Jennifer Renne, Esq. ABA Center on Children and the Law Faculty, Georgetown University Law Center Ethics in CINA Cases The Law & Community Health Forum September 28, 2004

What this session will cover Ethical Issues in Representing Parents and Children Abuse/Neglect Cases Confidentiality Scope of representation (duty of loyalty) Representing a client under a "disability” Candor towards the tribunal Fairness to other parties Conflict of Interest Interacting with other parties Interacting with opposing counsel Representing an organization Competence Recent changes to Model Rules of Professional Conduct

General Background Alaska = “Model Rules” jurisdiction Model Code from Model Rules- had remained unchanged since 1983 Ethics 2000 (E2K) finalized amendments Aug 2002 MR’s 1.6 (Confidentiality & 1.13 (Representing an Organization) were again amended in 2003 Model Rules jurisdictions are considering E2K amendments We’ll cover certain changes

Contact Information Bar Association Rules of Professional Conduct Committee currently conducting review of Model Rule changes Ethics Resources for Attorneys Call Bar Counsel Steve Van Goor at (fax: ) for informal ethics opinions -- get some guidance the minute you suspect a problem! You may fax or call with any ethics questions. Callers may remain anonymous if they desire. You may also call Bob Mahoney, Chair, Bar Ethics Committee at , or an experienced lawyer in your practice area to discuss an ethics question. Additional Resources: Mark J. Fucile Stoel Rives LLP Phone: Peter Jarvis Hinshaw & Culbertson Phone:

Read Scenario #1

RULE CLIENT UNDER A DISABILITY (a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

MR Client with Diminished Capacity (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 guardian ad litem, conservator or guardian.

MR Client with Diminished Capacity (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.

Rule 1.14 Comment The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. Idea that capacity is not either/or prospect. Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well- being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence.

New Rule-- Comment 6 In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision variability of state of mind ability to appreciate consequences of a decision the substantive fairness of a decision the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

New Rule-- Comment 5 Taking Protective Action If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney consulting with support groups, professional services, adult- protective agencies or other individuals or entities that have the ability to protect the client.

New Rule-- Comment 5 In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.

Some suggested questions to ask yourself when diminished capacity is at issue: Can the client understand nature and purpose of proceedings? Does the client understand risks & benefits of client’s position? Understand alternatives? Does the client understand general consequences of particular courses of action? Can client formulate his/her desire concerning the proceeding with some degree of clarity and reasonably communicate his/her wishes? Is the client under undue influence? How consistent is the client? (importance of frequent contact with client) Would a reconsideration period permit clarification or improvement of circumstances?

When advocating “best interest” Consider: the wishes and values of the client to the extent known the goal of intruding into the client's decision-making autonomy to the least extent feasible maximizing client capacities (therapy, medication, etc.) that might lead to improvement in decision making ability respecting the client's family and social connections

Eliciting Child’s Position Explain your role; confidentiality Visit child; establish relationship (interview child alone) - Developmentally appropriate questions Provide advice and guidance without persuasion - Verbal and non-verbal expressions - Talk to foster parent, social worker, psychologist, therapist, family members, & any other person who might have insight into child’s feelings & preferences Key to representing children is the relationship with the child. Time spent getting to know the child will allow the child to participate in his or her own case, and give the child the sense that someone is advancing her interests. Time spent also allows the attorney to understand the case from the child’s point of view.

Disclosure of the Client's Condition [8] Disclosure of the client's diminished capacity could adversely affect the client's interests … Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client's interests before discussing matters related to the client. The lawyer's position in such cases is an unavoidably difficult one.

Emergency Legal Assistance [ 9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a L may take legal action on behalf of such a person even though the person is unable to … express considered judgments about the matter… The lawyer should take legal action on behalf of the person only to the extent reasonably necessary to … avoid imminent and irreparable harm. [10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences of the person as if dealing with a client, disclosing them only to the extent necessary to accomplish the intended protective action. The lawyer should disclose to any tribunal involved and to any other counsel involved the nature of his or her relationship with the person. The lawyer should take steps to regularize the relationship or implement other protective solutions as soon as possible.

