12Aug/13

What is “DACA” (Deferred Action for Childhood Arrivals) and How Do I Qualify?

DACA (“Deferred Action for Childhood Arrivals”)

On June 15, 2012, President Obama signed a memo calling for deferred action for certain undocumented young people who came to the U.S. as children and have pursued education or military service here.  Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) began on August 15, 2012.  We provide all application and other services related to DACA, and our clients need not be in removal proceedings in order for us to do so.

What does “deferred action” mean?

Deferred action is a discretionary grant of relief by Department of Homeland Security (“DHS”).  It can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings.  Individuals who have deferred action status can apply for employment authorization and are in the U.S. under color of law.  However, there is no direct path from deferred action to lawful permanent residence or to citizenship and it can be revoked at any time.

Who is eligible for DACA relief?

Individuals who meet the following criteria can apply for deferred action for childhood arrivals:

  • are under 31 years of age as of June 15, 2012;
  • came to the U.S. while under the age of 16;
  • have continuously resided in the U.S. from June 15, 2007 to the present.  (For purposes of calculating this five year period, brief and innocent absences from the United States for humanitarian reasons will not be included);
  • entered the U.S. without inspection before June 15, 2012, or individuals whose lawful immigration status expired as of June 15, 2012;
  • were physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS;
  • are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces;
  • have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors and do not pose a threat to national security or public safety.

Applicants will have to provide documentary evidence of the above criteria.  In addition, every applicant must complete and pass a biographic and biometric background check.  Finally, just because an applicant is granted DACA, they must be aware that all work permits must be renewed every two years.

06Aug/13
godfather

Lawyer as Godfather? A Summary of the Collaborative Approach to the Lawyer/Client Relationship

 

Robert F. Cochran, John M.A. DiPippa and Martha M. Peters wrote a brilliant article which summarized the various roles lawyers can play with their clients and, surprisingly, it seems that most clients even have a preference for each particular “style” of representation in different circumstances.  They are: 1) Lawyer as Godfather; 2) Lawyer as Guru; 3) Lawyer as “Hired Gun”; and 4) Lawyer as Friend.

 

“Lawyer as Godfather” is attorney-dominated, where the client spells out the facts and circumstances for the attorney, and the attorney selects which facts are most important, which goals shall serve as the primary goals for the representation, and at which point to resolve the case for the client when recovery has been maximized (in the eyes of the attorney).  In this circumstance, the client’s judgment takes a complete back seat to the attorney’s judgment as it pertains to the ultimate goals of the case.  While the attorney’s professional judgment regarding procedural matters and strengths and weaknesses of the case should always be considered and ultimately deferred to, the attorney should not be vested with such authority so as to unilaterally conclude a matter without the client’s input.

 

“Lawyer as Guru,” is the second form of attorney-dominated representation where the attorney is seen as the ultimate expert on each issue posed, and the client almost uniformly relies on the attorney’s counsel or advice, with little or no questioning or explanation desired.  Again, while the attorney’s expertise on procedural matters and legal issues should always be given the appropriate weight and deference, a client is free to seek a second opinion and should always be weary of their proposed “Guru.”  While there’s no doubt that this could prove to be somewhat impractical and cost prohibitive in some situations, the client should be aware of the guiding principle that no one legal professional can know everything.  Perhaps some healthy debate or just playing “Devil’s Advocate” on some of the issues of your case might tease out some discussion that might just illustrate how much your legal expert really does know (or doesn’t).

 

“Lawyer as Hired Gun” is almost entirely client-dominated, where the attorney is simply acting strictly on behalf of the client and is almost entirely divorcing himself from professional judgment, for better or worse.  If the client is willing to pay, the lawyer is willing to act – no questions asked.  This is almost always best demonstrated by the lawyer who is paid to file endless motions against an adverse party just to “tie them up in court” at their client’s behest.  This lawyer walks a fine line and, arguably, his pocketbook outweighs any ethical considerations he swore to uphold.  A client should also be weary of this type of representation to the extent they’re being told what they want to hear just to keep up their monthly retainer.

