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WHO ARE THOSE D_N COURT FACILITATORS AND WHAT DO THEY DO

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WHO ARE THOSE D_N COURT FACILITATORS AND WHAT DO THEY DO Powered By Docstoc
					  Ethical issues in North Dakota
child welfare cases: principles and
              practice



 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
                                             2
  Each of these professions directly
 involved in deprivation proceedings
  have shared and separate ethical
                duties

A.   Social workers
B.   State’s attorney/prosecutor/DA
C.   Attorney GAL for children
D.   Attorney for parents
E.   Judges
   National Association of Social Workers
             (NASW) ETHICS
ETHICAL PRINCIPLES
 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
  professional expertise.
                                                  4
                       Ethical issues/challenges
                  for lawyers in deprivation cases

Relationship with your client
Relationship with caseworkers
Relationship with attorneys
Relationship with other interested parties
Each case is unique
Confidentiality
Meandering “policy”
Advocacy or collaboration?
Advocacy through collaboration???
 North Dakota Rules of Professional Conduct

I. Client-Lawyer Relationship

1.1    Competence
1.2    Scope of representation
1.3    Diligence
1.4    Communication
1.6    Confidentiality of information
1.7    Conflict of interest
1.13   Organization as client
1.14   Client with limited capacity

II. Counselor
2.1 Advisor
                                          6
          More N.D.R Professional Conduct

lll.   Advocate
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
                                                          7
    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
    monitor cases.
Practice Pointer- Is this expecting too much? Why is this relevant to
    representation?
   Caseworker turnover
   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
  authorized constituents

•    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
     organization; and
   (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
   representation
• 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?”


Key principles:
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
           have ears

“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
  late.”
                                           15
 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
 identify?
Q: Who is responsible for resolving each
 issue? Assign the issues to the
 appropriate person.
Q: Are there solutions? For each issue,
 identify at least one solution.
                                                 16
                   Maggie
Maggie aka Margaret is 11
TPR 2 years ago
Adoptive home failed
Case manager tells her that she will have a new
  home soon
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

                                                   17
Shared ethical duties
Competence, Diligence & Communication
A lawyer shall provide competent representation


COMMENTARY
(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
  ZEALOUSLY

(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.

(NDRPC 1.1,1.2,1.3)
                               Ronald
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
GAL denies
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?

                                                                              20
   ATTORNEY FOR MOTHER or
          FATHER
• INCARCERATED CLIENT
   communication
   control of case
   case plan
• CASE STRATEGY
   different stages require different tactics
   mediation
• AND, what about the child/children when the
  plan is no longer reunification but APPLA,
  placement with a fit and willing relative

                                                21
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.
   e.g., ASFA,MEPA,ICWA,FCIA,CAFTA

  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.


2. Promote timely hearings and reduce case continuances.
Unique to abuse and neglect proceedings—ASFA +state
law+child development
3. Cooperate and communicate on a regular basis with
other professionals and parties in a case, including the
client/agency

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
caretakers

9. Prepare and make all appropriate motions & evidentiary
objections

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
          Cross examination
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
  justice.
                                                 25
             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?
     Competent representation
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 =
   reversible error
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
   particular situation”
                                                         27
Donald W. Sr. v. Arizona Dept. of Economic
       Security, 215 AZ 199 (2007)
Court Held:
 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.

                                                                               28
              “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
  situation?
   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
    harm;
(2/3) to prevent client from committing a crime or fraud …or to
    mitigate, rectify substantial injury to the financial interests of
    another
(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….


                                                                                  31
 In re Wilka, 638 NW2d 245 (2001)
South Dakota Supreme Court upheld public censure on the following
  grounds:

       While Wilka may not have directly lied to the court, he
    intentionally evaded the plain and understandable questions of the
    judge
       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
    making”.
   “Options other than evading the questions of the court remained
    open to him.”


                                                                          32
    ATTORNEY FOR THE CHILD
•   GAL
•   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
    listening?
                                                 33
  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.
Ruling?????

                                                               34
                      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.




                                                                                                    35
    A lawyer shall advance only meritorious claims and be
                      truthful in statements

In the representation of a client, a lawyer
     shall not:
(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
     Disciplinary Rule.

(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
   that:

(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
    the tribunal.

(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.)

                                                                38
             Ethics reminders
       does this ever happen here?

(1) Case manager calls parent without getting permission from parent’s
    lawyer?

(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.




                                                                            39
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
   his/her client.


(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
13.1 Permanency
14.2 TPR - Preparation
14.4 TPR - Present client’s case
16.1 Case assignment termination

                                                          41
    North Dakota Rules of Professional Conduct
                      Preamble

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


 • COMPETENCE
 • CONFIDENTIALITY
 • CONFLICTS OF INTEREST

                                        43
               Contact Information
             Joanne M. Brown, JD., MSW.
                       jbrownconsulting@aol.com
           National Resource Center on Legal & Judicial Issues
                        www.abanet.org/child/rclji




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

				
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