{"id":4002,"date":"2003-08-07T22:20:50","date_gmt":"2003-08-08T02:20:50","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2003\/08\/07\/proposed-aba-standards-for-ch"},"modified":"2011-08-05T15:00:46","modified_gmt":"2011-08-05T19:00:46","slug":"proposed-aba-standards-for-childrens-lawyers-in-custody-cases-are-d","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2003\/08\/07\/proposed-aba-standards-for-childrens-lawyers-in-custody-cases-are-d\/","title":{"rendered":"Proposed ABA Standards for Children&#8217;s Lawyers in Custody Cases are Dangerous for Children (and Their Attorneys)"},"content":{"rendered":"<p><span style=\"font-family: Arial\"><em><strong>A<\/strong><\/em>t its Annual Meeting this week in S.F., the ABA House of Delegates is being asked to adopt <em>Standards of Practice for Lawyers Representing Children in Custody Cases <\/em>that will put children at risk in order to impose an inflexible definition of <em>lawyer<\/em> and a covert (and irresponsible) <strong>ideology of children&#8217;s rights<\/strong> on courts conducting custody proceedings and the lawyers who represent the affected children. (Click <em><a href=\"http:\/\/www.abanet.org\/leadership\/2003\/summary\/116b.pdf\">here<\/a><\/em> for the Original Document in pdf form,<\/span><span style=\"font-family: Arial;color: #000000\"> <\/span><span style=\"font-family: Arial\">approved by the Council of the ABA Family Law Section on May 2, 2003<\/span><span style=\"font-family: Arial;color: #000000\">; or click <em><a href=\"http:\/\/www.abanet.org\/scripts\/search\/doc_read.jsp?preformat=true&amp;URL=%2Fleadership%2F2003%2Fsummary%2F116b.pdf&amp;docKey=..%2F..%2F..%2Fweb%2Fleadership%2F2003%2Fsummary%2F116b.pdf%40abanet&amp;querytext=\">here<\/a><\/em> <\/span><span style=\"font-family: Arial;color: #000000\">for an unformatted text version from ABA.)<\/span><\/p>\n<p><span style=\"font-family: Arial\">Here are the major components of the Proposal, in the words of the Report (emphases added):<\/span><\/p>\n<blockquote><p><span style=\"font-family: Arial\">These Standards distinguish <span style=\"text-decoration: underline\">two distinct types of lawyers for children<\/span>: (1) The <strong>Child&#8217;s Attorney<\/strong>, who provides independent legal representation in a <span style=\"text-decoration: underline\">traditional attorney-client relationship<\/span>, giving the child a strong voice in the proceedings; and (2) The <strong>Best Interests Attorney<\/strong>, who independently investigates, assesses and advocates the child&#8217;s best interests as a lawyer. <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\">These Standards <span style=\"text-decoration: underline\">seek to keep the best interests of children at the center <\/span>of courts&#8217; attention, and to <span style=\"text-decoration: underline\">build public confidence<\/span> in a just and fair court system that works to promote the best interests of children. These Standards promote quality control, professionalism, clarity, uniformity and predictability. <\/span><\/p>\n<p><span style=\"font-family: Arial\">These new Standards will improve practice nationwide by making it a clear that <strong>a lawyer always acts as a lawyer<\/strong>. <\/span><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\">The major suggested change from existing laws is that <strong>the Standards delete use of the term &#8220;guardian ad litem&#8221; <\/strong>for lawyers representing children. . . . [A] person who serves essentially as a witness, by <span style=\"text-decoration: underline\">making a report<\/span> on facts not otherwise in evidence, <span style=\"text-decoration: underline\">is not serving as a an attorney <\/span>and thus is not covered under these Standards. The lawyer, when accepting such an appointment, figuratively puts his or her bar card in an envelope and is a volunteer in this nonlegal capacity.<\/span><\/p>\n<p><span style=\"font-family: Arial\">The Child&#8217;s Attorney should <strong>abide by the client&#8217;s decisions <\/strong>about the objectives of the representation<strong> with respect to each issue on which the child is competent <\/strong>to direct the lawyer, and does so. <\/span><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<ul><span style=\"font-family: Arial\"><\/p>\n<li><em>If the Child&#8217;s Attorney determines that pursuing the child&#8217;s <span style=\"text-decoration: underline\">expressed objective would put the child at risk<\/span> of substantial physical, financial or other harm, and is not merely contrary to the lawyer&#8217;s opinion of the child&#8217;s interests, the lawyer <span style=\"text-decoration: underline\">may request appointment of a separate Best Interests Attorney<\/span> and continue to represent the child&#8217;s expressed position, unless the child&#8217;s position is prohibited by law or without any factual foundation. The Child&#8217;s Attorney <span style=\"text-decoration: underline\">should not reveal the reason for the request for a Best Interests Attorney<\/span>, which would compromise the child&#8217;s position, unless such disclosure is authorized by the ethics rule on confidentiality that is in force in the state.