An Advocacy FrameworkFor Attorneys in CVO Cases

Children’s Law CenterClinic Seminar

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OutlineGoalsHistory of Attorney for the Child Debate

(national and local perspective)Summary of Statutes, Rules, Guidelines, and

Relevant LiteratureCLC Advocacy FrameworkDiscussion

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GoalsCLC specific frameworkCollective way of analyzing each caseCLC attorneys following statutory guidelines

and ethics rulesMaximize the expressed wishes of child

clientsCommon terminology in and out of courtPrompt discussion between staff and between

staff and supervisors

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CLC Direct Advocacy FrameworkOur initial position is always one of direct

advocacy.You are viewing the case from the client’s

perspective. You are the client’s voice in/out of court.If you were representing an adult client, what

would your position be?

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Models of RepresentationGALNot required to be attorneyStrictly best interestsSubmits written reportsSome GAL’s testifyNot confidential relationship

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AFC• Must be lawyer• Advocates for

client’s wishes• No written reports• Doesn’t testify• Attorney-client

privilege

Best Interests vs. Expressed InterestsGuardian ad litembest interestsconduct an independent investigationarm of the courtnot necessarily an attorneyvolunteers in some jurisdictions (CASA)

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Criticism of the GAL ModelSubstituting judgment allows opportunity for

personal preferences/biases in advocacyIf not an attorney, what ethical rules and

obligations govern role?Not necessary to meet child to form a positionChild’s position may not be heardIf volunteer or non-lawyer, are child’s legal

interests being protectedSometimes selected and appointed by judges

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Judges and the GAL ModelMany like a separate investigative arm Alternative written reports and

recommendationsMany child protective agencies motivated by

finances and/or perceived liabilityJudge to decide best interests + person

advocating best interests = EASYEven though NY has never had GAL model old

practice was to substitute judgment

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Judges NowConfused about AFC roleMixed messagesDifferent language/role between organizationsHear different language from different

lawyers within same organization

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Dilemma: Lack of Clear Guidelines for Lawyers Who Represent Children

“Lawyers have been left relatively free to follow, or override in their discretion, positions taken by their young and immature clients. In other words, lawyers have been able to navigate freely between the traditional lawyer’s role (advocating for the client’s expressed interests) and a guardian ad litem role (advocating for what the guardian determines to be in the child’s interest).”

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Statutory FrameworkFamily Court Act Section 241

Provides child with right to counsel of their own choosing or law guardians.

Help protect their interestsExpress their wishes to the court

By requiring law guardians to protect the child’s “interests” rather than “best interests,” Legislature intended for law guardians to function as advocates.

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Rules of Professional Conduct A lawyer must reasonably believe that three

specific pre-conditions exist before substituting judgment:

the client has diminished capacitythe client is at risk of substantial physical, financial

or other harm unless the lawyer takes actionthe client cannot adequately act in his own

interests.

NOTE: Rule 7.2 is more expansive

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Rule of Professional Conduct: Attorney Client PrivilegeRule 1.14 If client has diminished capacity,

attorney may substitute judgment regarding issues of confidentiality.

Rule 1.6(b) permits but does not require disclosure of confidential information to “prevent reasonably certain death or substantial bodily harm.”

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NYSBA 2008An AFC can substitute judgment if:

The child is not capable of expressing a preference

The child’s preference would expose the child to substantial risk of imminent, serious harm, and the danger could not be avoided by removing one or more individuals from the home, or by court-ordered services

The child is not competent to understand the factual issues, or clearly and unequivocally lacks the capacity to comprehend the consequences

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American Bar Association When the lawyer is assigned under State law as

counsel for the child, the lawyer cannot properly perform the functions of a guardian ad litem.

If the child is capable of communicating a preference, the lawyer must provide client-directed representation.

ABA also asserts that when the child is unable to express a position or is incapable of understanding the legal or factual issues, the lawyer “should continue to represent the child’s legal interests and request appointment of a guardian ad litem.”

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National Association of Counsel for Children

Responded to the ABA by saying that to the extent that a child cannot meaningfully participate in the formulation of the client’s position (either because the child is preverbal, very young or for some other reason is incapable of judgment and meaningful communication), the attorney shall substitute his/her judgment for the child’s and formulate and present a position which serves the child’s interests.

