Dallas Divorce Law Blog by Michelle O'Neil

Law Firm Sued Over Divorce Client’s Use of Spyware

A law firm in Chattanooga, Tenn., has been sued for $2 million by a man who says one of its lawyers tried to use improperly intercepted e-mail in a divorce case.

Farrell Hayes says in the suit that the law firm Berke, Berke and Berke represented his wife, Alice Suzanne Hayes, in a divorce action, the Chattanoogan.com reports. The suit claims Alice Hayes installed “eBlaster” software on Farrell Hayes’ laptop computer that intercepted his communications.

The suit says lawyer Marvin Berke used or tried to use some of the e-mail in the divorce case. Berke told the Chattanoogan that the suit will be “vigorously defended.”

From the ABA Law Journal Law News Now

Also Law.com Legal Blog Watch

Note:  For the most part, it is illegal to use spyware on a computer that belongs to another person, even if the other person is a spouse.  A lawyer that uses information obtained illegally through spyware or similar methods can be held both civilly and criminally liable.  Even if a lawyer produces documents in discovery that were obtained this way, that would be “use” and the lawyer could be liable.  LAWYERS BEWARE!

A lot of times clients come into our Dallas divorce law office looking for “revenge” during their divorce proceeding.  While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.

In our experience, opposing counsel generally falls into one of three categories.  The first type is the attorney who is passive and avoids confrontation at all costs.  Obviously, this isn’t the type of attorney you want handling your case.  Second is the attorney who is the complete opposite of the first type.  Attorneys falling into this category argue for the sake of arguing and take the “tough”  approach that some equate with successful advocacy.  Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division).  The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive.  Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.

A prime example of the effects of an attorney being overly aggressive recently occurred in an elderly abuse case in California.  In that case, the trial court expressly noted that the attorney’s conduct in examining a witness was the final straw in ruling in favor of the opposing party.

Bottom line, the attorney’s overly-aggressive approach ended up costing his client the case, and in all likelihood increased the amount of costs and fees for both parties.  At our Dallas divorce law firm, we take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.

Michelle May O’Neil, Dallas divorce lawyer, was quoted in the Dallas Morning News article More Texans Paying Child Support with Unemployment Checks As Economy Suffers.  The article by Emily Ramshaw was the lead article in the Thursday July 2, 2009 edition, starting on the front page, and with Ms. O’Neil’s picture appearing on page 14a.

Christina Garcia, senior paralegal to Michelle May O'Neil, and her son unpack boxes on moving day.

On June 27, 2009, The May Firm experienced a huge milestone by adding a new partner Nathan T. Anderson and changing the name of the firm to O’Neil Anderson.  With this growth, the firm has relocated to Two Lincoln Centre, 5420 LBJ Freeway, Suite 500, Dallas, Texas 75240.  The firm’s phone number 972-852-8000 and fax number 972-852-8001 will remain the same.

The new firm’s website is www.oneilanderson.com and the new firm’s blog is www.dallastxdivorce.com.

“Change is inevitable.  Growth is intentional.”

Dallas divorce lawyer  Michelle May O’Neil presented at the University of Texas Continuing Legal Education Family Law on the Front Lines seminar in June 18, 2009, held at the Hyatt Regency Hill Country Resort in San Antonio.

Ms. O’Neil spoke on pretrial appellate remedies such as mandamus and interlocutory appeals in the family law context.  Specifically, she reviewed the standards pertaining to mandamus from the Walker case to Prudential and McAllen and discussed whether the standards for seeking mandamus have been loosened by these recent cases.  Further, she analyzed the standards for both statutory and permissive interlocutory appeals in the family law context.

The Texas Legislature has adjourned and made some changes to the Texas Family Code.  One of those changes involves the Texas Standard Possession Order.  As a Dallas Divorce Lawyer, I think it is important to know these changes. Keep in mind that the Governor has not signed the bill yet; so, there remains the possibility that he may veto the bill, although I do not find that likely.