<\/em><\/li>\n<p><\/span><\/ul>\n<p><span style=\"font-family: Arial\">These Standards do not presume that children of certain ages are &#8220;impaired,&#8221; &#8220;disabled,&#8221; &#8220;incompetent,&#8221; or lack capacity to determine their position in litigation. <span style=\"text-decoration: underline\">Disability is contextual, incremental, and may be intermittent. <\/span><\/span>Lawyers for children are entitled to and should receive <span style=\"text-decoration: underline\">adequate and predictable compensation<\/span> that is <span style=\"text-decoration: underline\">based on<\/span> legal standards generally used for determining the <span style=\"text-decoration: underline\">reasonableness of privately-retained lawyers&#8217; hourly fees in family law cases.<\/span><span style=\"font-family: Arial\"> <\/span><\/p><\/blockquote>\n<ul>\n<li>\n<ul><span style=\"font-family: Arial\"><\/p>\n<li>&#8220;Courts should assure that payment is commensurate with the fees paid to equivalently experienced individual lawyers who have similar qualifications and responsibilities.&#8221;<\/li>\n<p><\/span><\/ul>\n<\/li>\n<\/ul>\n<p><span style=\"font-family: Arial\"><strong>What&#8217;s going on here? <\/strong>Under the <span style=\"text-decoration: underline\">pretense of prescribing <em>ethical requirements<\/em> <\/span>for attorneys representing children in custody cases, the Proposed Standards <span style=\"text-decoration: underline\">sweep away State statutes and precedent<\/span> regarding the limited rights of minors in litigation matters or the goals of children&#8217;s lawyers in family court matters, as well as current ethical rules for attorneys representing persons under a disability (including, specifically, minors), and <span style=\"text-decoration: underline\">simply announce new children&#8217;s rights that an attorney ethically must protect and assert<\/span> to avoid being in violation of his or her ethical standards. <\/span><\/p>\n<p><span style=\"font-family: Arial\">It&#8217;s ironic that the Proposed Standards insist on giving children the same rights as adult clients, but are <span style=\"text-decoration: underline\">filled with cautions stemming from the special, nonadult shortcomings of minors<\/span> &#8212; from the lawyer&#8217;s need to understand child development and form a special relationship of trust with the client (especially useful to talk the client out of dangerous objectives), to the child client&#8217;s capacity to be influenced unduly by parents (or by the lawyer), and to the child&#8217;s tendency to frequently change his or her mind as to objectives and to be unreliable as a source of information. <\/span><\/p>\n<p><span style=\"font-family: Arial\">Current ethical rules, and volumes of court opinions,\u00a0already deal rather well with the situation of a child client:<\/span><\/p>\n<p><span style=\"font-family: Arial\"><span style=\"text-decoration: underline\"><br \/>\n<\/span><\/span><\/p>\n<blockquote><p><span style=\"font-family: Arial\"><span style=\"text-decoration: underline\"><\/span><\/span><span style=\"font-family: Arial\"><span style=\"text-decoration: underline\">Model Rule 1.14<\/span> (a) already covers clients whose <span style=\"text-decoration: underline\">ability<\/span> to make adequate decisions is <span style=\"text-decoration: underline\">impaired &#8220;because of minority<\/span>&#8220;. It requires the lawyer to maintain a normal attorney-client relationship &#8220;as far as reasonably possible,&#8221; not to be the government-paid, robot-mouthpiece of an adolescent or subteen. The Commentary to Rule 1.14 says &#8220;children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having <span style=\"text-decoration: underline\">opinions that are entitled to weight in legal proceedings concerning their custody<\/span>.&#8221; Having your wishes heard and considered is a far cry from being entitled to totally control an attorney&#8217;s position and decision-making. <\/span><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\">Similarly, <span style=\"text-decoration: underline\">EC 7-11<\/span> of the Code of Professional Responsibility reminds us that the role of <em>lawyer<\/em> is not always that of blindly zealous advocate: &#8220;The <span style=\"text-decoration: underline\">responsibilities of a lawyer may vary according to<\/span> the intelligence, experience, mental condition or <span style=\"text-decoration: underline\">age of a client<\/span>, the obligation of a public officer, or the <span style=\"text-decoration: underline\">nature of the particular proceeding.