Transcript

Larry Prager: Yeah, you don’t have to have all these other guidelines, which means they’re not written in stone. The point of it is, is that guidelines of presumptions and every presumption can be overcome.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Lawrence Praeger the Texas Family Law Insiders podcast. Larry owns the law firm Lawrence Praeger PC in Dallas, Texas. He’s board certified in Family Law by the Texas Board of Legal Specialization. He represents individuals in all types of family law matters, both trial and appeal. He also represents mental health professionals on licensing complaints and confidentiality issues and is a credentialed mediator. He served five years on the District Six Grievance Committee and represented the state for three years is child abuse and conservatorship cases as an Assistant County Attorney in Bell County, Texas. Thank you so much for joining us today.

Larry: Well, thank you for having me.

Holly: So why don’t you start by telling us a little bit about your background?

Larry: Well, basically, what you said is true, I run my own practice, and I’m not a high volume practice. And I’ve been in Dallas since 1985. And I’m here in Uptown, near The Crescent. And I, as you said, I represent individuals, mental health professionals, and try to take a more comprehensive approach when in dealing with my client. So we also handle estate matters when they someone gets a divorce, change their wills and guardianship, declarations and things of that nature. But I have a office in Uptown in old converted home, and which is a office only now and I enjoy it very much.

Holly: How would you describe your current practice?

Larry: Well, about a third of it is family law practice. And a third of it is representing mental health professionals on confidentiality issues, and grievance matters and professional licensing complaints. And a third of it is representing my family law clients and others on their estate planning issues, redoing their wills, their directives to physician and guardianship issues and that type of thing.

Holly: So how did you end up doing the mental health professional piece of that? Because it seems pretty unrelated to the other two areas?

Larry: Well, actually, it’s not unrelated. And as you know, as a family lawyer, we deal very often with mental health professionals, as in both the role of custody evaluators and counsel with children and clients. And I use them frequently in cases. And one of my mental health professionals that I had, as a witness was saying that she had received a complaint against her license, and had noticed that I had been on the Grievance Committee, which is the committee for complaints against lawyers, and needed someone to represent her at her board.

And my experience with the Grievance Committee for lawyers, is very similar, both procedurally and substantive law on the same procedure and issues dealing with mental health professionals. So I started representing mental health professionals on that. And then other mental health professionals would call me when they would get a subpoena to testify. And they’d been working with both the husband and wife, for instance, and one wanted the records to be disclosed and another one didn’t, and what do I do and that type of thing. So I sort of got into doing that. And I find it very interesting.

Holly: So you mentioned about working on the Grievance Committee related to lawyer grievances. Do you have any advice for family lawyers based on that experience?

Larry: Well, that would, yes, I’ve got a bunch of advice on that. I mean, it could take a day to talk about the advice. The essence of it. It’s really interesting in just to encapsulate it. The biggest source of complaints, I think is a failure of a lawyer to properly explain to the clients and timely communicate to them the developments in their case. And related to that is one of the hardest things that you have to do as a lawyer, and I think, particularly for a young lawyer is sometimes give a client advice or information they don’t want to hear.

And you want to please your client and represent them. But the lawyers who get in trouble sometimes have not disclosed a problem in the case, and they sort of hope it will go away, or maybe they can resolve the case before tackling an issue. So my advice, I guess, more succinctly would be, don’t be afraid to address the problems in the case, when they arise. Don’t think they’ll go away, because they won’t get better, they’ll get worse. And if you seek to correct either a mistake or have to change your opinion as to what you advise the client, the quicker the better. If that makes sense.

Holly: It does. Absolutely. And you recommend putting it all in writing.

Larry: Well yeah, I think that I think that’s a good point. And there are a lot of reasons for that. Number one, when a client comes in to see you, they’re very often under the most stressful situation in their life. And when you’re advising them, they can be overwhelmed, they’re not at their best and not at their most receptive, because they’re under a tremendous degree of stress. And we take a little bit extra time at our office to put a lot of our advice in writing. So not because we think we distrust the client, but the client will look at it later and process it, when they’re, sometimes it takes more than just initial discussion for it to really sink in.

So I’ve had clients tell me over the years that they’ve gone back and looked at a letter, particularly one that you write relating to a property settlement. You know, this is I think you might be able to get more or less. And here’s the problems with the case. And here’s the problems with their case. And I’ve had people say that they really appreciate that when they looked at it in writing, as opposed to just hearing it in the office.

Holly: So do you normally memorialize every phone call, every Zoom meeting, every in person meeting with a follow up email, follow up letter or only if it’s something really big?

