of the problem, many Courts and Bar Associations have rejected the notion of professional disciplinary action based on boorish and unprofessional behavior.[iii] In response to the resistance to behavior change through professional enforcement mechanisms, in 1999, the CCJ then adopted a National Action Plan on Lawyer Conduct and Professionalism. The point was to combat further the lack of civility in the profession, while also recognizing that professionalism and civility are necessarily aspirational.

Author Jayne Reardon identified the influence of traditional media and social media portrayals of attorneys as some of the causes of declining civility. These causes include inexperienced lawyers without adequate mentoring and the isolation of modern technology providing “anonymous platforms” for what Ms. Reardon terms “digital expression.” But, like all complex problems, these causes are just the start. Moreover, recognizing the cause of the problem and fixing it, are clearly two separate challenges.

Recognizing the challenges of change, the CCJ Professionalism and Competence of the Bar Committee formed a roundtable group to study the incivility problem and enforcement.[iv] How does a regulatory body discipline an attorney who engages in incivility? The short answer is, arguably, it cannot. The difficulty in finding an institutional fix was exemplified in the 2021 Georgia Court of Appeals case[v] In Re Spix. The trial court held an attorney in contempt because of unprofessional and uncivil emails.[vi] The Georgia Court of Appeals reversed, finding that summary contempt proceedings for conduct outside of the courtroom violated due process.[vii]

United States Magistrate (Idaho) Judge Larry Boyle noted, “[T]he principle of zealous advocacy is often treated as inconsistent with civility and professionalism. However, there is no inconsistency. ‘In fact, quite the contrary, advocacy which is both civil and professional is by far the most effective.’”

Idaho, like other state bars, also recognized the problem of incivility among its members. In the early part of the new millennium, the Idaho State Bar Professionalism and Ethics Section crafted the Standards for Civility in Professional Conduct.[viii] These standards were put before the Bar membership who resoundingly adopted them. Some 77% of the Bar membership voted to approve these standards. The U.S. District Court for the District of Idaho went one step further and incorporated the Standards into Local Civil Rule 83.8. Notwithstanding these efforts, the Idaho Standards for Civility in Professional Conduct are aspirational, and a violation of the Standards is really not sanctionable. Even the Federal Local Rule 83.8 lacks any real teeth.

The continued increase of uncivil behavior and professionalism among attorneys begs the question, “Why can’t we just be nice?” Sanctionable or not, incivility and gratuitous rancor is unnecessary and is counterproductive. Perhaps then, the more apt question is, “What can we, as attorneys and masters of our own conduct, do about the problem?”

As I was conducting research to write this article on civility in our profession, I began to think about and examine my own conduct that has, at times, been particularly uncivil. It is convenient to hide behind the cloak of “zealous advocacy” in order to justify boorish and uncivil behavior. However, we lose our effectiveness as an advocate when we lose our cool. “We can be passionate without being poisonous.”

Experts grappling with civility and professionalism in the law have found some key ingredients to help advance the standard of civility. Civility and professionalism cannot be legislated; it must be learned – and it takes practice. It also takes cultivating an ethos of civility by law firm partners, Bar leadership, and the Courts. Civility is good for you and for your client. Where then, do we begin?

Connection

Connecting with colleagues in professional and personal ways has a profound impact on our ability to be civil when we are on opposing sides. A plethora of research has shown that human connection is a basic human need and critical to emotional maturity and functioning.[ix] Recent research shows that COVID-19, and its disruption to human connections, “stands to threaten all layers of Maslow’s Hierarchy […] with deleterious consequences on our mental health.”[x]

Abraham Maslow pointed to a hierarchy of human needs comprised of five “levels” or categories. According to Maslow’s theory, an individual’s behavior is motivated by the innate desire to fulfill each of these needs. Third in the hierarchy, after physiological needs and security, are “social needs.” That is, the need for friendships, relationships, involvement in organizations, and engaging in group activities. In a word: connection. A landmark study published in the journal Science found an increased risk of death among individuals who lacked human connections.[xi]

It follows that when we connect with our opponents on a personal level, they become more human. It may seem “old school,” but it is critical that we communicate professionally in person or by telephone whenever possible. There is a reason that the discovery rules require parties to meet and confer. When we connect directly with an adversary, we can no longer hide behind the keyboard with a pithy email or text message. Emails and text messaging do not convey intonation, can be misconstrued, and are an easy shield for rudeness and incivility. We are far more likely to resolve issues with less conflict, stress, agitation, and frustration by simply communicating on a personal level.

Another important way to connect is to attend seminars, CLEs, Inns of Court, bar lunches, and other activities with our colleagues and adversaries. This allows us an opportunity to see them in a different context. They are no longer the obstructing force in our client’s way or the source of our heartburn. They become human, and so do we. When you become human with your adversary and connect with them, something magical happens. You begin to empathize. It becomes more difficult to be rude and obstreperous once you build networks and, in some cases, friendships.

