Ethical issues in North Dakota
child welfare cases: principles and
Children’s Justice Symposium
Bismarck, North Dakota
JULY 22-24, 2008
“This court is real, real different.”
first year law student
• Not civil litigation
• Not criminal litigation
• An environment of shared goals
• Policy driven
• Most language is not legaleese
• Lots of public scrutiny
• Pressure to meet external deadlines
• Emphasis on problem solving
Each of these professions directly
involved in deprivation proceedings
have shared and separate ethical
A. Social workers
B. State’s attorney/prosecutor/DA
C. Attorney GAL for children
D. Attorney for parents
National Association of Social Workers
Social worker’s primary goal is to help people in
need & to address social problems.
Social workers challenge social injustice.
Social workers recognize the central importance
of human relationships.
Social workers behave in a trustworthy manner.
Social workers practice within their areas of
competence & develop & enhance their
for lawyers in deprivation cases
Relationship with your client
Relationship with caseworkers
Relationship with attorneys
Relationship with other interested parties
Each case is unique
Advocacy or collaboration?
Advocacy through collaboration???
North Dakota Rules of Professional Conduct
I. Client-Lawyer Relationship
1.2 Scope of representation
1.6 Confidentiality of information
1.7 Conflict of interest
1.13 Organization as client
1.14 Client with limited capacity
More N.D.R Professional Conduct
3.1 Meritorious claims and contentions
3.2 Expediting litigation
3.3 Candor toward tribunal
3.4 Fairness to opposing party & counsel
3.8 Special responsibilities of a prosecutor
lV. Transactions with Others
4.1 Truthfulness in statements to others
4.2 Communication with person represented by counsel
4.3 Dealing with unrepresented person
4.3 Respect for rights of third persons
Specific ethical challenges in
representing a child welfare agency,
parents, and children and our shared
ethical duties as lawyers
Who is my client? State’s attorney
Models of representation in abuse/neglect cases:
Agency Representation Model: Under this model,
the agency attorney represents the agency as a
legal entity, much the same as in-house counsel’s role in
representing a corporation.The attorney could be an employee
of the agency or of another governmental body, but the agency
is clearly the defined client.
Prosecutorial Model: Under this model, an elected or
appointed attorney (or the attorneys working for this individual),
often a district attorney or county attorney, files petitions and
appears in court on behalf of the agency, and represents the
state or “the people” of the jurisdiction.*
*This may mean the elected attorney may override the views of the agency in court.
Core Duties of State’s Attorney
As an advisor to his/her client with expectations that
go beyond the immediate courtroom
1. Exercise independent professional judgment and render candid
advice…and may refer to other considerations, such as moral,
economic, social & political factors, that may be relevant
2. Counsel the client/agency about all legal matters related to
individual cases as well as policy issues and periodically
Practice Pointer- Is this expecting too much? Why is this relevant to
Legal barriers- i.e. notice, paternity
Barriers to reunification
Communication with parties/other counsel
Adequacy of case plans
Lawyer as Advisor/ Scope of Representation (NDRPC 1.2 & 2.1)
State’s Attorney has an Organization as a Client
Lawyer represents the organization or agency, acting through its duly
• In certain areas of legal representation not affecting the merits of the
cause or substantially prejudicing the rights of a client, a lawyer is
entitled to make decisions. But otherwise the authority to make
decisions is exclusively that of the client and, if made within the
framework of the law, such decisions are binding on the lawyer.
• A lawyer should exert best efforts to ensure that decisions of the
client are made only after the client has been informed of relevant
considerations . . . Advice of a lawyer to the client need not be confined
to purely legal considerations . . . The lawyer may emphasize the
possibility of harsh consequences that might result from assertion of
legally permissible positions.
Organization as Client (NDRPC 1.13)
NDRPC 1.13 Organization as a Client (cont.)
If a lawyer for an organization knows that an officer, employee … is
engaged in action … that is a violation of a legal obligation to the
organization … the lawyer shall proceed as is reasonably
necessary in the best interest of the organization.
(b) Any measures taken shall be designed to minimize
disruption of the organization and the risk of revealing
information relating to the representation to persons outside
the organization. Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be
sought for presentation to appropriate authority in the
(3) referring the matter to higher authority in the organization,
including, if warranted by the seriousness of the matter,
referral to the highest authority that can act in behalf of the
organization as determined by applicable law.
Practice Pointer: Watch for ethical traps-conflict of
interest and duty to do justice
(1) When the organization's interest may be or becomes adverse
to those of one or more of its constituents, lawyer should
advise the constituent:
• that the lawyer cannot represent such constituent,
• that such person may wish to obtain independent
• that discussions between the lawyer for the organization and
the individual may not be privileged
(2) When a client is a governmental organization, a different
balance is appropriate when maintaining confidentiality &
assuring that the wrongful act is prevented or rectified, for
public business is involved.