Other Alaska Rules of Professional Conduct on point: Rule 1.1 Competence Rule 1.2 Scope of representation (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. (d) A lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.3 Diligence Rule 1.4 Communication

Read Scenario #2

Alaska RPC 1.6. Confidentiality of Information. (a)A lawyer shall not reveal a confidence or secret relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b) or Rule 3.3(a)(2)… (b) A lawyer may reveal a confidence or secret to the extent the lawyer reasonably believes necessary: (1)to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another; or (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Model Rule amended (a) A L shall not reveal information relating to the representation unless … informed consent, [or] impliedly authorized [or] permitted by paragraph (b) (b) A lawyer may reveal information … reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client … (6) to comply with other law or a court order.

What about the client who changes her story? What if she insists on testifying? What are your duties …? To the court? To other parties? To her?

Alaska Rules of Professional Conduct: 2.1 Advisor 3.3 Candor Towards the Tribunal (a)A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Alaska RPC Declining or Terminating Representation. (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

Alaska Rule of Professional Conduct: 3.4 Fairness to Opposing Party and Counsel (a) A lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, nor shall a lawyer counsel or assist another person to do any of these acts. (b) A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

Rule 4.1. Truthfulness in Statements to Others … a lawyer shall not knowingly: (a) make a false statement of material fact or law to third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a C, unless disclosure is prohibited by MR 1.6. Comment [1]: L required to be truthful, but generally has no duty to inform opposing party of relevant facts. Comment [2]: Whether a particular statement should be regarded as one of fact can depend on the circumstances. Comment [3]: Substantive law may require a L to disclose certain info to avoid [assisting] a C’s crime or fraud. [unless prohibited by MR 1.6]

Conflict of Interest Read Scenario #3

Rule 1.7. Conflict of Interest: General Rule. (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation.

Rule 1.7. Conflict of Interest: General Rule. (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Alaska RPC 1.7. Conflict of Interest: Commentary A conflict of interest may exist before representation is undertaken, in which event the representation must be declined, unless the lawyer obtains the informed consent of each client under the conditions of paragraph (b). If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.

Conflict of Interest Analysis Does representation of one client foreclose alternatives for the other? Duty of Loyalty (Alaska RPC 1.2) Duty of Confidentiality (Alaska RPC 1.6) Considerations: Consent issue Duration of representation Stage of litigation – testimony?

Scenario #4 Assume you are representing OCS in a CINA case. The case you are preparing for involves a one year old child who has been in care for nine months. The child came into care due to the mother leaving the infant unattended on several occasions. You are preparing for the 12 month permanency hearing. At disposition, the court ordered that visits be weekly and supervised. The prior court order also orders OCS to pursue relative placement options. Your review of the record indicates two visits in the past four months. From your reading of the social worker’s contact log you see that the worker, Mary Pierce, has made little, if any effort to locate relatives as an alternative placement. The contact log also reveals that there were several attempts by Mom to contact the caseworker,but few of those calls were returned. You have serious concerns that Ms. Pierce has neglected her casework obligations. How would you handle this situation?

Discussion Points Who is the client? What is your relationship with the agency? How do you fulfill your duties and maintain a good working relationship with the agency? What is your relationship with the caseworker, and do any duties arise with respect to her?

Discussion Points What do you do in the event of a disagreement in terms of how to proceed in the case? How is the analysis affected by the fact that the decision being made is impacted by federal and state law? What about the public interest?

Rule Organization as Client. (a)Except as hereinafter provided, a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b)If a lawyer for an organization knows that an officer, employee … is engaged in action … that is a violation of a legal obligation to the organization … the lawyer shall proceed as is reasonably necessary in the best interest of the organization. (factors to consider …) (measures to take) (d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client and that the lawyer's first duty is to the client when it is apparent that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.

Rule Organization as Client. The Entity as the Client When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Relation to Other Rules Government Agency …However, when the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. Clarifying the Lawyer's Role SELECTED COMMENTS

What are the issues involved when different attorneys want to interview the child? Can the GAL speak with the parent without parent’s counsel present? What about a scenario where parent’s counsel is persistently questioning, and arguably even harassing the caseworker? What can the AG do to protect the caseworker and the agency?