Finally, do not underestimate the need to connect with friends and family. What does this have to do with civility in your profession? Well, these connections will give you the strength and resolve you need to be civil in your law practice. Being present and enjoying the company of people you choose to be with increases your wellbeing. When we feel better, we act better. Our ability to grant opposing counsel some grace, or disengage in unproductive bickering, increases as we foster our personal relationships.

Kindness

It seems almost cliché to suggest that being kind will help you be more civil. However, the truth is, kindness is a component of civility. Forcing yourself to be kind when you do not feel charitable is a real art. It takes practice.  Sometimes we fail and have to start over. Granting and receiving the grace to “start over” and be kinder to the individuals with whom you deal is a gift. Do not squander it, but also do not be afraid to take the opportunity to continue practicing kindness. It seems so simple, and yet, it can be so difficult. When kindness is present, it is extremely difficult to be rancorous.

When you are upset and type out an angry email, hold on to that communication until your frustration and anger have subsided. Waiting a day or two could mean the difference between saying something you will later regret and resolving the issue at hand. Being kind and professional is not synonymous with being weak. You do not have to be best friends with opposing counsel. However, holding steadfast to the principle that you will treat others with kindness, will likely earn you the same in return.

Another component of genuine kindness in the context of professionalism is offering an apology when appropriate. This can be a tough one for attorneys. However, an apology does not show weakness nor is it tantamount to an admission against the client or attorney’s interests. If you have stumbled in your attempt to be kind and professional, an appropriate apology will usually go a long way and hurts nothing. An earnest apology (which is not an admission), is a valiant display of emotional maturity. You will garner more admiration and respect from clients and opposing counsel when you can take a bite of humble pie.

In addition to being earnest and avoiding superfluous arguments, you can exhibit other small kindnesses in your practice. For example, providing an extension to opposing counsel when asked, accommodating opposing counsel’s schedule, and treating all individuals with basic dignity and respect. Instead of assuming the worst, provide the benefit of the doubt. Genuinely attempt to work out discovery issues, and avoid self-righteousness. All of these examples are opportunities to practice kindness.

Finally, avoid the opportunity to make arguments and point out errors solely to embarrass opposing counsel or humiliate an opposing party. This tactic will come back to bite you. Not one attorney practicing law today has escaped making an error. Embarrassing and demeaning opposing counsel or an opposing party may be a good show for your client, but it will only ratchet up the rancor. The Judge will be unimpressed. Of course, if action is required for the best interests of your client, you must take that action. Impertinence, however, is unnecessary. Remember, you reap what you sow.

Integrity

Let’s face it; everyone knows a good lawyer joke or two. Somewhere along the line, attorneys gained a reputation for being slimy, bombastic, cheating, lying thieves. Notwithstanding attorneys’ undeserved reputation, I consider most attorneys to be people of integrity. However, and much to my chagrin, even my integrity has been challenged more than once. Likewise, you may find yourself subjected to the general attorney misperception at some point in your career. When this occurs, reject the notion, as it should always be undeserved.

Do not compromise your integrity for anyone. At the end of the day, all you have is your reputation and the foundation of your reputation is your integrity. It can be difficult to own your mistakes, admit unfavorable facts, disclose unhelpful witnesses, and stand by your word. Do it anyway.

If your primary mission is to win at all costs, then you should consider reexamining your priorities. Review the Rules of Professional Conduct and stay within the lines. When you consistently model integrity in your dealings, you are more likely to win the respect of the Court, clients, and colleagues. You will certainly respect yourself more. I came across a quote published in the Journal of the Association of Business Trial Lawyers that is particularly apt:

Lawyers sell their skills, their seasoned judgment, their advice.  They sell their ability to reason, to engage in rational discourse, to present analytically sound arguments.  They also sell their reputations and their credibility with the court.  To the extent those commodities are squandered by selling their soul to one client, they are less valuable to the next client.  Once sullied, reputation and credibility cannot easily be recaptured.[xii]

Keep Friedman’s principle in mind.  Guard your integrity as if it were gold.

Be Prepared and Knowledgeable About Your Case and the Law

Be prepared and know the law.  It seems simple, doesn’t it?  Follow this basic rule, and you will not only appear more competent, you will be.  Lawyers who consistently focus on the facts and law of their case rarely find themselves embroiled in personal attacks.  Focusing on the case does not mean focusing on the shortcomings of your opponent or proudly exposing the salacious details of a party.

Preparing your case properly requires a thorough understanding of the facts of each case.  Do not assume you have heard your client’s story before.  A myth about domestic relations cases is that the law rarely changes.  While there are generally radical changes to any body of law, new cases do emerge.  The rules are frequently modified.  If you spend your time staying abreast of changes in the law, you will have less time to concern yourself with petty bickering.

Another important note about being prepared and knowing the law is to avoid spending your time trying to “get away” with whatever you can.  If I had a dollar for every attorney who thought they were clever in obstructing discovery, I would be wealthy.  If you cannot win a case on its merits, then work to settle it.  A good attorney knows when there is no case to build or defend.

