Virginia Lawyers Weekly VA Lawyers Weekly
Some court petitions signed and filed by social workers may be void because of Virginia laws requiring pleadings to be filed only by attorneys or unrepresented parties.
A Virginia State Bar report last month addressed a common practice in social services offices around Virginia: When family issues – such as child neglect or endangerment – come to the attention of the office, a social service staffer fills out a court-approved form and files it with the juvenile and domestic relations court.
Changes to the law in 2008 expressly allowed such petitions, but in child support cases only. Court filings by social service workers – or other government staffers – on other matters could be subject to attack, and courts might have to start the process over, the VSB report said.
A Rockingham County Child Protective Services employee violated the law when she prepared, signed and filed a court form to enforce a protective order, VSB officials said. The VSB referred the matter to the state attorney general’s office for possible action.
Any fix requires new legislation, the VSB said.
Triggered by administrative action
Questions about the validity of court proceedings could apply to numerous actions filed by various government agencies.
In more than half of 32 local DSS offices who responded to one inquiry, non-lawyer employees filed “motions for show cause summons or capias” in J&DR courts, according to a letter to the VSB from the county attorney’s office in the Rockingham County case.
“By report, most school divisions have an employee, rather than counsel, file requests for Show Cause Summonses in truancy cases,” the letter said.
Foster care matters might also be affected, one attorney said.
“There are a lot of matters commenced by government agencies for the benefit of kids,” said Chesterfield attorney Brian H. Jones.
“I don’t have any doubt there are many cases out there that are administratively initiated,” Jones said.
The controversy has been driven by a Rockingham County man, David B. Briggman, who filed or supported several court actions challenging the authority of child support enforcement workers to prepare, sign and file pleadings.
Some judges agreed with Briggman that the pleadings were void ab initio and dismissed the proceedings without prejudice.
Laws were amended in 2008 specifically to allow non-lawyer social service workers to file support petitions and motions, but the amendments did not authorize filing of pleadings in matters other than support cases.
Briggman filed an unauthorized practice of law complaint with the VSB in March against a Rockingham County child protective services employee who filed a document asking a court to enforce a no-contact order.
County lawyers argued the employee did not prepare a “pleading” or give legal advice. Bar staffers concluded the form was a “pleading.”
After considering responses from the county attorney’s office and counsel for the CPS worker, the VSB UPL committee referred the complaint to the attorney general’s office for “further investigation and any appropriate enforcement action.”
Filing the pleading without a signature of an attorney or the complaining party was unlawful, the VSB staff concluded. The report acknowledged it had been standard procedure for many DSS offices.
“The typical practice is for the case worker to file the motion since they are familiar with the facts surrounding the alleged violation and this practice is generally accepted in other courts in the commonwealth,” wrote VSB Ethics Counsel James M. McCauley in a report.
“While this may be the accepted practice, it is nonetheless prohibited by law,” McCauley said.
“The DSS/CPS worker in the current UPL investigation not only lacks legal authority to sign and file a rule to show cause in the JDR court, but is expressly prohibited from doing so by statute,” McCauley said.
Call for change
McCauley said it appeared that state officials again will need to seek amendment of the state code to specifically authorize non-lawyer social services employees to file motions of that sort. Until the law is changed, social service agencies can avoid the issue by having staff counsel sign off on petitions to be filed in court.
“It should be a rather simple legislative fix,” said Richard L. Chidester of Pearisburg, who represents the social services office in Giles County.
Since the issue was raised with the VSB, the Harrisonburg-Rockingham Social Services District has been complying with the guidance of the bar, said Thomas H. Miller Jr., the Rockingham county attorney. He said the agency also will follow any advice to come from the attorney general’s office.
A spokesperson for the Department of Social Services said the agency would need additional time to review the report from the VSB before commenting.
A spokesperson for Attorney General Mark R. Herring said his office did not have any immediate comment.
