class-2-attorney-for-the-child

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An Advocacy Framework
For Attorneys in CVO Cases
Children’s Law Center
Clinic Seminar
1
Outline
 Goals
 History of Attorney for the Child Debate (national and
local perspective)
 Summary of Statutes, Rules, Guidelines, and Relevant
Literature
 CLC Advocacy Framework
 Discussion
2
Goals
 CLC specific framework
 Collective way of analyzing each case
 CLC attorneys following statutory guidelines and ethics
rules
 Maximize the expressed wishes of child clients
 Common terminology in and out of court
 Prompt discussion between staff and between staff and
supervisors
3
CLC Direct Advocacy Framework
 Our initial position is always one of direct advocacy.
 You are viewing the case from the client’s perspective.
 You are the client’s voice in/out of court.
 If you were representing an adult client, what would your
position be?
4
Models of Representation
 GAL
AFC
 Not required to be attorney
• Must be lawyer
 Strictly best interests
• Advocates for client’s
 Submits written reports
 Some GAL’s testify
 Not confidential relationship
wishes
• No written reports
• Doesn’t testify
• Attorney-client privilege
5
Best Interests
vs. Expressed Interests
 Guardian ad litem
 best interests
 conduct an independent investigation
 arm of the court
 not necessarily an attorney
 volunteers in some jurisdictions (CASA)
6
Criticism of the GAL Model
 Substituting judgment allows opportunity for personal
preferences/biases in advocacy
 If not an attorney, what ethical rules and obligations
govern role?
 Not necessary to meet child to form a position
 Child’s position may not be heard
 If volunteer or non-lawyer, are child’s legal interests being
protected
 Sometimes selected and appointed by judges
7
Judges and the GAL Model
 Many like a separate investigative arm
 Alternative written reports and recommendations
 Many child protective agencies motivated by finances
and/or perceived liability
 Judge to decide best interests + person advocating best
interests = EASY
 Even though NY has never had GAL model old practice
was to substitute judgment

8
Judges Now
 Confused about AFC role
 Mixed messages
 Different language/role between organizations
 Hear different language from different lawyers within
same organization
9
Dilemma: Lack of Clear Guidelines for
Lawyers Who Represent Children

“Lawyers have been left relatively free to follow, or
override in their discretion, positions taken by their young
and immature clients. In other words, lawyers have been
able to navigate freely between the traditional lawyer’s role
(advocating for the client’s expressed interests) and a
guardian ad litem role (advocating for what the guardian
determines to be in the child’s interest).”
10
Statutory Framework
 Family Court Act Section 241
 Provides child with right to counsel of their own choosing
or law guardians.
 Help protect their interests
 Express their wishes to the court

By requiring law guardians to protect the child’s
“interests” rather than “best interests,” Legislature
intended for law guardians to function as advocates.
11
Rules of Professional Conduct

A lawyer must reasonably believe that three specific
pre-conditions exist before substituting judgment:
 the client has diminished capacity
 the client is at risk of substantial physical, financial or other
harm unless the lawyer takes action
 the client cannot adequately act in his own interests.

NOTE: Rule 7.2 is more expansive
12
Rule of Professional Conduct: Attorney Client
Privilege
 Rule 1.14 If client has diminished capacity, attorney may
substitute judgment regarding issues of confidentiality.
 Rule 1.6(b) permits but does not require disclosure of
confidential information to “prevent reasonably certain
death or substantial bodily harm.”
13
NYSBA 2008
 An AFC can substitute judgment if:
 The child is not capable of expressing a preference
 The child’s preference would expose the child to substantial
risk of imminent, serious harm, and the danger could not be
avoided by removing one or more individuals from the
home, or by court-ordered services
 The child is not competent to understand the factual issues,
or clearly and unequivocally lacks the capacity to
comprehend the consequences
14
American Bar Association
 When the lawyer is assigned under State law as counsel for the
child, the lawyer cannot properly perform the functions of a
guardian ad litem.
 If the child is capable of communicating a preference, the
lawyer must provide client-directed representation.
 ABA also asserts that when the child is unable to express a
position or is incapable of understanding the legal or factual
issues, the lawyer “should continue to represent the child’s
legal interests and request appointment of a guardian ad
litem.”
15
National Association
of Counsel for Children

