Ethics for Lawyers – and how that impacts your child’s case Leslie A.T. Haley, Park Haley LLP

GAL/Child Relationship Not a traditional A/C relationship LEO 1844

Conflicting Duties When fulfilling the duties of a GAL conflicts with ethics Specific duty of the GAL should prevail

BACK TO SOME BASICS GAL must be qualified by Supreme Court of Virginia GAL appointment is an individual appointment (cannot send another atty in office or share case work even with another GAL) – appointment is specific to court designated GAL Standards Govern Performance !!!!!

BASIC STANDARDS “Competencies required to represent children” Timeliness of contacts important Communication with all counsel/parties –Rule 1.4 Conducting independent investigation – Rule 1.3 Participate in pre-trial conferences, ETC.

AND MORE BASICS Appear in court fully prepared – Rule 1.1, 1.3 Provide court sufficient information including recommendations File appropriate petitions, motions, pleadings Advise, counsel, communicate and prepare the child

Rule 1.2 Scope of Representation Not bound by child’s expressed wishes Bound to protect child’s best interests Conflicts w Rule 1.2 Advocate for client v. abide by client’s decisions

Rule 1.6 Confidentiality Not normal confidentiality protections as per Rule 1.6 Explain to child limited protections of confidentiality Advocacy sometimes requires disclosure of information learned from child

Rule 1.4 Communication Advise child (in terms they can understand): Nature of all proceedings The child’s rights Role and responsibilities of the GAL The court process Possible consequences of the legal action

MINIMUM COMMUNICATIONS For GALs: Meet the child on their turf Explain GAL role Interview the child and listen Explain confidentiality issues Advise child regarding proceedings Advise the child of their rights Advise the child of possible consequences Participate with the child in all phases of proceedings Prepare the child to testify, if necessary Advise the child of court’s decision and consequences

MINIMUM COMMUNICATIONS For Parent’s Counsel: Specific allegations Parent’s rights at each court hearing How cooperation or lack of can affect case Participation in goal setting for child Responsibilities to comply with court order Provide copies of correspondence, orders and explain Diligent efforts to locate parent if necessary Right to appeal

Rule 1.14 - Capacity Try to maintain normal relationship Communication Take reasonable necessary protection action

GAL SHOULD: Meet face to face and interview child (Std. A) Advise child (Std. C) Communicate/coordinate/maintain professional relationship (Std. I) Advise of court’s decision and consequences/implementation (Std. K)

Factors: assessing client capacity Cognitive ability Emotional and mental development Ability to communicate Ability to understand consequences Consistency of decisions Strength of wishes Opinions of others

Capacity v. Competence Capacity – the client’s ability to understand information relevant to the case and the ability to appreciate the consequences of decision. Competence – legal standard; denotes a specific level of skill, knowledge or ability. (all or nothing principle)

Multiple Representation Conflicts Can a GAL represent multiple children? Can a GAL withdraw from representing one child but not the other? Are there times the GAL must withdraw from all?

Former GAL role - Conflicts Child can’t waive conflict/ Court must Do the interests of the new client conflict with the GAL role/interests of the child DSS counsel role v. GAL role - LEO 1725

WHAT’S THE UPROAR? AND THEN THERE WAS: LEO 1870

LEO 1870 Does the ethical restriction against communicating with represented persons apply in matters where a GAL has been appointed for a minor child? Are government attorneys prohibited from communicating or directing investigators to communicate with represented persons in such matters?

Rule 4.2 & 4.3 Communications with represented and unrepresented persons GAL still must comply with Rule 4.2 & 4.3 GAL has duty to investigate so how to reconcile these duties

Can a parent’s counsel communicate LEO 1870 Can a parent’s counsel communicate with child who has a GAL? No, Rule 4.2 applies

LEO 1870 Further, the consent of the parent is not pertinent – Rule requires consent of the child’s GAL

LEO 1870 2. Can the GAL communicate with the Parent who is represented by counsel? No, not without counsel’s consent * Rule 4.2 still applies

LEO 1870 3. What about attorney-directed communication by social workers/others with represented persons in cases with a GAL?

LEO 1870 Obviously since lawyer is barred from communications with represented persons then she cannot circumvent the rule through another

LEO 1870 Just clarifies that lawyer should not: Communicate with person represented by counsel on underlying civil matter; Direct the conduct of social worker or other investigator in direct contradiction of Rule 4.2 DOES allow the government lawyer contact with a child prior to appointment of a GAL

LEO 1870 Does not prohibit GAL or parent’s counsel from speaking with the case worker Case worker is not client of local government counsel

SO WHAT NOW? Parties in child dependency cases need to work closely together GALs need to make sure everyone understands their role GALS need to get clarification at the beginning about when and how communication with parents/guardians may occur w/o counsel

GAL as a Witness ? GAL should NOT be called as a witness GAL should form an opinion/ recommendation based upon information and facts collected through investigation and offers facts to the court through others GAL minimizes personal statements to the court

THEN YOU ASKED FOR THEIR FILE Who does that file belong to? The Court GAL can only turn over with permission of the Court

Get clarity from court if unsure When Does this END? Maybe NEVER Really Get clarity from court if unsure

CONCLUSION The challenge to provide quality legal representation for children, parents and agencies is enormous. Poor quality representation results from a variety of factors, including: high case loads, poor customs, low expectations, limited training. We are fortunate in VA to have highly specialized training and support and practice standards. These children are the future of America.

Leslie A.T. Haley, Park Haley LLP Leslie A.T. Haley PARK HALEY LLP 804.648.7565 LATH@PARKHALEY.com WWW.PARKHALEY.com Leslie A.T. Haley, Park Haley LLP