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Carol Casey Mike DsidaSheri Danz Dianne Peterson
Ethical Challenges for Children’s Attorneys: Practical Solutions?!?!
Disclaimer
We don’t have all the answers (or many answers at all!)
We do have some really good questions,
however
We are not endorsing any one model of representation.
Goals
Identify the legal authority
Brainstorm solutions
Work effectively in your model
Promote youth voice, empowerment, protection of youth rights
Preliminary Questions
What is your Model of Representation?
Do the Rules of Professional Conduct apply to you?
Examples: IL Rule 907 CO CJD 04-06(V)(B) MA Committee for Public Counsel
Services (CPCS) Performance Standard 1.1(d)
Attorney Conduct
State Statute Administrative Regulation State Ethics Code Case Law State and Local Court Rule Appointment Order/Contract State Standards/Practice Guidelines CAPTA NACC Recommendations ABA Standards DHHS Guidelines for Public Policy and State Legislation
Governing Permanence for Children Treatises/ Literature ABA Model Act
Adapted from chart on Page 621 of NACC Red Book Chapter on Representing Children and Youth
Annabeth
18 years old Wants case closed Does not have a job Has not completed
high school Tired of Department
“controlling her life”
Model Rules of Professional Conduct
1.1 -Competence 1.3 -Diligence 1.4 -Communication 2.1-Advisor 3.1-Meritorious Claims and
Contentions 3.3-Candor Towards the Tribunal
And of course . . .
1.2—Allocation of Responsibilities Between Lawyer and Client
a lawyer shall abide by a client's decisions concerning the objectives of representation and… shall consult with the client as to the means by which they are to be pursued
In Massachusetts
“If counsel reasonably determines that the child is able to make an adequately considered decision with respect to a matter in connection with the representation, counsel shall represent the child’s �expressed preferences regarding that matter.” Performance Standard 1.6(b). Counsel may consider: the child’s ability to communicate
a preference, whether the child can articulate reasons for the preference, the decision making process used by the child to arrive at the decision; and whether the child appears to understand the consequences of the decision.
Quality of the child’s decision-making matters and not the wisdom of the child’s decision.
In Colorado
CO CJD 04-06(V)(C): GAL’s determination of child’s best interests must include consultation with the child in
developmentally appropriate manner consideration of the child’s position
GAL must state child’s position to court, when ascertainable based on child’s developmental level, unless child says NO
Practical challenges to ascertaining a child’s position
Malleability Undue influence Reluctance Developmental/verbal skills
What the model rule says . . .1.14CLIENT WITH DIMINISHED CAPACITY
Maintain normal relationship as reasonably possible
If at risk, and client can not act in own interest, attorney can take reasonably necessary protective action
ABA Standards
COMMENTARY TO A2
A child may be more susceptible to intimidation and manipulation than some adult clients.
Make sure that the decision the child ultimately makes reflects his or her actual position.
ABA Standards
B-4: Elicit the child’s preferences in a developmentally appropriate manner, advise, and guide Commentary: Explain in a way that maximizes the
child’s input Inform the child of relevant facts and laws,
ramifications May express opinion concerning likelihood
of court/other parties in accepting position
ABA Standards
B-5: determination of child’s legal interests should be based on objective criteria set forth in the law.
Should address:▪ Child’s specific needs and preferences,
▪ Goal of expeditious resolution of the case▪ Use of least restrictive/detrimental
alternative available
ABA Standards
C-2: To support the client’s position, child’s attorney should conduct thorough, continuing, and independent investigations and discovery . . .
ABA Standards
E-2: Child’s attorney should discuss the order and its consequences with the child
NACC Guidelines
III.B.1: Children need attorneys who understand their cases . . full and independent investigation
III.B.2: Children need meaningful communication with their attorneys (observation, interview, regular and meaningful communication). Duty to involve under client-directed or BI model.
III.C.1: Children need permanence. III.C.2: Children need immediate and basic
needs met.
What do your state standards say about communication?
CO CJD 04-06: In person meeting with child within 30 days of
appointment/placement Maintain contact Ascertain child’s position on matter before court
705 ILCS 405/2-17 Prior to adjudication, prior to first permanency,
yearly, as necessary. CPCS Performance Standard 1.5
At home upon assignment and in person as necessary thereafter, but at least quarterly
Other practical considerations
Developing a trusting relationship with high caseloads
Maintaining competency through training, research
Does any of the analysis change if:
Annabeth has a developmental
disability?
Annabeth is mentally ill?
Annabeth’s action would place herself at risk of serious harm?
Annabeth is a ten-year-old who wants to
return home at a temporary custody
hearing?
Annabeth does not come to court on the day her motion is up?
The Department filed the motion and
Annabeth has no position?