And No “handoffs”
Ethical and Practice Considerations: when
professionals don’t agree and things dissolve
“Do I have a conflict of interest?”
1) the attorney and caseworker should start with a face-to-face
meeting to try to resolve the conflict;
2) if there is no resolution, the system should delineate how
each should go up their respective chains of command; and
3) the system should set out examples of issues that are legal
and those that are social work decisions, understanding
that most issues will need to be resolved jointly.
• timeframes for resolution
• avoid conflicts in front of judge and other parties
PPointer See WVA Chapter 49
TRAP: The hallways of the courts
“We cannot sell this plan to THIS judge”
“No parent should ever have a second
chance to abuse a child.”
“Everyone knows that her reports are always
Let’s look at a family that might be familiar
Maggie and her older brother, Ronald
Some questions of ethics
Q: How many ethical issues can you
Q: Who is responsible for resolving each
issue? Assign the issues to the
Q: Are there solutions? For each issue,
identify at least one solution.
Maggie aka Margaret is 11
TPR 2 years ago
Adoptive home failed
Case manager tells her that she will have a new
Something happened in adoptive home
New adoptive home in same neighborhood
Asks GAL help her out to stay in school
Quits talking to GAL…wants to talk to judge only
Shared ethical duties
Competence, Diligence & Communication
A lawyer shall provide competent representation
(A) A lawyer shall not:
(1) Handle a legal matter which he/she knows or
should know that he/she is not competent to
handle, without associating with him a lawyer
who is competent to handle it.
(2) Handle a legal matter without preparation
adequate in the circumstances.
(3) Neglect a legal matter entrusted to him/her.
A LAWYER SHALL REPRESENT A CLIENT
(A) A lawyer shall not intentionally:
(1)Fail to seek the lawful objectives of his client
through reasonably available means permitted by
law and the Disciplinary Rules . . .
(B) In his/her representation of a client, a lawyer may:
(1) Where permissible, exercise professional judgment
to waive or fail to assert a client’s right or position.
(2) Refuse to aid or participate in conduct that he/she
believes to be unlawful, even though there is some
support for an argument that the conduct is legal.
Ronald (16) had to be moved to foster home
No TPR, father in prison and mother ??
Mild mental retardation
FP not willing to keep him after 18- but don’t know how he will be able to make
it on his own.
Aunt recently graduated from residential drug treatment
Visitation with aunt on condition of testing
Overhears their conversation outside courtroom
Wants a new lawyer NOW
State's attorney says aunt has a dirty test
Case manager explains her testimony regarding test result to state’s attorney–
wants to explain to judge.
State’s attorney refuses
Subsequent motion for visitation to resume– no objection?
ATTORNEY FOR MOTHER or
• INCARCERATED CLIENT
control of case
• CASE STRATEGY
different stages require different tactics
• AND, what about the child/children when the
plan is no longer reunification but APPLA,
placement with a fit and willing relative
SHARED ETHICAL DUTY TO all CLIENTS-
WHAT COMPETENT REPRESENTATION MEANS
1. Understand and remain current regarding all relevant
federal and state laws, regulations, & policies.
IN the child welfare area of law, this includes federal laws/regs.
A wide range of substantive areas, e.g., child development,
mental illness and mental retardation, psychological testing,
forensic medical evidence, substance abuse, dynamics of
child abuse, cultural and ethnic socioeconomic issues.
Increasingly important: federal/state education law,
immigration, family violence.
2. Promote timely hearings and reduce case continuances.
Unique to abuse and neglect proceedings—ASFA +state
3. Cooperate and communicate on a regular basis with
other professionals and parties in a case, including the
4. Participate in all depositions, negotiations, discovery, pretrial conferences,
mediation sessions (when appropriate), and hearings
5. Participate in settlement negotiations and attempt speedy resolution of the
case, when appropriate
6. Develop a case timeline and tickler system/obtain all documents
Informality vs. courtroom competency
7. Subpoena and prepare all witnesses, including the client
8. Ensure proper notice is provided to all parties & necessary
9. Prepare and make all appropriate motions & evidentiary
10. Present case-in-chief, present and cross-examine
witnesses, prepare and present exhibits Ppointer: don’t forget
voire dire of experts and wanna be experts
11. Make opening and closing arguments as appropriate
In the Matter of Thomas Zawada, Arizona
Supreme Court Ethics Opinion (7/1/04)
“Prosecutor engaged” in a blistering xx of six
defense mental health experts when he had no
controverting expert testimony or mental health
evidence…”hired guns” xx for NGI defense.”
Ordered: 6 month suspension + probation.