<\/span>&#8221; (emphases added) <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\">As the New York County Family Court has explained: &#8220;There is nothing in the statutes nor in the case law, however, which say a Law Guardian in a custody proceeding should advocate for the child&#8217;s wishes at the expense of his over-all interests or at the expense of a full presentation of the facs.&#8221; Therefore, the role of the child&#8217;s representative under EC 7-11 is to exercise a &#8220;mature judgement&#8221; to safeguard the child&#8217;s interests. <em>Scott L v. Bruce N.<\/em>, 134 Misc.2d 240 (1986). <\/span><\/p><\/blockquote>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">In your Editor&#8217;s opinion (which this time is based on actual experience<strong><span style=\"color: darkblue\">*<\/span><\/strong>), if the Proposed Standards are adopted and then followed, they would &#8212; rather than achieve their stated goals &#8212; do the following:<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">1. <span style=\"text-decoration: underline\">Make it more difficult for a child&#8217;s attorney to get all relevant information in front of the judge<\/span>. Under the Proposal, the Child&#8217;s Attorney would instead have the <span style=\"text-decoration: underline\">obligation to try to suppress or hide facts<\/span> from the court that would not help achive the client&#8217;s expressed objectives &#8212; including coaching the client before <em>in camera<\/em> interviews or testifying about how to stress or leave out particular information. And, more important perhaps, because both types of attorney a <span style=\"text-decoration: underline\">prohibited from making a report to a court, force more matters to proceed to trial<\/span> in order to get necessary information before the court. (Can&#8217;t we trust judges to weigh the value of a Report from the child&#8217;s lawyer?)<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">2. Cause the public to <span style=\"text-decoration: underline\">lose confidence in the courts<\/span>. (Try these questions in a <span style=\"text-decoration: underline\">poll<\/span>: &#8220;Would you support the government paying lawyers to help children oppose their parents in custody cases? Do you think <em>your<\/em> child would do a good job directing a lawyer&#8217;s in such a case?)<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">3. <span style=\"text-decoration: underline\">Create great confusion<\/span> in places where little or none exists.<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">4. <span style=\"text-decoration: underline\">Greatly incease expenses for the government (and all parties)<\/span> at a time when all state governments are cutting budgets &#8212; if\u00a0<em>e.g.<\/em>, <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<ul><span style=\"font-family: Arial\"><\/p>\n<li>a Best Interests Attorney is appointed at the request of a Child&#8217;s Attorney (and must begin a fresh, undirected investigation);<\/li>\n<li>the child&#8217;s lawyer can&#8217;t play the mediator-like role of getting the parents to come to an agreement in the child&#8217;s best interests and settle;<\/li>\n<li>important information must come in through an evidentiary hearing rather than through the Report of the child&#8217;s lawyer; compensation is increased as suggested in the Standards, to the same level as private-practice attorney&#8217;s in the area &#8212; which would probably mean at least tripling the courrent fees for court-appointed children&#8217;s lawyers<\/li>\n<p><\/span><\/ul>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">5. <span style=\"text-decoration: underline\">Multiply the number of motions<\/span> by lawyers for one or both parents seeking to have the child&#8217;s lawyer dismissed or disciplined for failing to meet the new Standards.<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">6. <span style=\"text-decoration: underline\">Cause many dedicated children&#8217;s lawyers to refuse appointment<\/span> rather than being forced to play the role of child&#8217;s mouthpiece as a Child&#8217;s Attorney; to serve less effectively as a Best Interests Attorney without the ability to submit Reports to the court and the parties; or to risk bar discipline should they act according to their best judgment and conscience to prevent harm to a client. And,<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">7. Most important, <span style=\"text-decoration: underline\">injure many minor clients<\/span> by giving them (a) too much power over their fate &#8212; resulting in prolonged proceedings, and custody settlements or court decisions that place them in harmful situations; (b) a false impression of their ability to influence the outcome