Responded to the ABA by saying that to the extent that a
child cannot meaningfully participate in the formulation of
the client’s position (either because the child is preverbal,
very young or for some other reason is incapable of
judgment and meaningful communication), the attorney
shall substitute his/her judgment for the child’s and
formulate and present a position which serves the child’s
interests.
16
RULE 7.2
Function of the Attorney For the Child
 The attorney for the child must ‘zealously advocate the
child’s position’
 The AFC must consult with and advise the child
consistent with the child’s capacities
 Advocacy is client directed if the child is capable of
knowing, voluntary and considered judgment
17
Is the client pre-verbal?
Can the client make a
knowing, voluntary, an
considered decision?
No
Direct
Advocacy
Yes
Does the client’s
position put her at risk
of harm?
Substituted
Judgment
If yes, is it imminent?
No
Yes
Is the harm substantial?
Yes
No
18
Direct Advocacy
Knowing
Voluntary
Considered
Was my client’s
decision conscious,
intentional, and
deliberate?
Was my client’s
decision by her own
free choice?
Was my client’s decision
made with care keeping
in mind possible
consequences?
19
Rule 7.2 Substitution of Judgment
 Permissible only when the AFC is convinced:
 The client lacks the capacity for knowing, voluntary and
considered judgment, or
 Following the client’s wishes is likely to result in a substantial
risk of imminent, serious hard to the child.




IF SUBSTITUTING JUDGMENT THE ATTORNEY
MUST INFORM THE COURT OF THE CHILD’S
WISHES IF THE CHILD WANTS THE ATTORNEY
TO DO SO.
20
Substituting Judgment

When does a child lack the capacity for knowing,
voluntary and considered judgment?
 Is the child pre-verbal or non-verbal?
 Developmental delays
 Child’s ability to articulate a well-reasoned position from
their perspective
 Child’s ability to understand the court process
21
Does Age Matter?
 CLC does not have a minimum age when direct advocacy
begins
 With very young, verbal children – depends on their
ability to articulate a well reasoned position and
understand consequences
 Non-verbal children = substitution of judgment
22
Voluntariness
 Pressure
 Coaching
 Alienation
23
Alienation
 Is there a finding of alienation by a neutral mental health
professional?
 How serious are the acts attributed to the ‘alienating
parent’?
 How old is the child?
 How entrenched is the child in their position?
 Do observations of interactions between the ‘alienated’
parent and the child comport with what the child is
telling you?
24
Considered
 Frivolous positions
 Age appropriate positions
25
Developmental Delays
•
•
Lawyers may consider a client’s disability when
determining if the client has the capacity to make a
“considered” judgment. A disability does not
automatically mean substituted judgment.
Depending on the disability, the client may be able to
understand and contribute to their representation on
some issues but not others
26
Frivolous Positions
 Does the position make sense from the client’s
perspective?
 Is the client bored? Does the custodial parent provide
more stimulation for the child?
 Is the custodial parent interfering with visitation by
enticing the client with interesting activities?
27
Knowing
 Does the client have all the facts?
 Are there facts my client does not know that I can’t or
shouldn’t reveal to her?
28
Substituting Judgment - Harm
 When is following a child’s wishes likely to result in a
substantial risk of imminent, serious harm to the child
under Rule 7.2?
 Imminent
 What factors does the attorney consider in determining
whether the risk is imminent?
29
Risk of Serious Harm
 Considerable amount
 Corporal or material in nature
30
Harm
 Physical Harm
 Excessive corporal punishment
 Sexual Abuse
 Emotional Harm
 Verbal Abuse
 Abandonment
 Psychological Harm
 Alienation
31
Imminent Harm
 Likely to occur at any moment
 Impending
 Look to abuse and neglect case law
32
In Court, On Message









No “reports to court”
Position vs. Recommendation
No “wink wink, nod nod”
Request, Reasons, Remedy
AFC vs. Law Guardian
Careful consideration of client confidences
Consultation on major items
Consistency regarding investigation/mandatory reporting
Substituting judgment, why, client’s position if different
(use language from rule)
33
“Reports”
 Confusion about definition of “report”
 Written reports are forbidden
 Ex parte reports are forbidden
 AFC may advocate a position and discuss relevant
evidence in open court and conference
 In Naomi C., Appellate Division found the Court ‘s
questioning of the AFC about the current custody
arrangement inappropriate.
34
Out of Court, Explaining Our Role
 Not a neutral party
 Not “supporting one parent”
 Our client has a position
 Why an attorney for young kids?
 AFC as negotiator/mediator?
 Explain when substituting judgment and why
35
Questions to
“Keep Lawyers for Children Honest”
 Am I viewing the case from the client’s perspective?
 Have I done my best to explain the case to my client
 If my client was an adult, what would I do differently?
 Am I making decisions in the case on the client’s behalf or
to satisfy myself?
 Am I making sure my own background and biases are not
affecting my representation?
36
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