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RULE 7.2 Function of the Attorney For the Child The attorney for the child must ‘zealously

advocate the child’s position’The AFC must consult with and advise the

child consistent with the child’s capacitiesAdvocacy is client directed if the child is

capable of knowing, voluntary and considered judgment

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Is the client pre-verbal?

Can the client make a knowing, voluntary, an considered decision?

Direct Advocacy

Substituted JudgmentDoes the client’s

position put her at risk of harm?

If yes, is it imminent?

YesNo

NoYes

Is the harm substantial?

NoYes

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Was my client’s decision by her own free choice?

KnowingWas my client’s decision conscious, intentional, and deliberate?

Considered

Voluntary

Was my client’s decision made with care keeping in mind possible consequences?

Direct Advocacy

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Rule 7.2 Substitution of JudgmentPermissible only when the AFC is convinced:

The client lacks the capacity for knowing, voluntary and considered judgment, or

Following the client’s wishes is likely to result in a substantial risk of imminent, serious hard to the child.

IF SUBSTITUTING JUDGMENT THE ATTORNEYMUST INFORM THE COURT OF THE CHILD’SWISHES IF THE CHILD WANTS THE ATTORNEY TO DO SO.

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Substituting Judgment When does a child lack the capacity for

knowing, voluntary and considered judgment?Is the child pre-verbal or non-verbal?Developmental delaysChild’s ability to articulate a well-reasoned

position from their perspectiveChild’s ability to understand the court process

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Does Age Matter?CLC does not have a minimum age when

direct advocacy begins With very young, verbal children – depends

on their ability to articulate a well reasoned position and understand consequences

Non-verbal children = substitution of judgment

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VoluntarinessPressureCoachingAlienation

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AlienationIs there a finding of alienation by a neutral

mental health professional?How serious are the acts attributed to the

‘alienating parent’?How old is the child?How entrenched is the child in their position?Do observations of interactions between the

‘alienated’ parent and the child comport with what the child is telling you?

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ConsideredFrivolous positionsAge appropriate positions

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Developmental Delays• Lawyers may consider a client’s disability

when determining if the client has the capacity to make a “considered” judgment. A disability does not automatically mean substituted judgment.

• Depending on the disability, the client may be able to understand and contribute to their representation on some issues but not others

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Frivolous PositionsDoes the position make sense from the

client’s perspective?Is the client bored? Does the custodial parent

provide more stimulation for the child?Is the custodial parent interfering with

visitation by enticing the client with interesting activities?

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KnowingDoes the client have all the facts?Are there facts my client does not know that I

can’t or shouldn’t reveal to her?

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Substituting Judgment - HarmWhen is following a child’s wishes likely to

result in a substantial risk of imminent, serious harm to the child under Rule 7.2?

ImminentWhat factors does the attorney consider in

determining whether the risk is imminent?

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Risk of Serious HarmConsiderable amountCorporal or material in nature

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HarmPhysical HarmExcessive corporal punishmentSexual Abuse

Emotional Harm Verbal AbuseAbandonment

Psychological HarmAlienation

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Imminent HarmLikely to occur at any momentImpendingLook to abuse and neglect case law

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In Court, On MessageNo “reports to court”Position vs. RecommendationNo “wink wink, nod nod”Request, Reasons, RemedyAFC vs. Law GuardianCareful consideration of client confidencesConsultation on major itemsConsistency regarding investigation/mandatory

reportingSubstituting judgment, why, client’s position if

different (use language from rule)33

“Reports”Confusion about definition of “report”Written reports are forbiddenEx parte reports are forbiddenAFC may advocate a position and discuss

relevant evidence in open court and conference

In Naomi C., Appellate Division found the Court ‘s questioning of the AFC about the current custody arrangement inappropriate.

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Out of Court, Explaining Our Role

Not a neutral partyNot “supporting one parent”Our client has a positionWhy an attorney for young kids?AFC as negotiator/mediator?Explain when substituting judgment and why

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Questions to “Keep Lawyers for Children Honest”Am I viewing the case from the client’s

perspective?Have I done my best to explain the case to

my clientIf my client was an adult, what would I do

differently?Am I making decisions in the case on the

client’s behalf or to satisfy myself?Am I making sure my own background and

biases are not affecting my representation?36