Violations of 3 Ethical rules: competence,
assertions made without basis in law or fact and
conduct prejudicial to the administration of
Orders, law, and the integrity of the court
12. Prepare or help prepare proposed findings of fact, conclusions of law
when they will be used in the court’s decision. Ppointer: IVE reviews
13. Review court orders to ensure accuracy & clarity and review with client
when necessary PPointer: make sure your client fully understands the
order and responsibilities
14. Take reasonable steps to ensure your client complies with court
orders PPointer: what if you find out your client can’t comply or isn’t?
15. Consider and discuss with your client the possibility of appeal and file
notice of appeal as appropriate. PPointer: watch out for frivolous
appeals, what kind of balancing is required? Is there a way out?
Facts: Appeal by Mother from TPR/ severance trial
Lassiter & NCJCJ Resource Guidelines (1995) cited on
importance of role of parent’s counsel
Rt. to counsel by statute and due process guarantees of
state and federal Constitutions
AZ Case law: Ineffective counsel in TPR/severance may =
Standard? Strickland v. Washington, 466 US 668 (1984) or
“Inquiry should focus on the quality of assistance required
to satisfy due process…what is fundamental fairness in a
Donald W. Sr. v. Arizona Dept. of Economic
Security, 215 AZ 199 (2007)
DNA to trial tactics that did not work; omitted useless acts; no second
guessing on appeal.
However in this case the record showed the following: no preparation by
Mother’s counsel beyond appearing in court, no recent pre-hearing contact
with client, no efforts to do so, no documentation of case plan compliance,
no independent investigation, apparent unfamiliarity with the allegations of
abuse/neglect; no witnesses; no preparation of client to testify; and “equally
disturbing is counsel’s conduct casting aspersions on Mother’s diligence in
complying with case plan or keeping sober…and counsel cross-examined
Mother about maintaining contact with him; and “if Mother did not produce
documentation of her participation in services, both he and the court would
presume it did not exist”…..
When counsel is ineffective, the entire adversarial process is undermined
and what can appear to be clear and convincing evidence to support
termination may be illusory.
“IF ALL YOU HAVE IN YOUR TOOL BOX IS A
HAMMER, EVERYTHING WILL LOOK LIKE A
NAIL…” M. TWAIN
What about confidentiality----how can we
protect our ethical duties and accomplish
the goals that we may share in a particular
A lawyer shall not reveal information relating to the
representation of the client, unless the client gives
informed consent, disclosure is impliedly given, or…
To the extent that the lawyer reasonably believes necessary
(b) A lawyer may reveal information
(1) to prevent reasonably certain death or substantial bodily
(2/3) to prevent client from committing a crime or fraud …or to
mitigate, rectify substantial injury to the financial interests of
(4/5) to secure legal advice about lawyer’s compliance with
these rules/establish a defense on behalf of the lawyer
(6) to comply with other law or court order.
NDRPC 1.6 CONFIDENTIALITY OF INFORMATION
Finding that fine line between confidentiality
and candor to tribunal
Facts: Motion for supervised visitation based on father’s alleged meth use
F’s attorney arranged urinalysis for meth; drug screen showed marijuana
only; Lab refused to screen for meth only or issue new report; at direction of
attorney, tech cut off bottom portion of the report re: marijuana; partial report
introduced as evidence F not using meth.
At hearing on Motion, court asked “Is this this the whole report?”
F’s attorney said “That’s what I was provided by the hospital; that's what I
have judge…” And when judge asked if the report “ was cut off?”
F’s attorney said “That’s what I asked them to screen for…” and argued that
the report was evidence that F not using meth.
After argument, the court found that the report was not ”competent” due to
its apparent irregularities and ordered another screening.
Criminal contempt filed, which was reduced to civil contempt and a fine
Referred to South Dakota Board of Professional Conduct….
In re Wilka, 638 NW2d 245 (2001)
South Dakota Supreme Court upheld public censure on the following
While Wilka may not have directly lied to the court, he
intentionally evaded the plain and understandable questions of the
The requirement of candor towards the tribunal (RPC 3.3) goes
beyond simply telling a portion of the truth. It requires every attorney
to be fully honest and forthright.
Wilka’s intent to mislead the court is not mitigated by his
concerns over his client’s right to confidentiality.
The dilemma in which Wilka found himself was of his “own
“Options other than evading the questions of the court remained
open to him.”
ATTORNEY FOR THE CHILD
• Youth Voice
• Statutory best interests
• Conflicts arise
• Case strategy: Youth voice or youth
client??? Does the 12 year old control the
case? Are you communicating? Are you
Do I owe the same duty to a child
or teenager as an adult?
Facts: child was removed due to DV and sexual abuse by
mother’s bf. At removal, she told police/caseworker that
the bf had touched her inappropriately & later recanted.
After clarifying that what she said would be confidential,
she told GAL, and said that she was OK and wouldn’t
testify. Court took jurisdiction and reunification goal. A
few months later she told caseworker about the sexual
misconduct and that she had told her GAL
DHS petitioned court to remove GAL due to conflict.
