Standards of Practice - American Bar Association

Standards of Practicefor Lawyers RepresentingVictims of Domestic Violence,Sexual Assault and Stalkingin Civil Protection Order Cases

ABA Standards of Practice n iiiM. Timothy GrayOklahoma Coalition AgainstDomestic Violence andSexual AssaultTulsa, OKHon. Divida GudeAtlanta, GALori GuevaraLegal Advocates forIndian CountrySeattle, WABarbara HartSandi MurphyBattered Women’sJustice ProjectMinneapolis, MNKaethe Morris HofferMorris Hoffer Karns, P.C.Chicago, ILSandra JohnsonNational Institute forTrial AdvocacyRaleigh, NCLisae C. JordanSexual Assault Legal InstituteMaryland Coalition AgainstSexual AssaultSilver Spring, MDJinny KimAsian Pacific IslanderLegal OutreachSan Francisco, CASusun KimBay Area Legal AidRichmond, CAVicky KimbrellGeorgia Legal ServicesAtlanta, GAPamela KushmaulJohn D. Wheeler & AssociatesAlamogordo, NMTerry LopezColorado Legal ServicesDenver, COElizabeth MartinWomensLaw.orgBrooklyn, NYPatricia McAllisterVolunteer Legal Servicesof Central TexasAustin, TXRamona NateraLake Worth, FLDana NelsonTravis County DistrictAttorney’s OfficeAustin, TXStephanie NilvaDay OneNew York, NYLeslye OrloffLegal MomentumWashington, DCSandra S. ParkNew York, NYGail PendletonASISTADes Moines, IALinda PeytonLegal Clinic for the DisabledPhiladelphia, PADrucilla RameyNew York, NYJo-Hanna ReadLaw Office of Jo-Hanna ReadSeattle, WAHon. James RiehlPort Orchard, WAElizabeth RourkeEnlace ComunitarioAlbuquerque, NM

ABA Standards of Practice n Standards of Practicefor Lawyers RepresentingVictims of Domestic Violence,Sexual Assault and Stalkingin Civil Protection Order CasesPrefaceDomestic violence, sexual assault and stalking are epidemics inour society with dramatic, negative effects on individuals, familiesand communities. These crimes know no economic, racial, ethnic,religious, age or gender limits. Moreover, although these crimes canand do occur independently, they may also occur together, committedby the same perpetrator against the same victim. A sexual assaultvictim may have been stalked prior to the assault; a domestic violencevictim may experience systematic rape in addition to physical andpsychological abuse. Because these crimes may overlap and intersect,it is essential that lawyers providing legal assistance to victims beinformed and educated about them individually and collectively.In order to understand the dynamics of a particular domesticviolence, sexual assault or stalking case, it is important tounderstand the broader continuum of violence in which thesecases occur. By conservative estimates, 1.5 million women in theUnited States are assaulted by their intimate partners every year. Nationally, one in three women will experience sexual violencein her lifetime, and one in twelve women will be stalked in herlifetime. Although women are the victims in the majority of thesecrimes, men are also victims: the same studies reveal that 835,000men are physically assaulted by an intimate partner annually in theUnited States, one in five sexual assault victims are male, and one Patricia Tjaden & Nancy Thoennes, U.S. Dep’t of Just., NCJ 183781, Full Report of the Prevalence, Incidence,and Consequences of Intimate Partner Violence Against Women: Findings from the National Violence AgainstWomen Survey (2000), available at http://www.ojp.usdoj.gov/nij/pubs-sum/183781.htm Id. Patricia Tjaden & Nancy Thoennes, U.S. Dep’t of Justice, NCJ 169592, Stalking in America: Findings fromthe National Violence Against Women Survey, (1998), available at http://www.ojp.usdoj.gov/nij/pubssum/169592.htm

vi n ABA Standards of Practicein forty-five men is stalked in his lifetime. The need for protectionfrom violence cannot be underestimated.Civil protection orders for victims of domestic violence areavailable in every state. Though states have begun to enact statutesspecifically creating civil protection orders for victims of sexualassault and stalking, only a minority of states have stalking civilprotection orders and fewer still have civil protection ordersavailable for victims of non-intimate partner sexual assault.Civil protection orders are typically issued by state or tribal civilcourts after a showing of abuse or violence or the likelihood ofimminent harm. They may include a variety of provisions thatvary from jurisdiction to jurisdiction requiring, inter alia, thatthe perpetrator (1) stay a certain distance from the victim, (2) notassault or otherwise abuse the victim, and (3) refrain from director indirect contact with the victim. Civil protection orders vary intheir duration (e.g., emergency, temporary or “permanent”), andin many jurisdictions may include remedies such as emergencymonetary assistance, temporary child custody and support, andhousing. Similarly, in every jurisdiction there is an enforcementmechanism whereby the victim may call upon law enforcementto enforce the provisions of the civil protection order when itis violated. In these ways, civil protection orders are intendedto provide tangible, specific protection for victims that haveexperienced domestic violence, sexual assault or stalking.Victims of domestic violence, sexual assault and stalking do notseek protection orders readily, often concerned that the courtwill not believe them and fearing that the abuse will continueeven after the protection order is obtained. Many victims areconcerned about having to face the perpetrator in court, or fearlosing their privacy. In domestic violence cases, the majorityof victims complain of serious physical assault, threats to kill orharm, or attempts or threats to take children. Protection ordersare emergency remedies designed to provide for immediatesafety. Nonetheless, victims of domestic violence, sexual assaultand stalking are regularly murdered by their assailants when they See supra notes 1, 2 and 3.

ABA Standards of Practice n viitry to escape, even after the court has issued a civil protectionorder, demonstrating that these orders can be ineffective withoutenforcement and skilled, holistic advocacy.Access to justice is essential to ensuring that victims of domesticviolence, sexual assault and stalking receive the protection andremedies necessary to prevent and minimize the lifelong, devastatingeffects of these crimes. These Standards recognize the importanceof victims’ full access to the civil protection order remedies availableto them. In addition, lawyers may seek further guidance fromother American Bar Association Standards of Practice for use inconjunction with these Standards: Standards for the Provision of CivilLegal Aid, Standards for Programs Providing Civil Pro Bono LegalServices to Persons of Limited Means and Standards of Practice forLawyers Representing Children in Custody Cases.Use of the StandardsThese Standards are presented as aspirational guidelines for theoperation of legal service providers, pro bono legal service providers,and individual lawyers representing victims of domestic violence,sexual assault and stalking in civil protection order cases. They arebased on the combined and distilled judgment of individuals withsubstantial experience in the area. These Standards do not createany mandatory requirements and failure to comply with a Standardshould not give rise to a cause of action or a finding of a legal ethicsviolation, nor should it create any presumption that an individuallawyer, legal service provider, or pro bono legal service provider hasbreached any legal duty owed to a client or to a funding source.

ABA Standards of Practice n ixStandards of Practicefor Lawyers RepresentingVictims of Domestic Violence,Sexual Assault and Stalkingin Civil Protection Order CasesHistoryIn October 2005, with generous funding from the Office onViolence Against Women, U.S. Department of Justice, the Standardsof Practice for Lawyers Representing Victims of Domestic Violence,Sexual Assault and Stalking in Civil Protection Order Cases(“Standards of Practice” or “Standards”) project was launched.Led by the American Bar Association Commission on DomesticViolence and its partner organizations, the Washington Coalitionof Sexual Assault Programs, Texas RioGrande Legal Aid and theNational District Attorneys Association’s National Center for theProsecution of Violence Against Women, the partners developedthese Standards of Practice together.The purpose of the Standards of Practice is to provide a referencetool for practicing lawyers representing victims of domesticviolence, sexual assault and stalking in civil protection ordercases. The Standards of Practice are intended to cover a wide rangeof victim issues that should be considered to provide effectiverepresentation to victims of diverse backgrounds in civil protectionorder cases. The Standards contemplate practice in all U.S. statecourt jurisdictions, but are not intended to be a comprehensiveresource on tribal court practice.The goals of the Standards of Practice are: (1) to improve the qualityof legal representation of victims of domestic violence, sexual assaultand stalking; (2) to enable lawyers to effectively, ethically, andholistically represent victims in civil protection order cases; and (3)to raise awareness about the need for high-quality representationfor victims of domestic violence, sexual assault and stalking in civilprotection order cases.

n ABA Standards of PracticeA Standards of Practice Steering Committee met on May 8, 2006in Washington, DC. The Steering Committee was comprised of16 individuals, including practitioners, judges and others withvarious areas of expertise in civil protection orders. With theSteering Committee’s advice, guidance and discussion, a draft of theStandards of Practice was created.To receive substantive and structural feedback on the draft versionof the Standards of Practice, the project partners designed threeWorking Group meetings, gathering lawyers from three geographicregions to maximize diverse input. The first Working Groupmeeting took place on September 18, 2006 in Chicago, IL. Thesecond meeting took place on December 1, 2006 in Seattle, WA, andthe third meeting took place on February 12, 2007 in Austin, TX.All of the Working Group meetings were comprised of approximately10-12 legal practitioners who handle civil protection order casesin various capacities. Through a series of facilitated discussions,dialogue among the meeting participants garnered substantiveand constructive comments which informed the drafting of theStandards of Practice. Finally, the project partners submitted acompleted draft of the Standards of Practice for peer review bypractitioners and national subject matter experts in a series ofconference calls. With this input from “front-line” practitionersand pro bono lawyers, we believe that the Standards of Practice area helpful and practical resource for lawyers representing victims incivil protection order cases.On August 13, 2007, the ABA House of Delegates adopted theblack letter rules and the Preface of the Standards of Practice asofficial policy.It is our hope that these Standards of Practice will not only be aninvaluable resource to lawyers, but will also increase the qualityof legal services to victims of domestic violence, sexual assaultand stalking.

