REFRESH AND RENEW: ETHICS IN JUVENILE PRACTICE PRESENTED BY: CHRISTINA A. ZAWISZA, THE UNIVERSITY OF MEMPHIS SCHOOL OF LAW ON BEHALF OF THE TENNESSEE ADMINISTRATIVE OFFICE OF THE COURTS

OPENING REFLECTIONS “I AM ALWAYS DOING THAT WHICH I CANNOT DO IN ORDER THAT I MAY LEARN HOW TO DO IT.” Pablo Picasso “I’VE LEARNED THAT PEOPLE WILL FORGET WHAT YOU SAID AND WHAT YOU DID, BUT PEOPLE WILL NEVER FORGET HOW YOU MADE THEM FEEL.” Maya Angelou

MORE REFLECTIONS “This is the essence of professionalism: to labor in a manner and for an outcome consistent with a greater good. It is not hard to see a greater good in the practice of child welfare law. We work to serve children and families. Yet the rigors and reality of day to day practice test our professionalism. We struggle to be courteous, respectful, honest, diligent and humble. We are overworked. We are underpaid. Judges can be intolerant of our best efforts. Children and parents can be difficult clients. State agency bureaucracies can be rigid and short-sighted. Opposing counsel can confuse advocacy with belligerence. It may be useful to remember that these are the times that test our professionalism. Integrity exists only when it is challenged.” Marvin Ventrell

SELECTED CHILD WELFARE COURTROOM ETHICS ISSUES Marvin Ventrell, TRIAL ADVOCACY FOR THE CHILD WELFARE LAWYER (National Institute for Trial Advocacy, 2011)

COMMONLY OCCURRING COURTROOM ISSUES LET’S BEGIN BY CONSIDERING………..

CHECKLIST COMPETENCELOYALTY DIMINISHED CAPACITY COMMUNICATION WITH PARTIES

CHECKLIST Trial Publicity Cross Examination Ethics Objection Ethics

AND MORE>>>> INTRODUCING EVIDENCE LAWYER AS WITNESS CANDOR TO THE TRIBUNAL WITNESS PREP V. COACHING EX PARTE CONTACT CONFIDENTIALITY

BREAKING IT DOWN Competence: Rule 1.1 Legal Knowledge Skill Thoroughness Preparation To a Reasonable Degree

COMPETENCE IN CHILD WELFARE PRACTICE Child Welfare cases are complex and time consuming. Lawyers should never be afraid to admit they are overwhelmed. Help is all around you! Lawyers should not exceed reasonable caseloads.

LOYALTY: WHO IS THE CLIENT?  DCS: Caseworker (attorney)  Prosecutor: State (attorney)  Parent who is competent (attorney)  Parent who is incompetent (attorney ad litem)  Child in delinquency action (attorney)  Child in abuse/neglect action (Rule 40 GAL)  Child in paternity, custody, adoption (Rule 40A GAL)  Third party relative, non-relative (attorney)

LOYALTY: RULE 1.2 (DECISION-MAKING AUTHORITY) Substance is for the client Procedure is for the client Means is for the client DCS’s lawyer serves the agency but prosecutor serves the public. Child’s attorney serves the “best interests of the child” until a conflict arises with expressed wishes. Parent’s attorney serves the competent client and the best interests of the incompetent client. CHALLENGE: Avoid paternalism in all of these roles.

LOYALTY: CASE EXAMPLE A student attorney observing a Foster Care Review Board hearing called it “one of the saddest moments during the semester.” A little boy, only five years old, sat off to the side while his mother, the DCS worker, and the foster placement coordinator discussed the case. Due to a procedural quirk following a case worker’s reassignment, the boy’s mother lost weekend visitation. None of the “helpers” even pretended to care about the little boy’s best interests, where he wanted to live, or whether the mother’s home was suitable. “They only expressed concern about the procedure and their own interests. Most tragically, throughout the entire proceeding, the boy’s GAL never spoke to the Foster Care Review Board or to the little boy. He dispassionately sat through the meeting while doodling on his notepad and ignoring his client, who looked uncomfortable and scared.” Is this loyalty?

DIMINISHED CAPACITY: RULE 1.14, RULE 40, AND RULE 40A Presume full capacity, whether client is a child or an incapacitated adult. As far as possible, maintain a normal attorney- client relationship. Work to be loyal, diligent, competent, communicate with and advise the client, and maintain client confidentiality. Remember that children as young as five have opinions entitled to weight. Remember that capacity exists on a continuum and with varying degrees.

DIMINISHED CAPACITY: MODEL RULE COMMENTS CONSIDER AND BALANCE THESE FACTORS : Client’s ability to articulate reasoning leading to a decision Variability of client’s state of mind Ability to appreciate consequences of a decision Consistency with client’s wishes,values and commitments Maximize client capacities Respect client’s family and social connections.

Attorney gives permission Judge orders, e. g. order appointing GAL Contact does not involve subject of the representation, e. g. setting up a meeting Individual cannot “bind” the agency, e. g. DCS caseworker Cannot communicate with represented party UNLESS: COMMUNICATION: RULES 4.2 AND 4.3

COMMUNICATION QUESTIONS 1.TALKING TO FAMILY/FRIENDS ABOUT ALLEGATIONS IN D&N PETITION? Yes, if necessary for the representation. Be judicious and discrete. Yes, if necessary for the representation. Be judicious and discrete. 2.DISCUSSING POSSIBLE DEFENSES WITH OTHER LAWYERS? Yes, if anonymity is preserved. Yes, if anonymity is preserved. 3.DISCUSSING FORENSIC OR MEDICAL TESTIMONY? More sensitive: Can you preserve anonymity? Perhaps ask lawyer to join as co-counsel? More sensitive: Can you preserve anonymity? Perhaps ask lawyer to join as co-counsel? 4. WITH JUDGES: STAY TUNED

TRIAL PUBLICITY: RULE 3.6 HOT BUTTON CASES ARE MORE COMMON THESE DAYS!