Alaska RPC 4.2 Communication with person represented by counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a party or person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Alaska RPC 4.3 Dealing with unrepresented person 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 the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

Competence: Case law Case #1: Two law guardians were appointed to serve as co- counsel for seven children in related abuse and neglect proceedings that were based on a report by 14-year-old Robert that his father had sexually abused him. The evidence at the fact-finding hearing consisted primarily of Ronald’s in-court and out-of-court accounts of the abuse, validation testimony of a social worker and the contrary testimony of a psychiatric expert retained by the father, who testified out of order. Family Court dismissed the petitions at the close of petitioner’s case. The Appellate Division reversed on the ground that the Law Guardians had failed to provide meaningful representation. One of the Law Guardians had questioned Robert so thoroughly that he broke down the child’s direct testimony, raising the possibility that the child had been coached by his mother during a recess, and effectively impeaching him by exploring prior inconsistent statements in order to discredit his allegations of abuse.

Competence: Case law Case #1, continued: The other Law Guardian declined to examine Robert, stating that his co-counsel had already covered all the areas he wished to explore. Finally, although the Law Guardians officially took no position on respondents’ dismissal motions, both Law Guardians expressed doubt in petitioner’s position and questioned whether DSS had established its case by the requisite standard. The Appellate Division noted, “It was the Law Guardian’s responsibility to take an active role in insuring that evidence sustaining [the child’s] allegations of sexual abuse... was fully developed and supported to the fullest extent possible.” Instead, at best the Law Guardians provided the children with passive representation, and at worst were effective allies for respondents. Matter of Colleen C.C., 232 AD2d 787 (3d Dept 1996)

Competence: Case law Case #2: In a delinquency case, the juvenile’s attorney failed to interview his client, his client’s mother, or a witness until 15 minutes prior to a fact- finding hearing. The Appellate Division, Third Department found that “no preparation was undertaken for the defense of the case,” and that juvenile respondent was not “provided meaningful representation as guaranteed under the NY Constitution.” Matter of John J.J., 298 AD2d 634 (3d Dept 2002)

Competence: Case law Case #3: In a sexual abuse proceeding, the Appellate Division held that the child has a right to counsel not only under the Family Court Act, but under the Federal and State Constitutions as well, and further held that the child’s entitlement to effective assistance of counsel was no less than that of an accused in a criminal proceeding. In this case, the Law Guardian provided ineffective assistance, doing nothing to make up for the deficiencies in the presentation of the case by the county attorney, who failed to call witnesses to the child’s out-of-court statements, expressly refused to explore the possibility of obtaining validation evidence, and declined to cross- examine the respondent. The Law Guardian called no witnesses and engaged in only cursory cross- examination of respondent. Matter of Jamie T.T., 191 AD2d 132 (3d Dept 1993)

Competence: Case law Case #4 New York Ethics Opinion 751 – 1/31/02 Topic: Competence; excessive case load An attorney representing a government agency may not undertake more matters than the attorney can competently handle, but the attorney may accept his or her superior ’ s reasonable resolution of an arguable question of professional duty.

Case #4 (continued) 1) Lawyer must conduct the representation competently. DR 6-101(A)(2) and (3) 2) a lawyer must decline to represent a client in a particular matter if the lawyer is incapable of providing competent representation. See DR 6-101(A)(1) If it becomes apparent after undertaking a representation that the lawyer is unable to render competent representation consistent with DR 6-101(A), and the lawyer is unable to become competent by associating with another lawyer or by other means, the lawyer must seek to withdraw from the representation. See DR 2-110(B)(2) (lawyer must seek to withdraw from employment (after first obtaining court’s permission where required) if the "lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule"); DR 7-101(A)(2)

“Poor quality legal representation results from a variety of factors ranging from the pressure of high caseloads to poor customs and low expectations of representation in the jurisdiction. The old reputation of juvenile and family courts as a lesser "kiddie court" persists in some places, despite the increased sophistication and complexity of both the law and the underlying interdisciplinary perspective required to handle these cases effectively. Child welfare is a unique and highly specialized area of practice, yet many advocates have not received training in handling such cases. In many States, neither ethical requirements nor practice standards for attorneys in child abuse and neglect cases have been developed.” Department for Health and Human Services, Administration for Children and Families, Fact Sheet on the ABA Standards for the Legal Representation of Children, Parents and the Child Welfare Agency.

Contact Information Jennifer Renne ABA, Assistant Director, Child Welfare Phone: