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Abstract:
Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers' lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from carrying out planned violent crimes, and (3) warn identifiable abuse victims whom their clients have threatened. Using doctrinal and normative analyses, the Article posits that attorneys who fail to take these preemptive actions may be held liable in tort for their omissions. In addition to clarifying the lawyer's obligations, this Article provides guidance as to the steps necessary for avoiding tort liability while increasing victim safety. It concludes with specific recommendations for remedial statutory changes consistent with fundamental precepts of a lawyer's professional responsibility.

Duty to warn, domestic violence, confidentiality, tort liability

Abstract:
This article explores lawyer malpractice in cases involving domestic violence. The author examines the potential hazards from the perspective of representing the offender as well as the victim. The author advances the idea that domestic violence may be unrecognized in many cases if the attorney is not familiar with the appropriate indicators. In addition, an attorney may be unwilling to raise issues of abuse due to the attorney's own discomfort with the topic. The author argues that the family law lawyer's failure to recognize and address issues of violence places the lawyer at risk for client claims of malpractice as well has other claims.

Family law, domestic violence, lawyer malpractice

Abstract:
Petitions for protection from abuse, often referred to as civil protection orders or restraining orders, are governed in Massachusetts by G.L. 209A. Massachusetts has been in the forefront of many civil protections for victims, including the provision of a timely, same day hearing and other accommodations that ease the burden on petitioners in need of an immediate remedy. The jurisdictional and venue provisions of chapter 209A permit a petitioner to file for protection in either the district, Boston municipal, superior or probate and family court departments of the Massachusetts Trial Court. The history of the jurisdiction and venue provisions of the statute reflects a thoughtful and effective process crafted by the Massachusetts legislature. The provisions permit a petitioner to file in the most geographically convenient court that is located within the petitioner’s county of residence. However, in May, 2009, the Norfolk Probate and Family Court became host to a pilot program implemented by the Massachusetts Trial Court. The pilot permits the probate and family court (“family court”) to initiate interdepartmental transfer of 209A petitions from the district courts to the family court, either upon motion of a party or sua sponte, when there are related matters pending between the parties in the family court.

civil protection orders, domestic violence, victims' rights