HB 1012 clarifies the default time for the beginning and ending of a possession period to be 6:00 p.m.  Prior to this clarification, there were placed in the Texas Standard Possession Order that did not specify an exchange time or were unclear.  This makes it clear that the default time is 6:00 p.m. unless there is a specific statement otherwise.  To overcome this default time, a conservator may request the court to impose an alternate beginning and ending time, such as beginning at the time school is dismissed for the period of possession.  The court must accept the request for the altered time, unless the parent opposed to the time change shows a reason it is not in the child’s best interest.

Note, the parent making the election must do so when the order providing for the possession schedule is rendered. That means that the possession schedule will be set in stone (subject only to the agreement of the parties to deviate) when the order is entered.  Neither parent can make an election to change the time of exchange later.

Dallas Divorce Lawyer Michelle May O’Neil received national recognition from the National Law Journal where they profiled Ms. O’Neil as an Appellate Leader.  To see a copy of the profile that appeared in the magazine, click on:  National Law Journal Profiles Appellate Leader Michelle May O’Neil.  The National Law Journal regularly features Leadership Profiles to assist its readers in choosing outside counsel and referrals. Profiles focus on various specialties and other areas featuring attorneys who represent companies as well as individuals.

Today, John Council of Texas Lawyer Magazine interviewed me for his Reversed and Remanded video blog.  To see the video, click here:  Michelle May O’Neil Interview.  The topic was In re J.O.A., a case decided by the Texas Supreme Court this month.  There, the Court decided that the Texas Family Code statute requiring a party intending to appeal a termination decision to file a Statement of Points within 15 days of the entry fo a termiantion order.  The Statement of Points must outline each issue that the party plans to appeal.

In J.O.A. the trial court lawyer failed to file the Statement of Points and the trial judge failed to appoint an appellate lawyer in a timely manner to meet the deadline.  The court of appeals held that the party had ineffective assistance of counsel.  This claim means that the lawyer not only failed to perform his duty, but that the client was harmed by the failure.  The court of appeals found that the trial lawyer’s failure to file the Statement of Points was harmful because the father appealing had an appellate point of error that would have been meritorious based on insufficient evidence. 

The government argued that the father could not present his claim for ineffective assistance of counsel because it was not listed in a Statement of Points.  The Texas Supreme Court held that the statute requiring the filing of a Statement of Points is unconstitutional to the extent it denies a party from presenting a claim for ineffective assistance of counsel.

This ruling does not mean that the requirement of filing a Statement of Points has vanished, but only serves to preserve a party’s right to complain in a limited sense about ineffective assistance of counsel where no Statement of Points was not filed.  This case should serve as a huge reminder to lawyers who represent parents in termination cases that the lawyer on file has the duty to file the Statement of Points even if that lawyer isn’t going to represent the parent on appeal.

I am involved in several family law cases in the Dallas area with LGBT parents suing for conservatorship or visitation/possession rights to their children or their former partner’s children.  One of my clients referred me to this website as a resource and I thought it was important to share it with you:  www.colage.org  Here’s the purpose of the site, as it lists:  “COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. We build community and work toward social justice through youth empowerment, leadership development, education, and advocacy.”  The website also provides a book list for LGBT parents, which I thought was interesting.

Well, we survived another tax year.  Hopefully everyone got their returns in on time and the process was relatively painless.   For our readers who were recently divorced, its important to ensure the name on your tax return matches the name registered with the Social Security Administration (“SSA”).

After a divorce, it is important for the taxpayer to contact the SSA to change their last name.  Although standing in line at the SSA is never a pleasant experience, you can reduce your time in line by downloading and completing the appropriate form to change your last name here.  Once the taxpayer turns in the form, the SSA it takes about two weeks for the the change to be completed.  If a taxpayer submits a return with a name that does not match the SSA records, the return will be rejected.

For a good overview of divorce tax tips, check out Sharon Drew and Gregg Herman’s Ten Divorce Tax Tips.

Finally, check out Cary & Lipponcott’s blog post on tax issues presented on spousal maintenance ordered by a Texas court.