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 Guardiancarol.casey@cookcountyil.gov312-433-5124

Sheri Danz , Office of the Child's Representativesheridanz@coloradochildrep.org 303-860-1517, extension 102

Mike Dsida, Committee for Public Counsel Services617-988-8385mdsida@publiccounsel.net

Dianne Peterson970-667-5900dpeter57@frii.com