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JUVENILE LAW CONFERENCE CORPUS CHRISTI, TEXAS February 18 – 20, 2008

JUVENILE LAW CONFERENCE CORPUS CHRISTI, TEXAS February 18 – 20, 2008. ETHICS: ATTORNEY AD LITEM v. GUARDIAN AD LITEM IN CPS CASES. Judge Carl E. Lewis Nueces County Court at Law 5. DEFINITIONS.

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JUVENILE LAW CONFERENCE CORPUS CHRISTI, TEXAS February 18 – 20, 2008

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  1. JUVENILE LAW CONFERENCECORPUS CHRISTI, TEXASFebruary 18 – 20, 2008 ETHICS:ATTORNEY AD LITEM v. GUARDIAN AD LITEM IN CPS CASES Judge Carl E. Lewis Nueces County Court at Law 5

  2. DEFINITIONS • ATTORNEY AD LITEM107.001(2): an attorney who owes undivided loyalty confidentiality and competence • GUARDIAN AD LITEM107.001(5): a person representing the best interest of a child

  3. POWERS AND DUTIESAttorney Ad Litem • 107.003: (1) (A) interview child, each person with significant info and parties. (note: TDRPC 4.02,3,4) • (B) elicit child’s expressed objectives of representation • (C) consider impact on child of expressed objectives; act like a real lawyer, and (3) (C) consent or not to let the child be interviewed by another lawyer • 107.004 study ABA , NACC standards to represent the child’s objectives and determine the child’s competency to understand the atty-client relationship • naccchildlaw.org • (d) before each hearing meet with the child or the custodian if the child is younger than four years.

  4. Powers and Duties Guardian Ad Litem • 107.002: not a party but may • (a) (1) investigate; (2) obtain records • (b) shall (1)interview (A) the child;(B) persons with significant info; (C) the parties • (b)(2)(3) elicit and consider child’s expressed objectives • without being bound by them • (c) receive pleadings and notice of hearings, participate in staffings; attend all hearing, but only attorneys question witnesses; • agree and sign or not agreements; • (d) court may compel to appear • and testify (e) unless GAL is an • attorney. The court will ensure an opportunity to testify and submit • report which is subject to Rule of • Evidence in jury trial and subject to cross-exam in non-jury

  5. Access to Child and InformationAttorney Ad Litem • 107.006 (a) the court shall issue an order authorizing attorney ad litem and • GAL immediate access to child and • any information relating to child. • This Order trumps for all records • except (c) medical, mental health • or drug or alcohol treatment which are privileged under other law which will control release and access.

  6. Access to Child and InformationGuardian Ad Litem • 107.006 DITTO

  7. Substituted Judgment of Attorney for Child – Attorney Ad Litem • 107.008 (a) attorney may determine child cannot formulate objectives of representation then • (b) attorney may present a position that serves child’s best interest • 107.0125 If serving in a dual role, attorney may request appointment of a separate GAL and continue as only attorney ad litem

  8. Substituted Judgment of Attorney for Child – Guardian Ad Litem • 107.008 (c) if guardian ad litem is appointed, attorney who determines child cannot formulate objectives of representation (1) shall consult with GAL without adopting GAL position and assure it is presented and (2) may present a different position that serves the child’s best interest

  9. Discipline and ImmunityAttorney Ad Litem • 107.0045 Attorney failure to perform as required in 1007.003 and 107.004 is subject to disciplinary action • 107.009 (a) not liable unless (b) conscious indifference, reckless disregard for safety, bad faith, malice, gross negligence or willfully wrongful.

  10. Discipline and ImmunityGuardian Ad Litem • No disciplinary provision. • Immunity is the same.

  11. Best Interest v. Expressed Wishes Conundrum • IT IS AGREED: • The child is special. Children are not just little adults. Texas law requires appointment of counsel for the child at the outset, before the Adversary Hearing, in every CPS case. • The attorney must always make an attempt to determine the child’s wishes with regard to the issues and outcome of litigation. • The attorney must make an objective assessment of the child’s ability to “meaningfully formulate the child’s objectives of representation.” WHAT DOES THE CHILD WANT THE LAWYER TO DO? HOW DOES THE CHILD WANT THE CASE RESOLVED? • The attorney should always assure the child’s expressed objectives of the litigation are fully presented in the course of the proceedings. • The attorney must determine whether the attorney effectively can present and advocate the child’s expressed objectives and also effectively present and advocate the child’s best interest. • In some cases the child is too young or otherwise disabled to meaningfully formulate objectives of the litigation. Some children may express objectives which, objectively evaluated, would be seriously injurious to the child. The attorney’s judgment must be substituted for the child’s.

  12. Best Interest v. Expressed Wishes Conundrum (cont) • The attorney must always be competent, zealous and independent. There must be no “relaxed advocacy” when representing a child. • There are essential duties an attorney must perform in representing the child client consistent with the Rules of Professional Conduct: meet with the child and prepare the child for court, investigate, request services for the child, file pleadings, attend hearings. ACT LIKE A REAL LAWYER. • There are issues in every case which the attorney must advocate for the child: permanence, immediate and basic needs must be met, appropriate family relationships must be preserved and fostered, unnecessary harm must be avoided – the process is painful enough as it is. • In some cases the attorney cannot effectively serve in the dual role of attorney ad litem and guardian ad litem for the child, and the court must appoint an additional person to serve as guardian ad litem. The guardian ad litem must assure the presentation and advocacy of the child’s best interest without being bound by the expressed objectives of the child.

  13. STILL SUBJECT TO DISPUTE: • There is no “bright line” for the age or competency of a child in determining the child’s ability to meaningfully formulate objectives of the representation. What information is sufficient to support the attorney’s determination the child’s expressed objectives “would be seriously injurious to the child?” • When the attorney’s judgment is substituted for the child’s or the guardian ad litem disregards the expressed objectives of the child, how far should they go with that authority and power? • How should the decision of whether a child should testify be determined? Who makes the call? The child? The attorney?

  14. THE BEST REFERENCE AUTHORITIES: • “National Association of Counsel for Children (NACC) Recommendations for Representation of Children in Abuse and Neglect Cases”: NACCchildlaw.org • “American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases”: abanet.org • Donald N. Duquette, J.D. and Marvin Ventrell, J.D., “Representing Children and Youth: The Role and Duties of the Child’s Lawyer.” • This paper has drawn liberally from these sources and the references made in them, and I appreciate the contributions of these wise persons in this field. CEL. 19feb08

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