Ethical Considerations for Attorneys Representing Abused and Neglected Children - ABA YLD 101 Practice Series

By Claudia M. Volk

Introduction
Child abuse and neglect proceedings constitute a unique legal arena that often entails ethical questions that resist categorization directed by the ABA Model Rules of Professional Conduct and state ethical rules for best practices and principles of representation. Unfortunately, child protection proceedings frequently continue for years in successive court hearings until permanency is achieved or the child reaches the age of majority. Thus, a child’s attorney must develop a long-term strategy in each case. Ardent advocacy can collide with the parties’ and court’s ideas of children’s best interests.

Child’s Attorney v. Guardian ad Litem
One of the key federal legislations addressing child abuse and neglect is the Child Abuse Prevention and Treatment Act (CAPTA), originally enacted in 1974, and was most recently revised in 1996. CAPTA states that in every case involving an abused or neglected child which results in a judicial proceeding, a guardian ad litem, who may be an attorney or a court-appointed special advocate (or both), shall be appointed to represent the child in such proceedings. (42 U.S.C. 5106a 2 A ix.) A guardian ad litem (GAL) is an independent fact gatherer whose duty is to report the child’s best interests to the court. A GAL is appointed in many jurisdictions through Court Appointed Special Advocates (CASA) (formed nationally in 1992) and plays a distinctly different role from a child’s attorney. When a GAL is appointed, no confidential relationship exists between the child and the GAL attorney who must report to the court a conclusion about the child’s best interests using objective information. On the other hand, the role of a child’s attorney is that of a zealous advocate obligated to protect the attorney-client confidentiality. Even a child’s attorney, however, must advocate for a child’s position without compromising the child’s safety. As all other types of attorneys, a child’s attorney also has an ethical duty to counsel the child client to do what’s right for the child client. Often with adequate counseling, the client will chose a course of action that’s in his or her best interests.

A child’s attorney is also called an Attorney ad Litem (AAL). Blacks law dictionary defines “ad Litem” as “of the law suit.” Therefore, the difference between a child’s attorney or Guardian ad Litem (GAL) and an Attorney ad Litem (AAL) can be determined by merely translating the Latin phrase to modern terms.

Various jurisdictions have differing definitions of the child’s attorney’s role. Check local court rules and statutory law for the provision and the definition of a child advocate. (For a listing of statutes and court rules by state see e.g. Jean Koh Peters, Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions (Lexis 3d ed. 2007 ). Some jurisdictions systematically appoint attorneys to represent all children in a traditional attorney -client relationship. Other jurisdictions appoint a GAL to advocate for a child’s best. Many jurisdictions have combined forms of child representation where the child’s attorney acts as an advocate and a guardian ad litem. If acting as an advocate and not a GAL, it’s important to distinguish the two roles and ensure you don’t supplant your own notions of what would be best for the child in place of her wishes.

As an Attorney ad Litem, if you know your client will do something seriously injurious, you are required to request the appointment of a Guardian ad Litem under ethical duty rules. But this is a red flag with the court. Before requesting a GAL, try diligently to convince the client to take a course of action that’s best for her. Even when an advocate hears disturbing information, you are obligated to counsel your client on the best course of action.

Capacity
General guidelines regarding the minimum numeric age of competency to make legal decisions and assist the attorney in dependency proceedings range from age 7 to 15. While the minimum age for voting and driving is fixed, such an approach is ill-suited for determining when a child can make a sound deductive choice between legal options.

Considerations:

  • How consistent is the client’s opinion?
  • In addition to your own perceptions, evaluate independent evidence of your client’s capacity including diagnosis of mental illness that would interfere with the client’s ability to perceive reality, cognitive delay or mental retardation.
  • Even newborns exude an individual nature, a level of wellness, physical attributes, and gestational and family history that distinguishes her from other newborn clients. Thus every client can influence and add to her lawyer’s representation.

The ABA Model Rules of Professional Conduct (MRPC) Rule 1.14 Client With Diminished Capacity states the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the child despite diminished capacity due to minority or mental impairment. MRPC Rule 1.14 states the lawyer may take reasonably necessary protective action when the minor client is at risk of substantial physical, financial or other harm, including consulting with individuals or entities that have the ability to take action to protect the client. Under this rule and MRPC 1.16(a), when taking protective action, the child’s attorney is also impliedly authorized to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. Not all states have adopted the MRPC. Some jurisdictions have adopted the rules and not the comments so check your local rules carefully. Help the minor client understand the nature and purpose of the proceedings, as well as the risks and benefits of the client’s position. Keep in mind that children have enormous pressure placed on them by parents, family members, caretakers and guardians.