Standards of Practicefor Lawyers RepresentingVictims of Domestic Violence,Sexual Assault and Stalkingin Civil Protection Order CasesTable of ContentsI. PURPOSE & SCOPE .................................................... 1II. DEFINITIONS............................................................... 1III. ETHICAL DUTIES OF ALL LAWYERSREPRESENTING DOMESTIC VIOLENCE,SEXUAL ASSAULT OR STALKING VICTIMS...... 3A. Competent Knowledge of Law ................ 31. Knowledge of Civil Protection Order Law............... 32. Knowledge of Related Legal Issues.......................... 12B. Competent Knowledge ofDomestic Violence, Sexual Assaultand Stalking....................................................... 24C. Culturally CompetentRepresentation.................................................. 26D. Effective Client Communication.......... 281. Communication with Clients................................... 282. Physical Access to Direct Legal Representation.... 293. Interpreters and Other Language Resources.......... 304. Confidentiality and Third Party Privilege Issues..... 32

E. Client Safety ...................................................... 331. Lethality Assessment and Safety Planning............. 332. Sensitivity to Effects of Trauma............................... 34F. Scope of Representation............................. 351. Client-Centered Representation.............................. 352. Legal Capacity and Duty of Loyalty........................ 363. Scope of Representation, Case Closing andWithdrawal................................................................. 374. Coordination with Allied Professionals; HolisticRepresentation........................................................... 38IV. PROCEDURES.............................................................. 40A. Office Intake Procedures.......................... 40B. Basic Procedural Obligationsof the Lawyer..................................................... 41C. Pre-hearing Responsibilities..................... 44D. Hearings ............................................................... 54E. Post-hearing Responsibilities.................. 55

ABA Standards of Practice n I. Purpose & ScopeThe purpose of these Standards of Practice is to providea reference for lawyers representing victims of domesticviolence, sexual assault and stalking in civil protection ordercases, and to encourage lawyers to provide high quality legalrepresentation to those clients. These Standards keep the needsof the client at the center of representation and strive to buildpublic confidence in a just and fair legal system by working topromote safety for victims of domestic violence, sexual assaultand stalking, and accountability for perpetrators.II. DefinitionsA.B.C.D.E.“Domestic Violence”: Physical abuse, alone orin combination with sexual, economic or emotional abuse,stalking, or other forms of coercive control, by an intimatepartner or household member, often for the purpose ofestablishing and maintaining power and control overthe victim.“Sexual Assault”: Any type of non-consensual touchingor sexual penetration, however slight. Sexual assault may beperpetrated by an intimate partner (including a spouse), anon-intimate person known to the victim, or a stranger.“Stalking”: A course of conduct directed at aspecific person that would cause a reasonable personto experience fear.“Dating Violence”: Physical abuse, alone or incombination with sexual, economic or emotional abuse,stalking, or other forms of coercive control, by a person whois or has been in a romantic or intimate relationship with thevictim, often for the purpose of establishing and maintainingpower and control over the victim.“Victim”: A person who has been subjected to domesticviolence, sexual assault and/or stalking. Other terms used todescribe a victim may include “survivor” or “client.”This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

n ABA Standards of PracticeF.G.H.I.J.K.“Perpetrator”: A person who commits an act ofdomestic violence, sexual assault and/or stalking againsta victim. Other terms used to describe a perpetrator mayinclude “offender,” “batterer,” “abuser,” or “assailant.”“Client”: Any person receiving the services of a lawyer.In these Standards, the person receiving services is avictim of domestic violence, sexual assault and/or stalkingwho is petitioning the court for a civil protection order, oris the person seeking the civil protection order on behalfof the victim.“Respondent”: Any person responding to a petition fora civil protection order. In these Standards, a respondent is aperson alleged to have committed an act or acts of domesticviolence, sexual assault and/or stalking and against whom thecivil protection order is sought. Other terms used to describethe respondent may include “defendant,” “perpetrator,”“offender,” “batterer,” “abuser” or “assailant.”“Federally Recognized Tribe”: A group, band,nation or other organized group of indigenous Americanpeople, including any Alaska Native village, which isrecognized by the federal government as constituting adistinct and historically continuous political entity.“Civil Protection Order”: A civil court order,enforceable by law enforcement, intended to protect a victimand to stop the violent, dangerous and/or harassing behaviorof a respondent. A civil protection order, if violated, cansubject the respondent to criminal prosecution. Other termsused to describe a civil protection order may include “orderfor protection,” “restraining order,” or “peace order”; however,in some jurisdictions these terms may have a distinct meaningand usage, and may not be enforceable by law enforcement.“Safety Plan”: An individualized set of strategiesdesigned to maximize the safety of a victim who may be indanger of further harm from a perpetrator.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n L. “Lethality Assessment”: An assessment, typicallyvia a screening instrument, designed to gauge the future riskof homicide to the victim by the perpetrator of domesticviolence, sexual assault and/or stalking.M. “Full Faith and Credit”: A constitutionallyand/or legislatively mandated rule of law requiring eachstate, federally recognized tribe or territory to recognizeand enforce some or all public acts, records, and judicialproceedings of every other state, tribe and territory. TheViolence Against Women Act 2005 (VAWA) mandates thatevery state, recognized tribe and territory provide full faithand credit to protection orders issued by other states, tribesor territories. This includes provisions in protection ordersrelating to custody, visitation and support. For the purposesof full faith and credit under VAWA, a protection order is anyinjunction, protection order, restraining or other order issuedfor the protection of victims of domestic violence, sexualassault, dating violence or stalking.III. Ethical Duties of All Lawyers RepresentingDomestic Violence, Sexual Assault orStalking VictimsLawyers are bound by their jurisdiction’s ethics rules in allmatters. In order to most effectively discharge their ethicalobligations, lawyers representing victims of domestic violence,sexual assault and stalking should comply with the standardsof practice identified here.A. Competent Knowledge of Law1. Knowledge of Civil ProtectionOrder LawBefore representing a client in a civil protectionorder case, the lawyer should have competentknowledge of the civil protection order laws in therelevant jurisdiction(s).This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

n ABA Standards of PracticeCommentaryCompetent knowledge means, at a minimum, basiclitigation skills, an understanding of the burden of proof,knowledge of the requirements to obtain a protectionorder and remedies available to victims under the statutesof their particular jurisdiction.All jurisdictions in the U.S. allow for civil protection ordersfor victims of domestic violence, while only a minority ofjurisdictions allows civil protection orders specifically fornon-intimate partner sexual assault and stalking victims.These orders can have various application or eligibilityrequirements, and may provide different forms of relief todifferent affected parties.Domestic ViolenceEvery jurisdiction has relationship requirements thatmust be met in order for a victim to be eligible fora domestic violence civil protection order. In mostjurisdictions, a victim must be married or formerlymarried to, be living with or have lived with be relatedby blood to, or have a child with the perpetrator. Thevictim need not be separated from the perpetrator toqualify. However, the relationship requirement variesby jurisdiction and some allow other relationshipsto qualify. For example, some jurisdictions allow forprotection orders for teens or for those in non-sexualdating relationships. In some tribal jurisdictions broaderrelationship requirements may exist.Anti-harassment protection orders may also be usedto protect victims who do not meet the eligibilityrequirements for domestic violence protection orders,such as elders who are abused by non-family members,clients with disabilities who are abused by personalcare attendants, or teens who are victimized bysomeone with whom they do not have an intimate orsexual relationship.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n Not only is domestic violence physical, sexual,economic or emotional abuse, it is also the inflictionof fear of imminent harm to a person. The threat ofimminent harm is measured from the perspective ofthe victim. Perpetrators often threaten to take minorchildren away from victims, and victims are oftentold that they will never see their children again ifthey pursue legal action against the perpetrator. Itis important for the lawyer to make clients aware oftheir rights and the best interest standards regardingchild custody, visitation and child support in theirjurisdiction. The lawyer should also be aware ofremedies to seek when a child has been abducted and isin immediate harm by being with the perpetrator (i.e.,how to obtain a writ of attachment for the immediatereturn of the minor child and language to include in thefinal protection order to prevent parental abduction).When a domestic violence civil protection order is issuedby a court, the order may include specific remedies. Inevery jurisdiction, the court may order the respondentto have no contact with the victim. Many jurisdictionsallow provisions for temporary child custody and childsupport, possession of the home, and other economicremedies. Some jurisdictions may order the immediatereturn of children through writs of attachment. Thelawyer is responsible for knowing what types of civilprotection orders are available in the jurisdiction, whatremedies are available under each type of order, and whatprovisions are subject to criminal sanctions.Sexual AssaultThe vast majority of reported rape victims are assaultedby a known perpetrator. Many times perpetratorspremeditate sexual violence, masking it in acceptablesocial behavior such as alcohol consumption. Similarlymany perpetrators of sexual violence employ instrumentalviolence, i.e., only the amount of violence necessary toThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

n ABA Standards of Practicesubdue the victim. Victim consent and credibility areoften key issues to address in civil protection ordercases. It is important for the lawyer to understand howrape myths will play into the case and how to represent asexual assault victim most effectively.The lawyer should be aware of any statutes or case law inthe jurisdiction that might afford clients specific remediesbased on their status as a victim. For example, a clientwho is a victim of domestic violence, sexual assault andstalking may have as many as four or five different typesof civil protection orders available in some jurisdictions.Other civil remedies may also exist, including pursuingan action against the perpetrator and/or against a thirdparty whose failure to reasonably fulfill some legal dutywas a substantial contributing factor in the commissionof the sexual assault, or pursuing a victim’s compensationapplication and award. The lawyer should discuss thedesired outcome with clients to determine which offensebest qualifies them for what they are seeking from theprotection order process.The lawyer should also be aware of the applicabilityof rape shield evidentiary rules in civil cases in thejurisdiction. Rape shield rules govern the admissibilityof a victim’s or witness’s extraneous sexual behavior aswell as his or her predisposition to certain behavior.In addition, the lawyer should be prepared to litigatemotions in limine to prevent the introduction ofirrelevant “bad acts” of the victim, such as the victim’s useof drugs or alcohol.Many victims of sexual assault may be deeply concernedabout their privacy and how taking legal action againstthe perpetrator may affect their privacy interests. Thelawyer should be aware of the client’s privacy concernsand how they may affect case strategy. Similarly thelawyer should be aware that a client’s privacy concernsmay change throughout the course of representation, andThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n thus it is important for the lawyer to communicate oftenwith the client about privacy.In sexual assault cases, no relationship between theparties is required in order to be eligible for a civilprotection order. Most jurisdictions do not have specificcivil protection order statutes for victims of non-intimatepartner sexual assault and often civil anti-harassmentorder statutes or injunction statutes may be used.StalkingStalking is a crime that is often misunderstood,minimized or missed entirely. As with sexual assault,the vast majority of victims are stalked by someonethey know. In fact, a large percentage of stalking casesinvolve a perpetrator who is either a current or formerintimate partner. It makes sense that there is a significantconnection among the crimes of stalking, domesticviolence and sexual assault. A large percentage of victimswho are stalked by a current or former intimate partnerwere also previously physically and/or sexually assaultedby that partner.In stalking cases, no relationship between the parties isrequired in order to be eligible for a civil protection order.However, there may be a requirement that the victimmake a report to law enforcement or that the victim beable to show a pattern of conduct. As in sexual assaultcases, civil anti-harassment order statutes or injunctionstatutes may be used to protect victims because mostjurisdictions do not have specific civil protection orderstatutes for victims of stalking.Stalking is a crime under the laws of all 50 states, theDistrict of Columbia, and the federal government. Yet,stalking is vastly underreported and under-investigatedby the criminal justice system. Civil lawyers working withstalking victims should, therefore, be aware of the criminalstalking laws in their jurisdiction and the resourcesThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