Sampson Family
You represent all three siblings in TPR trial
Bert, almost 14, mild delays
Alyssa, 11 Both live with non-adoptive
uncle On return Margaret,13 mos
Lives in non-relative adoptive home▪ Best interest to adopt▪ If had capacity Margaret would
seek adoption in this home
Model Rules of Professional Conduct
1.7 Prohibits representation if: Directly adverse Significant risk of material limitation on
representation Allows if conditions are met:
Reasonable belief that competent/diligent to each client is possible
Not prohibited by law No assertion of claim by one client against
another in same proceeding/tribunal Informed consent, confirmed in writing
ABA Standards
B-2: if lawyer is appointed for siblings, there may be a conflict requiring lawyer to decline representation or withdraw from representing all siblings
In Massachusetts
“[C]ounsel cannot, consistent with the ethical rules, simultaneously advocate a parent’s fitness as to one child and �unfitness as to another.” CPCS Performance Standard 1.4 (Commentary)
NACC Recommendations
III.B.3: Children need loyal attorneys; child’s attorney prohibited from representation that would constitute conflict
II.C.3 Children need family relationships; attorney must advocate for continuation of appropriate relationships and family preservation services where appropriate
Practical Considerations
Do differing positions/preferences always constitute conflict? What if issue is relatively minor but kids are
in agreement on major issue? Can lawyer wait it out? How long is too long?
Competing interest of continuity of representation/ importance of relationship with child
How does a lawyer for children (in whatever model) get informed consent?
Capacity to Consent Resources
Rule 1.14, Comment 6 NACC Red Book
Consultation with other professionals ▪ But do they have appropriate training?
Developmental stage of formal operations
Caselaw regarding capacity to waive constitutional rights
State law regarding competency/capacity?
And one more practical consideration . . .
How do you get informed consent if the information is confidential?
What if …
The lawyer is transitioning to or from a governmental entity?
See ABA Model Rule 1.11
The lawyer is joining a law firm/consolidating a practice with another lawyer?
See ABA Model Rule 1.10The conflict arising is in a subsequent case?
See ABA Model Rule 1.9
Sam
15 years old, removed from family at age 10
Parental rights terminated In family foster home
placement Emotional/behavioral
issues- will likely emancipate from foster care
Undocumented immigrant potentially eligible for SIJS petition
Model Rules of Professional Conduct
1.1 Competence 1.3 Diligence 1.4 Communication 1.5 Advisor 1.6 Confidentiality
Other Authority
ABA Standard D-12 Expanded scope of representation
ABA Model Act (7)(b) Commentary Expanded scope of appointment Ensuring representation by counsel
Practical Considerations
Definition of client
Will your court really expand scope of your
authority?
Who will pay?
Are there other attorneys to
take on representation
?
Are you competent to
do it?
What if…
Special education issues/ issues with IEP
Crossover/ JD case? Personal injury case? Affirmative action
lawyer/organization is conducting institutional abuse investigation/looking to institute systemic advocacy?
Micah
15, kinship care Unsupervised for
days Breaking the law Likes where he
lives Don’t talk to
therapist Don’t disclose
Therapist wants to talk to you
Issues
Confidentiality Privilege
Model Rules of Professional Conduct
1.6(a) 1.2: lawyer shall abide by client’s wishes
regarding objectives and, consistent with 1.4, consult with client about means by which they are to be pursued Is waiver of privilege objective or strategy?
3.4, 4.4 (At least in states where child/ is deemed to hold/have authority to exercise privilege and attorney is not in client-directed role)
ABA/ NACC
ABA Standards B-4 (Client Preferences) commentary C-2 (Investigation)
NACC Recommendations III.C.4: Children need to be protected
from unnecessary harm that can result from legal proceedings.
State Law
IL-Illinois Mental Health and Developmental Disability Confidentiality Act; 740 ILCS 110
MA Adoption of Diane, 400 Mass. 196, 201 (1987)
(authorizing appointment of GAL with respect to privilege of “incompetent” patient)
CO People v. Gabriesheski, 262 P.3d 613 L.A.N. v. L.M.B., 292 P.3d 492 (Colo. 2013)▪ Patient-therapist privilege does apply in D&N▪ GAL is holder/exerciser of the privilege when child is of
insufficient age/maturity or parent cannot because not in a position to protect privacy interests of child
Practical considerations
Need for trusting relationship with attorney (regardless of role) in order for representation to be effective
Need for trusting relationship with therapist/realm of confidentiality if therapy is going to be effective
Resources
ABA Standards for Attorneys Who Represent Children in Abuse and Neglect Cases
NACC Recommendations for Representation of Children in Abuse and Neglect Cases
MA CPCS Performance Standards available at http://
www.publiccounsel.net/Practice_Areas/cafl_pages/performance_standards_for_cafl_attorney.html
CO CJD 04-06 available at www.coloradochildrep.org
Our contact information
Carol Casey, Office of the Public [email protected]
Sheri Danz , Office of the Child's [email protected] 303-860-1517, extension 102
Mike Dsida, Committee for Public Counsel [email protected]
Dianne [email protected]