TRIAL PUBLICITY RULES PUBLIC RECORD INVESTIGATION IN PROGRESS NAME THE CLAIM, DEFENSE, OFFENSE WARN OF DANGER PROTECT THE CLIENT

CROSS EXAMINATION ETHICS: Rule 3.4 It is not anything goes! It is unethical to ask a question that does not have a good-faith basis in fact. A lawyer may not allude to a matter the lawyer does not reasonably believe is relevant. A lawyer may not allude to a matter that will not be supported by admissible evidence. A lawyer may not state a personal opinion about the justness of a cause, guilt, culpability, or innocence, or witness credibility.

OBJECTION ETHICS A lawyer should object only with a reasonable belief that the information is objectionable or the question is improper. Objections must have a basis: there is no objection called “the witness is hurting my case!”

CANDOR TOWARD THE TRIBUNAL: RULE 3.3  A lawyer may not lie or introduce evidence the lawyer knows to be false.  If a lawyer calls a witness other than a client in a criminal (juvenile delinquency) matter and the witness lies, the lawyer must ask for a recess and counsel the client not to lie. If the witness refuses to correct the testimony, the lawyer must tell the court.  A lawyer should prepare a witness, but not “coach” a witness about what to say. A lawyer’s intention governs.

EX PARTE COMMUNICATION: RULE 3.5 RULE: A lawyer may not communicate ex parte with a judge during the proceeding unless authorized by law or court order. COMMENT TO RULE: A lawyer is not prohibited from communicating with a judge on the merits of a case in writing if the lawyer promptly delivers a copy to the other lawyers or unrepresented parties. This would not be an ex parte communication. The CODE OF JUDICIAL CONDUCT, however, may limit a judge from reading such ex parte communication.

CONFIDENTIALITY: RULE 1.6 A lawyer may not reveal a client confidence without client consent. EXCEPTIONS: 1.To comply with a court order 2.To prevent reasonably certain death or substantial bodily harm to self or others 3.To get advice on compliance with the rule; 4.To prevent substantial financial injuries to others 5.To comply with mandatory child abuse reporting.

CONFIDENTIALITY QUESTIONS Q: Are psychological evaluations of a parent in a dependency proceeding confidential? When it has already been admitted into evidence? A: According to T. C. A. Sec , neither the psychiatrist- patient privilege or the psychologist-patient privilege is grounds for excluding evidence of harm or the cause of harm to a child in a D&N proceeding. When a document is admitted into evidence, each party or their counsel is entitled to see it. Q: Are GAL Trial Briefs permissible? A: Yes, according to Rule 40 (d) (7) (vi) and Toms v. Toms, 98 S.W. 3d 140 (Tenn Any party can file a trial brief.

CODE OF JUDICIAL CONDUCT FOUR CANONS NUMBERED RULES COMMENTS TO RULES EFFECTIVE JULY 1, 2012

FOUR JUDICIAL CANONS: EMPHASIS ON IMPARTIALITY A JUDGE SHALL: 1.Uphold and promote the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety. 2.Perform the duties of judicial office impartially, competently, and diligently. 3.Conduct the Judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. 4.Shall not engage in political or campaign activity that is inconsistent with independence, integrity or impartiality of the judiciary.

SELECTED JUDICIAL RULES 2.2 Perform all duties fairly and impartially 2.3 Avoid bias, prejudice or harassment and require lawyers to do the same 2.4 Avoid external influences such as public clamor, fear of criticism, family, social, political financial or other interests 2.5 Act competently, promptly, diligently, and cooperatively 2.6 Accord every litigant the right to be heard, and while encouraging settlement may not coerce settlement 2.7 Hear and decide cases 2.8 Require order and decorum, patience, dignity and courtesy 2.10 Make any public statement that may reasonably be expected to influence the outcome or fairness of a matter

EX PARTE COMMUNICATIONS: RULE 2.9 A JUDGE SHALL NOT: Initiate, permit, consider ex parte communications or communications outside of the presence of the parties or their lawyers EXCEPT: For scheduling, administrative or emergency purposes, which does not address substantive matters PROVIDED: no party will gain procedural, substantive or tactical advantage and all parties are promptly notified and given an opportunity to respond. A JUDGE SHALL: notify all parties of unauthorized ex parte communications and give the parties an opportunity to respond. A JUDGE SHALL NOT investigate facts in a matter independently.

DISQUALIFICATION AND RECUSAL New Rules! Rule 2.11: judge must disqualify him/herself when impartiality might reasonably be questioned  Personal bias or prejudice or personal knowledge of the facts  Relationship  Economic interest  Campaign contributions  Public statement on matter  Served as lawyer or closely associated with lawyer  Witness  Judge in lower court  Participated in judicial settlement

DISQUALIFICATION OR RECUSAL: RULE 10B  Describes content of Motion  Describes content of supporting Affidavit  Provides Interlocutory Appeal as of Right when Motion Denied (denial must be in written order)  Includes disqualification of juvenile court magistrates  Disqualification of magistrate may be reviewed by juvenile judge.

TAKE AWAYS: Children’s cases test professionalism but integrity exists only when it is challenged. Always take time to pause,reflect, refresh and renew!

PREPARED BY: Christina A. Zawisza Professor of Clinical Law Cecil C. Humphreys School of Law 1 N. Front St. Memphis, TN