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LEGAL ETHICS IN CHILD CUSTODY AND DEPENDENCY
PROCEEDINGS

This book provides the ¬rst fully annotated discussion of the ethical universe
surrounding state-mandated and private legal disputes involving the custody
and best interest of children. It surveys thousands of court cases, statutes, state
bar ethics codes, attorney general opinions, and model codes regarding ethical
constraints in family and dependency proceedings. The book is unique in sev-
eral ways. It analyzes ethical rules not only in terms of the chronology of these
proceedings but it also surveys those principles for each of the primary partici-
pants “ children™s counsel, parents™ counsel, government attorneys, and judges.
The book contains chapters on prehearing alternative dispute resolution, motion
and trial practice, appellate procedures, and separation of powers. Finally, the
book provides a complete child abuse case ¬le with a comprehensive analysis of
the inherent ethical issues.

William Wesley Patton received his B.A. from California State University and his
M.A. and J.D. from University of California, Los Angeles. He is the founding
director of the Center for Children™s Rights and Legal Policy Clinic. He is also a
professor and the Associate Dean for Clinical Programs at Whittier Law School.
He has written many articles and books on the topic of juvenile justice and
juvenile law advocacy.
Legal Ethics in Child Custody and
Dependency Proceedings
a guide for judges and lawyers

William Wesley Patton
Whittier Law School, Costa Mesa, CA
©¤§ µ®©© °
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge  µ, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521853170

© William Wesley Patton 2006


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2006

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guarantee that any content on such websites is, or will remain, accurate or appropriate.
Contents




Foreword, by Martin Guggenheim page ix
Acknowledgments xi

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 Con¬‚icts of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. Children™s Attorneys: Potential Divided Loyalties 7
II. Con¬‚icts of Interest Involving Parents™ Attorneys 13
III. The Department™s Attorney: Who Is the Client? 16
IV. Judges: Limits and Responsibilities of the Neutral and
Detached Magistrate 23

2 Competent and Zealous Representation . . . . . . . . . . . . . . . . . 27
I. Children™s Attorneys: Zealous Advocates or Best Interest
Storytellers? 28
A. Children™s Competence as a Key in Deciding the
Model of Advocacy 30
B. The Lawyer™s Role as the Child™s Guardian Ad Litem 33
C. Hybrid Models of Child Representation 35
II. Parents™ Attorneys 35
A. Failure to Complete Lawyering Responsibilities 35
B. Competence and Zealousness 37
III. The Department™s Attorney: Furthering Justice or
Zealous Advocate? 44
IV. Judges: Neutral Magistrates or Children™s Defenders? 52
V. Emerging Issues Regarding Substitution of Counsel and
Self-Representation 61
A. The Right to Substitute Counsel 61
B. The Right to Self-Representation 65


v
vi Contents

3 Con¬dentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
I. Children™s Attorneys: Safety Versus Secrecy 69
II. Parents™ Attorneys: Duty to Disclose Child Abuse? 74
III. The Department™s Attorney: Disclosure and Trial Tactics 79
IV. Judges: Parties™ Privacy Versus Public Overseer 82

4 The Ethics of Alternative Dispute Resolution in Child Custody
and Dependency Proceedings . . . . . . . . . . . . . . . . . . . . . . . 88
Introduction 88
I. Alternative Dispute Resolution Versus Litigation in
Custody Cases 92
II. Advantages and Disadvantages of Alternative Dispute
Resolution in Child Custody and Dependency
Proceedings 95
III. Coming Full Circle: The Evolution of Child Custody
Mediation 100
IV. The Legitimacy of Informal Settlements and the Limits
of Mediators™ and Arbitrators™ Jurisdiction in Child
Custody and Dependency Proceedings 101
A. Finality and Scope of Arbitrated and Mediated
Custody and Dependency Settlement Agreements 102
B. The Duty of Candor: Good Faith, Puf¬ng, and Lies 107
V. The Scope of Alternative Dispute Resolution
Con¬dentiality 111
VI. The Role of the Mediator 117

5 Ethical Considerations and Constraints in Child Custody
and Dependency Appeals . . . . . . . . . . . . . . . . . . . . . . . . . 120
I. The History of the Right to Appointed Appellate
Counsel in Child Custody and Dependency Proceedings 121
II. Standing to Appeal 123
III. The Duty of Competence in Custody and
Dependency Appeals 124
IV. The Duty and Scope of Zealous Appellate
Representation 127
V. The Duty of Candor and Loyalty on Appeal 134
VI. The Procedural and Substantive Scope of Appeals 141

