Domestic Relations Law Malpractice???
I have been concerned for some time that lawyers are unwittingly subjecting their clients charged with domestic violence to serious consequences which are far beyond those about which they are telling their clients. I heard about this first in a CLE program about gun laws, but the focus of that program was not domestic violence clients, so not much was made of it.
I have seen many cases where a man is charged with domestic violence and the lawyer negotiates a suspended sentence or probation upon a guilty plea or entry of a protective order and feels that they have done well for the client. The client leaves the courtroom feeling that he must behave for the probation period — usually one year — or comply with the terms of the protective order — and everything will be all right.
The problem is that the conviction or order (if written as described in the statute below) carries with it under federal law — and perhaps under state laws in some jurisdictions — a permanent bar to possessing a firearm. And, of course, for the man to thereafter go hunting is a felony, because he lost his right to possess a firearm of any kind. He is almost certainly committing the felony unwittingly because his lawyer didn’t tell him, usually because the lawyer didn’t know.
Here is the federal statute. Note that not only conviction of domestic violence carries this consequence, but an order restraining the man from stalking, harassing, or threatening an intimate partner or child of an intimate partner does if the order includes a finding that the person represents a credible threat to the physical safety of the intimate or her child, or explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or her child. Such protective orders are rather common, to my observation.
18 U.S.C. § 922 (g)(8) and (9)
(g) It shall be unlawful for any person-
* * *
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The question that jumps out to me is how in the world a man is supposed to know this unless his lawyer tells him. And the second even greater question is shouldn’t that cause lawyers to advise against a guilty plea or entry of such an order as a plea agreement unless there is such an iron clad case that the man is doomed anyway. But then the lawyer should advise the man that he may not ever again possess a gun.
Of course, the same is true if the person charged is a woman.
I haven’t heard of any cases brought against lawyers on this yet, but it seems to me that it is legal malpractice to work out a plea bargain for a man charged with domestic violence or threatening his girl friend or wife without first telling him of the consequential loss of right to possess a firearm ever again. What are the damages for such a gaffe? Ask a man who is a devoted hunter and you will get an earful.
I also feel that this is serious enough and the obviousness of the ignorance of almost every person who comes before the court on such a charge, that the judges should caution a person proposing entering into such a plea bargain about the loss of right to possess a gun.
I suggest that the first thing lawyers should do after reading this is research their files and their memories for the clients whom they have represented in such circumstances who finished with convictions or protective orders that fit the terms of the federal statute and advise them that they may not possess firearms ever again unless some judicial act reinstates their rights to do so.