Good advocacy is not synonymous with parlor tricks.  Taking pot shots at the opposing party, or opposing counsel, whether in oral argument or briefing, is not helpful.  Gamesmanship does not win points with any Judge.  Playing shell games does not make you look more brilliant than you are.  What an attorney really reveals when he or she cannot play fair is that they are not prepared.  Manage your time and your client load.  Fiercely advocate for your clients based on the merits of the case and your creative thinking.

Attorney Well-Being

Clients depend on us to handle sensitive, sometimes life altering legal issues.  Such high stakes and heavy responsibility often lead to intense and prolonged stress.  Stress takes its toll on civility.  Paradoxically, not only do you suffer, but the clients you work so hard to help suffer too.  You cannot be an effective advocate while in constant, unrelenting angst.  Moreover, when you do not take the time to rest and regroup, you have less emotional capacity to behave in a civil manner.  A constant level of stress and pressure over time can turn even the nicest person into a beast.  Thus, it is imperative to find a way to manage your stress.

Most attorneys are overachievers, perfectionists, stubborn, and tough.  Really tough.  You have to be tough in this business.  Many in the legal profession chose this career path out of a genuine desire to help people – to champion the cause of “justice.”  Often, however, lawyers end up feeling used up and burnt out.  Mental health and substance abuse issues are alarmingly high in the legal profession.

Recently, a colleague passed away after an extended illness.  A mutual colleague commented on social media, “This business is killing us!”  That comment deeply disturbed me, but also deeply resonated.  A large-scale study published in the Journal of Addiction Medicine in 2016, looked at the rates of substance use and mental health problems among attorneys in the U.S.  It’s not surprising that the study found “substantial rates of behavioral health problems” including “hazardous, harmful, and potentially alcohol-dependent drinking” and significant levels of depression, anxiety, and stress.  Sixty-one percent of the lawyers reported anxiety and 45.7% reported depression over the course of their careers.[xiii]

A 2017 survey conducted by the American Bar Association’s National Task Force on Lawyer Well-Being found that 28% of practicing lawyers suffered from depression, 19% had severe anxiety, and 11.4 % had suicidal thoughts in the previous year.  In addition, a study conducted by the Harvard Business Review in 2018, found that the practice of law was among the loneliest professions.[xiv]

Attorneys were also significantly more likely to report suicidal thoughts compared with the general working population.[xv] Although actual suicide rates among attorneys appear to vary by region, gender, and age, attorneys are at significantly higher risk of suicide than the general population.

Some critics have challenged the premise that attorneys suffer from comparatively higher rates of mental illness than the regular population.[xvi] Regardless, the available data regarding the hazards to the psychological well-being of lawyers is disconcerting.

We need to ask ourselves then, “What role does the lack of civility among legal professionals play?”  Will greater civility reduce the risks of mental health and substance abuse disorders among lawyers?  That may be a chicken and egg question that I certainly am not qualified to answer empirically.  However, it seems clear that taking care of our personal needs is paramount to becoming the best version of our professional selves.

Part of being the best professional you can be is elevating yourself to a higher level of professional behavior.  It follows then, that when we give ourselves the necessary respite, we are more likely to be consistently civil in our professional dealings.[xvii]  In so doing, we are also better attorneys for our clients.  Incivility in the practice of law increases the costs of litigation and delays proceedings.[xviii]

With the interest of your clients and the legal profession in mind, make time to do the things you love.  Be with the people you care about and engage in those activities that bring you simple joy.  Easier said than done?  Yes.  Nevertheless, you and your profession require it.  If you do not make time for the things you love to do, no one will make time for you.  Engaging in activities that we enjoy increases our feel-good chemicals, decreases incessant thoughts about work, and gives us time to unplug and relax.  This in turn increases our ability to tackle high conflict professional situations.  Caring for yourself goes hand in hand with setting your boundaries.

Part of the responsibility of taking care of yourself also means getting help if needed.  There remains a significant stigma surrounding substance abuse and mental health treatment.  The 2017 ABA task force report found that between 40% and 70% of disciplinary proceedings and malpractice claims against attorneys involve substance abuse, mental health, or both.[xix]  Lawyers are reluctant to disclose these needs.

All state bars have developed lawyer assistance programs.  Lawyers can seek confidential assistance without the fear of reprisal.  The assistance is confidential.  If you or someone you know needs help, the Lawyer Assistance Program is there.  The ABA has a complete directory of lawyer assistance programs by state.  The website address is at the end of this article.[xx]  The Idaho State Bar’s Lawyer Assistance Program is located on the Bar’s website at: https://isb.idaho.gov/member-services/programs-resources/lap/

Setting Boundaries

Setting boundaries to protect your well-being and mental health is important.  While working from home during the pandemic, I broke my own cardinal rule on boundaries.  I provided clients with my personal cell phone number.  Different people have different philosophies about whether or not to give a personal cell phone number to a client or opposing counsel.  I am firmly in the camp of no personal cell phone number for a client.  Why?  I am not good at boundaries.  Recently, I was lamenting and feeling overwhelmed as I had a client in crisis who was texting me on my personal cell phone.  By breaking my own boundary, I put myself in a situation that took a toll on my well-being.  While it is important to set boundaries, it is just as important to keep those boundaries.