 

“Lawyer as Friend” is generally the most preferred form of attorney representation and is viewed as “client-driven,” rather than “client-dominated.”  In this type of relationship, the attorney advises and informs the client, drawing out their preferred goals and providing a range of potential outcomes so that the client can make the best-informed decisions.  This particular type of relationship is also least likely to “blow back” on the attorney if a less than optimal result is reached.  Here, the client is advised of all possible – and realistic – options so that they can make their own best decisions.  For example, if a client is properly advised of the risks of trial, they may make a truly informed decision to forego all previous settlement offers and decide on their own if a “bird in the hand is worth two in the bush.”

 

This type of representation also fits most neatly with Georgia Rules of Professional Conduct 1.1 regarding lawyer competence and 1.4 regarding lawyer communication.  It should also be known that Georgia lawyers are governed by numerous ethical rules and regulations on client communication, competence, client counseling, and advocacy.  For more information on Georgia Rules of Ethical Conduct governing your attorney’s practice, visit www.gabar.org

 

While there’s plenty of resources available for the prospective client, such checking for a lawyer’s disciplinary history (or lack of), the client has to make their own judgment call during their initial interview.  Did the lawyer adequately answer all your questions?  Did you leave his or her office feeling like you more fully understood the legal issues presented by your case?  Did you leave knowing more about how his or her legal fee structure than how your case might play out?  Were you even permitted to talk?  Or did he just simply look to “make you an offer you couldn’t refuse?”

 

28Jul/13
Gay-Marriage1

Same-Sex Marriage Increases Potential for Same-Sex Divorce, Leaving Both Courts and Lawyers Scratching Their Heads

With many states now permitting “gay” or “same-sex marriages,” one is left to wonder of its potential to impact upon long-standing divorce and family law.  While Georgia has not yet adopted any legislation providing for gay or same-sex marriage, the following discussion shall serve as a cursory analysis of some of the main legal issues presented by such marriages, particularly as they stand in contrast to “traditional,” or heterosexual marriages.

First, it should be noted that most divorces in Georgia are “no fault” divorces, meaning that at least one spouse has to unequivocally plead that the marriage is “irretrievably broken.”  While some are “fault based,” this ultimately means that one party committed some form of “marital misconduct” that would entitle the other spouse to a divorce, as is the case with “infidelity,” but the “fault based” relief generally stops there.  In other words, a cheating spouse generally won’t leave you legally entitled to more alimony or marital assets than you would otherwise, nor will it give you custody, but it might play a role in what a Court will look for in terms of “good parenting” or “role model” material as it relates to the children.  The balance of the grounds for divorce can be found at O.C.G.A. § 19-5-3, which would include: intermarriage by persons with prohibited degrees of consanguinity or affinity (blood relative); mental incapacity during the marriage; impotency at the time of marriage; force, menace, duress or fraud in obtaining the marriage; pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband; willful and continued desertion by either parties for the term of one year; the conviction of either party for a [criminal] offense involving moral turpitude (to include a prison sentence of two years or longer); habitual intoxication; cruel treatment (including willful infliction of bodily pain or the threat of same); incurable mental illness; or habitual drug addiction. 

Obviously, any same-sex relationship can be as complicated as any traditional or heterosexual relationship and either spouse can qualify for divorce as quickly and easily as another regardless of sexual orientation.  However, what about the potential for alimony?  It should also be noted that, as a general matter, in the absence of a prenuptial agreement, when looking for guiding factors on how to dissolve a marriage, most states will look to the Uniform Partnership Act at O.C.G.A. § 14-9-804, the same Act that applies to the dissolution of small businesses.  What does it mean for jointly acquired assets?  Assets or real estate held beforehand that was brought to the marriage?  Did one spouse support the other during the marriage while he or she obtained an advanced degree or professional license that might be viewed as a potential “income producing asset” for the purpose of equitable distribution upon divorce?  Do the parties have a written agreement to solve these issues?  If not, these issues can be tedious and expensive to resolve. 

