According to the Professional Disciplinary Rules, a Statement of Client’s Rights and Responsibilities must be provided to a prospective client in domestic relations matters at the initial conference and prior to the signing of a written retainer agreement (the contract between the client and attorney). The attorney is supposed to obtain the prospective client’s signed acknowledgement of receipt of the Statement of Client’s Rights and Responsibilities.
According to the Statement of Client’s Rights and Responsibilities, one of your “responsibilities” is stated as follows: “You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.” (For many years, and prior to February 15, 2019, this “responsibility” was stated as a “right”, namely: “You have the right to be present in court at the time that conferences are held.” It would appear that your “right” has been strengthened into a “responsibility” and your mandated attendance during court proceedings unless excused by the court.)
What judges can request
Notwithstanding this former right and present responsibility, judges (and sometimes lawyers) continue to request what is called an “attorneys only conference”, whereby you, as a litigant, are excluded (in your own case) from the courtroom proceedings. (Sometimes a referee or the judge’s “law secretary” will request to see only the lawyers. A referee or law secretary is an attorney who assists the judge in various aspects of cases, which may include conferences. But it should not matter who is conducting the legal proceeding in terms of your responsibility to be present.)
What are litigants to think about the legal system when they are told their attendance in court is mandated but then they are excluded from the courtroom or conference room?
The possible reasons why judges call for attorneys only conferences, and why most attorneys do not object to them, will not be addressed here. However, short of a litigant’s threatening or disrespectful conduct, there is no good reason why you, the litigant (taxpayer, and consumer of the divorce and family law system), should not be present in court when the court has a conference discussing your case and matters. Even if the conference is only to pick the next court date, for example, you should be treated like an adult and with respect and consulted about that date. It is now your responsibility to be in court!
Why you should be present
There are many reasons why you should be present in court: First, it is your “responsibility”. Second, your attendance in court will help promote transparency and accountability in a system in which the faith of the general public has been eroding. Third, you will be able to see how your attorney is representing you, and how your spouse’s attorney is representing your spouse. Fourth, if your attorney does not know the answer to a question, or makes a mistake about something, your lawyer can consult with you or you can diplomatically confer with your attorney to correct him or her so your attorney can correct the record. Fifth, you will be able to hear first-hand what the judge says about your case. There are other reasons as well.
A few years ago, an attendee at one of my seminars reported back to me the following story when it was their “right” to be present in court: Armed in hand with a copy of their Statement of Client’s Rights and Responsibilities to support what she was requesting, a litigant asked their attorney if she could be present during the next conference, after having been excluded from prior court conferences. When the court requested to see the “attorneys only”, the attorney requested that the parties be present. (This attendee was lucky. Many attorneys might not speak up to request their client be present or might dissuade their client from rocking the boat as it were.) The attorney reported to this litigant that the judge was not pleased with the request but allowed the litigants to be present. During the course of the proceedings, matters forming the basis of an agreement were being discussed that were factually wrong. Because this litigant was there to hear it, she was able to correct matters with her attorney, who then reported the error to the judge and the other side. To the court’s credit, the judge said at the end that it was a good thing the litigants were present.
If courtrooms are open to the public, why should you be excluded from your own case?
One other point you should know to help you fully appreciate and advocate why you should not be excluded. Outside the courtrooms near the actual doorway to enter the courtroom, there are signs that read “Courtrooms are open to the public unless a judge orders otherwise in a particular case.” If a non-litigant can observe what is going on in your case, why are you being excluded from your own case? This is all the more compelling a reason why you should be allowed to be present, aside from it being your responsibility, a further point you should express to your attorney and to the judge.
So, prior to any court appearance, do not be afraid to remind your attorney gently but firmly about your responsibility and desire to be present in court during court proceedings. In fact, before signing a retainer agreement, you should seek to include a provision in the retainer agreement to the effect that the attorney will “help you implement your responsibility to be present in court during all court proceedings by requesting your presence in court.”