TAKEN FROM THE HEADLINE STORY FROM THE MARIN INDEPENDANT JOURNAL

The spark behind court firestorm

By Guy Ashley

New York City's divorce lawyers were under fire in 1992, targeted in a city Consumer Affairs Office report in an investigation triggered by complaints from clients who said they had been fleeced.

The report - which accused some lawyers with unethical, and in some cases illegal, conduct - was largely the work of Karen Winner, a policy analyst in the office whose career nearly a decade later would include a controversial citizen-commissioned probe of divorce court in Marin County.

The New York investigation unveiled alleged behavior that included padding bills, then suing clients for more fees, abandoning clients when money ran out, and placing liens on homes and garnishing wages to ensure payment.

New York family law attorneys accused the consumer affairs commissioner, Mark Green, of slamming them with a one-sided investigation that made little effort to get their version of the story.

But the state court convened a panel of judges and attorneys to look into the matter, and 17 months later, New York's chief judge imposed a sweeping set of reforms to protect litigants from abuses by divorce lawyers. The reforms at the time were the most comprehensive in the nation.

Winner's report "was the catalyst for the changes that we adopted," said Leo Milonas, a retired justice with the Appellate Division of the New York state courts who chaired a special commission that recommended the changes adopted by Chief Judge Judith Kaye.

Today, another investigative report by Winner, this one focused on Marin's divorce court, also has prompted an examination of court practices and triggered change as family law judges shuffle jobs amid controversy, including recall campaigns involving key court officials.

Who is Karen Winner?

Back in New York, Commissioner Green, who got most of the acclaim for prompting changes in divorce court there, is now the city's public advocate and an oft-quoted liberal foil to Mayor Rudolph Giuliani.

Winner also was able to launch a new career, leaving consumer affairs in 1993 to work as a private investigator probing claims of abuse in America's divorce courts. Her study of family law in Marin chastised two top jurists for presiding over a court system Winner says runs on cronyism rather than the best interests of families.

The New York consumer affairs report, she said, marked the peak of her career as an investigator. "The conclusions and suggestions in my report were validated in public hearings," she said. "And the new court rules mirrored a lot of my suggestions."

That report foreshadowed her experience in Marin in a key way: It provoked an angry response from lawyers who attacked her credibility and her methods.

New York career

Winner, who grew up in Munster, Ind., is a New York University graduate with a degree in social work. She has lived in New York since 1980, once working as a staff reporter for the Reporter-Dispatch in Yorktown, 40 miles north of New York City. She has also written for neighborhood newspapers in Manhattan, including the Westsider and the Downtown Express. To this day, she considers herself an investigative journalist.

Winner, 43, has never married. "I was a child of a longterm marriage," she said. "I was 22 when my parents divorced. There was no battle. It was quiet, almost routine."

As an aide to Green in the New York Consumer Affairs Office, she used bulldog tenacity to hammer out an expansive body of work, including reports analyzing the care provided to HMO patients and the risks associated with area weight loss centers.

But the report on divorce lawyers got the buzz. First, there was the withering attack mounted by the city's legal establishment. Critics said the report painted all divorce lawyers with a broad brush by citing the worst allegations of misconduct from aggrieved litigants.

Peter Bienstock, a Manhattan divorce lawyer, said he believes Winner could have made more of an attempt to work with divorce lawyers who believed reforms were needed.

"What the report did was take anecdotal evidence of misconduct as reported by disgruntled clients, without attempting to explore the other side," Bienstock said. "There is a credibility issue. In any divorce case, you have to take the versions of one party with some skepticism. They reported them as facts - and got some headlines as a result."

When New York's Judge Kaye of the state Court of Appeals adopted the new court rules, the attacks on Winner subsided.

"Whether or not it was objective is not important," Judge Milonas said of the New York report. "What's important is that it brought certain things to the court's attention that resulted in changes in the way matrimonial law is practiced in the state of New York." The changes included requirements that lawyers provide fee schedules and itemized bills to clients. The new rules also blocked lawyers from taking a client's home for unpaid fees.

Winner said the experience in New York exposed her to two hard facts of life for anyone willing to take on the legal system: Your work will be attacked, and there are few places to turn for understanding because few people are willing to take on the legal system.

"I make a lot of enemies, and that's not comforting," she said. "But I think this work needs to be done. Nobody is touching this issue, mainly because people are so afraid of liability.

"There's a chill effect on First Amendment rights when it comes to criticizing lawyers and judges."

'Divorced from Justice'

Soon after she left Consumer Affairs in 1993, Winner was negotiating a book deal. The book, "Divorced from Justice: The Abuse of Women and Children by Divorce Lawyers and Judges," was published by Harper-Collins in 1996.