Traditionally, one might argue that a wife would be more likely to choose to stay home and manage the household and raise children while her husband would likely have the opportunity to work outside the home and bring more “take home” pay to the marriage by virtue of a male dominated workforce.  How does this then play out for same-sex marriages between males?  What about females?  Wouldn’t they likely benefit more from an explicit agreement as to who might work and who might manage the home and family?  What about the skill set of each spouse before the marriage?  Unless the parties were married young, it might be more difficult to argue that one spouse was willing to forgo the development of their skill set for a period of time so that both might enjoy a longer, more productive marriage.  Given the difficulty, it might even be more appropriate to draft a written agreement as to this issue, though there’s no arguing that the same endeavor will be sure to put a damper on the romantic aspect of the relationship.  In fact, it’s likely that the party that has more to lose has an even bigger interest in bringing up the issue, and no one likes to look as if they have one foot out the door of their marriage.

While it seems that most of the above issues can likely be worked out case by case by each party through healthy discussion prior to the marriage, the most difficult of these issues will undoubtedly be child custody.  O.C.G.A. § 19-9-3 specifically lists all of the factors a court will consider on the issue of child custody.  Historically, Georgia courts have applied what is known as “The Tender Years Doctrine,” which is a legal principle which has existed in family law since the late nineteenth century.  This common law doctrine presumes that during a child’s “tender years” (generally regarded as the age of four and under), the mother should have custody of the child.  While the application of this doctrine was said to have been abolished in Georgia in the mid-1990’s, one cannot help but to believe that its underpinnings still exist in the legion of case law on the issue of child custody. 

As to the “tender years” principle, how should this apply to same-sex couples?  Does it matter if they’re both women?  Does it matter if they’re both men?  Does it compound the problem?  Does it help it, leaving the courts no choice but to apply the “best interests” of the child standard – without preference for any one gender as it may pertain to parenting?  What about the “agreement” the couple might have made regarding one spouse working outside the home and one spouse being primarily responsible for child rearing?  As a general matter, when determining which parent might qualify as the primary caretaker, courts focus on direct care-taking responsibilities, such as (1) bathing, grooming and dressing the child; (2) meal planning and preparation; (3) purchasing clothes and laundry responsibilities; (4) health care arrangements; (5) fostering participation in extracurricular activities; and (6) teaching of reading, writing and math skills. 

As anyone can see, same-sex couples are likely to face even more difficulty in resolving marital issues upon dissolution than their heterosexual counterparts.  No one gender attribute can be assigned to one partner in a marriage any more than it can be assigned to the other, and each marriage, it seems, is as unique as its participants.  Also, to the extent archaic or outdated case law can arbitrarily help one party, it can just as easily hurt the other.  That is particularly why, at least in this author’s opinion, gay or same-sex couples are particularly susceptible to harsh results when dissolving a marriage without a prenuptial agreement, and they would almost always benefit from clearly expressing their intentions and expectations beforehand, and, to the extent possible reducing it to writing.  As to the “chilling effect” on the potential for romance – that’s another issue probably best left for a different type of licensed professional.

Like my Dad always used to say, “An ounce of prevention beats a pound of cure…”

18Jul/13
Trayvon Martin

Self Defense and Deadly Force

Everyone is talking about the George Zimmerman trial.  Did you watch it on HLNtv.com as much as I did?  This widely publicized trial seemed to crystallize at least three important legal issues: self-defense, the justified use of deadly force, and the pitfalls potentially arising from attempting to make a citizen’s arrest.  Another unfortunate consequence of this case was the strong divide among racial lines when examining the players involved.  This part of the case will not be included in this discussion.

