Carol Casey Mike Dsida Sheri Danz Dianne Peterson

1. Ethical Challenges for Children’s Attorneys: Practical Solutions?!?! Carol Casey Mike DsidaSheri Danz Dianne Peterson

2. Disclaimer

3. Goals

4. Preliminary Questions • What is your Model of Representation? • Do the Rules of Professional Conduct apply to you? • Examples: • IL Rule 907 • CO CJD 04-06(V)(B) • MA Committee for Public Counsel Services (CPCS) Performance Standard 1.1(d)

5. Attorney Conduct • State Statute • Administrative Regulation • State Ethics Code • Case Law • State and Local Court Rule • Appointment Order/Contract • State Standards/Practice Guidelines • CAPTA • NACC Recommendations • ABA Standards • DHHS Guidelines for Public Policy and State Legislation Governing Permanence for Children • Treatises/ Literature • ABA Model Act Adapted from chart on Page 621 of NACC Red Book Chapter on Representing Children and Youth

6. Annabeth 18 years old Wants case closed Does not have a job Has not completed high school Tired of Department “controlling her life”

7. Model Rules of Professional Conduct • 1.1 -Competence • 1.3 -Diligence • 1.4 -Communication • 2.1-Advisor • 3.1-Meritorious Claims and Contentions • 3.3-Candor Towards the Tribunal

8. And of course . . . • 1.2—Allocation of Responsibilities Between Lawyer and Client • a lawyer shall abide by a client's decisions concerning the objectives of representation and… shall consult with the client as to the means by which they are to be pursued

9. In Massachusetts “If counsel reasonably determines that the child is able to make an adequately considered decision with respect to a matter in connection with the representation, counsel shall represent the child’’s expressed preferences regarding that matter.” Performance Standard 1.6(b). • Counsel may consider: the child’s ability to communicate a preference, whether the child can articulate reasons for the preference, the decision making process used by the child to arrive at the decision; and whether the child appears to understand the consequences of the decision. • Quality of the child’s decision-making matters and not the wisdom of the child’s decision.

10. In Colorado • CO CJD 04-06(V)(C): GAL’s determination of child’s best interests must include • consultation with the child in developmentally appropriate manner • consideration of the child’s position • GAL must state child’s position to court, when ascertainable based on child’s developmental level, unless child says NO

11. Practical challenges to ascertaining a child’s position • Malleability • Undue influence • Reluctance • Developmental/verbal skills

12. What the model rule says . . . 1.14 Client With Diminished Capacity Maintain normal relationship as reasonably possible If at risk, and client can not act in own interest, attorney can take reasonably necessary protective action

13. ABA Standards Commentary to A2 Make sure that the decision the child ultimately makes reflects his or her actual position. • A child may be more susceptible to intimidation and manipulation than some adult clients.

14. ABA Standards • B-4: Elicit the child’s preferences in a developmentally appropriate manner, advise, and guide • Commentary: • Explain in a way that maximizes the child’s input • Inform the child of relevant facts and laws, ramifications • May express opinion concerning likelihood of court/other parties in accepting position

15. ABA Standards • B-5: determination of child’s legal interests should be based on objective criteria set forth in the law. • Should address: • Child’s specific needs and preferences, • Goal of expeditious resolution of the case • Use of least restrictive/detrimental alternative available

16. ABA Standards • C-2: To support the client’s position, child’s attorney should conduct thorough, continuing, and independent investigations and discovery . . .

17. ABA Standards • E-2: Child’s attorney should discuss the order and its consequences with the child

18. NACC Guidelines • III.B.1: Children need attorneys who understand their cases . . full and independent investigation • III.B.2: Children need meaningful communication with their attorneys (observation, interview, regular and meaningful communication). Duty to involve under client-directed or BI model. • III.C.1: Children need permanence. • III.C.2: Children need immediate and basic needs met.

19. What do your state standards say about communication? • CO CJD 04-06: • In person meeting with child within 30 days of appointment/placement • Maintain contact • Ascertain child’s position on matter before court • 705 ILCS 405/2-17 • Prior to adjudication, prior to first permanency, yearly, as necessary. • CPCS Performance Standard 1.5 • At home upon assignment and in person as necessary thereafter, but at least quarterly

20. Other practical considerations • Developing a trusting relationship with high caseloads • Maintaining competency through training, research

21. Does any of the analysis change if:

22. Sampson Family • You represent all three siblings in TPR trial • Bert, almost 14, mild delays • Alyssa, 11 • Both live with non-adoptive uncle • On return Margaret,13 mos • Lives in non-relative adoptive home • Best interest to adopt • If had capacity Margaret would seek adoption in this home