Her book and investigations have made her a celebrity of sorts in the realm of divorce court issues, and earned her appearances on television shows like CNN's "Burden of Proof," "Geraldo" and "Inside Edition."

Like much of Winner's work, the book has received mixed reviews.

In a 1997 review, Leora Tanenbaum wrote in The Nation: "Every woman who is married or plans to be should be given a copy of this book. Every woman -even if she's independently wealthy, even if she has a well-paying job - is vulnerable because many divorce lawyers think nothing of draining a client's personal life savings."

Cathy Young, vice president of the Women's Freedom Network, was less complimentary in a review she wrote for the Detroit News.

"Undoubtedly, as Winner argues, far too many lawyers mistreat clients," Young wrote. "But her contention that women are more vulnerable to such abuse is not backed by any research, only by more rhetoric that insultingly portrays women as guileless naifs."

Justice seeker

In 1997, Winner launched a New York-based nonprofit, The Justice Seekers Inc., which aims to raise public knowledge about unethical practices occurring in divorce courts and help people protect their interests in the courts.

Winner said The Justice Seekers is largely a one-person operation, though she receives help from volunteers who perform office tasks and aid in research. The group survives in large part on the donations of members, who pay $25 to receive a quarterly newsletter and have access to the group's National Consumer Database on Law-yers, described on Winner's Web site as helping "legal consumers select the best lawyers and avoid the dangerous ones." As a bonus, members receive a Guard-ian Angel key ring.

Through the nonprofit, Winner has conducted four privately funded investigations into alleged family court abuses - in each case uncovering what she says are improper practices by lawyers, judges and court-appointed experts in divorce court.

She sells reports summarizing her investigations for $25 each.

Winner investigations

In addition to her work in Marin, Winner has conducted:

* an investigation into the use of Guardians Ad Litem in three South Carolina counties. Winner's report says the guardians, appointed by courts to represent the interests of children in divorce and custody proceedings, in some cases amassed too much power to steer cases and preyed financially on families.

* a probe of the Sacramento Family Court, released this summer, that lambasts the work of four court-appointed therapists in custody cases involving allegations of child sexual abuse. Winner said the therapists wrote defective reports by leaving out key information or ignoring evidence that benefited parents accused of abuse.

* a probe of a family law judge in Santa Clara County and two court-appointed psychologists. The judge criticized by Winner retired and, early this year, the court announced several changes designed to address community complaints of cronyism and other problems.

Santa Clara probe

In her writings, Winner never takes direct credit for the changes in Santa Clara.

The architect of the changes there, Presiding Judge Jack Komar of the Santa Clara County Superior Court, said Winner's investigation was not a factor in his decisions.

"What has happened here does not stem from Karen Winner," Komar said. "I've heard people talking about the Winner report, which had all these critical things to say, but, frankly, I never read it." Komar said he wasn't interested in what Winner had to say. "It was a third-party criticism of the system - and I wanted something more direct," he said.

Key to the changes announced by Komar were new procedures designed to sharply curtail the use of court-appointed special masters to represent children in heated custody cases. A growing reliance on special masters over the years had eroded judges' authority to rule on sensitive issues like custody and visitation, Komar said.

An attorney credited with leading the charge for change, Santa Clara family law practitioner Robin Yeamans, credits Winner's report with galvanizing a citizens' movement. Yeamans said Winner also brought credibility to the cause.

"Karen did not get into this as a disgruntled litigant or, like myself, a disgruntled attorney," Yeamans said. "She got into this out of human concern. Contrary to her critics, I think she is one of the few people who do not have an ax to grind."

The Marin report

It was the Santa Clara court probe, conducted in 1997, that ultimately led Winner to Marin.

A small group of citizens questioning activities in Marin's family courts turned to Winner after other efforts to have their concerns addressed fell flat.

The group had been meeting regularly since 1997, the year Marin's Civil Grand Jury was blocked from conducting a family court investigation when lawyers for the county asserted the courts were outside the grand jury's oversight.

One of the grand jurors, Martin Silverman of San Rafael, began meeting with other citizens concerned about possible family court abuses when he ended his year with the investigative panel.

"It was a couple of years after my stint on the grand jury and we were floundering," Silverman said. "We had heard of Karen through the work she had done in Santa Clara and knew her report had had a significant impact on the family law court down there."

Winner began reviewing files of divorce and child custody cases in Marin last November. The cases were among those that had piqued the concerns of Silverman and other citizens who felt the local family courts had run amok.