Court denied based on privilege; DHS appealed. GAL
asserted Rule 1.6.
In re Christina W
639 SE2d 770 (2006)
West Virginia Supreme Court of Appeals:
• This is a case where the duties of the attorney as a GAL extend beyond the typical attorney-client
relationship but attorneys who represent children in these proceedings have a primary duty to
protect the best interests of the child.
• RPC 1.6 (a) read with RPC 1.14
• “….The lawyer’s duty to maintain a normal client-lawyer relationship with the client” extends only
“as far as reasonably possible”….GAL must also balance the child’s desire for confidentiality with
the guardian’s duties to the court.”
Accordingly we hold: While a GAL owes a duty of confidentiality to the client, this duty is
not absolute. Where honoring the duty…would result in the child’s exposure to a high risk
of probably harm, the GAL must make a disclosure to the court in order to safeguard the
best interests of the child..”
• While disagreeing that RPC 1.6 applied as an absolute prohibition against disclosure of a
confidential communication. Affirmed decision of Circuit Court denying DHHR’s motion to remove
GAL because conflict had been removed by disclosure.
A lawyer shall advance only meritorious claims and be
truthful in statements
In the representation of a client, a lawyer
(1) File a suit … merely to harass …
(2) Knowingly advance a claim or defense that is unwarranted under
existing law …
(3) Conceal or knowingly fail to disclose that which the lawyer is required
by law to reveal.
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he/she
knows or it is obvious that the evidence is false.
(7) Counsel or assist his/her client in conduct that the lawyer knows to be
illegal or fraudulent.
(8) Knowingly engage in other illegal conduct or conduct contrary to a
(NDRPC 3.1 Meritorious Claims & Contentions;
4.1 Truthfulness in statements to others)
A lawyer shall be honest and open towards the court
(B) A lawyer who receives information clearly establishing
(1) The client has, in the course of the representation,
perpetrated a fraud upon a person or tribunal, shall
promptly call upon his client to rectify the same, and if his
client refuses or is unable to do so, he shall reveal the
fraud to the affected person or tribunal.
(2) A person other than the client has
perpetrated a fraud upon a tribunal
shall promptly reveal the fraud to
(NDRPC 3.3 Candor Toward Tribunal )
A lawyer may not communicate with a
person represented by another lawyer
(A) During the course of representation of a client
a lawyer shall not:
(1) Communicate or cause another to
communicate on the subject of the
representation with a party he/she knows to be
represented by a lawyer in that matter unless
he/she has he prior consent of the lawyer
representing such other party or is authorized
by law to do so.
(NDRPC 4.2 Communication with person represented by counsel.)
does this ever happen here?
(1) Case manager calls parent without getting permission from parent’s
(2) Case manager gets lawyer’s permission to talk to Mother to get
contact info for grandparents and asks how she is doing with
Section 8 application, tells state's attorney. state's attorney asks
CM when she talks to parent to find out if it sounds like Mother will
have housing by court date, as ordered by the court.
(3) Mother’s lawyer calls case manager regarding her opinion of his
client’s progress, without state's attorney permission.
A lawyer must be careful not to give advice to an
unrepresented person where there may be a
conflict with existing clients.
Lawyer may not…give advice to a person who is not
represented by a lawyer, other than the advice to secure
counsel, if the interests of such person are or have a
reasonable possibility of being
in conflict with the interests of
(NDRPC 4.3 Dealing with Unrepresented Person)
North Dakota Commission on Legal Counsel for
Indigents: Minimum Performance Standards
Deprivation & Termination of Parental Rights
Examples of Standards:
2.2 Other training & experience
4.2 Diligence & acting promptly
5.4 Attorney-client relationship: Incarcerated clients
7.2 Investigation & Preparation- Case plans
10.1- 10.2 Negotiations
14.2 TPR - Preparation
14.4 TPR - Present client’s case
16.1 Case assignment termination
North Dakota Rules of Professional Conduct
A lawyer, as a member of the legal profession, is a
representative of clients, an officer of the legal system
& a public citizen having special responsibility for the
quality of justice.
A basic tenet of the professional responsibility of lawyers
is that every person in our society should have ready
access to the independent professional services of a
lawyer of integrity and competence. Maintaining the
integrity and improving the competence of the bar to
meet the highest standards is the ethical responsibility
of every lawyer.
The vast majority of ethics decisions and
disciplinary action taken against lawyers
involves violations of
3 Core Rules
• CONFLICTS OF INTEREST
Joanne M. Brown, JD., MSW.
National Resource Center on Legal & Judicial Issues
ABA Center for Children and the Law
Washington, DC 2001
To order “Ethical Issues in Child Welfare Cases”
call the ABA Service Center at 800.285.2221
ISBN: PC 5490442