Larry: No, you know, every every case has its own dynamics. You get to a point where you decide what you think needs to be re emphasized and memorialized. And sometimes that’s a lot. Sometimes it may be once or twice during the course of the case. And but generally, and it’s another thing that we do. We send billing itemized statements every month. And sometimes we have in those statements, if there’s meetings, I’ll do a very brief synopsis of the meeting, because it’s another way that we communicate with the client about what’s going on on the case.

Holly: So one of the other topics that we’re going to chat a little bit about today is working with mental health professionals, and you have kind of two avenues in which you do that. So you have probably more knowledge than your average family lawyer about working with mental health professionals. So, in general, when do you feel it’s time to bring a mental health professional into a case?

Larry: Well, I think the most important thing, the first question you ask yourself, is what do you want the mental health professional to do? What service are they providing? Now, some mental health professionals perform what they call a custody evaluation. And there’s a certain protocol that’s prescribed both by law and family by law, the family code, and by the ethical rules or the American Psychological Association. Things that they have to do. Or are you seeking a mental health professional to help you deal with the stress and other issues related to litigation?

Because I think a common misconception is that if someone hires a mental health professional and they go to counseling during the course of their suit, and if it involves custody, that counselor can come in and give an opinion as to who should have custody or conservatorship. Can’t do that unless they’ve conducted an evaluation in accordance protocol prescribed by the family code and the psychological association. So to answer your question, it depends on what service the client or the person needs. And so then you kind of decide who do you think might be appropriate by virtue of their experience with that particular need?

Holly: How do you feel about requesting child custody evaluations as compared to requesting an amicus attorney in a case? When would you want to do one or the other?

Larry: Well, it depends on number one, which county you are in and whether the case can afford a private custody evaluator, or whether it’s one that’s assigned by the judge through, let’s say, the Office of Family Court Services. Because I’m sure all of you have, you know, we’ve had better luck with some than others. And in appointing an amicus, it’s really, really interesting. Some judges prefer that over having a custody evaluation. There are advantages to it. But again, it depends on the individual they appoint.

And generally, the custody evaluation or, you know, guardian ad litem, or, you know, it depends on what issues are in the case, for example. You know, if it’s a custody case, between good, two pretty good parents, someone just has to make a hard call, you might want to ask for custody evaluation, a private one, because in a private evaluation, they generally have more time to do more subtle details, then if you have one appointed by the court through the state office, where they’re almost overwhelmed due to volume,

Holly: Do you think with the latest change on expanded standards, so now expanded standard, they say is 45% or very close to it? Do you think we’re gonna see things like custody evaluations go away? Because how much money are you going to spend, when we’re talking about 5 to 10% swing?

Larry: And that’s a really good point. I think there will always be a place for custody evaluations, when there are pretty harsh evaluations or harsh allegations by one parent, against another parent. But I think that you make a good point. In that sense the standard order is presumptive, almost equal time. If you work with good lawyers or good mediators, you can work out an arrangement that you don’t have to go through all the diagnostic things you find in a family law case. And since they’ve amended sort of the child support rules, where you can basically have the custodial parent paying support now a little bit too, they can, a lot of people think, well, if I don’t have what we used to call primary, I won’t receive any support.

And we have cases where people have equal possession time, both parents would be ordered to compute their child support, and the smaller would be deducted from the greater and that would be the amount. And the judges have a tremendous amount of leeway in creating a custom order. And, but you’re right. I mean, unless there’s some real serious allegations, and you tell your client, it’s almost going to be 50/50 and we can work out the support. Very often, an evaluation is not necessary.

Holly: Even when judges do have a lot of leeway, practically speaking, I don’t usually see them getting creative or giving us anything like expanded standard, or 50/50.

Larry: Well, I think you’re right, because I was joking with the judge. As to when you know, you go to the seminars and you know the speaker says well, you need to think outside the box. Then when you go to court and suggesting something that’s outside the box a lot, a lot of the judges will say we’ve just never done that. So where are you? But yeah, and I think that there are various types of cases. And in the cases where you have two good parents, and it’s just they can’t decide who’s going to be, then you can be a lot more creative about it.

And you don’t have to have all these other guidelines, which means they’re not written in stone. And as you know, but the point of it is, is that guidelines are presumptions and every presumption can be overcome. And so but I think what they are, what they tell us as lawyers in the community, is that all things being equal, at a minimum, you’re going to get what you were saying 45-55, or there abouts.

Holly: So, another type of mental health professional we see a lot in family law cases would be counselors, be it a counselor for the children, a counselor for parents, reunification counselor. At what stage, do you usually recommend a counselor be brought in for some reason?