Likewise, it is important to set boundaries on how to deal with colleagues, adversaries, and clients.  When the animosity begins to escalate, it can help to deescalate the situation by assertively making your point and ending the interaction.  Bullying, intimidation, insults, or harassment are inappropriate and the one engaging in these behaviors needs to be told so.  However, if the person remains unreasonable, then disengage completely from the process.

When you fail to set your own boundaries, you will find yourself often embroiled in conflict and acting in unprofessional ways.

Being Part of the Solution

I have always lived by the rule that “if you are not part of the solution, you are part of the problem.”  I have no idea who coined that phrase, but it is up to us, as members of the Bar, to be part of the solution.  Connecting with colleagues, caring for yourself, managing your practice effectively, being prepared, and focusing on the law are all ways to be part of the solution.  Give it a try.  Begin by reading the Idaho Standards for Civility in Professional Conduct.  Create an action plan for yourself to treat all counsel, parties, and witnesses in a civil and courteous manner – and employ it.  We are engaged in a noble profession and acting within the bounds of civility will make you a better, more efficient, and more focused attorney.  We can all be nice or, at least, civil.

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[i] Standards For Civility in Prof’l Conduct for The Idaho State Bar, United States District Court, District of Idaho and The Courts of the State of Idaho, Adopted by the Courts and by the Idaho State Bar, 2001.

[ii] Aaron Bayer, Tougher Measures for a Continued lack of Civility, Nat’l L. J., October 27, 2014.

[iii] Id.

[iv] Resolution 1, Commending to the conference of Chief Justices the American Civil Trial Bar Roundtable Policy Paper on Increasing the Professionalism of American Lawyers, Conference of Chief Justices, Adopted January 28, 2015.

[v]  In Re Spix, 358 Ga. App. 119 (Ga. Ct. App. 2021).

[vi] Id.

[vii] Id.

[viii] Standards For Civility in Prof’l Conduct for The Idaho State Bar.

[ix] A.H. Maslow, A Theory of Human Motivation, Psychological Review (1943).

[x] Sarah L. Hagerty & Leanne M. Williams, The Impact of COVID-19 on Mental Health: The Interactive Roles of Brain Biotypes and Human Connection, 5 Brain, Behavior & Immunity – Health (May 2020).

[xi] James House, et al., Social Relationships and Health, 14 Journal of Science 293 (July 29, 1988).

[xii] Chaplin, Michael, A call for Civility in the Law: But Is the Right Person Listening?, Association of Business Trial Lawyers Journal, Vol XXX No. 1, Fall, 2007, quoting Paul L. Friedman, Fostering Civility: A Professional Obligation, Remarks to the American Bar Association Section of Public Contract Law (1998).

[xiii] Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016).

[xiv] Shawn Achor, et al., America’s Loneliest Workers, According to Research, Harv. Bus. Rev. (Mar. 19, 2018), https://hbr.org/2018/03/americas-loneliest-workers-according-to-research.

[xv] Matthew S. Thiese, et al., Depressive Symptoms and Suicidal Ideation Among Lawyers and Other Professionals, 63 J. Occup. & Env. Med. 381-386 (May 2021).

[xvi]  Weiss, Debra Cassens, Conventional Wisdom is Wrong about Lawyers’ comparative Mental Health, But Comparative Drinking Rate is ‘Extraordinary,’ Study Says, ABA Journal, (Feb. 22, 2022). 

[xvii]  This is my opinion based on my experience in my professional life.  I am not so outside the bell curve of a normal attorney that my experience varies greatly from my colleagues.  It is common sense and the benefit of hard-learned wisdom that makes it clear to me we cannot be professional and civil to others if we ourselves are miserable.  Feel free to draw your own conclusion.

[xviii] “[C]ivility is the responsibility of every lawyer, judge, and litigant in the federal system. While lawyers have an obligation to represent clients zealously, incivility to counsel, adverse parties, or other participants in the legal process undermines the administration of justice and diminishes respect for both the legal process and our system of justice…” U.S. Dist. Ct. Idaho, L.R. 83.8, Fairness and Civility.

[xix] New Study on Lawyer Well-Being Reveals Serious Concerns for Legal Profession, ABA Journal, (Dec. 2017), https://www.americanbar.org/news/abanews/publications/youraba/2017/december-2017/secrecy-and-fear-of-stigma-among-the-barriers-to-lawyer-well-bei/.

[xx] ABA Directory of Lawyer Assistance Programs by state: www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/.

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Jacob B. Workman[i]

Domestic violence (“DV”) training for attorneys is often focused on the violence portion, and with good reason. Violence from a family or household member has a long-lasting and traumatic impact on survivors. However, what sets domestic violence apart from other societal violence is the adjective domestic.

