Ethics & Professionalism for Child Welfare Attorneys OFFICE OF THE CHILD’S REPRESENTATIVE & OFFICE OF THE STATE COURT ADMINISTRATOR D EC . 16, 2014 | S ESSION O NE : 1:00 p m – 2:30 p m JAMES SUDLER, CHIEF DEPUTY REGULATION COUNSEL, OFFICE OF ATTORNEY REGULATION COUNSEL
Complaint Process A complaint is filed with OCR alleging that a GAL lied to the court on the record. OCR’s investigation reveals that this was not the case. Is OCR obligated to report this allegation to the Office of Attorney Regulation Counsel?
Complaint Process A complaint is filed with OCR alleging that the GAL impermissibly communicated with a represented respondent parent after RPC denied the GAL permission to communicate with her client. GAL admits that he interviewed the respondent parent against the RPC’s wishes. Must OCR report the violation to the Office of Attorney Regulation Counsel?
File Retention An attorney who works as both GAL and RPC is running out of storage space in her office and would like to get rid of some bulky, old, hard copy files on cases that closed years ago. How long must the attorney retain the files? When does the time period begin to run (case closure, end of representation, & when is formal withdrawal on a case by an attorney required)? Can the attorney store the files electronically? What notice is required before an attorney can destroy the files? If the necessary time period has passed, but the attorney has knowledge of a pending or threatened proceeding relating to the original case, can the attorney nonetheless destroy the case file?
File Retention A GAL represented a 10 year old girl, Erin, who emancipated from the system at age 21. Eight years later, Erin contacts the GAL and requests to see her old case file. Can the GAL share the file with Erin?
Siblings in Conflict GAL is appointed for two siblings, a four-year-old and an eight-year-old, and is determined to be the therapeutic privilege holder for both children. Later, allegations arise that the older child has perpetrated on the younger sibling. Can the GAL continue to represent the best interests of one or both children?
Siblings in Conflict GAL represents two siblings, John, a 17-year-old, and Anna, a two- year-old, who are both placed in foster care. Their mother has lost motivation to address her mental health issues and the Department prepares to file for TPR. John opposes termination and wants his sister, Anna, to return home with him. GAL determines that it is in John’s best interest to remain with Anna, as his sibling bond is his strongest familial tie, but Anna’s treatment providers feel that John is a bad influence on her. Anna has a Maternal Aunt that is interested in adopting her. Can the GAL continue to represent the best interests of one or both children?
RPC’s Obligation to Advise Client RPC represents a father, Mark, whose child is the subject of a dependency and neglect proceeding. The parties are post- adjudication and the caseworker schedules a Team Decision Making Meeting, inviting the GAL, Mark, and several treatment providers to attend. RPC is notified of the meeting late and has an existing conflict, and therefore cannot participate in the meeting. Should Mark attend the meeting without counsel? Under what circumstances should RPC advise Mark not to attend without the presence of counsel?
RPC’s Obligation to Advise Client If Mark does attend the meeting without counsel and is pressured heavily by the Caseworker to agree to custody with a relative, does the GAL have an obligation to intervene on behalf of the respondent parent?
Clients with Diminished Capacity RPC represents a mother, Lisa, whose five-year-old son is the subject of a dependency and neglect proceeding. During an initial interview with Lisa, her lawyer tried to talk with her, but found it difficult to follow Lisa’s train of thought. Lisa seemed sullen & withdrawn at times, and at other times she talked energetically about a recent trip to the park with her son. Lisa repeated herself, describing the same trip to the park on a number of occasions, and did not seem to understand that her son was now separated from her. What protective action should the RPC take on behalf of his client?
Competency & Restoration A GAL in a juvenile delinquency case is ordered by the court to provide “restoration services” upon the court’s finding that the juvenile is incompetent yet restorable. The GAL should have objected to the court order as such service is not within his/her role as best interests advocate. The GAL, however, complies with the court order by providing such services and opines on whether the juvenile is restored to competency. Should the GAL continue on the case as the best interests advocate?
Former Client Conflicts An attorney in a housing unit of a legal services office represented a woman in a landlord/tenant matter. The same lawyer is appointed as GAL three years later to represent the woman’s child in a dependency and neglect action. Can the attorney continue to represent the child as GAL? What factors should the attorney consider in determining whether the two matters are substantially related and whether the former client’s interests are materially adverse? Does the analysis change if the landlord/tenant matter was an eviction proceeding based on the allegation that illegal drugs were being used on the premises by the parents and child? What is required for waiver of the conflict? Can the court cure the conflict? What should an attorney do if the judicial officer is desperate to appoint a GAL and feels he/she has no choice but to make use of an attorney previously involved with the family in some way.
Former Client Conflicts An attorney represents a father in a divorce proceeding, where a custody battle ensues and the father’s drug use is a primary issue throughout the case. Years later, the same attorney is appointed as GAL for the father’s child in a dependency and neglect action, where father’s drug use is one of the bases for the D&N filing. Can the attorney continue to represent the child as GAL?
Conduct in the Courtroom An RPC and a GAL attorney just finished a difficult hearing with a respondent parent that flew into a rage during the hearing and stormed out of the courthouse. The attorneys are still in the courtroom and are overheard making disparaging remarks about the respondent parent, using expletives and derogatory language to describe the parent’s actions. Is this conduct simply unprofessional or does it rise to the level of an ethical violation?
Questions? Contact Information: James Sudler, Chief Deputy Regulation Counsel, OARC j.sudler@csc.state.co.us
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