Larry: Well, again, it depends on what the presenting issue is. I mean, if someone is in real crisis, the costs of litigation are ongoing, then you need to bring someone in. But generally, in cases where there’s been some serious issues, one or both, or the part, each individual parent and the child may have their own counselor and been that they’ve been working with before the litigation starts. And I think those are the more effective counselors, because they were involved in treating or counseling with parties in the child before the litigation started. And they are not hired by one side or the other, in order to advance their cause, so to speak.

And I think, depending on what they can offer to the case, like some, sometimes you have a case where you have to ask yourself, what information can the counselor bring to the court or to a jury. And if there are no allegations of abuse and neglect, and we’re not fighting over anything other than 50/50, as opposed to a standard possession order. This is where my work with a mental health professional comes in. Is it more valuable to the court to violate the confidence to the patient therapist relationship, then for the information that can be provided for one more weekend a month. And now judges are changing their view on that. It used to be, well, if it’s a custody case, it comes in. And now the courts are getting more sensitive to let’s see if the information that the therapist has, is so important that it involves violating the confidentiality between the patient and the therapist. If that makes sense.

Holly: So how does the judge make that determination? Is that a in chambers discussion with the therapist? Or how do they do that?

Larry: Well, what they do is you submit the therapist records in camera to the court, and the court is obligated to review it and only release the part that’s necessary. They must redact the information and release only what they determine and issue an order stating why the probative value outweighs the harm to the faction. So that’s that’s kind of a lot of what I do with the mental health professionals.

Holly: So does the burden fall on the mental health professional to raise that or does it fall on the patient or either one?

Larry: Well, that’s good question. It’s on the mental health professional because you can’t defy a subpoena. And so you get the subpoena. And then they call me and I file a protective order and a discovery protective order. Not to be confused with the family violence protective order, and raising the issue that the probative value does not outweigh the harm to the patient. And a lot of the judges are much more sensitive than they were when I started out a number of years ago to this issue.

Holly: I don’t think I’ve ever had a mental health professional, fight a subpoena to testify.

Larry: Well, they do it all the time.

Holly: Probably should be fighting it more than they are.

Larry: And let me tell you how I sort of got into this, because I had a case, and I was representing wife, and she has been in counseling for years. But they got a big custody case, and the husband wanted custody. And he didn’t make any allegations that she was unable to parent the child. And they subpoena and they wanted to depose a therapist, because the husband who wanted to find out if the wife had revealed to her therapist, anyone that she might have had a relationship with, during the course of marriage. And, and finally, I convinced the associate judge.

I said, they’re not contesting really custody or ability to parent, how would this benefit the case other than satisfy his curiosity? I mean, is it going, but it would be very harmful to the patient, and my client and other family members if you know. And the judge agreed, and then some of the other judges started saying, hey, maybe he’s got something here. This was, and so that’s kind of what I do. And like I said, some judges are very sympathetic to protecting the mental health professional, patient relationship, and some are not. And in, but they are required by law to issue a ruling as to the probative value outweighing on to the patient and redacting the record. So we do that fairly regularly here.

Holly: So one of, I would say the most common counselor that we try to get to testify for any particular custody case, is the counselor that’d seeing the child. And are there any special considerations that we should, as family lawyers be thinking about when we issue such a subpoena?

Larry: Well, yeah, I think a lot of less experienced lawyers, as you well probably had the situation too, people will, will issue a subpoena to a child’s counselor, and expect the counselor to give a recommendation as to which parent can parent better. And of course, they can’t do that, because they’re not, it’s a conflict. It’s an ethical conflict, for someone to be a treating counselor. And at the same time, make a custody recommendation. Those are two very different different roles that are you can’t combine them. But you have to ask yourself, what is the counselor really offering and very, sometimes it’s very relevant. I do this too, to show the, the bond between one parent and another.

For example, even if there are no significant problems in a relocation case, and where the child wouldn’t be seeing the visiting parent quite as much, very often I’ll have a counselor come in and say, you know, they have a close relationship, even though I don’t want to sound gender specific. In this case, in particular, dad is not the primary, he sees first, third and fifth standard possession or overnight, you know, on Thursday. And if he cuts that back to one, one weekend, a month, I think, you know, well, that might be significant for the time. So it was worth bringing him in, but that’s about the extent of what they can. You know, which is very important. But I can’t ask that therapist because they didn’t do any sort of custody evaluation.

Holly: Oftentimes, we will ask therapists about sources of stress for the children if we think that, you know, they have a really bad relationship with their mother, and mom’s causing problems. The therapist can certainly talk about that dynamic without saying mom shouldn’t have custody or and without making that ultimate conclusion that would cross the line on a custody evaluation.