Domestic violence has a significant and unique impact on the household itself, particularly for women and children.[ii] Sixty-three percent of women experiencing homelessness report being victims of domestic violence or sexual assault.[iii] Women who are DV victims are four times more likely to experience housing instability.[iv] This is partly because domestic violence often leads to other contributing factors of homelessness, such as physical injuries, depression, posttraumatic stress disorder, and frequent absences from work or school.[v]

This article aims to give family law attorneys expanded understanding of housing problems that arise in domestic violence cases and tools for mitigating the impact on victims. Though female pronouns for victims and male for abusers have been used, domestic violence occurs in the reverse situation and the LGBTQ community.

Power and Control

Idaho defines domestic violence as actual or threatened physical injury, sexual abuse, or forced imprisonment of a household member, or of an adult in a dating relationship with the abuser.[vi] The Power and Control Wheel developed by the Domestic Abuse Intervention Project shows the patterns and behavior used by abusers to perpetuate domestic violence.[vii] Housing concerns persist throughout the wheel. Here are some examples:

Using Economic Abuse. Many victims encounter an inability to pay for housing without the financial support of a violent partner. Changes to the rental housing market over the past few years have only exacerbated the problem, with the average cost of rent in Idaho jumping 44% since 2020.[viii] Victims are left with the agonizing decision of enduring the abuse or risking homelessness.[ix]

Coercion, Threats, and Intimidation. Abusers use derogatory, hurtful, and violent words that have special meaning to victims based on the abuser’s behavior in the home. Abusers may intimidate victims about damages they have caused to a rental home during the abuse, claiming it is the victim’s fault and that it could lead to her eviction. With limited housing options, abusers use the victim’s basic needs to establish control over her.

Emotional Abuse and Isolation. The seclusion and privacy of the home can become a tool for abusers to act in ways they never would around other people. Because of this, abusers will often try to isolate victims to the home by demanding to know where victims are at all times and interrogating them when they return. This can lead to victims being cut off from friends, family, and employment, which are vital support systems for victims to be able to end their abuse.

Minimizing, Denying, Blaming, and Male Privilege. Gaslighting is a real struggle for victims to overcome.[x] Abusers may develop a “king of the castle” mentality where because he pays the bills, he makes the rules. This can lead to abusers using those rules to normalize their own abusive behavior as acceptable, appropriate, or even deserved, and can distort victims’ ability to identify or believe in the abuse.

Using Children. Many abusers know how to manipulate a victim based on her concern for her children’s needs, such as housing. Sadly, this sometimes means short-term needs (e.g., where they will sleep tonight) take over long-term needs (e.g., ending an abusive situation) to the benefit of the abuser.

What’s The Plan?

Maybe the most powerful three words you can say to your client are: “What’s the plan?” While clients experiencing domestic violence often have many different problems they would like to solve, your ability as an attorney is to advise on legal solutions to legal matters. Asking “What’s the plan?” allows you to identify shared material goals between you and your client.

What type of living situation does the client want to be in a year from now? What personal or family resources does the client have? What community resources are available? What sort of achievable change would help the client? These types of long-viewed conversations, combined with your legal advocacy and knowledge, can lead to real and lasting stability for your client and any children she has in her care.

Immediate and Long-Term Need

Often, domestic violence cases will come to your office through an ex parte Civil Protection Order (“CPO”) with a pending extension hearing, a No Contact Order issued in a criminal case regarding violence between family members, or a new divorce or custody case. No matter your client’s situation, discussing housing is an immediate priority.

There are a variety of rental and ownership arrangements that can affect your client, including (1) when a CPO is in place, (2) when VAWA may apply, (3) when the victim is not listed on the lease to the dwelling, (4) when there is no formal lease, (5) when the home is solely owned by the abuser, or (6) when there are mounting rent/mortgage/utility payments. It is crucial to understand your client’s current housing situation, what housing changes might be inevitable, a potential timeline, and any changes that might improve your client’s situation in the long-term.

Rental Issues

Regarding a CPO situation, Idaho Code § 32-6306(1)(c) empowers the court to specifically exclude an abuser from a shared dwelling or the home of the victim.[xi] Section 3 of the CPO petition[xii] developed by the Court Assistance Office provides the court with the information needed to make a short-term ruling on housing. Completing this section correctly is crucial to getting immediate help. If you run into issues enforcing a move-out order, domestic violence CPOs are expressly governed by the Idaho Rules of Family Law Procedure.[xiii] I.R.F.L.P. Rule 811 allows you to seek a Writ of Assistance for an order of possession.[xiv]

Many landlords, when approached by a DV victim, are sympathetic to the situation but will desire to stay out of it. If a CPO is issued, providing a copy to the landlord can be appropriate so they know the abuser cannot be on the property. Problems can occur when the victim is not listed on the lease, or it is a month-to-month situation. Some leases in Idaho consider law enforcement involvement at a rental unit to be a lease violation, which may unfairly prejudice domestic violence victims under the Fair Housing Act.[xv]

