Presentation on theme: "CHILD CLIENTS: BEST PRACTICES FOR LEGAL REPRESENTATION Stephanie Smith Ledesma and Alex Hunt."— Presentation transcript:
CHILD CLIENTS: BEST PRACTICES FOR LEGAL REPRESENTATION Stephanie Smith Ledesma and Alex Hunt
SCOPE OF THE PRESENTATION Attorney ad Litem/Child’s Attorney “An attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.” Guardian ad Litem A person, who is specifically responsible for protecting the interests of a minor child who is in some way involved in a lawsuit, without being bound by the child’s expressed preferences. Advocate for Child Protection
BRAIN SCIENCE Kids are different than adults. Roper (2005): 1. juveniles possess “[a] lack of maturity and an underdeveloped sense of responsibility.” Exhibited through “impetuous and ill-considered actions and decisions.” 2. juveniles are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” 3. “the character of a juvenile is not as well formed as that of an adult.” Roper v. Simmons, 543 U.S. 551 (2005)
BRAIN SCIENCE Graham (2010): “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Differentiation based on “science and social science,” common sense, and what “any parent knows.” Graham v. Florida, 130 S. Ct (2010)
BRAIN SCIENCE Additional Resources: Brief for the American Medical Association and the American Academy of Child and Adolescent Psychiatry as Amici Curiae in Support of Neither Party, Miller v. Alabama, 132 S. Ct (2012) (Nos , ), 2012 U.S. S. Ct. Briefs LEXIS 128 Brief for the American Psychological Association, American Psychiatric Association, and National Association of Social Workers as Amici Curiae in Support of Petitioners, Miller v. Alabama, 132 S. Ct (2012) (Nos , ), 2012 U.S. S. Ct. Briefs LEXIS 215 Bethany Shechtel, Using Neuroscience in a Juvenile Criminal Case, GPSolo eReport, Volume 4, No. 1, /august_2014/using_neuroscience_in_a_juvenile_criminal_case.ht ml
BEST PRACTICES- CLIENT INTERVIEWING DO: Recognize age differences and adapt your style. Prepare your interview environment. Use developmentally appropriate language. DON’T: Alter your role as attorney or your client’s role in his/her case. Ask your clients about his/her wishes. Have your client make major decisions about the case. TIP: Provide way for client to “take notes” no matter what their age.
BEST PRACTICES- CLIENT INTERVIEWING OPENING THE INTERVIEW Introductions Ice Breaker Explain your role Explain confidentiality Contact information (when? how? why?) TIP: Checks for understanding throughout interview Teach it back to me Elaborate on a detail Check their temperature OR Thumbs up, thumbs down
BEST PRACTICES- CLIENT INTERVIEWING THROUGHOUT THE INTERVIEW Use the “Funnel Method” Use open-ended questions Listen. Watch your reactions; have a neutral tone
BEST PRACTICES- CLIENT INTERVIEWING WRAPPING UP THE INTERVIEW Anything else we missed? Anything I can do for you? What’s coming up? When will I see you again? TIP: What is “developmentally appropriate?” Seek the advice of a social worker for strategies and resources on working with child clients.
BEST PRACTICES- CLIENT INTERVIEWING A NNE G RAFFAM W ALKER, H ANDBOOK O N Q UESTIONING C HILDREN : A L INGUISTIC P ERSPECTIVE (ABA Center on Children and the Law 1994) D AVID A. B INDER & S USAN C. P RICE, L EGAL I NTERVIEWING A ND C OUNSELING : A C LIENT -C ENTERED A PPROACH (1977) W ILLIAM R. M ILLER AND S TEPHEN R OLLNICK, M OTIVATIONAL I NTERVIEWING, 3 RD E DITION (2012)
LACK OF UNIFORM MODEL OF CHILD REPRESENTATION The practice of law for children is unique. Children are not just “mini-adults”. Prior to 1996 there were no widely accepted, uniform practice standards or guidelines for attorneys who represented children.
LACK OF UNIFORM MODEL OF CHILD REPRESENTATION Progress toward the creation of a uniform model of representation was made in 1996 when the ABA published their Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases. In 2001 the National Association of Counsel for Children, NACC published their Recommendations for Representation of Children in Abuse and Neglect Cases in an effort to identify a “checklist” of children’s needs that should be met by whatever representation model chosen by that jurisdiction. The goal of the NACC recommendations were to encourage the jurisdictions to focus on “what matters, serving the child client.”
LACK OF UNIFORM MODEL OF CHILD REPRESENTATION In 2004 the ABA published their Standards For the Custody, Placement and Care; Legal Representation; And Adjudication of Unaccompanied Alien Children In the United States, ives/kind.html ives/kind.html
NACC POLICY FOCUS While these policies are found in the NACC Recommendations for Representation of Children in Abuse and Neglect Cases, the scope and applicability of these policies applies to all practice areas.
NACC POLICY FOCUS Each child must be valued as a unique human being, regardless of race, ethnicity, religion, age, social class, physical or mental disability, gender or sexual orientation.