Larry: That’s right. And, yes, I mean, that’s a good point. I mean, that’s valuable at some point, but what happens is, when you bring a witness, you know, the other side, can cross examen. And some judges are real meticulous about not expanding the scope of the inquiry, and some are not. And so, yeah, I mean, there’s a lot of things mental health professionals can offer, without going to the ultimate conclusion as who should have custody. But we have to be very careful, because very often the clients will ask us when we come in, when they come in to see us. Now, if I go to a counselor, will that remain confidential? And you can’t really give them a straight answer. Sometimes, because you don’t know who’s going to subpoena, you don’t know what the judge is going to do. And very often, you can give a better opinion, once the case is filed. So you know which court you’re in.

So each case has its own dynamics. But I think sometimes we forget how important it is to the client, to make sure that their relationship with their therapist is protected. Because, you know, we’re trained to present our evidence and our number one focus is okay, what’s the evidence we’re gonna need? Sometimes when you say, okay, what’s the pain going to be caused by getting the evidence we need. And those are kind of things that I think we all need to think about. And again, each case, some cases, you want to use the mental health professional, some cases, that’s it’s not, you don’t think it’s as necessary. It’s just it’s such a case by case dynamic.

Holly: So two other types of mental health professionals that we sometimes rope in on our family law cases, would be psychologist and psychiatrist. When do you have either one of those types of professionals entering cases?

Larry: Well, you know, a lot of the cases that I handle, it’s not like, we go out and get one. The client comes in with an entourage of people. In other words, they’ve got their friends, their family, their therapists, their co workers, and you look, you look at what they bring in, then you say, do I need anything else? And a lot of times, you don’t. I mean, I’ve had clients, and I always say, you know, I’m trained as a lawyer, and I’m not a mental health professional. And I can deal with legal issues.

But there’s, you may be having some issues that are outside my level of outside my expertise. I’m, I’m not a mental health professional or a psychiatrist. Here’s a list of people that might help you. If you’re, if you think you need that. And a lot of clients and try to say, as diplomatically as possible, say, yeah, I’m, you know, I can’t sleep I’ve been up for three days. I mean, it’s pretty bad stuff. I say, well, here’s a sleep expert, or here’s a depression expert or substance expert. And so, but I think it’s important to let the client know that when you send them to a mental health professional, they’re treating a problem. They’re not a hired gun expert.

And I think a lot of the judges and I think even juries can sense when someone’s hired a hired gun. And going back to what we talked about earlier, I think the mental health professionals who have been with the client before litigation, are much more credible than any other kind. Not because they’re the ones you might get in later are bad or corrupt. It’s just they’ve had a relationship prior to the, the litigation. And even if they just started the litigation, the fact that when they started, even if they’re the most wonderful in the world, people are going to say, well, you know, they went out and got more. So anyway.

Holly: And oftentimes, it can be you, you have great mental health providers who are not litigation focused. And if you’re in litigation, and somebody wants to go see them, they are going to say they’re out. Because they don’t want to get subpoenaed to testify. They want to avoid that at all costs. But if they had an ongoing relationship before, then they’re more likely to continue seeing that person during the litigation.

Larry: Right, and that’s, that’s been my experience.

Holly: So we’re just about out of time, but one of the questions I like to ask all my guests on the podcast, is if you could give one piece of advice to young family lawyers, what would it be?

Larry: Well, here’s what it would be. Don’t let your feelings about your client or your desire to help them influence your analysis of the case. And you have to be able to tell people, well, this, you know, let me tell you what I think this judge will do or let me tell you what the evidence suggests to me. And you have to be able to let them say, okay, maybe you’re not the guy for me. And that will tell you that a lot of people will shop a lawyer to find someone who tell them what they want to hear. And the best piece of advice I got when I was a prosecutor was kind of along that lines. The judge said, you know, I get up every morning and look at my stack of files and said, I never let my feelings about defense counsel, prosecutor, the victim, influence my analysis of the case. And when you’re in private practice, you want to serve your clients and but you don’t let that influence your analysis of the case. That’s my gem of wisdom.

Holly: Yes, don’t drink the Kool Aid. At least don’t drink too much of it so you can remain neutral or you know objective not neutral. Still have to advocate for your client but remain objective and you’re in a much better position to properly represent them. So where can our listeners go if they want to learn more about you?

Larry: Um, well, I’ve got a website. You can either get there by Lawrencepraeger.com or larrypraeger. And last name is spelled p r a e g e r. And because it’s an unusual spelling, but that’ll help you get to the website more quickly.

Holly: All right. Well, thank you so much for joining us today. For our listeners, if you enjoyed today’s episode, take a second to leave us review and subscribe so you can enjoy future episodes.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com