When a victim is not a signer on a lease, and the lease is month-to-month or verbal, one option is to approach the landlord about creating a new lease with her for the unit. It may require notice to be given to the abuser to terminate the abuser’s lease interest under Idaho Code § 55-307. Such a change would be more difficult if the unit is under a current lease term, but the abuser may agree to rescind the lease if there is a CPO barring him from being there for a substantial amount of time, especially if the agreement would end his financial obligation under the lease.[xvi]

VAWA Protections

The Violence Against Women Act (“VAWA”) contains protections for DV victims in certain rental situations.[xvii] Though VAWA gets “reauthorized” every few years, the reauthorization is for program funding under the Act and the housing protections remain in effect regardless.[xviii] To qualify for the protections, the victim needs to be in a “covered housing program” listed under 34 U.S.C. § 12491(a)(3). Review the lease or research the property where the rental is located to determine if VAWA applies.[xix] VAWA does not apply to private landlord situations, even when the victim has a Section 8 Voucher.[xx]

If VAWA applies, the victim will be protected from (1) being denied housing because she is a DV victim, (2) being evicted or losing federal rental assistance because she is a DV victim, and (3) being evicted for “good cause” or having a lease violation due to DV by the abuser in the unit. Victims do not need to be married to or live with the abuser for VAWA protections to apply. More information on VAWA housing protections is available through Idaho Legal Aid Services’ website. VAWA forms that can be used to assert a victim’s rights are available through the U.S. Department of Housing and Urban Development’s website.[xxi]

Abuser as the Homeowner

Sometimes, a cohabitating unmarried couple has a domestic violence situation resulting in the abuser being ordered to leave the home while the victim (and children, if any) remains. On occasion, the abuser who received the move-out order is the sole homeowner. Victims in these situations have no community property laws to rely on and most parties lack a formal contract or written agreement for the living arrangement. Idaho Code § 32-6306(3) specifically states, “[n]o order made under this chapter shall in any manner affect title to real property.” The victim is left in a tough spot where the court is allowed to exclude an abuser from a shared residence but the victim’s legal right to remain is more akin to a tenancy at will under Idaho Code § 55-208[xxii] than an ownership or marital right.

In these situations, the victim will not be able to stay indefinitely and should begin to make plans to move. The abuser could potentially turn to landlord tenant law and provide a 30-day written notice to the victim to vacate.[xxiii] Even if notice is provided or the victim vacates, the address of the CPO’s stay-away order will require court action to modify. The victim should keep a copy of the CPO and evidence she lives in the property (e.g., mail with the resident’s address and her name) close at hand in case it is needed.

Threat of criminal trespass by the abuser is inappropriate given the court’s authority to award temporary possession of a shared dwelling addressed previously. A forcible detainer action by the abuser is also inappropriate given that the victim almost certainly did not begin to reside in the shared dwelling by force, menace, threat of violence, or entering unlawfully while the owner was away.[xxiv] Ultimately, the abuser’s common law claim of ejectment, as opposed to statutory unlawful detainer, may be the most appropriate in these situations because a landlord-tenant relationship was never formally established and rent was never exchanged.[xxv]

For CPO extension hearings, identify these situations and come prepared with a proposed plan if it comes up (e.g., the victim needs 30 days to find a new place after the abuser attacked her).

Payments and Temporary Orders

When an abuser is removed from a home, much of the home’s income may go with him. CPOs do not typically include provisions for an abuser to pay rent or the mortgage on a home that he was just removed from. Victims will need to move toward becoming self-sufficient no matter what their housing plans are.

If there is a divorce or custody case, temporary orders under I.R.F.L.P. Rule 504 can be a solution. Make sure to include not just the rent or mortgage in your request but also utilities and who should pay them. Temporary child support may be the easiest way to keep the children housed. If there is any community interest in the property then it may be appropriate to request both parties help pay the mortgage no matter who is living there temporarily, subject to reallocation upon final judgment.

The more a DV victim can do to become independent, or at least less dependent on the abuser, the better. Community resources can be utilized. If you do not know where to start, have your client call 2-1-1 or visit https://211.idaho.gov/. Additionally, victims may qualify for emergency rental assistance through the Idaho Housing and Finance Association at https://www.idahohousing.com/. Your client may want to apply for a Section 8 Voucher as part of a long-term plan, though the wait list can be around two years. Your local Community Action Partnership or domestic violence center may have other resources. A list of subsidized housing options is found above.[xxvi]

Specific Issues Regarding Kids

Getting your client time to stabilize after leaving a domestic violence situation can affect the court’s considerations regarding the best interest of the children under Idaho Code § 32-717. Housing concerns are present in every factor in that statute. Adjustment to home, school, and community. Interactions with siblings and family members. Character and circumstance of people around the children. Continuity and stability in the children’s daily lives. All of these considerations can be boiled down to housing questions.

I offer two suggestions regarding kids in DV housing situations. First, having to move due to DV may qualify the children as “precariously housed” under local school district guidelines, even if temporarily. Talk to your clients about reaching out to the school district where the children reside. This can open up options for the children, such as additional bussing to remain at the same school, free or reduced cost meals, and tutoring.

