1. August, 2009 1 Ethical Issues for the Appointed Attorney When Representing Children CHARLES G CHILDRESS August 2009

2. August, 2009 2 Fair Warning (or maybe not) DISCIPLINE OF ATTORNEY AD LITEM. An attorney ad litem who fails to perform the duties required by Sections 107.003 and 107.004 is subject to disciplinary action under Subchapter E, Chapter 81, Government Code. T EX. F AM. C ODE A NN. § 107.0045.

3. August, 2009 3 Why Lawyers in CPS Cases? CAPTA 1974: Child in Foster Care must have “guardian ad litem” to “represent the child” in court. Family Code 1974: required “guardian ad litem to represent the interests of the child.”

4. August, 2009 4 Why Lawyers in CPS Cases? 1979: Sims v. Dep’t of Public Welfare three federal trial judges declare Family Code violates “the due process clause of the constitution by not requiring the appointment of an attorney for the child.” 1979 Family Code amended to require GAL unless an attorney ad litem has been appointed for the child.

5. August, 2009 5 Attorney Role GAL “not an attorney for the child but an officer appointed by the court to assist in properly protecting the child’s interests.” Vandewater (Tex. 1995). AAL appointed “to represent the interests of the child as soon as practicable to insure the adequate representation of the child’s interest,” in 1979 Family Code.

6. August, 2009 6 Fed(con)fusion Sims rev’d sub nom. Moore v. Sims, 442 U.S. 415 (1979). Use of non-attorneys to fill the GAL role under CAPTA approved by federal government. First CASA program established 1977 by Seattle, Washington Judge. CASA/GAL model ultimately approved as meeting the CAPTA requirement.

7. August, 2009 7 GAL Model Grows Dallas CASA established 1979; national CASA 1982; mandatory staff and training standards adopted 1991. Almost half the states satisfy CAPTA without attorney for child. Some appoint attorney to represent “best interest” of child. CASA hires lawyers in some states.

8. August, 2009 8 ABA Weighs In 1996 Standards Of Practice For Lawyers Who Represent Children In Abuse And Neglect Cases. Standards of Practice specific to CPS cases. Support the appointment of lawyers to function as lawyers, to “ensure that the child’s independent voice is heard.”

9. August, 2009 9 American Bar Association The child's attorney should elicit the child's preferences in a developmentally appropriate manner, advise the child, and provide guidance. The child's attorney should represent the child's expressed preferences and follow the child's direction throughout the course of litigation.

10. August, 2009 10 Texas and the AAL before 2003 “Interests of child” used in Texas statute to describe attorney representation. ABA Standards provide that if child does not or will not express a preference about particular issues, the lawyer should determine and advocate the child’s legal interests. Neither refers to “best interests” of child.

11. August, 2009 11 The Ethical Trap (pre-2003) Statute did not clearly limit the scope of the appointment as attorney for the child. Lawyer may limit scope and objectives of representation only if the client consents after consultation. TDRPC 1.02(b). “An appointed lawyer has the same obligations to the client as retained counsel.” TDRPC 6.01 (comment).

12. August, 2009 12 Texas Adds ABA Standards 1997: Both GAL & AAL required in CPS case. GAL duties defined in detail & CASA authorized to be appointed in that role. AAL must “become familiar” with the ABA Standards. Tracking ABA Standards, lawyer serving as both AAL and GAL required to withdraw as GAL and continue as AAL if conflict between “best interests” and child’s “expressed preferences.”

13. August, 2009 13 Texas Since 2003 “Amicus attorney” authorized in non-CPS suit; role is to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child. “Best interests” attorney prohibited in CPS cases. T EX. F AM. C ODE A NN. § 107.017.

14. August, 2009 14 Attorney Definition AAL is “an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” Same definition applies to AAL for a child and AAL for an indigent parent.