Her Marin report, issued in February, chastised the county's two longtime family court jurists, Judge Michael Dufficy and Commissioner Sylvia Shapiro, for engaging in "probable misconduct" by allegedly:

* routing mandated support payments from children and needy spouses to "crony" attorneys and psychological experts appointed by the court.

* acting with "gross favoritism" toward certain litigants and lawyers.

* approving "fee gouging" by court-appointed experts.

Winner also accused Dufficy of being in conflict of interest in several cases.

Dufficy's wife, Penny, worked as a legal secretary at several local law firms, and in some instances was employed by lawyers who had active cases before a judge. Winner said Dufficy failed to disclose this to litigants.

Winner's scathing 53-page report - to which she attached hundreds of pages of court documents - cost Silverman and other critics $10,000.

The report spawned an unprecedented petition drive that seeks to recall Dufficy, three other judges and Marin District Attorney Paula Kamena in a special election next year.

Dufficy has denied the charges made in Winner's report, and says the ethics committee of the California Judge Association told him his wife's secretarial work did not pose conflict problems. Shapiro, who has moved from family law to criminal cases as part of a routine shift of duties, has referred all inquiries to Dufficy. Dufficy served as Marin's chief family law judge for seven years, before shifting to civil cases in May due to stress-related health reasons.

Deborah Irish, a Larkspur woman whose child custody case is cited in Winner's report, said she's disappointed that recommendations - including a review of all child custody cases in which either Dufficy or Shapiro placed a parent on supervised visitation or no-contact status - have not been heeded.

"Most of what we wanted has been ignored," she said.

Attorneys strike back

In addition, the report spawned a blistering counter-attack by seven Marin family law attorneys who issued a rebuttal to Winner's report, citing what the lawyers said are glaring omissions and factual errors.

"Karen Winner is in the business of traveling the country as a hired gun to 'investigate' selected judg-es, attorneys and evaluators," said San Rafael attorney C. Clay Greene, co-author of the rebuttal.

Said Winner: "I stand by my report and I believe these lawyers owe a big apology for perpetuating a hoax on your readers and the public."

Winner says she may sue the lawyers and the newspapers that reported the "falsehoods" in their rebuttal.

One of the attorneys who issued the rebuttal, San Rafael family law specialist Terence Colyer, said it's imperative that Winner's work be exposed to scrutiny.

"You've got a group of disgruntled litigants who hired Karen Winner to attack the judicial branch of government," said Colyer, who also co-authored the rebuttal. "It's the court that stands between the rule of law and the rule of the mob. And it's a very fragile institution that depends on public respect."

Colyer said Winner's biases were revealed when she chose to rip him in her report, without bothering to call him so he could rebut her criticism.

"How can someone claiming to be an investigator get away with talking to only one side of a dispute?" he asked. "Would a journalist conduct herself that way if she were really trying to be even-handed and fair?"

But Robert Cleek, a Novato attorney who has been critical of the Marin court system, said of Winner's work: "Of course the report's not objective – people paid her to write it."

Winner is quick to question her critics' objectivity.

"Of course they're attacking me," she says. "They each have a vested interest in protecting a system that has been very good to them."

Some attorneys say the shakeup initiated by Winner's probe has caused them to re-evaluate their own roles in the system.

Courthouse 'in' group

"I was a part of the 'in' group," said Kathryn Ballentine Shepherd, a Larkspur family law specialist who notes that she used to spend every Memorial Day weekend socializing with other local attorneys and judges at Dufficy's ranch in Calaveras County.

"When the Winner report came out it caused me to step back and take a second look at my role in the courts and the way I was handling my cases. And all of a sudden it just dawned on me: This just looks terrible."

For litigants in court for the first time, she said, the family law experience in Marin "must have brought home the worst stereotypes out there about lawyers and judges – this little club." In June, Ballentine Shepherd broke from Dufficy in a dramatic way, accusing her longtime friend of bias against women in a court filing she made on behalf of a Tiburon woman she represents in a divorce and child custody case.

Winner's supporters say her work already has brought change within the local court system. A new committee of judges and lawyers has been formed to review possible changes in family law procedures in the Marin courts.

More drastic changes may be in the offing, if citizens who have rallied against the courts are successful in forcing a special election asking voters to sweep Dufficy, judges Terrence Boren, Lynn Duryee and Verna Adams and District Attorney Paula Kamena out of office.

"As far as I'm concerned, she was absolutely a critical factor in bringing this whole issue to the surface," Silverman said.

Winner said public acclaim is not what she's after.

"The truth is what's important, not the drawing attention," she said. "I feel I've gotten to the truth and exposed the problems litigants face when they have to go to court in Marin County. What the final result will be, I think it's just too early to tell."

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