In order to arrive upon a truly accurate and just decision, one must first be educated on the law.  While this case was venued in Florida, where the unfortunate incident occurred, the following will be a discussion of the law in Georgia on the issues presented.  First, we know that George Zimmerman sought out some police training and that he applied to the police academy (and was rejected) on more than one occasion, some speculating due to his “bad credit.”  As to his ability to legally carry a firearm, Georgia law at OCGA Sec. 16-11-129 provides that Mr. Zimmerman was permitted to carry either a concealed or openly displayed firearm upon legally obtaining a permit and such permit being approved by a Judge of Probate Court in his County of residence.  In Georgia, the applicant can simply pay a fee of $30.00 to the county and must also not have been convicted of a major felony or crime involving any “controlled dangerous substance,” i.e. drugs.  As readers may recall, George Zimmerman was not a member of law enforcement at any time, and he was simply a “private citizen” licensed to carry a concealed firearm and a volunteer member of a “neighborhood watch” of his Home Owner’s Association.

Next, without George Zimmerman being a member of law enforcement, he really was not obligated to provide any legal justification for his attempt to “stop” Treyvon Martin.  Interestingly, if George Zimmerman’s stop did violate Mr. Martin’s 4th Amendment rights under the U.S. Constitution, and that “stop” actually did yield the dangerous instrumentalities of a crime like deadly weapons or tools associated with breaking and entering, the local police could “use” such evidence against him, as they did not sanction Zimmerman’s “unlawful stop” at any time.  If such a scenario were to play out, Mr. Martin would be “stuck” with Zimmerman’s bad acts and no “fruit of the poisonous tree” arguments could be made that might later exclude the illegally obtained evidence in this scenario.  However, as Mr. Zimmerman’s ability to make a “citizen’s arrest, OCGA Sec. 17-4-60 provides that a private citizen may have grounds to arrest an offender if the offense is committed in his presence or within his immediate knowledge.  If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.  Id.  Here, as the 911 tapes revealed, Zimmerman did not really appear to have any “reasonable articulable grounds for suspicion” – beyond his own subjective belief that Mr. Martin was “up to no good” – and, at least in Georgia, trespassing is not a felony.  Thus, under Georgia law, Mr. Zimmerman was not legally justified in attempting to detain Mr. Martin in any regard – through the use of his firearm or any other means.

What is unclear about the 911 tapes is “who” started the physical altercation when Zimmerman confronted Mr. Martin.  Mr. Zimmerman said that it was the late Mr. Martin, but his accusers stated otherwise, arguing that it was Mr. Zimmerman who provoked the physical altercation that eventually led to the shooting death of Mr. Martin shortly thereafter.  In either event, as to the issue of “self-defense,” as a general matter, under OCGA Sec. 16-3-21(a), Georgia law provides that a person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, a person may only use “deadly force” only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself, or another.  Id.  In other words, the “belief” must be more than a “subjective belief” (meaning a personal belief held by the actor alone), but, rather, the belief must be “objectively” reasonable in the eyes of others.  In the context of a trial, that means through the eyes of a jury.  There are exceptions to this rule, one of the most noteworthy being that an individual cannot provoke the incident simply to use the objectively reasonable belief of “imminent death” to act as an excuse or justification for his or her killing.

Given the tight framework discussed above, it was the defense team’s job to portray George Zimmerman, regardless of his motive in stopping Treyvon Martin on the private property he “patrolled,” as an individual who truly believed that serious bodily harm or death was imminent at the time he used deadly force upon young Treyvon Martin during their physical altercation – regardless of who started it.  As the above-discussed exception to permissive deadly force suggests, if Zimmerman secretly wanted this unknown individual to use deadly force simply as an excuse to kill him, he must have had “hate in his heart” or “ill-will” as argued endlessly by the prosecution at closing arguments.  As we learned late July 13th, 2013, the jury made no such finding.  Also noteworthy was the prosecution’s repeated attempts at portraying Zimmerman as a “wannabe cop,” which may or may not have been true.  However, the true decision all seemed to come down to the spit second or two in which Zimmerman decided to discharge the firearm which he was lawfully carrying.  The jury considered the relative size of both men, they listened to the 911 tapes, and they viewed pictures of Zimmerman’s bloody scalp after Treyvon Martin was banging it down on the concrete over and over.  Zimmerman was found “not guilty” on all charges on the grounds of “self defense” – and we all know he killed him.  He admits it.  This is how the law works.

The jury has spoken.  The question is – can we live with it?