When representing a non-verbal client or a client with severely limited capacity, at a minimum, the child’s attorney could be that of a neutral observer who ensures the court functions fairly, the other attorneys perform competently, and that services are implemented quickly and appropriately. Some jurisdictions have laws relating to the child’s basic entitlements in the child welfare system. If a child does not or cannot convey their wishes due to age, immaturity or simply because she chooses not to communicate, the child’s attorney should advocate for the child’s legal interests. For example, child attorneys in New Jersey may reply upon the Children’s Placement Bill of Rights Act, N.J.S.A. 9:6B-4, which states all children in out-of-home placement are entitled to specific rights separate from the child’s parents, including regular sibling and parental contact, the least restrictive setting, and a placement plan that reflects the child’s best interest.

Conflict of Interest Between Siblings
Most dependency court systems presumptively allow one attorney to represent multiple siblings unless an actual conflict of interest arises. This system may lead to potentially divided loyalties. Different children may have different wishes that could necessitate differing and conflicting positions as to their parents and caregivers. For example, one child may want to return home while the other may not. This apparent conflict of interest can usually be defused by pointing out that different children have different needs. However, where siblings’ varying needs cannot be reconciled and protected by the same attorney, a separate attorney must be appointed for each child.

Conflict of Interest Between Former Clients and Their Offspring
When your minor client’s legal needs have come to an end, that former client may have children of his or her own. The former client who was the subject matter of a dependency hearing may herself become a defendant parent in another proceeding. The attorney has confidential information about the former client, and thus taking on her offspring as a new client creates an impermissible conflict of interest. While the former client may waive the attorney client privilege by giving informed consent, the new minor client should not be relied upon to fully understand the legal ramifications of disclosing confidential data and breaches of loyalty. Thus multiparty representation usually violates the canon of ethics.

Cultural Considerations
Nationwide, there are a disproportionate number of families involved in dependency matters compared to their representation in the general population who live at or below the poverty line and who are members of a minority group. Each family is unique. While culture does not shape the law, the Adoption and Safe Families Act (ASFA) requires the focal point of permanency to be centered on the particular and varied needs of each child and parent. Culture is defined by race, ethnicity and religion. Subculture is more subtly defined, for example, by economic status, age, gender, sexual orientation, language, mental and physical disabilities. While the law does not change from case to case, the facts and case resolution are shaded by cultural and subcultural contexts. In addition, attorneys representing children can more effectively serve their clients by creating a mutual, problem- solving environment by examining and appreciating the reality of children’s and family’s lives.

Sources and Suggested Reading:
American Bar Association - Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases. Adopted 1996. Available at http://www.abanet.org/child/repstandwhole.pdf

First Star and Children’s Advocacy Institute. 2009. Second Edition -A Child's Right to Counsel - A National report Cared on Legal Representation for Abused & Neglected Children.
Web available at: http://www.naccchildlaw.org/resource/resmgr/dependency/final_rtc_2nd_edition.pdf

Patton, William Wesley. 2006. Legal Ethics in Child Custody and Dependency Proceedings: A Guide for Judges and Lawyers. Cambridge, United Kingdom: Cambridge University Press.

Peters, Jean Koh. 2007. Representing Children in Child Protective Proceedings: Ethical and Practical Dimensions, Third Edition. Charlottesville, Virginia: Lexis Law Publishing.

Ventrell, Marvin, and Donald D. Duquette. 2005. Child Welfare Law And Practice: Representing Children, Parents, and State Agencies in Abuse, Neglect and Dependency Cases. Denver, Colorado: Bradford Publishing Company.

Resources

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About the Author

Claudia Volk currently is a criminal defense attorney representing juveniles in Naples, Florida as an Assistant Public Defender in Florida’s 20th Judicial Circuit. Prior to entering criminal law, she was a “Law Guardian” attorney ad litem for two years in New Jersey’s Office of Public Defender representing abused and neglected children at all phases of dependency hearings. Prior to entering practice, she clerked for a dependency family court judge in Newark, New Jersey. She is a member of the National Association of Counsel for Children (NACC). Ms. Volk graduated from Rutgers School of Law-Newark in 2006. Ms. Volk is also admitted to practice in New York, New Jersey and Florida and previously served as a volunteer GAL in Florida’s 6th Judicial Circuit Guardian ad Litem Program.

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