March 01, 2011

Ethical Consideration: Model Rule 3.7 Attorney As Witness

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.

You have been representing a three-year-old boy since he was one. The child is living in a specialized medical foster home due to serious medical needs. You visit the child regularly and have consistent contact with his foster parents, doctors, and service providers. A third caseworker has just been assigned to his case, but is not familiar with the child or his needs. The child does not have a CASA or lay GAL. At the permanency hearing, frustrated that the agency failed to file a report and anxious to hold the required hearing within the statutory timeframe, the judge asks you to provide testimony about the child’s well-being and your recommendations for how to proceed regarding permanency.
What do you do?

ABA Model Rule of Professional Conduct 3.7 prohibits an attorney from acting as both a witness and advocate in the same case. This is a challenging and frustrating situation for a children’s attorney—under the traditional model or as a GAL attorney—especially when representing a child too young to speak for himself and when there is no lay advocate involved to put on as a witness. It is also frustrating to judges who know that children’s lawyers often have gathered current and accurate information about the child’s present situation and needs. Furthermore, if visiting a child regularly and consistently, the lawyer is likely to have witnessed a variety of caregiver-child interactions and becomes a fact witness about what he has observed.

Some states that use GAL attorneys have specific rules that enable GALs to serve as witnesses in certain circumstances.1 In fact, in most states, there is either a culture of GAL attorneys testifying or not testifying. In the case above, you may want to ask the judge to delay the hearing one day, stipulating that this will not adversely impact your child client. You can also offer testimony from the medical foster parents and treatment providers at the rescheduled permanency hearing.

You may consider subpoenaing key witnesses to testify at the permanency hearing and/or provide reports that you can offer into evidence. This can eliminate the possibility of being put on the witness stand by the judge and is an excellent proactive approach to pursuing permanency.

Source:

1 See Renne, Jennifer L. Legal Ethics in Child Welfare Cases. Washington, DC: ABA Center on Children and the Law, 2004.

This scenario was adapted 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. Visit http://new.abanet.org/child/Pages/baby-health.aspx