Ethical Considerations for Cases Involving Juveniles

Ethical Guidelines

Sources of Ethical Rules

• Louisiana Rules of Professional Conduct• Louisiana Supreme Court Rule XXXIII: Special

Rules for Child Abuse and Neglect Proceedings• Good Practice Expectations

Louisiana Rules of Professional Conduct:Basics - Competence and Diligence

• Rule 1.1(a): Competence– A lawyer shall provide competent representation

to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• Rule 1.3: Diligence– A lawyer shall act with reasonable diligence and

promptness in representing a client

Louisiana Rules of Professional Conduct:Other Important Guidelines

• 1.2: Scope of Representation• 1.6: Confidentiality of Information• 1.7: Conflicts of Interest• 1.14: Clients with Diminished Capacity• 3.3 Candor Toward the Tribunal• 4.1: Truthfulness to Others• 4.2 Communication with Person Represented by Counsel• 4.3: Dealing with Unrepresented Persons • Rule XXXIII: Standards for Child’s Attorney

Areas of Knowledge

• The law (Louisiana and Federal)• Child development• Family dynamics, particularly where there is

maltreatment• Substance abuse• Mental health issues, trauma, testing and

treatment• Community services• Placement options

Ethical Tensions in Child Welfare

• Prosecutors’ relationships with agency• Defense attorneys helping client understand

confidentiality and candor to the tribunal• Children’s attorneys helping client understand what

the options and possibilities are• How to help clients make decisions and take positions

on non-legal issues, such as:– Placements– Relative options– Visitation– Service needs

Louisiana Practice

• Children’s attorneys are guided by the children’s wishes, and are client directed.– For CINC matters, the prosecutorial model is

followed generally where ADA appears in court to prosecute on behalf of the agency, but actually represents the state or the people of the jurisdiction.

– For Termination of Parental Rights (TPR) matters, the agency representation model is followed generally.

• Parents’ attorneys would have a typical defense attorney role.

• For children’s attorneys, this client-driven model is seen as the best model by many in the child welfare advocacy world.

• For prosecutors, although this is not the most common model, it may be the model that helps reflect the community’s position. Because the caseworker is not the client, there is an impact on confidentiality, conflicts of interest, and the relationships with the caseworkers and the administration of the agency.

Practice Problems

You represent a two-year-old in a termination of parental rights matter. The case is set for an “advisory” hearing at which the parents are advised of their right to a court-appointed attorney if they meet financial guidelines for such appointment.

The pretrial and trial dates are set at this hearing. No other matters are set to be heard. You have a heavy caseload and other, more pressing matters to address. You decide to skip the advisory hearing and to contact the agency attorney at the end of the day to get an overview of the hearing.

Diligent RepresentationRule 1.3

• A lawyer shall act with reasonable diligence and promptness in representing a client.– Diligence requires proactive participation in the

court process from start to finish.

You represent a bright and verbal 3 ½ year old girl who has been living with her paternal grandfather for six months. She has been having consistent weekly unsupervised visitation with her mother for about a month. The mother attends a substance abuse treatment outpatient program and has been clean for three months.The grandfather tells you and the caseworker that after each visit, the child’s behavior deteriorates for a day or so, with uncharacteristic temper tantrums, bedwetting, and a change in eating and sleeping behaviors. He is concerned that the mother is acting inappropriately or doing something to upset the child. The agency decides to modify visitation so it can be supervised by the agency caseworker. You meet with the child who tells you she really likes seeing her mother, but sometimes her mom says bad things about her grandfather during the visits. She says she wants to keep visiting her mother and is not afraid.How will you proceed?

Diminished CapacityRule 1.14

• (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

• (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a fiduciary, including a guardian, curator or tutor, to protect the client’s interests.

• (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

A baby is born cocaine-exposed and removed from the mother at the hospital. The baby, now three months old, has minor medical issues related to her cocaine exposure.The mother has two other children, aged 10 and 13, who are placed temporarily with the maternal grandmother. The baby’s father has a substance abuse problem as well, and is not in treatment.Though the grandmother has been able to care for the older children, she did not pass a home study for placement of the baby due to concerns about her ability to handle the baby’s special medical needs. Mom has requested that the baby be placed with her in a residential treatment facility.You represent all of the children. The older children have clearly expressed a strong interest in having their baby sibling placed with them; however, you have determined the baby’s interests are best served by remaining in foster care until the mother makes some progress in drug treatment and the baby can be placed back in her care.

Conflict of Interest: Current ClientsRule 1.7

• (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:– (1) the representation of one client will be directly adverse to another client;

or– (2) there is a significant risk that the representation of one or more clients will

be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

• (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:– (1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;– (2) the representation is not prohibited by law;– (3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

– (4) each affected client gives informed consent, confirmed in writing.