n ABA Standards of Practiceavailable to assist victims in accessing and navigating thecriminal systems.Additionally, civil lawyers should think about creativeways to assist stalking victims using the civil legal andsocial service systems in their communities. A majorityof stalking victims take some type of self-protectivemeasures to keep themselves safe from their offenders.Civil lawyers can help these victims by informing themabout available protection orders, as well as housingand employment laws that may assist the victim (suchas the ability to break a lease agreement or maintainemployment status). Civil lawyers should also bemindful of the privacy concerns of stalking victims andvigilantly protect all client information.Dating ViolenceMany victims of domestic violence, sexual assault andstalking are not married to, or do not have a childin common with or live with the perpetrator of theviolence. Victims may be in dating relationships whenexperiencing abuse, sexual assault or stalking from theirdating partner.In many states, dating violence victims are eligible forcivil protection orders if the court is able to determinethat a dating relationship exists. Several factors areexamined to determine the existence of a datingrelationship: the length of the relationship, the typeof interaction between the abuser and the victim, andthe frequency of the interaction. Several states definea dating relationship as “intimate” or “romantic,” whileothers explicitly require a sexual relationship betweenthe parties to qualify as a dating relationship. When thestatute does not allow for dating violence relationshipsto qualify for a civil protection order, or the relationshipdoes not meet the statutory definition of a “datingrelationship,” civil anti-harassment order statutes orinjunction statutes should be considered.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n Civil lawyers should be aware of the remedies availableto dating victims of violence in their jurisdictions andcounsel the client accordingly.Mutual OrdersThe lawyer should be aware of the dangers of mutualprotection orders. A mutual order is an order issuedagainst both parties (i.e. both the client and therespondent) on the basis of only one petition. Becausemutual orders are issued sua sponte, without a petitionby the respondent and a finding that the respondent isentitled to protection, some jurisdictions prohibit mutualorders, pursuant to statute. Mutual orders are generallydiscouraged because they often serve to further emboldenthe perpetrator to abuse and discourage the victim fromseeking legal assistance. Mutual orders lack a finding ofthe predominant aggressor, and frequently lead to unfairmutual arrest in any future incident of abuse.Lawyers should also be aware that according to thefederal Violence Against Women Act (VAWA), mutualorders are not entitled to full faith and credit in otherjurisdictions, and the lawyer should counsel the clientaccordingly. If the lawyer discovers that there is amutual order in place, the lawyer needs to identify whothe original petitioner is. If the original petition wasfiled by the perpetrator, the lawyer should counsel theclient to file an independent petition to avoid the mutualprotection order problem. The lawyer should have a solidunderstanding of the dynamics of power and controlin order to effectively counsel clients about the risks ofagreeing to mutual orders.However, “criss-cross” civil protection orders, in whicheach party petitions for and receives a separate civilprotection order against the other, do receive full faithand credit in other jurisdictions. Often times a crisscrossor counter-petition is filed by a respondent asa form of retaliation or intimidation toward a victimThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

10 n ABA Standards of Practiceof domestic violence. Lawyers should be alert to anyfraudulent, frivolous or vexatious counter-petitions andprepared to defend against the issuance of criss-crossorders. Though mutual orders and criss-cross orders aretechnically different, the effect of the orders and potentialdanger that may result to the victim due to these ordersmay be the same. The lawyer should carefully distinguishand explain the consequences of mutual orders and crisscrossorders to the client.In addition, federal law mandates that for state andtribal governments and courts to receive certain typesof federal funding, the programs must meet statutoryrequirements regarding their arrest policies. Amongthe different requirements, the program must certifythat their laws, official policies or practices prohibit theissuance of mutual protection orders except where bothparties have filed petitions and the court makes findingsof fact that both parties acted primarily as aggressorsand that neither party acted primarily in self-defense.Therefore, lawyers should be aware that a court’sissuance of a mutual protection order without the filingof two separate petitions may be a federal law violationand should seek appropriate recourse, if necessary.Federal Firearms ProhibitionsLawyers should be cognizant of the federal and statefirearms prohibitions and their effect on protectionorders. Persons subject to a state court-issued civilprotection order that meets the federal statutorydefinition are generally prohibited from possessingany firearm or ammunition that affects commerce (i.e.,shipping or transporting any firearms in interstate orforeign commerce, or receiving any such firearm orammunition). A violation of this prohibition while theprotection order remains in effect is a federal offensepunishable by up to ten years imprisonment.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 11A state court-issued protection order meets thefederal definition if one of the following terms aremet: 1) the respondent received actual notice and hadan opportunity to participate; 2) the petitioner is anintimate partner of the respondent (i.e., a spouse, aformer spouse, has a child with, or cohabitates or hascohabitated); 3) the order restrains respondent fromharassing, stalking or threatening the intimate partner,child of the respondent, or child of the respondent’sintimate partner, or the order restrains respondentfrom engaging in conduct that would placed theintimate partner in reasonable fear of bodily injury tothe partner or child; or 4) the order includes a findingthat the respondent is a credible threat to the safety ofthe intimate partner or child, or the order explicitlyprohibits use of physical force against the intimatepartner or child that would reasonably be expected tocause physical injury.When interviewing and counseling clients, lawyersshould explain these firearm prohibitions to their clientsand ask about potential firearm possession by theperpetrators. Lawyers should tailor case strategy basedon the existence of firearms, including working with theprosecutor’s office to prosecute the perpetrator, keepingthe safety of all parties as the foremost concern.Inter-jurisdictional IssuesLawyers should be familiar with state and federal lawsgoverning interstate custody and domestic violence cases,which may involve protection order, relocation, custody,jurisdictional and parental kidnapping laws. These lawsfit together in complex ways, allowing lawyers to answercritical questions such as the following: May a clientflee for safety to another state with her children withoutbeing charged criminally? May a client file for custodyin a refuge state? May a court issue a custody provisionwithin a protection order? Lawyers who understand theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

12 n ABA Standards of Practicerelevant laws can assist client so that they do not losecustody of their children, jeopardize their safety, or servetime in jail for attempting to escape from abuse.2. Knowledge of Related Legal IssuesThe lawyer should screen for related legal issues arisingfrom the incidence of domestic violence, sexual assaultor stalking. If the lawyer is not competent or availableto represent the client in related matters, the lawyer hasa duty to refer the client to competent counsel.CommentaryClients who are seeking civil protection orders oftenhave a myriad of legal and non-legal issues that intersectwith their civil protection order matters, such ashousing, education, employment, privacy and privilege,child protective, child custody, emancipation, criminaljustice or immigration issues. The lawyer has a dutyto be competent in these areas of the law, or a duty toappropriately refer the case if training is not feasible.This is particularly true for clients with immigration lawconcerns as well as cases in criminal court, as these areasof law are highly specialized and have serious long-termconsequences for the client. For example, admissionsin one legal context will often compromise relief inanother area, i.e., an affidavit in a civil protection case canprovide powerful impeachment evidence for a criminaltrial. Therefore, the lawyer must be competent in theintersecting area of law or appropriately refer the client.Many state domestic violence and sexual assaultcoalitions or local bar associations offer training in civilprotection order law and other related areas of law,specific to the needs of victims of domestic violence,sexual assault and stalking. Prior to representingclients, the lawyer should identify community resourcesand referrals, and associate with suitable mentors tosupplement the lawyer’s knowledge.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 13Clients with DisabilitiesClients with disabilities (including age-relateddisabilities) often depend substantially on otherpeople in matters ranging from economic supportto help getting dressed. In domestic violence cases,clients with disabilities may have particular concernsabout leaving an abusive partner because of their fearof institutionalization and/or the fear of losing custodyof their children. The lawyer should be prepared toargue why the client’s disability should not be used asthe basis for denying the client custody of the children.The lawyer should also be prepared to develop a planfor attendant care, transportation, medical treatment,food, housing and financial aid in order to permit aclient with disabilities to remain independent ofthe perpetrator.People with cognitive disabilities tend to experiencemuch higher rates of sexual victimization than peoplewho do not have a disability. Increased dependence oncaregivers, social isolation and institutions that fail toadequately supervise and perform criminal backgroundchecks on other clients, staff, and volunteers allcontribute to the high rates of sexual abuse. Indiscussing sexual abuse with a client, the lawyershould be aware that the client may have a differentunderstanding of what is considered sex, and how andwhen it is considered abusive.A disabled person might suffer abuse specific to his/herdisability that does not fit neatly under the definitionof abuse in most states’ protection order statutes. Forexample, leaving someone unattended without readilyavailable food or water for extended periods of time,moving phones or assistive devices out of reach, takingpictures of the victim performing sexual acts, placingfurniture to obstruct the victim’s path, denying medicationor overdosing are all sufficient to constitute abuse.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

14 n ABA Standards of PracticeClients with Limited English Proficiency /Use of InterpretersIf the lawyer is using an interpreter to communicatewith the client, the lawyer should know how to workeffectively with interpreters and be aware that it maytake longer than English-speaking communications.Similarly, the lawyer should be aware of whether theinterpreter is in any way acquainted with the client or theclient’s family, and have procedures in place to respondto situations where interpreters and clients are from thesame small ethnic community, as this could affect theclient’s ability to communicate openly and effectively.Economic ConcernsA victim of domestic violence, sexual assault and/orstalking who is low income or who is prevented fromaccessing shared resources may struggle with economicissues related to the violence. Economic stability istantamount to client safety in many cases. For example,clients may need to move quickly for safety or becausethe violence occurred in the home and they can nolonger bear to reside there. Clients may experienceharassing behavior at work or have excessive absencesdue to physical and/or psychological injury, which maybe creating job insecurity. Clients may have a new orcontinuing need for public benefits such as food stamps,Temporary Assistance for Needy Families and Medicaid.The lawyer should have a general understanding ofthe myriad ways a client can lose economic supportand stability because it is fundamental to effectiverepresentation and meaningful, appropriate referrals.Elder AbuseElder abuse is the physical, sexual, emotional or financialabuse, or neglect or abandonment, of an older person bya family member, friend, fiduciary or caregiver. Elderabuse includes domestic violence and sexual violence inThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 15later life, and may be committed by a current or formerspouse or intimate partner, as well as by adult children,grandchildren, other family members, a “friend,” or anon-relative caregiver or fiduciary. Issues related toan older person’s legal capacity and right to autonomyadd to the complexity of dealing with older abusedpersons in many cases. In addition, older persons maybe reluctant to disclose abuse, especially sexual assault,because of embarrassment or shame, or legitimate fearsof retaliation, disbelief or institutionalization.The lawyer should consider the wide range of civillegal remedies that may be available to the older client.Lawsuits to recover money or property, restrainingorders or injunctions, or actions for damages all may beappropriate responses to elder abuse. In addition, theperpetrator should be removed from the setting andalternative care should be secured, if the perpetratorwas the client’s primary caregiver. The lawyer shouldbe familiar with state laws governing reporting of elderabuse, particularly if the state requires mandatoryreporting by lawyers.Older victims are often accompanied by others whenthey visit a lawyer’s office. The lawyer must be clear as towho is the client and then make that information knownto everyone involved. If the client is the elderly person,the lawyer must meet with the client separately in orderto preserve confidentiality and to ensure that the client isnot subjected to undue influence.The lawyer should strive to achieve remedies that placethe fewest restrictions on the client’s independence andautonomy. Guardianship or conservatorship of theclient or placement in a nursing home or other facility issometimes necessary, but is certainly not the only meansof terminating the abuse, and should be considered onlyas a last resort.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