15. August, 2009 15 AAL Responsibility to Child AAL must “represent the child's expressed objectives of representation and follow the child's expressed objectives of representation during the course of litigation if the attorney ad litem determines that the child is competent to understand the nature of an attorney-client relationship and has formed that relationship with the attorney ad litem.” T EX. F AM. C ODE A NN. § 107.004(a)(2)

16. August, 2009 16 Guardian Definition Appointed to represent the best interests of a child. May be a CASA, other professional “an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child; or an attorney ad litem appointed to serve in the dual role.” “Dual role” attorney CANNOT be appointed in a private case.

17. August, 2009 17 GAL limitations May receive pleadings but is not authorized to file them. May attend all legal proceedings in the case but may not call or question a witness. May not provide legal services. If the AAL decides to “substitute judgment” the GAL cannot direct the AAL’s representation.

18. August, 2009 18 GAL Responsibilities Must investigate and make decisions on the child’s best interests. Is entitled to testify and may be compelled to do so (unless an attorney in the dual role). Is entitled to be consulted if the AAL decides to “substitute” judgment for the child. Is entitled to make a “best interest” recommendation, but without supporting testimony the GAL opinion will not support a judgment.

19. August, 2009 19 Substituted Judgment AAL or dual role attorney who determines that the child cannot meaningfully formulate the child’s objectives of representation shall consult with the GAL, ensure that the guardian ad litem’s opinion and facts are presented to the court, and may present to the court a position that the attorney determines will serve the best interests of the child.

20. Ethics Rule 1.01 (Competence and Diligence) A lawyer shall not neglect a legal matter or frequently fail to carry out the obligations the lawyer owes the client. Among the obligations defined in the Family Code are the duty to meet the client or the client’s caretaker before each hearing. August, 2009 20

21. Ethics Rule 1.02 (Scope of Representation) The lawyer “shall abide by a client’s decisions” on objectives and methods of representation. Rule applies to a client under a partial disability and applies when the relationship is established by appointment. August, 2009 21

22. Ethics Rule 1.03 (Communication) Shall keep a client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, and explain the matter as necessary to allow the client to make informed decisions. May consider the impact on the client w/ respect to timing and content of information. August, 2009 22

23. Ethics Rule 1.05 (Confidentiality) Distinguish attorney-client communication and other confidential information. Ethical rules do not require the lawyer to obtain specific permission from the client for each and every discloser of confidential information. May not withhold information in furtherance of crime or fraud. August, 2009 23

24. Ethics Rule 2.01 (Advisor) Advisor role is particularly important in child representation. Candor is required, but purely technical legal advice may be inadequate. Should attempt to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. August, 2009 24

25. Ethics Rule 3.08 (Lawyer as Witness) With narrow exceptions, a lawyer must withdraw as an advocate is he or she becomes a material witness, especially if the testimony may be adverse to the client. GALs testify and AALs analyze evidence and argue the law. Family Code reinforces this ethics rule. August, 2009 25

26. Ethics Rule 4.02 (Communication with Represented Person) A lawyer shall not communicate about the case with a person the lawyer knows to be represented by another lawyer absent consent by the opposing attorney. Although cited in the Family Code, this rule creates some tension with the duty of investigation imposed on the AAL or Dual Role Attorney. August, 2009 26

27. Ethics Rule 4.03 (Unrepresented Person) Requires fair dealing in communicating with unrepresented persons. Applies not only to parents but to any other participant in the case, such as a potential relative placement for the child and, of course, the CASA volunteer. August, 2009 27

28. Ethics Rule 4.04 (Third Persons) Prohibits overreaching and oppression of any person in pursuit of the case. The objective is to encourage civility. A lawyer should avoid the infliction of needless harm. August, 2009 28

29. Ethics Rule 6.01 (Accepting Appointments) A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause. Once appointed, the lawyer has the same obligations to the client as retained counsel and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of the Rules. August, 2009 29

30. August, 2009 30 CHARLES G. CHILDRESS Attorney at Law 2908 Breeze Terrace Austin, Texas 78722 512-220-6804 (voice & facsimilie) e-mail: charlesgchildress@gmail.com