You represent a one year old who is living in his grandmother’s home. From everything you have observed, the home is safe and appropriate for the child. He is happy, adjusted, and thriving.

During a client visit, the grandmother tells you that although she knows she’s not supposed to leave the baby alone with his mother, she has had to do this sometimes to go to her monthly doctors appointments. She reveals that the last time the mother came over to help, the mother appeared to be under the influence of drugs or alcohol, so the grandmother sent her away and cancelled her doctors appointment.

Confidentiality of InformationRule 1.6 (excerpts)

• (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

• (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:– (1) to prevent reasonably certain death or substantial bodily

harm; . . . – (6) to comply with other law or a court order; . . .

• (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

You represent a two year old boy who has been reunified with his mother, but the dependency case is still open for post-placement supervision. The mother is represented by a court-appointed attorney.

To determine whether to support reunification, you must visit the child in the mother’s home.

You pick up the phone to call the mother. Should you proceed? If so, how?

Communication with Person Represented by Counsel

Rule 4.2 (excerpt)

• Unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with:– (a) a person the lawyer knows to be represented

by another lawyer in the matter . . .

Question re: dealing with unrepresented person

Dealing with Unrepresented PersonRule 4.3

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in a matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

An 11 year old child tells her attorney that she wants to attend the answer hearing. The caseworker informs her that it is not necessary for her to attend.

What should the child’s attorney do?

Rule XXXIII (excerpt)

• The child should be present at significant court hearings, regardless of whether the child will testify, except when counsel affirmatively waives the child's presence because the child does not want to attend, is too young to sit through the hearing, would be severely traumatized by attending, or for other compelling reasons.

• Counsel for a child should decide whether to call the child as a witness considering the child's need or desire to testify, any repercussions of testifying, the necessity of the child's testimony, the availability of alternative forms of admissible testimony, the child's developmental ability to provide testimony and withstand cross-examination.

• *Statute about children aged 12 and older?

It has been four months since your client has been in foster care. Realizing that you have not participated in a FTC, you contact the case worker. The case worker acknowledges that the FTC has already occurred, and apologizes for not informing you.This is a repeat occurrence with this caseworker. You tell her not to worry, and ask her to send you notes on what you missed.Is this appropriate? Is it ethical?

CompetenceRule 1.1

• (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

• (b) A lawyer is required to comply with the minimum requirements of continuing legal education as prescribed by Louisiana Supreme Court rule.

• (c) A lawyer is required to comply with all of the requirements of the Supreme Court’s rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein.

Marcel’s attorney tells the Judge that he “does not want to go home,” but the caseworker whispers to the prosecutor that this is not Marcel’s position. Should the prosecutor say anything?What if Marcel’s attorney has not seen Marcel in several weeks, and Marcel is not in court?What if Marcel’s father says to his attorney that he knows that’s not true, because Marcel told him that he lied to the attorney?What if Marcel tells his attorney that he does not want anyone but the Judge to hear his position?

Candor Toward the TribunalRule 3.3(excerpt)

• (a) A lawyer shall not knowingly:– (1) make a false statement of fact or law to a tribunal or fail to correct a false

statement of material fact or law previously made to the tribunal by the lawyer;– (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known

to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

– (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

• (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. . . .

A caseworker knows that he did not engage in reasonable efforts before placing the child, but does not want the state to lose IV-E status for the child. The Judge asks the caseworker questions about his efforts, but does not put him under oath. The prosecutor is listening to the caseworker describe reasonable efforts to the court, and is pretty sure the caseworker did not do those things. What should the prosecutor do?

What if the prosecutor is not really sure if the caseworker did the work or not, but is suspicious due to prior contact with this worker?

What should the child’s attorney do?

RULE

• ?

Foster care child tells her attorney that she is seeing her father when she visits her mother. She states that she wants to see him, and that there are no problems when they meet, but a court order says that there is to be no contact at all.What should the child’s attorney do?What should the child’s attorney do if asked directly whether the father is having contact with the child?• What if the Judge asks?• What if the prosecutor asks?

Truthfulness in Statements to OthersRule 4.1

• In the course of representing a client a lawyer shall not knowingly:– (a) make a false statement of material fact or law

to a third person; or– (b) fail to disclose a material fact when disclosure

is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

A child tells his attorney that he does not want to live with his grandmother on the Indian Reservation. The attorney knows that the reservation is far from the parent’s home, and it would make reunification much harder. Is there any reason to think this is an ICWA case?The child’s father tells his lawyer that he is a member of a tribe, but he does not want the tribe involved in this dispute. May the defense attorney remain silent?

Rule: ICWA