16 n ABA Standards of PracticeImmigrant ClientsWhen meeting an immigrant client for the first time, thelawyer’s primary concern should be whether the clientqualifies for a civil protection order, and not the client’simmigration status. Immigration status has no bearingon a client’s eligibility for a civil protection order. Otherservices and relief may also be available. The lawyershould have a ready list of referrals of service providersthat can handle the immigration issues of the client withinthe service area.VAWA now provides immigrant victims of domesticviolence with access to some form of immigration relief.However, many immigrant victims are unaware of theseremedies. Perpetrators use this fact to solidify theirpower and control and inhibit the immigrant victim’sability to successfully escape violence. In addition,immigrant victims may have justified concerns aboutthe safety of family in their home country, a fear ofparental abduction of the children by the perpetratoror other acts of retaliation by the respondent. Manyimmigrant clients are reluctant to obtain a finalprotection order against the respondent for fear that itwill result in the respondent’s deportation and a loss offinancial support. A violation of a civil protection ordermay be a deportable offense. Similarly, many immigrantclients are reluctant to obtain a civil protection orderagainst their employer or coworker for sexual assault,sexual harassment or stalking due to a fear of job loss,which may in turn, result in a loss of housing or evenloss of legal status. The lawyer should be aware ofany specific remedies for victims of sexual assault orstalking that may exist for immigrant clients and referthem to appropriate resources as necessary.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 17Lesbian, Gay, Bisexual and Transgender(LGBT) RelationshipsMost LGBT victims of abuse, assault or stalking (andespecially men and transgendered individuals) do nothave the same access to support services, including legalservices, as heterosexual victims. Even when LGBTvictims are provided services, they may experiencesevere homophobia.In several states, victims of domestic violence in samesexrelationships are explicitly excluded from access tocivil protection orders. Legal complexities can arise insame-sex domestic violence cases when the relationshipbetween the victim and the perpetrator is not legallyacknowledged. Some examples include difficulties withchild custody, excluding the respondent from the home,or allocating property.Homophobia is a major barrier to LGBT victims ofsexual assault. Lawyers should be aware that oftenLGBT victims are reluctant to discuss sexual assault,since LGBT sex is often perceived as deviant and/orcriminal. LGBT victims may also be reluctant to disclosechildhood sexual abuse due to fear of a homophobicreaction (e.g., “you’re LGBT because you were sexuallyabused”). Also, homophobic assumptions about LGBTadults working with youth (e.g., that they are pedophiles,or are “recruiting”) further serve to discourage LGBTvictims from disclosing sexual assault. Homophobia isalso a barrier in same-sex stalking cases where there isnot a pre-existing relationship between the stalker andthe victim.It is not uncommon for police officers (and judges)to disregard or downplay same-sex domesticviolence, sexual assault or stalking. Lawyers shouldbe specifically aware of the danger of the issuanceof mutual civil protection orders if the victimand perpetrator are the same sex, because of theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

18 n ABA Standards of Practiceminimization that clients may experience when they seekto enforce the order. Enforcement of civil protectionorders issued to LGBT individuals may be unreliablebecause of institutionalized prejudices towards LGBTpeople by law enforcement and the courts.LGBT clients are sometimes sensitive to any publicdisclosure of their relationships because employmentand other positions may be jeopardized. The lawyermust remember that there may not be a mechanismfor confidentiality in court proceedings and policeintervention. In some cases it may be safer for a victimto seek shelter and remain anonymous. As with all cases,victims should decide the best option for themselves, inconsultation with the lawyer.Mental HealthA client’s mental health can have a bearing on effectiverepresentation. While many victims of domestic violence,sexual assault or stalking experience no significantor chronic mental health issues, some may be copingwith pre-existing mental health issues in addition tothe experience of violence, while others may developproblems as a result of being victimized. Typical ailmentsmay include depression, increased anxiety, disassociation,sleep or eating disorders, drug and alcohol dependenceand/or post-traumatic stress disorder (PTSD). The lawyershould always inform the client of relevant mental healthservices if the client seems to be suffering with mentalhealth issues, while being careful to safeguard the client’sprivacy and protect against the possibility of impeachment.If the victim does have a mental health issue and isreceiving treatment, the lawyer should consult with themental health professional to determine how the client’scondition, medication and treatment may affect strategyin the case.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 19Military ConcernsVictims of domestic violence or sexual assault who areassociated with the military have the option of “restrictedreporting,” which allows a victim to confidentiallydisclose the details of an assault to certain individualswithin the military community and receive medicaltreatment and counseling, without triggering the officialinvestigative process. Under these circumstances, thevictim’s report and any details provided to the individualsidentified above will not be reported to law enforcementto initiate the official investigative process unless thevictim consents or an established exception is exercisedunder the Restricted Reporting Directive. However,lawyers must check local law and practice to ensure thatthe facts and injuries in the case do not trigger statemandatory reporting laws.Lawyers should be aware, however, that if clients do notelect to make a restricted report, current Departmentof Defense policy requires all members of the militarycommunity, including personnel on active duty, theirfamily members, civilian employees, and contractors, toreport known or suspected crimes to their commandingofficer, including known or suspected incidents ofdomestic violence or sexual assault. The lawyer must beaware that if they advise a client to make an unrestrictedreport of an incident of domestic violence or sexualassault to military personnel, such personnel will initiatean investigation that will involve contacting the allegedperpetrator and any witnesses, such as medical staff,military police or other officers. If a client wants to speakto someone confidentially about options for services/interventions, the lawyer may make a referral to civilian,community-based domestic violence programs or rapecrisis centers.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

20 n ABA Standards of PracticeUnder the Armed Forces Domestic Security Act, militarycommanders are required to take all reasonable measuresto ensure that a civilian protection order preventingviolent or threatening acts or harassment against, orcontact or communication with or physical proximityto, another person is given full force and effect on amilitary installation. However, it excludes a supportor child custody order issued pursuant to state divorceand child custody laws except to the extent that suchan order is entitled to full faith and credit under otherfederal law. The lawyer should contact the installation’slegal office to register any civil protection orderpertaining to a person in the military, whether thatperson is on active duty, a civilian employee, contractor,or a family member of these.A military protection order is issued by a commandingofficer to an active duty service member to both protecta victim of domestic violence or sexual assault, and toregulate the behavior of the offending service member.A military protection order may be oral rather than inwriting, although written orders are preferred. Becausea military protection order is issued by a commandingofficer, it becomes invalid if the service member isreassigned to another command. Furthermore, civilianlaw enforcement agencies and civilian courts cannotenforce military protection orders because they do notmeet the due process requirements under the full faithand credit provisions of VAWA. However, civilianscan notify military law enforcement that a violationhas occurred and in many cooperative agreementsbetween local law enforcement and military installations,offenders are to be held until military police arrive ortaken and turned over to the military police by civilians.It is important to note that a military service member isalways subject to the Uniform Code of Military Justice(UCMJ). Hence, if a service member violates a militaryprotection order, command can be notified of theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 21violation and take action because the person violated adirect order and engaged in conduct unbecoming, bothof which are prohibited under the UCMJ.Finally, a service member may request temporarysuspension of civil judicial and administrativeproceedings (such as those regarding protection orders)pursuant to the Service Members Civil Relief Act, whenthe service member’s ability to participate in thoseproceedings is materially affected by their military duty.However, if the commander is aware that the subject ofthe proceedings is the protection of another person fromviolence or harassment, the commander is unlikely toconcur with the request. The lawyer should take steps toensure that the commander is apprised of the nature ofthe proceedings.Minor VictimsMany minor victims of domestic violence, sexualassault or stalking may not meet the age or relationshiprequirements of their state’s protection order statutes, andmust resort to more cumbersome procedures in order toobtain civil protection orders. For example, many statesprohibit unemancipated minors from bringing actionsfor protection on their own behalf. In these jurisdictions,an adult must bring the action on the minor’s behalf orthe court must appoint a lawyer or guardian ad litemto represent the minor’s interests. Anti-harassmentprotection orders may also be used to protect minorvictims who do not meet the relationship requirementsfor domestic violence protection orders. However theseorders may have age limits that impede access to thecourts for minors as well.Additional challenges in obtaining protection throughthe civil and criminal courts may arise for minors whoare being abused by other minors. For example, if aminor seeks a sexual assault protection order againstanother minor, not only does the petitioning minor likelyThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

22 n ABA Standards of Practiceneed an adult or guardian to file on her behalf, in orderto effect service, the minor respondent and his parentsmust be served in order to facilitate proper service. Thenrelief must be tailored to the unique needs of minors,who often are not in control of their own schedules, donot have access to transportation, and are engaged in fulltimemandatory education. This is of particular concernwhen the victim and the perpetrator attend the samepublic school and may have classes together.Lawyers must be familiar with the child abuse andneglect laws of the jurisdiction, as well as juveniledelinquency statutes and the Indian Child Welfare Act.In sexual assault cases, lawyers must also be familiarwith statutory rape laws, the age of consent for minors toengage in consensual sexual relations and what the localprosecutors’ policy is with regard to minors engagingin consensual sexual relations. Similarly these issueswill likely impact whether a minor can successfullypetition for a civil order of protection given the criminalanalysis of whether a crime has occurred or if the minorhas exposed herself to possible criminal sanctions forengaging in illegal activity prior to the assault, such asalcohol consumption.Lastly, lawyers working with minors must be careful todistinguish the minor client from the caregiver who mayaccompany them, and be aware of mandated reportingrequirements in their jurisdiction.Native American VictimsAmerican Indian and Alaska Native women arevictimized at a much higher rate than any other groupof women in the United States. When the perpetratoris non-Native, particular jurisdictional challengesarise. When deciding whether to secure a protectionorder in state or tribal court when both appear to havejurisdiction, the ability to enforce the protection ordershould be considered. The tribal court may have limitedThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 23subject matter jurisdiction, or limited court dates. SeeSection IV.C.8.Because tribes are sovereign entities, their governmentswill vary in their statutory and judicial responses todomestic violence, sexual assault and stalking. Lawyersserving Native victims must be aware of which tribeis involved, either because the victim is a member orbecause the offense took place in Indian Country, andthen review the applicable code provisions that willaffect your client. In addition, seeking redress in a tribalcourt may afford the victim a means of justice that differsboth judicially and culturally from a state or federalsystem. Prior to moving forward with representation,it is imperative that the laws of the involved tribe beconsulted, the jurisdictional status be reviewed and theclient consulted regarding her desire to seek redress inthe community which may, or may not, afford a moreholistic, or traditional response to the offense. Finally,ensure that you are respecting tribal sovereignty byaffording full faith and credit to all forms and orders ofthe court, regardless of whether they are handwritten orcontain provisions that may be outside the scope of yourusual practice.Substance Abuse IssuesSome victims of physical, sexual and psychological abusemay attempt to numb their physical and emotional painby using drugs and/or alcohol. Other victims are coercedinto drug use by their abusive partners. Whatever theinitial motivator, a client’s drug use or addiction providesthe perpetrator with another weapon to undermine theclient’s credibility.Clients who use drugs and alcohol may not be believedor taken seriously by others when they report abuse. Theyalso may be unable to access certain emergency servicessuch as shelters, many of which have a “sober-first”policy. The use of chemicals can compromise cognitiveThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