of the custody proceeding, resulting in frustration, rage, cyncism; or (c) a tool to use in a battle with one or both of their parents. <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">Courts may not be appointing children&#8217;s lawyers in enough cases. Certainly, many court-appointed lawyers need more training <em>and<\/em> more diligence. And, too few lawyers may be willing to take on the complicated, demanding role of a child&#8217;s court-appointed lawyer &#8212; especially, because the fees are so low. There is, however, <span style=\"text-decoration: underline\">no great crisis\u00a0over the role of the child&#8217;s lawyer <em>unless<\/em> you posit that the child has the same rights as any adult party to a custody proceeding and the same right to control counsel<\/span>. Is that where we want our law and legal ethics to go?<\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">Through experience, common sense, and fairness, we have learned that a custody determination <em>is<\/em> far more likely to discern the child&#8217;s best interests, if the child&#8217;s input is sought, and fully considered, and the child has the advantage of receiving advice from a knowledgeable and caring legal professional. <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<ul><span style=\"font-family: Arial\"><\/p>\n<li>The child has the right to be saved from his or her own immature judgment, which can often undervalue or ignore important interests and needs &#8212; especially longterm ones.<\/li>\n<p><\/span><\/ul>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">We don&#8217;t need to create new rights for children in custody cases &#8212; certainly not under the guise of promulgating legal ethics rules, rather than legislative or judicial action. <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<p><span style=\"font-family: Arial\">This Editor believes:<strong> Each child in a custody case has the right to a lawyer who respects his or her individuality and opinion (giving it all the consideration and weight it merits in the circumstances), and who has the mature judgment, competence and diligence needed to determine and effectively advocate and protect the child&#8217;s best interests.<\/strong><\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p>\n<blockquote><p><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\"><span style=\"color: darkblue\">*<\/span>I practiced in NYS Family Court for a decade in various capacities (including law clerk and private practitioner), with the bulk of my work being the representation of children as a <span style=\"text-decoration: underline\">court-appointed Law Guardian<\/span> (in about 400 proceedings). I also headed the not-for-profit Law Guardian Backup Center, in 1991 and 1992, giving research assistance and advice to hundreds of Law Guardians. In addition, I sat on the NYSBA Committee on Juvenile Justice and Child Welfare, which drafted the Law Guardian Representation Standards for Custody Cases (1992). As with the proposed ABA Standards, the NYSBA Custody Standards were drafted without regard to court precedent or existing general ethical rules for representing minors &#8212; instead, they both covertly impose a children&#8217;s rights agenda in the name of giving children a meaningful voice. The NYSBA Standards (at 23) state that the Law Guardian&#8217;s position and plan for each case should be developed with &#8220;the agreement&#8221; of <em>any<\/em> child able to &#8220;articulate his or her desires and to assist counsel.&#8221; <\/span><\/p>\n<p><span style=\"font-family: Arial\"><br \/>\n<\/span><span style=\"font-family: Arial\"><br \/>\n<\/span><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>At its Annual Meeting this week in S.F., the ABA House of Delegates is being asked to adopt Standards of Practice for Lawyers Representing Children in Custody Cases that will put children at risk in order to impose an inflexible definition of lawyer and a covert (and irresponsible) ideology of children&#8217;s rights on courts conducting [&hellip;]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[2926],"tags":[],"class_list":["post-4002","post","type-post","status-publish","format-standard","hentry","category-pre-06-2006"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-12y","jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4002","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=4002"}],"version-history":[{"count":3,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4002\/revisions"}],"predecessor-version":[{"id":14193,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/4002\/revisions\/14193"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=4002"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=4002"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=4002"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}