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 Not required to be attorney Strictly best interests Submits written reports Some GAL’s testify Not confidential relationship 5 AFC Must be lawyer Advocates for client’s wishes No written reports Doesn’t testify Attorney-client privilege

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? Direct Advocacy Substituted Judgment Does the client’s position put her at risk of harm? If yes, is it imminent? Yes No Yes Is the harm substantial? No Yes 18

Was my client’s decision by her own free choice? Knowing Was my client’s decision conscious, intentional, and deliberate? Considered Voluntary Was my client’s decision made with care keeping in mind possible consequences? Direct Advocacy 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