24 n ABA Standards of Practicefunctioning and motor coordination, leaving clientsless able to identify cues or indicators when violenceescalates, inhibiting their ability to defend against aphysical assault, to make and use a safety plan, or topresent well in court. If you suspect your client may bedealing with substance abuse issues, it is imperative thatyou inform the client of the relevant treatment resources.B. Competent Knowledge of DomesticViolence, Sexual Assault and StalkingBefore representing a client in a civil protection ordercase, the lawyer should have competent knowledge ofthe dynamics of domestic violence, sexual assaultand/or stalking.In particular, the lawyer should understand the potentialrisk of escalated violence due to litigation, and how theexperience of domestic violence, sexual assault and/or stalking may affect the client-lawyer relationship,including the process of establishing rapport with andgathering information, evidence and case direction fromthe client.CommentaryCompetent knowledge means, at a minimum, an accurateunderstanding of the dynamics of domestic violence, sexualassault and/or stalking, in addition to understanding thestatutes that protect victims against these types of violence.The lawyer should be aware of the issues a particular clientmay face and be able to counsel the client about the pros andcons of obtaining a civil protection order. For example, fordomestic violence victims, often the risk of violence increasessignificantly when a victim attempts to leave the batterer.Therefore, the lawyer should discuss with the client differentstrategies for getting protection, which may include notimmediately obtaining a civil protection order if obtaining anorder will compromise safety. Additionally, sometimes beingserved with a petition for a civil protection order promptsThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 25respondents to file a retaliatory cross-petition. The lawyershould be prepared to discuss this possibility with the client,and prepare the client for defending against a cross-petition.In sexual assault cases, many victims are very concernedabout maintaining their privacy. Civil protection orderactions may result in family, friends, employers and otherinstitutions learning compromising details about a victim’ssexual or personal history. Lawyers should be mindful thatsuch disclosures can have very harmful consequences toa victim’s social and economic life. Protecting the victim’sprivacy is integral to protecting her safety, and thereforeprivacy concerns will inform case strategy. In stalking cases,victims may not even know the perpetrator and may havelimited ability to assess risks. Factors such as these, and others,will have an effect on the development of the case and thefeasibility of certain remedies.The lawyer must also be knowledgeable about the dynamicsof violence in order to craft appropriate and effective ordersfor relief. For example, final protection orders which prohibitcontact “except to discuss the children” or prohibit weapons“except for hunting” are seldom useful to the client andare extremely difficult to enforce, due to their vagueness.Similarly, sexual assault protection orders which allow theperpetrator to continue to attend class with the victim maybe useless in helping the victim remain in school.Some clients who have experienced domestic violence,sexual assault or stalking may require a heightened level ofpatience and assurance from the lawyer before they will bewilling to disclose essential information. The additionalclient interview time this may require is well worth theinvestment, as it will likely result in more thorough,accurate and efficient trial preparation.The lawyer must understand the dynamics of power andcontrol in abusive relationships in order to understand thatit is common for victims of domestic violence to return tothe perpetrators, even after multiple separations. OftenThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

26 n ABA Standards of Practicevictims will leave numerous times before finding the social,economic, and emotional resources to remain independentof their abusers. The lawyer should remain nonjudgmentaltoward clients who reunite with their perpetrators, andshould assure clients that should they decide to leave in thefuture, resources will be available to help them.C. Culturally Competent RepresentationThe lawyer should be aware of the culture of the client andof how violence is understood within that culture.In particular, the lawyer should understand howthe culture of the client may affect client-lawyercommunication and trust, identification andpresentation of evidence, and remedy selection.CommentaryCross cultural communication is an essential component ofeffective legal representation in domestic violence, sexualassault and stalking cases. Lawyers who develop what is oftenreferred to as “cultural competence” will be able to enhancerapport with clients, gather more information, investigatecases thoroughly, develop more meaningful strategies forresolving problems, counsel clients appropriately, negotiatecomprehensive agreements and conduct trials in a moreeffective manner.The lawyer is more likely to be aware of cross culturaldifferences when representing a client who was born inanother country or a client who does not speak English asa first language. However, cross cultural communicationextends beyond differences in ethnicity and languageand encompasses differences among individuals basedon a variety of factors including race, religion, education,socioeconomic status, gender, sexual orientation and age. Inaddition, there are tremendous differences within culturalgroups. Individuals who may be identified as Latino orAsian, for example, hail from a host of countries whichThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 27have their own unique histories, languages/dialects, foods,religions and customs.Cultural differences exist in the ways in which survivors ofdomestic violence, sexual assault and stalking react to theviolence they experience; interact with police, lawyers andjudges; describe events which have transpired; communicateneeds and goals; and make decisions about how best toaddress the situation. While lawyers need to develop culturalawareness, it is important not to reinforce stereotypes in theprocess. In order to enhance cross cultural communication,lawyers should (1) refrain from making assumptionsabout a client based on the client’s cultural affiliation(s);and (2) refrain from generalizing based on the lawyer’sown experience. Instead, the lawyer must learn about theindividual client’s values, experiences and priorities throughsensitive questioning and perhaps more importantly, throughcareful listening and attention to verbal and nonverbal cues.Examples:Culturally competent practice for lawyers representingvictims of domestic violence, sexual assault and stalkinginclude (but are not limited to) the following:• Listening attentively to clients, using reflectivelistening and empathetic responses• Asking clients about their views or perceptions ofevents and interactions, spending significant timegathering information• Not assuming all people from a particular cultural groupare the same or share the same values and priorities;learning about clients’ beliefs and priorities throughdiscussion with them; asking clients how they definethemselves culturally• Being aware of the lawyer’s own cultural beliefs, values,customs and biasesThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

28 n ABA Standards of Practice• Identifying areas in which the lawyer and the client sharesimilarities, and using these areas of commonality tobuild rapport with the client• Becoming educated about other countries, cultures,and customs• Explaining how the U.S. legal system works using simple,straightforward language (orally and in writing)• Being careful in the use of humor• Before making negative judgments about a client,determining whether there may be cultural explanationsfor the client’s behavior or decision• Developing creative, flexible solutions which respect aclient’s priorities and cultural beliefs• For non-citizen clients, consulting with animmigration lawyer about the possible immigrationramifications of actions taken in a domestic violence,sexual assault or stalking case• Developing methods for using interpreters effectivelyD. Effective Client Communication1. Communication with ClientsThe lawyer should always personally consult withthe client prior to representation and prior to courtproceedings for a private and meaningful exchange ofcase-related information.CommentaryVictims of domestic violence, sexual assault and stalkingare a unique client population because their legalconcerns are often embedded in very personal, privatematters. Effective representation requires that the lawyerearn the trust of a client who has experienced betrayaland/or abuse. It is not uncommon for clients to withholdThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 29crucial information from lawyers out of self-doubt,shame, fear of disapproval or disloyalty.Traumatized clients may have difficulty processingor remembering new or technical information. Itis important for the lawyer to take adequate time tocommunicate effectively with the client, to learn all therelevant facts of the case, and also to ensure that theclient has a complete understanding of the legal process,remedies, and consequences. The lawyer should listenreflectively with minimal interruption, avoid the use ofjargon, be prepared to repeat information, and allow timefor the client to absorb and consider her options.In cases where this is simply not possible, the lawyershould work closely with an advocate who can take thenecessary time to communicate effectively with the client,and who can serve as a client-lawyer liaison throughoutthe case. However, the lawyer must be cautious if theclient is located in a jurisdiction with no advocate-clientprivilege, and make sure all parties are aware of that fact.2. Physical Access to DirectLegal RepresentationAll clients should have comparable access to the lawyer.When working with clients with physical and/ormental disabilities, the lawyer is obligated to ensurethat the appropriate accommodations are in place.CommentaryThe Americans with Disabilities Act (ADA) requires,among other things, that the lawyer’s office and thecourtroom be free of architectural and communication(e.g., signs, alarms) barriers, and that auxiliary aids orservices be provided when they are necessary to ensureeffective communication (e.g., using a TTY or relayservice for clients who are Deaf or hard of hearing;reading documents to a client if providing it in Brailleis too expensive). Also, service and companion animalsThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

30 n ABA Standards of Practicemust be permitted in facilities unless the animalspose a direct threat to the health or safety of others.The lawyer should remember that the ADA prohibitscharging persons with disabilities to cover the costs ofneeded accommodations.In addition to ADA requirements, it is good practiceto be aware of the effects of any medications the clientmay be taking, or of any cognitive impairments orpsychological diagnoses the client may have, both tofacilitate client communication and to better prepare forthe civil protection order hearing.The ADA describes the legal minimum for providingservices to people with disabilities. Lawyers areencouraged to go beyond these minimum guidelinesto provide the most accessible services possible.Appropriate accommodation will enhance representationby facilitating effective client-lawyer communication.3. Interpreters and OtherLanguage ResourcesWhen the client is not proficient in English or is Deafor hard of hearing, the lawyer should ensure a neutral,professional, qualified interpreter is available for allclient meetings and court proceedings.CommentaryThe lawyer should ensure that competent and unbiasedinterpreter(s) are available at each client-lawyer meetingand court proceeding, as appropriate. In no caseshould the lawyer allow the client’s child or other familymember to interpret. If a professional or certifiedinterpreter is not available, the lawyer should seek outcommunity resources, such as language departments oflocal universities, listserves, and referral sources to findan interpreter who is neutral and competent. If such anThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 31interpreter is not available, the lawyer should seek outother resources, such as the AT&T language line or relayservice, to ensure that the client can fully participate inall proceedings.If a client is working with a bilingual advocate from acommunity-based domestic violence or sexual assaultprogram, it is not appropriate to use the advocate as aninterpreter. The advocate’s role is to advocate on behalf ofthe client, not to act as an interpreter.If the client is Deaf or hard of hearing and from anothercountry, the lawyer should be aware that he or she mayuse a different form of sign language (i.e., not AmericanSign Language). The lawyer should establish the best andsafest way to communicate with the client throughoutthe case if a qualified interpreter is not available, eitherby email, text telephone device, video relay or throughthe use of multiple interpreters, to minimize and avoidperpetrator manipulation of these devices.The lawyer should also be aware that some languagecommunities are very small and that the client must becomfortable with the interpreter chosen and satisfiedthat there are no potential conflicts of interest.Title VI of the Civil Rights Act (prohibiting discriminationon the basis of national origin) and the Americanswith Disabilities Act both describe the legal minimumsfor providing language access to clients. Lawyers areencouraged to go beyond these minimum guidelines toprovide the most accessible services possible. Appropriateaccommodation will enhance representation by facilitatingeffective client-lawyer communication.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

32 n ABA Standards of Practice4. Confidentiality andThird Party Privilege IssuesThe lawyer should inform the client that ordinarily,communication exchanged between the lawyer andclient is protected by the attorney-client privilege.The lawyer should advise the client about theapplicable rules and laws regarding confidentiality ofcommunications with third parties (e.g. advocates,interpreters, counselors, personal care attendants,legal guardians, support persons) and any effect ofthese parties’ presence on attorney-client privilege.CommentaryThe lawyer should be aware that the scope of differenttypes of privilege varies by jurisdiction. Privilegeconcerns should be addressed first with the client and,if the client consents, then discussed in the presence ofthe client and the third party.In addition to attorney-client privilege, many statesalso have domestic violence or sexual assault advocatevictimprivilege statutes. It is important for lawyers toknow what privilege statutes exist in their state betweenthird parties and the client in order to appropriatelyaddress any privacy or confidentiality breaches that mayarise from working collaboratively.Finally, the lawyer should be cautious about includingthird parties who may be mandated to report suspectedchild or vulnerable adult abuse to authorities.If the client consents to the release of information toa third party, the consent should specify exactly whatinformation may be released, that the release is timelimited,and it should be in writing.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 33E. Client Safety1. Lethality Assessment and Safety PlanningThe lawyer should ensure that comprehensive lethalityassessment and safety planning occur with the client.CommentaryLethality assessment and safety planning should occurwith the client throughout the case. In most instances,clients will be best situated to assess their own safetyand lethality risks, and the lawyer should defer to theirconcerns. In some cases, clients will minimize their riskas a means of coping, in which case the lawyer shouldnevertheless ensure that the client is provided withresponsible information about safety planning. As anadded consideration, discussing safety and lethality riskswith the client can often reveal valuable evidence for thecase. The lawyer should research the current practicein lethality assessment to determine how best to assessthe perpetrator’s lethality. However, if the lawyer is notfamiliar or comfortable with threat assessment or safetyplanning, he or she should consult with and connect thevictim with someone who is—an advocate or trainedlaw enforcement.Safety planning is intended to limit the risks ofviolence, regardless of the victim’s relationship with theperpetrator. A safety plan is not static but is dynamic andunique to each client. The lawyer should consider howthe safety plan fits in with the broader case strategy.In domestic violence cases, safety planning does notnecessarily require that the client leave the abusiverelationship; in fact, in many cases leaving will increasethe risk. A domestic violence safety plan may include(but is not limited to): methods for limiting harm duringa violent incident; keeping children safe from abuse;preserving assets; minimizing opportunities for abuseat court, at home, at work, online, or at school; planningThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

