1. Professionalism and Ethics for Attorneys ad Litem in Deprivation Cases OCOL Volunteer Training March 21, 2008 Melissa Dorris Carter Office of the Child Advocate

2. Right to Legal Counsel Kenny A. –United States District Court, Northern District of Georgia –Foster children have statutory and constitutional right to legal counsel in all deprivation proceedings Implies right to effective representation –Role and responsibilities of advocate

3. What is effective representation? The #1 concern of children who have emancipated out of foster care is that they weren’t included in a meaningful way in the decisions affecting their lives. Who is your client? Is the child a party? –“Under our juvenile code, all parties, including the child, should be represented by an attorney,” McBurrough v. DHR, 150 Ga.App. 130 (1979)

4. Confusing Terminology and Practice –Guardian ad Litem (GAL) –Court Appointed Special Advocate (CASA) –Attorney GAL –Child Advocate Attorney (CAA) –Attorney ad Litem (AAL) –Officer of Court –Best Interest Representation –Substituted Judgment Model –Zealous Client Advocacy –Expressed Wishes –Protection –Empowerment

5. Attorneys ad Litem Hybrid model: –Attorney –Ad Litem Role dilemma created by conflict between GAL role and attorney rules – How do you reconcile? Can you take what child wants and make that in the child’s best interests? E.g., If child wants to go home, advocate for conditions that make that placement safe and in her best interests. –Dawley v. Butts DFCS, 148 Ga. App. 815 (1979) –In re J.S.C., 182 Ga. App. 721 (1987)

6. General Background Georgia is “Model Rules” jurisdiction Model Rules unchanged since 1983 Ethics 2000 (E2K) finalized amendments Aug. 2002 Model Rules jurisdictions are considering E2K amendments

7. Read Scenario #1

8. GA Rule 1.4 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 interests.

9. MR 1.14 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 entitles 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.

10. MR 1.14 Client with Diminished Capacity (cont’d) (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.

11. “Normal client-lawyer relationship” Lawyer owes traditional duties of: –Loyalty –Confidentiality –Diligence –Conflict of interest –Competence –Communication –Advice

12. 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.

13. 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.

14. Comment 5 (cont’d) Protective 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.

15. Comment 5 (cont’d) 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.

16. 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 and benefits of client’s position? Understand alternatives? Does the client understand general consequences of particular courses of action? Can the 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?

17. 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

18. 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.

19. Read Scenario #2

20. GA Rule 1.6 Confidentiality of Information (a) A lawyer shall maintain in confidence all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client, unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, or are required by these rules or other law, or by order of the Court.

21. GA Rule 1.6 (cont’d) (b)(1) A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes necessary: –(i) to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law; –(ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above; –(iii) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client

22. GA Rule 1.6 (cont’d) (2) in a situation described in Subsection (1), if the client has acted at the time the lawyer learns of the threat of harm or loss to a victim, use or disclosure is permissible only if the harm or loss has not yet occurred. (3) Before using or disclosing information pursuant to Subsection (1), if feasible, the lawyer must make a good faith effort to persuade the client either not to act or, if the client has already acted, to warn the victim.

23. GA Rule 1.6 (cont’d) (c) The lawyer may, where the law does not otherwise require, reveal information to which the duty of confidentiality does not apply under paragraph (b) without being subjected to disciplinary proceedings. (d) The lawyer shall reveal information under paragraph (b) as the applicable law requires. (e) The duty of confidentiality shall continue after the client-lawyer relationship has terminated.

24. MR 1.6 -- 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.

25. Read Scenario #3

26. GA RPC 1.7 Conflict of Interest (a) A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client, except as permitted in (b). (b) If client consent is permissible a lawyer may represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after: –(1) consultation w/ the lawyer, –(2) having received in writing reasonable and adequate information about the material risks of the representation, and –(3) having been given the opportunity to consult with independent counsel

27. GA RPC 1.7 (cont’d) (c) Client consent is not permissible if the representation: –(1) is prohibited by law or these rules; –(2) includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding; –(3) involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.

28. GA RPC 1.7 (cont’d) 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 1.6 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.

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

30. Additional Resources Aspirational Guidelines for Georgia’s Attorney Guardians ad Litem in Child Deprivation Cases –www.georgiacourts.org/agencies/cpp/gal_guidelines.h tmlwww.georgiacourts.org/agencies/cpp/gal_guidelines.h tml ABA Standards of Practice for Lawyers Representing a Child in Abuse and Neglect Cases –www.abanet.org/child/childrep/htmlwww.abanet.org/child/childrep/html –NACC revised: www.naccchildlaw.org/training/standards/html www.naccchildlaw.org/training/standards/html

31. Questions? Presenter Contact Info: –Melissa Dorris Carter Office of the Child Advocate Ph: 404.463.5724 Em: mcarter@gachildadvocate.org