Roles and Ethical Responsibilities in Dependency Cases

1. Roles and Ethical Responsibilities in Dependency Cases By Tim Jaasko-Fisher Director Court Improvement Training Academy University of Washington School of Law

2. What is ethical behavior?

3. Why should you care? • Build trust in “the system” • Promote justice • Makes your job easier • Reduces burn out • Improves the system as a whole

4. We are all part of a system • A system is… • An interconnected • set of elements • that is coherently organized • in a way that achieves something. Adapted from: Meadows, Donella. Thinking in Systems: A Primer. Chelsea Green Publishing: White River Junction, Vermont (2008).

5. Rules and Ethical Codes – A quick Tour • AAG • CASA / GAL • Youth Attorney • Social Worker • Judicial Officer • Parents Representation

6. The Assistant Attorney General • Rules of Professional Conduct • American Bar Association Standards for Attorneys Representing Child Welfare Agencies

7. Issues specifically related to AAG Role • Who is the AAGs “client” • RPC 1.13 – Organization as Client • RPC 1.1 – Duty of Competence • Ethical Obligations under the ABA Standards of Practice

8. Who is the AAG’s Client?

9. RPC 1.13 • (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law. - See comments http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC

10. RPC 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.

11. What do you have to know to be competent? • Titles IV-B and IV-E of the Social Security Act, including the • Adoption and Safe Families Act (ASFA), 42 U.S.C. §§ 620-679 and • the ASFA Regulations, 45 C.F.R. Parts 1355, 1356, 1357 • • Child Abuse Prevention Treatment Act (CAPTA), 42 U.S.C. §5101 • • Indian Child Welfare Act (ICWA) 25 U.S.C. §§1901-1963, and the • ICWA Regulations, 25 C.F.R. Part 23 • • Multi-Ethnic Placement Act (MEPA), as amended by the Inter-Ethnic • Adoption Provisions of 1996 (MEPA-IEP) 42 U.S.C. § 622 (b)(9) • (1998), 42 U.S.C. § 671(a)(18) (1998), 42 U.S.C. §1996b (1998). • • Interstate Compact on Placement of Children (ICPC) • • Foster Care Independence Act of 1999, P.L. 106-169 • • Individuals with Disabilities Education Act (IDEA), P.L. 91-230 • • Family Education Rights Privacy Act (FERPA), 20 U.S.C. §1232g • • Health Insurance Portability and Accountability Act of 1996 (HIPPA), • P. L., 104-192 §264, 42 U.S.C. §1320d-2 (in relevant part) • • All state laws, policies and procedures regarding child abuse and • neglect • • State laws concerning privilege and confidentiality, public benefits, • education, and disabilities • • State’s Rules of Professional Responsibility or other relevant ethics • standards American Bar Association. Standards of Practice for Lawyers Representing Child Welfare Agencies (2004). http://www.abanet.org/child/agency-standards.pdf

12. Ethical and Practice Considerations for AAG • Ensure an effective conflict resolution system between AGO and DSHS. • Understand and comply with state and federal confidentiality laws. • Initiate and maintain positive working relationships with other professionals. • Play an active role in determining how youth should participate in court matters.

13. Ethical and Practice Considerations for AAG Managers • Caseload standard of 60 cases • Continuity of representation • Continuing training and education opportunities

14. Attorney for Youth • Rules of Professional Conduct • American Bar Association Standards for Attorneys Representing Youth

15. Considerations for Youth Attorneys • RCW 13.34.100(6) – youth over 12 may request an attorney • RCW 13.34.100(6) attorney to represent youth’s “stated interest” • RPC 1.14 – diminished capacity

16. RPC 1.14 – 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.

17. RPC 1.14 comment 1 • “For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. “

18. RPC 1.14 comment 2 • [2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

19. RPC 1.14(b) – protective action • (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 reasonably necessary protective action, including consulting with 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.

20. CASA / GAL • RCW 13.34.100 requires a CASA / GAL unless there is a lawyer appointed. • RCW 13.34.105 sets out specific duties • CASA / GAL is to represent child’s best interest, but has an obligation to inform the court of child’s explicit wishes as well. • Standard 12 requires an

21. CASA / GAL Duties (a) To investigate, collect relevant information about the child's situation, and report to the court factual information regarding the best interests of the child;     (b) To meet with, interview, or observe the child, depending on the child's age and developmental status, and report to the court any views or positions expressed by the child on issues pending before the court;     (c) To monitor all court orders for compliance and to bring to the court's attention any change in circumstances that may require a modification of the court's order;     (d) To report to the court information on the legal status of a child's membership in any Indian tribe or band;     (e) Court-appointed special advocates and guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties; and     (f) To represent and be an advocate for the best interests of the child.

22. DSHS Social Workers • DSHS Policy and Practice guides, RCW, WAC • National Association of Social Workers code of ethics

23. DSHS Social Workers “Keeping children safe from child abuse and neglect is the foundation on which child protective services was established and should always be the first goal of any child protective service response.” - Child welfare League of America Standards of Excellence

24. Who is the client? Under ethical guidelines, “client” may be child, family, group, or society as a whole. - Duty to protect child (individual) - Duty to assist family (family) - Duty to report abuse and neglect (society)

25. Ethical Problem Solving for SW • Social workers have an ethical duty to act openly and honestly • Social workers have a duty to act cooperatively and to collaborate to solve problems. • Social workers strive to maintain objectivity

26. Judicial Officer • Code of Judicial Conduct • Juvenile non-offender bench book

27. Judicial Cannons Cannon 1: Judges shall uphold the integrity and independence of the judiciary Cannon 3: Judges shall perform the duties of their office patiently and diligently Cannon 4: Judges may engage in activities to improve the law, legal system and administration of justice

28. Cannon 3 (3) Judges should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom judges deal in their official capacity, and should require similar conduct of lawyers, and of the staff, court officials, and others subject to their direction and control. (6) Judges should dispose promptly of the business of the court.

29. Attorney for Parent • Rules of Professional Conduct • American Bar Association Standards for Attorneys Representing Parents

30. RPC 1.3 - diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

31. RPC 1.3 comment 1 [1] [Washington revision] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. ...The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

32. RPC 1.3 comment 2 A lawyer's work load must be controlled so that each matter can be handled competently.

33. RPC 3.2 – Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

34. RPC 3.2 comment 1 [1] Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose.

35. Timing of Family Reunification Statewide Median time to reunification in days = 138 Days since entry to care Partners for Our Children (2009)

36. Potential Points of Conflict Legal System Social System • Individual Client • Duty to maintain secrets • Duty to advocate • Loyalty to one client • Interest focused • Broad client • Duty to share information • Duty to collaborate • Loyalty to broader social goals • Objective focus

37. What can we do about the conflicts? • Understand “working in the system” vs. “working on the system” • Understand that roles may explain behavior • Be nice to each other • Become a learning system that continually seeks to improve

38. We are all part of a system • A system is… • An interconnected • set of elements • that is coherently organized • in a way that achieves something. Adapted from: Meadows, Donella. Thinking in Systems: A Primer. Chelsea Green Publishing: White River Junction, Vermont (2008).