34 n ABA Standards of Practicebefore leaving an abusive relationship; and enforcinga protection order. If the client has made the lawyeraware that the respondent is in possession of weapons,the lawyer should take the necessary steps to ensurethat the respondent will have to go through a metaldetector or other security screening prior to any hearings,depositions, etc.In sexual assault or stalking cases, safety planning mayinclude helping clients to identify what they need to feelsafe – at work, at home, at school, and in transit. Othermeasures that can be taken include having the victimchange routines, relocating and informing friends andfamily of the stalking. The lawyer should be familiarwith the various models of effective safety planning thatexist. If a lawyer is not competent in safety planning, anadvocate should assist.Clients should conduct on-going lethality assessment andsafety planning as the case moves forward. The lawyershould often check in with the client about her safetyplan and encourage the client to work with communitybasedadvocates to help facilitate this process. Whenappropriate, the lawyer should make a safety plan forhimself or herself and staff.The lawyer should always discuss with the client thesafest way to conduct the client-lawyer relationship. Forexample, it may not be wise for the lawyer to call theclient at home, leave messages, send mail or be seenpublicly with the client. The lawyer should notify theclient in advance of legal developments, e.g., when theperpetrator will be served so the client can adapt thesafety plan.2. Sensitivity to Effects of TraumaLawyers should be sensitive to the effects of traumain their clients, and aware of the effects of vicarioustrauma on themselves and their staff.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 35CommentaryWhile many victims of domestic violence, sexual assaultand stalking will display no signs of trauma at all, lawyersmust be prepared to accommodate the effects of traumain their clients. Some clients may present as excessivelyhostile or difficult or, in contrast, be surprisingly flat intheir affect. Aggressive or emotional over-reactions andemotional numbness (sometimes with accompanyinghigh-risk behaviors) are normal responses to both onetimeand ongoing assaults and should not be taken asindicators of instability or lack of credibility of the client.It is also common for trauma victims either to remembertheir abuse with vivid detail or to block it out entirely.Other victims may remember certain incidents ormoments of assault vividly, but not others, and may notremember the incidents or moments in sequential order.Additionally, vicarious trauma is a well-recognizedphenomenon among helping professionals, and involvessymptoms and behaviors similar to those exhibited bypersons directly exposed to traumatic situations. Becauseworking with victims of domestic violence, sexual assaultand stalking involves stressful issues and situations,lawyers should be aware of the possibility of the effects ofvicarious trauma on themselves and their staff.The lawyer should have access to counseling and othersupport referrals so that the client or others can bereferred if necessary.F. Scope of Representation1. Client-Centered RepresentationThe lawyer should advise the client about legal optionsand consequences, but must ultimately defer to theclient regarding legal decisions.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 37CommentaryAll lawyers have the duties of loyalty and confidentiality,but these duties are heightened in cases where thelawyer may represent teen, elderly or disabled victimsof domestic violence, sexual assault or stalking. Inthese cases, the potential client may have limited legalcapacity, and may also be accompanied by a third-partycaregiver. In some cases, the third-party caregiver mayactually be the abuser. The lawyer must consult therules of the jurisdiction to determine whether the clientlawyerrelationship can be formed, and continue to assesswhether it can be sustained.The lawyer must refrain from sharing informationwith or taking direction from third parties claiming torepresent the interests of the client, such as parents, adultchildren, or other caregivers, without the client’s expressand informed consent.3. Scope of Representation,Case Closing and WithdrawalThe lawyer should be clear about his or her role in theclient’s legal matters, including communicating to theclient the limits of the lawyer’s role and the anticipatedtime the lawyer will fulfill that role.CommentaryThe lawyer must communicate the limits of his/herrepresentation clearly from the outset of representation.A written retainer agreement, even in cases where legalservices are free, is always recommended. If the lawyerwill represent the client only for the civil protectionorder (or for an even more limited purpose), or ifthe lawyer must withdraw for any reason, the lawyershould nevertheless make the client aware of the client’sability to pursue, appeal, enforce, modify or renew theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

38 n ABA Standards of Practiceprotection order regardless of whether the lawyer willbe able to assist. Referrals to other legal and non-legalservice providers should be made available to the client.The client should be advised of the statute of limitationsfor any pending legal claims.4. Coordination with AlliedProfessionals; Holistic RepresentationThe lawyer should refer the client to suitable nonlegalprofessionals for support, advocacy andtreatment when necessary and seek to holisticallyrepresent the client.CommentaryFailure to coordinate with other professionals may lead toundue stress and frustration for both the lawyer and theclient, resulting in impaired representation.AdvocatesCommunity-based advocates at domestic violence orrape crisis centers can play a critical role in working withthe lawyer and client to provide support services to theclient. Advocates can assist victims with many tasks,including safety planning and preparing for economicindependence.If the client is receiving counseling services from adomestic violence program or rape crisis center, thelawyer should be aware that it is not the advocate’s roleto share such information. It is also not the advocate’sjob to provide the client with auxiliary services such astransportation to and from lawyer meetings or court, orto provide translation/interpreter services.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 39Counselors and/or TherapistsClients may struggle to cope with the effects of domesticviolence, sexual assault or stalking in their lives. Areferral to mental health care and/or substance abusetreatment, when appropriate, will often improve theclient’s coping skills and facilitate the client-lawyerrelationship by offering the client an appropriate venuefor healing. Lawyers should be aware of appropriateand well-regarded counseling services specifically forvictims of domestic violence, sexual assault or stalking.The lawyer must also be prepared to address thepotential for discovery and/or impeachment, breach ofprivacy or confidentiality, and the effect on collaterallitigation (e.g. custody litigation) when a client receivestreatment or counseling services.Clergy or Other Faith-Based AdvocatesClients who are members of a faith community mayfind support and counsel from religious leaders who arewell-versed in domestic violence, sexual assault and/orstalking. Lawyers should be aware, however, that clergywho are not well-informed may offer dangerous adviceto clients. Lawyers should be familiar with well-trainedfaith leaders for client referral.Tribal Elders, Healers or Other Traditional PractitionersNative survivors may have a myriad of services opento them in their communities. Lawyers who practicein Indian Country may be aware of culturally specificopportunities for victim healing. Be prepared, however,to graciously accept that the community may not discussthese options with non-Native lawyers, or even membersof other Native communities.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

40 n ABA Standards of PracticeIV. ProceduresA. Office Intake ProceduresIntake for victims of domestic violence, sexual assaultand/or stalking should be conducted by personnel trainedto work sensitively with this client population. Intakeshould include, at a minimum, a conflict check, a safetyassessment, and identification of any accommodationsrequired by the client.CommentaryIntake procedures will vary by service provider; for example, asolo practice will likely have a different intake procedure thana large urban legal services office, which may have a differentintake process from a shelter-based lawyer. However, thesebasic principles should apply to any practice.The lawyer should strive to minimize the number of timesthe client is asked to repeat the facts of her case, and shouldunderstand that the intake and interview process may bere-traumatizing for the client. Enough time should beallocated for the intake and initial interview to allow theclient to approach the subject at her own pace. The lawyershould be prepared for the possibility that the client will notreveal crucial details in the initial interview, and that moredisclosure may come over time. The lawyer and any otherintake personnel should also be prepared to respond withoutjudgment or shock to details that the client may reveal.Examples:Appropriate intake questions for victims of domestic violence,sexual assault and stalking may include questions aboutmedical treatment, police reports, other court orders, criminalhistory, access to weapons, physical evidence, photographs,privacy concerns, excited utterances, other incidents ofviolence or stalking behaviors, involvement of child oradult protective services, economic resources, collateralconsequences of violence, immigration status and safety.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 41B. Basic Procedural Obligations of theLawyer1.2.3.4.The lawyer should obtain an interpreter if necessary,advise the client regarding confidentiality ofcommunication, and establish the limits of thelawyer’s role.CommentarySee the discussion at III.D and III.F.The lawyer should create and maintain a trustingrelationship with the client.CommentaryTrust with the client may be built over time. If the clientshows hesitation or reluctance in answering questions,the lawyer should not construe this to mean that theclient is not being honest or is unwilling to cooperate. Allcommunication with the client should be conducted in arespectful, non-judgmental manner.The lawyer should strive to document every aspectof the case as it progresses, taking written notes ofclient interviews, witness interviews and other casedevelopments, and collecting other relevant writtendocumentation in the file.The lawyer should interview and counsel the clientabout the client’s goals and desires, review the file andany other information that the client has provided,and help the client determine whether obtaining a civilprotection order is the best remedy.CommentaryThe lawyer should listen carefully to the client’sstatements and expressed desires, and ensure that theclient has realistic expectations given the facts of the case.After the initial intake has been completed, the lawyershould ask any follow up questions necessary to assessthe situation as thoroughly and completely as possible.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

42 n ABA Standards of Practice5.Examples:Some examples of possible legal and safety-relatedquestions to ask in deciding to obtain or refrain fromseeking a protection order may include: 1) Will itincrease the victim’s safety?; 2) Will it trigger other legaldevelopments?; 3) Will it give a state continuing exclusivejurisdiction over custody when she wants to move?The lawyer should advise the client about the civilcourt system, the proceedings at hand and thelawyer’s responsibilities. Additionally, the lawyershould understand the basic criminal procedurefor a misdemeanor and felony domestic violence,sexual assault or stalking case so as to inform theclient how each case is different if they are occurringsimultaneously. If relevant, the lawyer should alsounderstand the basic procedures of child and/or adultprotective services so as to inform the client about whatto expect if she has a case pending with either agency.CommentaryThe lawyer must explain clearly to the client the legalissues and procedures so that the client knows whatto expect at the hearing. This includes preparing theclient to see the respondent at court and safety planningaccordingly. This can be a deterrent for many clients andmay affect their decision to seek a civil protection order.The lawyer should ensure that the client understands thegeneral layout of the courtroom, the role of the bailiffs ormarshals and where the respondent and any other partieswill be.When explaining legal matters, the lawyer shouldclearly explain the procedures and processes in layterms, and take necessary steps to ensure that the clienthas understood the substance of their meeting. Theclient may not understand legal terminology, especiallyif the client is suffering the effects of trauma, if theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 436.client’s first language is not English or if the client ishard of hearing or has a cognitive disability. Identifyany necessary safety precautions and plan accordingly.The lawyer should inform the client of all relevantavailable remedies and make sure the clientunderstands the legal implications of not seeking thecivil protection order (i.e., whether the civil protectionorder will be dismissed with or without prejudice,etc.). The lawyer should assist the client with a plan forself-sufficiency and seek economic remedies, wherepermitted, through the legal process.CommentaryClients who are victims of domestic violence, sexualassault or stalking are likely to have justified doubts aboutthe advisability of proceeding with a civil protectionorder. Many clients will withdraw from the case prior tohearing and some will return at a later time to continuelegal action. The lawyer should be prepared to advise theclient about the consequences of withdrawal for the legalcase and its effect (if any) on the ability to bring a similarcase in the future.Often, the primary relief sought by the client is for therespondent to stay away from the victim and ceaseall further contact. In most jurisdictions the courtwill specify the distance, relevant places and types ofcontact the respondent is restrained from engaging in.In domestic violence cases, some jurisdictions allow awide range of additional relief such as: child custody,visitation and exchange, child support, spousal support,and possession of the residence or other property. Indomestic violence, sexual assault and stalking cases,additional remedies may include: damages or monetaryreimbursement, forfeiture of firearms, relocation costs,emergency assistance and a catch-all provision which canbe utilized to ask for a wide range of remedies that theThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