Second, losing your housing as a child can be a traumatic event, especially when combined with DV. Fifteen million children in the United States live in homes where domestic violence has occurred at least once.[xxvii] Daily routine, possessions, privacy, friends, community – all of these can be abruptly gone for a child.[xxviii] There is evidence to show kids who are precariously housed get sick at twice the rate of other children, have three times the rate of emotional and behavioral problems, and are twice as likely to repeat a grade.[xxix]

Sadly, these are things an abuser might use to justify a request for primary custody, even though their abuse created the situation. Encouraging your client to contact Health and Welfare’s Navigation through 2-1-1 or their local domestic violence center for resources that are specific to the children’s physical and mental health can impact potential custody litigation and the children’s long-term wellbeing.

Conclusion

Healthy family relationships are knit together by having a place to be together. If we learned anything from the COVID-19 lockdown, it is that “home” is crucial to our wellbeing and safety. The same goes for people leaving domestic violence situations. As attorneys, asking “What’s the Plan?” and obtaining a legal framework for a family to remain housed together after a DV incident will positively support every aspect of the family’s life going forward.

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[i] Managing attorney at Idaho Legal Aid Services practicing family and housing law. Thanks to Fred Zundel and Megan Baiocco for all your help with this article. 

[ii] National Network to End Domestic Violence, The Impact of Safe Housing on Survivors of Domestic Violence, https://nnedv.org/spotlight_on/impact-safe-housing-survivors/ (last visited October 25, 2022).

[iii] Id.

[iv] Cris M. Sullivan & Linda Olsen, Common Ground, Complementary Approaches: Adapting the Housing First Model for Domestic Violence Survivors, 43 Housing and Society 182, (2017).

[v] Id.

[vi] Idaho Code § 39-6303.

[vii] National Domestic Violence Hotline, Power and Control, https://www.thehotline.org/identify-abuse/power-and-control/ (last visited Oct. 25, 2022).

[viii] Zach Bruhl, Idaho Sees One of the Highest Rent Increases Nationwide, KMTV 11 (Jul. 6, 2022), https://www.kmvt.com/2022/07/06/idaho-sees-one-highest-rent-increases-nationwide/.

[ix] See Sullivan, supra note 5.

[x] Gaslighting means manipulating someone to the point of him or her questioning reality. Amanda Kippert, A Guide to Gaslighting, https://www.domesticshelters.org/articles/ending-domestic-violence/a-guide-to-gaslighting (lasted visited Oct. 25, 2022).

[xi] Idaho Code § 39-6306.

[xii] Court Assistance Office, State of Idaho Judicial Branch, https://courtselfhelp.idaho.gov/docs/forms/CAO_DV_1-1.pdf (last visited Oct. 25, 2022).

[xiii] I.R.F.L.P. Rule 101 (note that stalking CPOs are covered under the civil rules and not the family law rules).

[xiv] I.R.F.L.P. Rule 811.

[xv] Lease clauses like these can be grounds for a Fair Housing complaint filed with HUD at https://www.hud.gov/fairhousing/fileacomplaint%20.

[xvi] Idaho Code § 39-6306.

[xvii] Monica McLaughlin & Debbie Fox, Housing Needs of Survivors of Domestic Violence, Sexual Assault, Dating Violence, and Stalking, National Low Income Housing Coalition, 2022 Advocate’s Guide, https://nlihc.org/sites/default/files/2022-03/2022AG_6-02_Housing-Needs-Victims-Domestic-Violence.pdf.

[xviii] 34 U.S.C. § 12491.

[xix] Subsidized housing searches in Idaho: https://rdmfhrentals.sc.egov.usda.gov/RDMFHRentals/select_state.jsp, https://resources.hud.gov/, https://www.hud.gov/sites/dfiles/State/documents/ID-Affordable-Apts.pdf, and https://www.thehousingcompany.org/properties/. You can also look up the property on Idaho’s GIS Parcel Maps https://maps.idahoparcels.us/web/ or review the property’s website for subsidy information.

[xx] Women’s Law, VAWA Housing Protections, (last updated September 17, 2021) https://www.womenslaw.org/laws/federal/vawa-housing-protections.

[xxi] Forms available at https://www.hud.gov/program_offices/housing/mfh/violence_against_women_act on the right side of the menu.

[xxii] “A tenancy at will has no fixed terms while a periodic tenancy automatically continues for successive periods.” Caldwell Land & Cattle, LLC v. Johnson Thermal Sys., Inc., 165 Idaho 787, 798, 452 P.3d 809, 820 (2019).

[xxiii] Idaho Code §§ 55-208 and 55-307.

[xxiv] Idaho Code § 6-302.

[xxv] “Ejectment is an action at law that tests the right to the possession of real property as against one who presently possesses it wrongfully. In other words, ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it against a defendant who has actual possession.” 25 Am. Jur. 2d Ejectment § 1; “The sole issue before a court in [an eviction] proceeding (after determining that a landlord-tenant relationship exists) is the question of who has the right to possession.” Texaco, Inc. v. Johnson, 96 Idaho 935, 938 (1975).

