LAWYERS ETHICS Poverty Law II Irene M. Opsahl

APPLICABLE PROFESSIONAL RULES  Minnesota Rules of Professional Conduct   American Bar Association Standards of Practice for Lawyers who Represent Children in Abuse and Neglect Cases 

MRPC 1.14: CLIENT WITH DIMINISHED CAPACITY “(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

ABA RULES --- A-1: THE CHILD’S ATTORNEY “.... owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is due an adult client.”

CLIENT-LAWYER RELATIONSHIP RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

CLIENT-LAWYER RELATIONSHIP RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER “(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”

CLIENT-LAWYER RELATIONSHIP RULE 1.4: COMMUNICATION “(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

ABA RULES. A-3.  Developmentally appropriate. “Developmentally appropriate” means that 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.

WATCH YOUR LANGUAGE  “ I am going to file a petition and the court will schedule a hearing.”  I want to review your options.  I am going to argue on your behalf.  It is an issue of due process.  Emancipation

CLIENT-LAWYER RELATIONSHIP RULE 1.6: CONFIDENTIALITY OF INFORMATION “(a) Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client.”

MRPC 1.14(B), (C)  (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonable protective action, including consulting individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.  (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(b)(3) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

ABA RULES B-4 (3). “If the child’s attorney determines that the child’s expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the lawyer’s opinion of what would be in the child’s interests), the lawyer may request appointment of a separate guardian ad litem and continue to represent the child’s expressed preference, unless the child’s position is prohibited by law or without any factual foundation. The child’s attorney shall not reveal the basis of the request for appointment of a guardian ad litem which would compromise the child’s position.”

COUNSELOR MRPC RULE 2.1: ADVISOR “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to the law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.”

ROLE AS ADVOCATE MRPC. Preamble: As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. ABA Rules. B.4. Client preferences. The child’s attorney should elicit the child’s preferences in a developmentally appropriate manner, advice the child, and provide guidance. The attorney should represent the child’s expressed preferences and follow the child’s direction throughout the course of the litigation.”

ADVOCATE RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.... “

DISTINGUISH ROLE OF GUARDIAN AD LITEM  Best interests v. child’s objectives  Mandated Reporter

WHO IS THE CLIENT?

Suppose....  this was not the first time he had been paddled;  he had reported to the school teacher 3 or 4 times in the past 6 months that his father hit him 12 times with a wooden paddle for no reason;  that he left home because he is afraid of his father when he got angry.;  that he was hospitalized last year for threatening suicide and discharged with a recommendation for intensive in-home therapy, but parents did not follow through?

Police take child to shelter. County investigates/assesses? Could the County Attorney file a CHIPS case? What sections of 260C.007 apply?