44 n ABA Standards of Practicevictim may need. While not an exhaustive list, the lawyershould carefully consider all of these potential remediessince the civil protection order hearing may be theonly time the client enters the courtroom and has theseremedies available. The lawyer may ask for many otherforms of relief by creatively using the catch-all provision,if available.C. Pre-hearing Responsibilities1.The lawyer should interview the client to identify casetheory, strategy and evidence; engage in appropriatediscovery when permitted and defend againstinappropriate discovery requests; and gather andinvestigate evidence as appropriate.CommentaryThe lawyer should carefully think through the logisticsof obtaining the necessary evidence. For example,the lawyer should obtain the crime lab report fromthe forensic exam, torn clothing, pictures and any lawenforcement investigative reports if made. Similarly thelawyer should determine with the client which personalor household items the client wants or needs from thehouse if she is not currently staying there. The lawyershould be familiar with the process for obtaining 911tapes, police reports, medical reports and in domesticviolence cases, evidence of the respondent’s income.Other sources of potential evidence include (but are notlimited to): police reports, crime lab reports, forensicexaminations, medical records, voice mail messagesor other correspondence, relevant documents fromprevious court cases involving the client and/or therespondent and drug or alcohol abuse screens of theclient or respondent.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 452.3.The lawyer should identify potential related legalissues and consequences for the client, such as interjurisdictionalenforcement of the order, effect ofthe order on current or future immigration status,intersection of the civil proceeding with criminalprosecution, and crime victim rights.CommentaryThe lawyer should always be aware that any evidenceused for the civil protection order hearing may also beused in future family, criminal, immigration or otherlitigation. For example, an affidavit used in a civilprotection hearing can be used to impeach the victimin a criminal trial or to harm credibility in a schooldisciplinary proceeding.The lawyer should also carefully consider potentiallegal consequences, depending on the client’s situationand specific concerns. For example, if the client isconsidering relocating to another jurisdiction to protectherself or her children, the lawyer should be able toadvise the client about full faith and credit, jurisdictionalrequirements for permanent custody orders and whatsteps to take in order to avoid parental abduction claims.Similarly, if the client does not want her employer toknow about the stalking or assault because she wants toprotect her privacy as much as possible, but clearly wantsa protection order, the lawyer should consider how thismay affect the client in her workplace.The lawyer should timely file all pleadings, motions,briefs and responses; identify, subpoena and preparewitnesses, including potential expert witnesses;prepare the cross-examination of respondent,including the gathering of respondent’s writtenadmissions, criminal history and police reportsinvolving both parties; research applicable legal issues;and advance legal arguments.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

46 n ABA Standards of PracticeCommentaryUnless state law explicitly precludes filing pleadings, thelawyer should file any appropriate pleadings on behalfof the client, including, if necessary, amendments of herpro se filings and responses to pleadings of other parties,to ensure that appropriate issues are properly before thecourt and to expedite the court’s consideration of issuesimportant to the client’s interests.The lawyer should strive to obtain the best evidencepossible. Often, there may not be any direct witnessesto the violence other than the client, and she may behesitant to testify. Therefore, when formulating strategiesfor gathering evidence, the lawyer must be creative andchoose witnesses the court is most likely to find credible:for example, neutral parties such as the children’s teacher,neighbors, or the gas station attendant or store clerk whosaw the client immediately after the assault. The lawyershould think creatively about other witnesses and otherevidence that may corroborate any part of the client’scase, including coordinating with the prosecutor’s officeto develop evidence.The lawyer should consider whether using an expertwitness would be beneficial to the client’s case in orderto provide the court with more information regardingspecific topics such as the dynamics of domestic violence,sexual assault or stalking, lethality assessment, custodyevaluations, the effects of trauma, immigration issues orother unique concerns.To ensure that witnesses are ready for trial, the lawyershould ask them questions about the worst possiblething that the respondent may say about them,regardless of whether it would be true. Witnessesshould be thoroughly prepared for cross-examination.Additionally, the lawyer should ensure that witnesses arefamiliar with the dress code when going to court, beingspecific about what is appropriate and what is not. TheThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 474.5.lawyer should explain about general procedures of thecourt and what they can expect.Again, the lawyer should always be aware that anyevidence used for the civil protection order hearing mayalso be used in future family, criminal, immigration orother litigation.If there are children involved and the law of thejurisdiction permits it, the lawyer should discuss withthe client her wishes regarding temporary custody andvisitation, keeping in mind jurisdictional issues. Thelawyer should carefully consider the pros and cons ofhaving the children offer witness testimony, in light ofcurrent law and scholarship on childhood development.CommentaryWhen the lawyer discusses issues related to temporarychild custody and visitation with the client, the lawyershould advise the client on the pros and cons of herparticular choices. While the ultimate decision to makedecisions about custody and visitation lie with the client,the lawyer should candidly inform the client aboutwhether the client’s wishes are the best course of action totake for overall success of the case.If the client has privacy concerns, the lawyer shouldconsider how protecting her privacy will affect thecase progression and continue to discuss the issue withthe client.CommentaryRegardless of whether a client announces her privacyconcerns, lawyers should assume that privacy concernsexist for every sexual assault victim. These concernsshould be considered at every step in the process. Thelawyer should ask clients specific questions abouthow they want their privacy protected. To addressthese concerns, the lawyer should consider the use ofpseudonyms or initials in court documents, redactionThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

48 n ABA Standards of Practice6.7.of home/school addresses, limiting witnesses, sealingof court records, and holding the hearing in closed orprivate chambers.If the respondent subpoenas the client’s records, thelawyer must be prepared to address privacy concernswith the court.If the respondent is unrepresented by counsel, thelawyer should consider how this may affect his or herability to negotiate, conduct the hearing, protect theclient during cross-examination, and keep the lawyerand the client safe in the courthouse.CommentaryWhen the respondent is unrepresented, the lawyer shouldmake an effort to keep all communications in writingfor clarity and to create a record. The lawyer shouldalso seek to require the respondent to submit his crossexamination of the victim to the court in writing, forrecital by the court, in order to minimize the opportunityfor harassment or intimidation of the victim.The lawyer should prepare a specific, enforceableproposed order that both protects the client and holdsthe respondent accountable.CommentaryThe victim’s lawyer should draft the proposed orderwhenever permitted because of the importance ofsecuring specific, enforceable relief. If the court willnot accept the proposed order, the lawyer shouldnevertheless advocate in closing for inclusion of itsprovisions in the court’s order. Alternatively, manycourts utilize a standardized form order. Usage of theform may prevent omission of important requirementsand facilitate enforcement. The lawyer should firstensure that the forms are entirely consistent with thecivil protection order statute. If the lawyer chooses toThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 49use the standardized form, the lawyer should fill out theform using specific language to ensure that the order isenforceable and tailored to meet the needs of the victim.For example, if children are involved, the order shouldexplicitly articulate the day, time and location forvisitation or exchange, include timed windows forexchanges and consequences for a failure to appear, ordesignate a named supervisor for supervised visitation.If the parties work together, the order should be specificabout how the distance will be maintained between theparties and how and through whom any work-relatedcommunication is to occur. Other proposals caninclude ordering the respondent to make credit card andmortgage payments, or ordering police stand-by to obtainthe client’s belongings. In addition, in sexual assault andstalking cases, if the victim and the perpetrator attend thesame school, the order should specify that the respondentmay not attend the same classes or reside in the samedormitory or residence as the client.The lawyer should seek to ensure that the orderincludes information relevant to enforcement such asjurisdictional basis, penalties for violation, weaponsprohibitions, and contact information for the court. Thelawyer should also be aware of any other orders issuedin the same jurisdiction or other jurisdictions (includingschool-based orders) and their content and seek to avoidthe issuance of competing and/or conflicting orders.The lawyer must also remember that the proposed ordershould state what the client wants or needs, not what thelawyer thinks is appropriate. For example, some victimsof domestic violence, sexual assault or stalking may wantto have contact with the respondent, such as continuingto work with or co-parent with the respondent, andwant the order simply to prohibit the respondent fromassaulting or harassing them or from being violent orthreatening towards them.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

50 n ABA Standards of Practice8.Batterers Intervention Programs; CounselingIf the respondent is ordered to attend a batterer’sintervention program, the lawyer should ensure that theprogram is a certified program that is designed to addressthe unique needs of this perpetrator population. Thelawyer should be well-informed about these programsand be prepared with the name, address and telephonenumber of the specific program the lawyer and clientwant included in the order.Any program requiring the parties to communicate orspend time together (including mediation, marriagecounseling or joint parenting classes) is dangerous andill-advised. Additionally, anger management programstypically are not appropriate for perpetrators of domesticviolence, sexual assault or stalking, because they fail toadequately address the seriousness of the violence, andthey can minimize the dynamics of power and control atthe root of these behaviors.The lawyer should be cognizant of the client’s rights inother forums such as immigration, tribal or criminaljustice, and when appropriate, the lawyer shouldcoordinate with those systems.CommentaryCriminal Law IssuesIf appropriate, the lawyer should work with prosecutorsto achieve victim safety and offender accountability.This includes asking the prosecutor to drop theprosecution when appropriate, understanding thatthe ultimate decision to prosecute lies within theprosecutor’s discretion.When working with the prosecutor, the lawyer must beaware of the conflicts that may arise when a criminalcase against the respondent or the petitioner occurssimultaneously with the civil protection order hearing.For example, the lawyer should be aware of the potentialThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 51for clients’ testimony or other evidence during protectionorder hearings to be used against them in a criminal trialwhere they are the complaining witness, and vice versa.In addition, the lawyer should be aware of any issuesthat arise from the intersection of the client’s statutoryand/or constitutional crime victim rights and the civilproceeding and/or other administrative hearings suchas an immigration hearing, making sure no inadvertentwaiver of privilege or privacy occurs.Clients must also understand that they do not have aconfidential relationship with the prosecutor or advocatesworking in the prosecutor’s office, and that the prosecutoris not the client’s lawyer and does not represent theclient’s individual interests. The lawyer should make surethat clients understand the difference between a criminaland civil order, the differences in the relief each of theseorders may provide, and most importantly, the durationand renewability of the orders.The lawyer should be familiar with state and federalkidnapping or custodial interference statutes, and beprepared to discuss these provisions with the client ifeither party has crossed state lines or concealed thechildren. When both a criminal and civil case is pending,the lawyer should be aware that the judge may inform therespondent of his or her Fifth Amendment rights beforetestifying in the civil protection order hearing, and maynot allow cross examination of the respondent. The courtmay also set over the civil case, pending resolution of thecriminal matters.Issues in Indian CountryWhen representing a Native American victim wholives or works in Indian Country, lawyers should, asa preliminary matter, ensure that they are licensed topractice in the tribal courts. Domestic violence codesmay be more expansive in Indian Country (e.g. “family”This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

