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June 01, 2011

Ethical Consideration: Model Rule 1.3—Diligent Representation

Candice L. Maze and Jennifer L. Renne

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

ABA Model Rule of Professional Conduct 1.3 requires that lawyers participate fully in the court process and provide diligent representation. Diligence requires "proactive participation" in the court process from start to finish.

The rule also expects that lawyers will seek records, file motions for appropriate services, and participate in all non-courtroom activities at which the child’s rights, entitlements, and interests must be advocated or protected (e.g., case plan or permanency plan meeting, formal/informal settlement negotiations or mediations).

This premise is at the heart of "holistic representation"—it is proactive and encompasses all aspects related to health, well-being, safety, and permanency for the very young child. Attending all hearings, including procedural hearings (e.g., advisory hearings) supports your ethical obligation to fully participate in the court process.

Often, matters not set for a hearing are addressed when a hearing is held to speed decisions about placement, visitation, or other issues directly affecting the child or parent(s).

ABA Standards C-1 through C-6 explain all required actions to be taken, more clearly defining what "diligent representation" of a child should involve in a dependency proceeding:

  • Meet with the child and establish a relationship.
  • Conduct thorough, continuing, and independent investigations
    of the child’s case and circumstances.
  • File pleadings for services and visitation.
  • Request services to meet the individual needs of your child client—even when no hearing is filed—through informal or formal means.
  • Ensure a child with special needs receives appropriate services to address those special needs.
  • Negotiate settlements to seek "expeditious resolution of the case," including using mediation.

Candice L. Maze, JD, president, Maze Consulting, Inc., Miami, FL and Jennifer L. Renne, JD, director, National Child Welfare Resource Center on Legal and Judicial Issues, Washington, DC.

Aadapted from: Practice & Policy Brief: Advocating for Very Young Children in Dependency Proceedings: The Hallmarks of Effective, Ethical Representation, October 2010, by Candice L. Maze, JD, .