[xxvi] Supra note 19.

[xxvii] Office on Women’s Health, Effects of Domestic Violence on Children, https://www.womenshealth.gov/relationships-and-safety/domestic-violence/effects-domestic-violence-children (last visited Oct. 25, 2022).

[xxviii] Ellen L. Bassuk & Steven M. Friedman, Facts on Trauma and Homeless Children, National Child Traumatic Stress Network Homelessness and Extreme Poverty Working Group, 2005, https://www.nctsn.org/sites/default/files/resources/facts_on_trauma_and_homeless_children.pdf.

[xxix] Id.

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Kristin Bjorkman
President
Idaho State Bar

The sun is inching toward the horizon on my term as a member of the Board of Commissioners and the President of our bar.  I have enormous respect for the commissioners I have served alongside as well as the incredible individuals at the Idaho State Bar.  The thoughtfulness and care that goes into the operation of the bar together with the tireless dedication and professionalism of each of these individuals is extraordinary.  The leadership and influence of Diane Minnich, Maureen Ryan Braley, Joe Pirtle, Julia Crossland, and Brad Andrews will stay with me always.

As I reflect on my term as a commissioner, many things come to mind.  One of which is how grateful I am that the shut-down caused by the pandemic finally lifted and we were able to see one another in person.  Although it is wonderful that technology allowed us to see and visit with one another online, the difference between meeting in person rather than virtually is significant.  The annual Roadshow is one of the events where this difference was particularly notable.  Each year during my term, the Roadshow has had a different format.  The first year there were no in-person events and the second year there was a mix of live and Zoom programming.  November of 2022 was the first time the Roadshow was in person in every district of the state.  For me, it is clear that the opportunities we have to be together in person are to be cherished.  We relate to one another on a different plane when we are face to face.  When face to face, we connect as people in a way that is different than when we are looking at one another on a screen.  Thank you to everyone who attended in any of the districts.  And a special ‘thank you’ to the attorneys in Blackfoot who got up early to have breakfast with the Board of Commissioners during our stay in Eastern Idaho.  The conversations I had there and the relationships I observed between attorneys who practice in an environment where every practitioner is known to the others really made a mark on me.

At each stop along the road, I met new people, and I thank each of them for being so welcoming and sharing in conversation.  At each stop, I was also lucky to have a front row seat as the accomplishments of attorneys and judges were celebrated.  Each occasion was a spotlight on the extraordinary contributions attorneys make to their communities and the special relationships attorneys in our state have with one another.  Throughout Idaho, attorneys are making a meaningful mark on the places they call home.   They provide counsel to individuals starting new businesses and bring peace of mind to their neighbors when they assist with an estate plan.  They are the polestar for clients navigating the unfamiliar and unsettling territory of litigation.  But attorneys don’t just confine their contributions to the workplace.  They also enhance their communities by serving on boards, fundraising, and volunteering.  This devotion attorneys have to their communities got me thinking about the myriad of ways attorneys can make an impact.

During this era we live in, I’ve felt that some long-held beliefs have been severely challenged. Confidence in our institutions of governance is slipping while at the same time, many Americans are not equipped to defend the democratic ideals at the heart of our Republic. There is evidence that many in our country hold a tenuous grasp of key civics knowledge. The Annenberg Constitution Day Civics Survey has found that many Americans do not understand basic facts about how our government works.  According to the 2022 survey, less than half of U.S. adults could name all three branches of government. Between 2021 and 2022, the number of respondents who could, without any prompting, name each of the five freedoms guaranteed by the First Amendment declined.

These startling findings provide members of our bar with an opportunity to make an impact.  An impact that also fulfills our professional obligations.  As attorneys, we have a responsibility to promote the rule of law, defend liberty, and pursue justice. The preamble to the Idaho Rules of Professional Conduct tells us:

“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”

“In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

”Lawyers play a vital role in the preservation of society.”

We can help combat America’s democratic decline by supporting and contributing to fair and unbiased civics education.  Knowledge gained from civics education can be used as a tool to address distrust in government institutions and boost confidence in the rule of law and the justice system.  There are a number of organizations working to expand civics education.  The Center for Civic Education and the ABA Division of Public Education are just two of many.  Closer to home, we have Attorneys for Civic Education.   The organization was founded in 2013 by a group of Idaho attorneys who recognized the critical nature of civics education in Idaho’s schools. Attorneys for Civic Education seeks to both increase and sustain the opportunities for civics education in Idaho’s schools helping to ensure that Idaho’s citizens have a solid understanding of the Constitution, the rule of law, and our form of government.

Let us all embrace our promise to promote the rule of law, defend liberty, and pursue justice.  Whether we do this as volunteers in a classroom, as a member of the various organizations we belong to, or simply in the conversations we have with those around us, we can foster a healthy, educated citizenry. I’m grateful for the opportunity I’ve had to contribute to the Idaho State Bar.  When the day comes that the sun sets on my term, I will be sad, but I will cherish the experience and the memories.

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