NACC POLICY FOCUS Each child is vested with certain fundamental rights, including a right to physical and emotional health and safety. In order to achieve the physical and emotional well being of children, the legal rights and remedies for children must protected. This includes empowering children by ensuring that courts hear and consider the views of the children in proceedings that affect their lives.
NACC POLICY FOCUS Because legal outcomes in our adversarial process can be directly tied to the quality of legal representation, attorneys who represent children play a critical role.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should be: 1. Competent; 2. Independent; and 3. Zealous
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should have adequate time and resources. 1. The system of legal representation must include reasonable caseloads. 2. The system of legal representation must provide for adequate compensation for the attorney.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should understand their role and their duties.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should ensure that they present the position of the child to the court.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should protect confidential communications with their child client.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who represent children should ensure that their child client be involved as litigants, and should be as involved as age appropriate in all phases of the litigation.
NACC POLICY FOCUS Systemic Safeguards: Attorneys who provide ineffective assistance of counsel to their child clients should be held accountable.
NACC POLICY FOCUS Advocacy Duties: Attorneys who represent children should conduct a full and independent case investigation.
NACC POLICY FOCUS Advocacy Duties: Attorneys who represent children should engage in age appropriate, meaningful and regular communication with their clients.
NACC POLICY FOCUS Advocacy Duties: Attorneys who represent children should be prohibited from representation that would constitute a conflict of interest.
NACC POLICY FOCUS Advocacy Issues: Children need permanence. The attorney who represents the child must advocate for timely resolution and permanent resolution of the case.
NACC POLICY FOCUS Advocacy Issues: Children need their basic needs met. The attorney who represents the child must advocate for food, shelter, clothing, and safety, including a safe temporary placement where necessary and for educational, medical, mental health and dental needs.
NACC POLICY FOCUS Advocacy Issues: Children need family relationships. The attorney representing the child should advocate for continuation of appropriate familial relationships and family preservations services where appropriate.
NACC POLICY FOCUS Advocacy Issues: Children need to be protected from unnecessary harm that can result from legal proceedings. The attorney that represents the child must advocate for the utilization of court processes that minimize harm to the child, and make certain that the child is properly prepared and emotionally supported where the child is witness.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS These standards come from the ABA standards of practice for lawyers who represent children in abuse and neglect cases, but serves as a best practice model for lawyers who represent children in any lawsuit. While a lawyer may accept an appointment in the dual capacity of a “lawyer/guardian ad litem,” the lawyer’s primary duty must still be focused on the protection of legal rights of the child client.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Developmentally appropriate The child’s attorney should ensure the child’s ability to provide client-based directions by structuring all communications to account for the individual child’s age, level of education, cultural context, and degree of language acquisition.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Basic Obligations: Obtain copies of all pleadings and relevant notices; Participate in depositions, negotiations, discovery, pretrial conferences, and hearings; Inform other parties and their representatives that he or she is representing the child and expects reasonable notification prior to case conferences changes of placement, and other changes of circumstances affecting the child; Attempt to reduce case delays;
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Basic Obligations Cont. Counsel the child concerning the subject matter of the litigation, the child’s rights, the court system, the proceedings, the lawyer’s role, and what to expect in the legal process; Develop a theory and strategy of the case to implement at hearings, including factual and legal issues; and Identify appropriate family and professional resources for the child.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Client’s Preferences: The child’s lawyer should elicit the child’s preferences in a developmentally appropriate manner, advise the child, and provide guidance. The child’s attorney should represent the child’s expressed preferences and follow the child’s direction throughout the course of litigation.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Client’s Interest: The determination of the child’s legal interests should be based on objective criteria as set forth in the law that are related to the purposes of the proceedings.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Actions to be Taken: Meet with the child. Investigate. File pleadings. Request services. Negotiate settlements.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Hearings Court Appearances Client Explanation Motions and Objections Presentation of Evidence Child at Hearing Whether Child Should Testify Child Witness Questioning the Child
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Hearings Jury Selection Conclusion of Hearing Obligations after Disposition
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Post-Hearings Review of Court’s Order Communicate Order to Child Monitor the Implementation of the Court Order Appeal
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Ethical Issues: Conflict Situations If a lawyer is appointed as Attorney/Guardian, and determines that there is a conflict caused by performing both roles, the lawyer should continue to perform as the child’s attorney but withdraw as the Guardian ad Litem. In the case of a preverbal child, or a child who may not be capable of understanding the legal and or factual issues involved, the child’s lawyer should continue to represent the child’s legal interests and request appointment of a guardian ad litem.
AMERICAN BAR ASSOCIATION STANDARDS OF PRACTICE FOR LAWYERS Ethical Issues: Conflict Situations Cont. In the case of a child client who expresses no opinion or delegates the decision-making authority, the position taken by the lawyer should not contradict or undermine other issues about which the child has expressed a preference. Client Under Disability The child’s lawyer should determine whether the child is “under a disability” pursuant to the Model Rules of Professional Conduct or the Model Code of Professional Responsibility with respect to each issue in which the child is called upon to direct the representation.
REPRESENTING CHILDREN- A RESPONSIBILITY WORTH HAVING. There can be no keener revelation of a society's soul than the way in which it treats its children. Nelson Mandela.