52 n ABA Standards of Practicemay be more loosely defined) and therefore affordgreater protections for the client.The lawyer should also become familiar with theprovisions of the Indian Child Welfare Act and thestate and tribal implementations of the law, as it maybe relevant to custody determinations subsequent toincidents of domestic violence, sexual assault or stalking.The lawyer should be aware of the jurisdictional andchoice of law considerations that may arise when a victimis Native, and consult with a tribal law expert if needed.For example, the lawyer must determine whether therelevant tribe can exercise civil jurisdiction over a non-Native respondent. When considering civil remedies,the lawyer should be aware that VAWA gives tribes theauthority to punish non-Indians by civil contempt orexclusion from tribal lands. However, not all tribes mayhave civil contempt statutes or exclusion provisionswhich apply to non-Indians.In criminal matters, if the community or reservationwhere the victim lives or works is subject to PublicLaw 280, the state and the tribe may have concurrentjurisdiction. If the perpetrator is non-Native the tribewill not have jurisdiction. If the perpetrator is Native,the tribe will have jurisdiction. Even if the offender isnon-Native and the tribe does not have jurisdiction toprosecute, tribal law enforcement does have the authorityto hold the perpetrator until state of federal authoritiesare available. In addition, the ability of the tribe tosentence Native offenders is limited. When the offenseis a major crime, however, the federal government willalso have jurisdiction, and the sentencing ability will besignificantly greater.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 53Finally, even though VAWA ensures full faith andcredit for protection orders, there are still some countyand tribal law enforcement agents that do not honorprotection orders issued by other jurisdictions. Sincethis is such a critical safety issue, knowledge of localpractice is important.9.Immigration Law issuesThe lawyer should also be aware of immigrationimplications for the client in getting involved with acriminal case against the respondent. The issues toconsider include whether or not the victim and/orthe respondent are documented or undocumented, orwhether the respondent is sponsoring the victim in animmigration case. The lawyer should consult with animmigration lawyer or refer the client to an immigrationexpert if necessary.The lawyer should become familiar with the practicesof the judge or hearing officer on the case, as well as anylocal procedural rules or standing orders, and plan forsafety at court.CommentaryIf needed, the lawyer should seek out communityresources and/or mentors to learn about particular judgesand local practices to effectively represent the client.The lawyer should be familiar with local procedural rulesregarding protection orders, for example: the sequence ofwhat must happen between the issuance of an emergencyprotection order and the final protection order, appealtimes, how to confirm service prior to the final protectionorder hearing, etc.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

54 n ABA Standards of PracticeD. HearingsThe lawyer should participate actively in all courtproceedings on issues within the scope of the lawyer’srepresentation of the client.1.2.3.The lawyer should prepare for and attend all hearingswith the client, using creativity and skill in presentingthe evidence. Specifically, the lawyer should prepareand make all appropriate motions, responses andevidentiary objections; prepare, present and crossexaminewitnesses and exhibits; and seek everyappropriate remedy the client is entitled to under thelaw, subject to the client’s direction.The lawyer should make/protect a record for appeal,ensuring that the court makes specific findings on therecord, if possible.CommentaryThe lawyer should always seek to have proceedingsrecorded, according to the rule of the jurisdiction. Thelawyer should make sure that all the required elementsare proven and that all objections and proffers arerecorded. Off-the-record and in-chambers conferencesshould be avoided. If unavoidable, the lawyer shouldsummarize what transpired for the record and ensurejudge’s ruling is recorded, including any denials.Finally, the lawyer should ensure that the court makesspecific findings on the record and/or issues a statementof decision.The lawyer should seek to ensure that the courtroom issafe for the client and the lawyer, including preparingfor litigating against a pro se respondent.CommentaryThe lawyer should always be familiar with courtroomsecurity procedures and make use of the availabilityof court marshals and bailiffs. In some jurisdictions,This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 554.this may require calling ahead to ensure that adequatepersonnel or screening equipment will be available.At no time should the client be left alone while in thecourthouse; it is advisable to ask a support person,community-based advocate or paralegal to accompanythe client during times when the lawyer must attend toother matters. Additionally, if the client has children,arrangements should be made to ensure that they arenot left unattended at the courthouse. Finally, the lawyershould request that the client be allowed to leave thecourthouse first and that the respondent be ordered toremain in the courtroom for a period of time adequate toensure that the respondent will not be able to follow and/or lie in wait for the client. If necessary, clients shouldalso request a security escort to their car or other modeof transportation after the hearing.Lawyers should consider asking the court to clear thecourtroom or to be put last on the docket when theyanticipate detailed and/or difficult testimony about abuse,sexual violence or child sexual abuse.The lawyer should consider a negotiated settlement onlywhen it is in the best interest of the client, keeping inmind the danger of mutual orders and the importanceof legal findings for inter-jurisdictional enforcement.E. Post-hearing ResponsibilitiesEthical representation does not end with the hearing.At a minimum, the lawyer should ensure that the clientunderstands the outcome of the proceedings, discussimplementation and any alternative legal options, and,when the client-lawyer relationship has ended, clearlycommunicate that fact to the former client.1.The lawyer should seek to ensure that the order isclear and accurate and that the client understands allprovisions of the order, including its expiration date(if any) and the requirements for renewal or extension.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

56 n ABA Standards of PracticeThe lawyer should also advise the client about howto modify the order and the availability of civil andcriminal contempt proceedings.CommentaryThe lawyer should ensure the client has a validenforceable order and that the client understands allof the language of the order, and how it is likely to beenforced. The lawyer should take any additional actionrequired to ensure or facilitate enforcement, for example:registration with a statewide database; providing a copyto the local sheriff for service; contacting appropriateauthorities to set up wage assignments for child support;setting up bank accounts or other mechanisms forreceiving economic relief.The lawyer should note the expiration date of the orderand, if it is safe to do so, send a reminder to the clientwhen appropriate. The lawyer should analyze the casefor other causes of action and discuss with the clientthe possibility of pursuing other needed civil actions.If the respondent was ordered to attend any particularprogram or treatment, the lawyer should request areview hearing from which the client is exempted toensure that the respondent is complying with the order.In addition, the lethality of a respondent may increaseafter the hearing. The lawyer should, therefore ensurethat the client has a sufficient safety plan even after acivil protection order has been obtained.The lawyer should also, if the client desires, engagethe legal process to ensure proper enforcement ofa civil protection order when it has been violated.The lawyer should counsel the client about full faithand credit and enforceability of protection orders inother jurisdictions, should the client choose to go toa different jurisdiction. In some cases, the client maywish to reconcile with the respondent but keep otherprovisions of the civil protection order in place. InThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 572.such cases, the lawyer should seek a modification of theorder, refer the client to competent counsel, or advisethe client how to proceed pro se.The lawyer should advise the client about enforcementor contempt procedures. The lawyer should be awareof the differences between civil and criminal contemptand discuss with the client which forum is the bestoption. The lawyer should explain to the client that if therespondent is found in criminal contempt for violatinga civil protection order, double jeopardy will prevent asubsequent criminal prosecution for the same act.However, if there has been a prosecution of theperpetrator in a tribal court for criminal contemptor a crime for the same acts, it is possible that actioncould also be brought in state court. Since the tribalgovernment is a sovereign nation, federal doublejeopardy protection generally does not apply. A fewstates (such as Alaska, Minnesota, Colorado, New Yorkand possibly others) have state laws granting doublejeopardy protection that exceed federal constitutionalprotection. They do not observe the “dual sovereigns”exception and may arguably extend double jeopardyprotection to situations where the individual has beenbrought forward on charges before tribal and state courtsfor the same act.The lawyer should ensure that the order is served on therespondent and that the client is prepared to respondsafely and effectively to violations by the respondent.CommentaryAfter the hearing, the lawyer should advise the clientthat a violation of the protection order, depending onthe law in the jurisdiction, may be a crime and that ifthe protection order is violated, the client can call thepolice and report the nature of the violation. The lawyershould know how local law enforcement typicallyThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

58 n ABA Standards of Practice3.responds if there is a violation and inform the client.The lawyer should prepare the client to documentall incidents of violation and counsel the client onsteps to take if the police fail to enforce the protectionorder. The lawyer should check in with the client aboutcontinued safety planning.The lawyer should counsel the client to keep a copy ofthe protection order available at all times. The clientshould be advised to distribute copies of the protectionorder (with pictures of the respondent, if possible)where the client feels it is safe to do so, including home,school, work and child care providers. The lawyer shouldadvise the client about the risks and benefits of notifyingothers about the violence or threat of violence, includingpotential adverse employment consequences. The lawyershould tell the client that no court order is self-enforcingand that the client is an active part of the enforcementprocess. The client should be reminded of the protectionorder’s expiration date and the steps to take to renew, ifnecessary. With the client, the lawyer should set up asafety plan to obtain the order in jurisdictions where theorder is not produced immediately by the court.If the hearing does not result in the issuance of a safeand effective protection order, the lawyer should discusswith the client the process for appeal, rehearing and/ormodification.CommentaryWhen faced with an adverse decision from the court, thelawyer should counsel the client on the likelihood ofsuccess on appeal. The lawyer and client should alsoconsider how the respondent may react to an appeal, theimplications of a loss on a pending or future custody case,if applicable, and any increased safety or privacy concernsthat may arise if the case is appealed. Where it is the ruleThis project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

ABA Standards of Practice n 594.of the jurisdiction, clients should also be warned thatthey may be responsible for the opposing party’s legal feesif the appeal is unsuccessful.The lawyer should always communicate with the clientabout case closing procedures, including withdrawal,and implications.CommentaryThe lawyer should, in writing, inform clients of theirrights and what to expect from the lawyer in the future.For example, if the scope of the lawyer’s representationwas limited to obtaining the protection order, and thelawyer will not handle possible enforcement issues thatmay arise in the future, the lawyer should make sure thatthe client understands these parameters.This project was supported by Grant No. 2005-WT-AX-K011 awarded by the Office on Violence Against Women, U.S. Department of Justice.The opinions, findings, conclusions, and recommendations expressed in this document are those of the author and do not necessarily reflectthe views of the U.S. Department of Justice, Office on Violence Against Women. Commentary to these Standards of Practice has not beenapproved by the House of Delegates or Board of Governors of the American Bar Association and, accordingly, should not beconstrued as representing the policy of the American Bar Association.

740 15th Street, NWWashington, DC 20005Phone (202) 662-1744Fax (202) 662-1594abacdvta@abanet.orgwww.abanet.org/domviol