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

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

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

4. 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 !!!!!

5. 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.

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

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

13. 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)

14. 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

15. 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)

16. 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?

17. 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

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

19. 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?

20. 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

21. 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

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

23. 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

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

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

26. 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

27. 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

28. 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

29. 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

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

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

32. 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.

33. Leslie A.T. Haley, Park Haley LLP
Leslie A.T. Haley PARK HALEY LLP
Leslie A.T. Haley, Park Haley LLP