23. Model Rules of Professional Conduct • 1.7 Prohibits representation if: • Directly adverse • Significant risk of material limitation on representation • Allows if conditions are met: • Reasonable belief that competent/diligent to each client is possible • Not prohibited by law • No assertion of claim by one client against another in same proceeding/tribunal • Informed consent, confirmed in writing

24. ABA Standards • B-2: if lawyer is appointed for siblings, there may be a conflict requiring lawyer to decline representation or withdraw from representing all siblings

25. In Massachusetts “[C]ounsel cannot, consistent with the ethical rules, simultaneously advocate a parent’’s fitness as to one child and unfitness as to another.” CPCS Performance Standard 1.4 (Commentary)

26. NACC Recommendations • III.B.3: Children need loyal attorneys; child’s attorney prohibited from representation that would constitute conflict • II.C.3 Children need family relationships; attorney must advocate for continuation of appropriate relationships and family preservation services where appropriate

27. Practical Considerations • Do differing positions/preferences always constitute conflict? • What if issue is relatively minor but kids are in agreement on major issue? • Can lawyer wait it out? How long is too long? • Competing interest of continuity of representation/ importance of relationship with child • How does a lawyer for children (in whatever model) get informed consent?

28. Capacity to Consent Resources • Rule 1.14, Comment 6 • NACC Red Book • Consultation with other professionals • But do they have appropriate training? • Developmental stage of formal operations • Caselaw regarding capacity to waive constitutional rights • State law regarding competency/capacity?

29. And one more practical consideration . . . • How do you get informed consent if the information is confidential?

30. What if …

31. Sam • 15 years old, removed from family at age 10 • Parental rights terminated • In family foster home placement • Emotional/behavioral issues- will likely emancipate from foster care • Undocumented immigrant potentially eligible for SIJS petition

32. Model Rules of Professional Conduct • 1.1 Competence • 1.3 Diligence • 1.4 Communication • 1.5 Advisor • 1.6 Confidentiality

33. Other Authority • ABA Standard D-12 • Expanded scope of representation • ABA Model Act (7)(b) Commentary • Expanded scope of appointment • Ensuring representation by counsel

34. Practical Considerations

35. What if… • Special education issues/ issues with IEP • Crossover/ JD case? • Personal injury case? • Affirmative action lawyer/organization is conducting institutional abuse investigation/looking to institute systemic advocacy?

36. Micah • 15, kinship care • Unsupervised for days • Breaking the law • Likes where he lives • Don’t talk to therapist • Don’t disclose • Therapist wants to talk to you

37. Issues • Confidentiality • Privilege

38. Model Rules of Professional Conduct • 1.6(a) • 1.2: lawyer shall abide by client’s wishes regarding objectives and, consistent with 1.4, consult with client about means by which they are to be pursued • Is waiver of privilege objective or strategy? • 3.4, 4.4 (At least in states where child/ is deemed to hold/have authority to exercise privilege and attorney is not in client-directed role)

39. ABA/ NACC • ABA Standards • B-4 (Client Preferences) commentary • C-2 (Investigation) • NACC Recommendations • III.C.4: Children need to be protected from unnecessary harm that can result from legal proceedings.

40. State Law • IL-Illinois Mental Health and Developmental Disability Confidentiality Act; 740 ILCS 110 • MA • Adoption of Diane, 400 Mass. 196, 201 (1987) (authorizing appointment of GAL with respect to privilege of “incompetent” patient) • CO • People v. Gabriesheski, 262 P.3d 613 • L.A.N. v. L.M.B., 292 P.3d 492 (Colo. 2013) • Patient-therapist privilege does apply in D&N • GAL is holder/exerciser of the privilege when child is of insufficient age/maturity or parent cannot because not in a position to protect privacy interests of child

41. Practical considerations • Need for trusting relationship with attorney (regardless of role) in order for representation to be effective • Need for trusting relationship with therapist/realm of confidentiality if therapy is going to be effective

42. Resources • ABA Standards for Attorneys Who Represent Children in Abuse and Neglect Cases • NACC Recommendations for Representation of Children in Abuse and Neglect Cases • MA CPCS Performance Standards • available at http://www.publiccounsel.net/Practice_Areas/cafl_pages/performance_standards_for_cafl_attorney.html • CO CJD 04-06 • available at www.coloradochildrep.org

43. Our contact information Carol Casey, Office of the Public Guardian carol.casey@cookcountyil.gov 312-433-5124 Sheri Danz , Office of the Child's Representative sheridanz@coloradochildrep.org 303-860-1517, extension 102 Mike Dsida, Committee for Public Counsel Services 617-988-8385 mdsida@publiccounsel.net Dianne Peterson 970-667-5900 dpeter57@frii.com