6 The Constitutionality of Legislative and Executive Regulation
of the Practice of Law and De¬ning the Attorney-Client
Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
I. A Short History of the Role of Courts, Legislatures, and
the Executive in the Regulation of Attorneys 148
Contents vii

A. Wisconsin: Separation of Powers in Regulating
Attorneys in Child Custody and Dependency
Proceedings 151
B. California: Comity over Independence? 156
II. Conclusion 163

Appendix A. National Association of Counsel for Children
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

Appendix B. American Bar Association Standards of Practice for
Lawyers Who Represent Children in Abuse and Neglect Cases . . . . . 185

Appendix C. In re Car Simulation and Analysis . . . . . . . . . . . . . . 223
Other Authorities 239
Cases and Ethics Opinions 247
Index 255
Foreword



The United States spends considerable efforts trying to prove to itself and
the world that it is as child-friendly and child-centered as the next country.
But this is a dif¬cult challenge for a country that remains alone in the world
in its refusal to sign the United Nations Convention on the Rights of the
Child, and it remains in the company of many signi¬cantly poorer nations
in its refusal to guarantee a minimum degree of public support or health
bene¬ts for children. Even worse, for those who insist on ranking the United
States as a nation devoted to the well-being of children, children comprise
the largest group of extremely poor Americans. Worse still, the percentage
of the population of children who are poor has grown considerably larger
over the past generation, even as the United States has all but eliminated
extreme poverty for the elderly.
According to the KIDS COUNT Data Book, published annually by the
Annie E. Casey Foundation, there were more than 13 million children living
in poverty in the United States in 2003, an increase of more than 500,000
since 2000. More than 4 million children currently live in households where
no parent has worked within the past year. The Children™s Defense Fund
reports that more than 9 million children, more than 12 percent of all of
America™s children, go without any kind of health insurance.
Nonetheless, the United States is able to point with pride to the very
large number of legal matters that are litigated on a daily basis in American
courts that affect children and their well-being. These cases include a virtual
explosion of child custody, visitation, and relocation cases, as well as an ever-
growing number of child welfare cases in which parents are charged with
inadequately caring for their children, and related foster care review and
termination of parental rights and adoption matters. Add all of these matters
together, and the United States plainly is the world leader in the extent to
which children are the subject of legal proceedings.
But more is owed children than that the signi¬cant questions concerning
their lives be decided by judges in contested legal proceedings. Even if one
were to regard the extraordinarily high number of cases involving children
that are contested each day in the courts within the United States as a positive
ix
x Foreword

sign, we should rejoice only if it were true that the investment in the judicial
system ensured the level of careful, individualized attention that children
require if we are to make thoughtful and intelligent decisions about them.
Regrettably, few jurisdictions in the United States commit suf¬cient
resources to these systems. Instead, too often the children are treated as per-
sons without adults who care very much for or about them. In many cities,
legislatures and court of¬cials allow judges routinely to handle as many as
¬fty cases each day on their dockets. Lawyers assigned to represent children
sometimes carry caseloads of more than 300 active cases. And other lawyers
performing equally crucial roles in custody and child welfare cases are too
often vastly underpaid relative to the other available markets for lawyers, and
they are undertrained, undermotivated, or overwhelmed with work to give
any given case the level of attention it demands and deserves.
In short, too often in too many quarters in the United States, the justice
being meted out in cases involving children is a second-class justice that
would be unacceptable to judges, legislators, and voters if it affected them
and their families. What can be done about all of this?
In addition to complaining about and recognizing the problem, we need
to apply the same principles of fairness, ethics, and justice to matters involv-
ing children that we insist be made available to the richest corporations
that use the justice system when necessary to advance their interests. An
important ¬rst step toward eliminating the second-class status of courts that
address matters involving children is to pay the same degree of attention
to them that is paid to our most important institutions. This means more
than acknowledging the ways in which we underfund children™s court. It also
means insisting upon the same requirements for professional standards that
are expected in our most important institutions.
This book is especially important because it strives to clarify and establish
basic rules of ethical conduct for children™s lawyers and other legal repre-
sentatives of children, as well as for all of the professionals (including the
judges) who handle these cases. Beyond explaining the various roles that
different jurisdictions expect of professionals in these cases, this book insists
that the standards of representation and professional performance improve,
if we are to be true to the call for justice for children and if the justice system
affecting children is to live up to the basic rules established elsewhere in the
legal profession.
This is an important and worthy goal, and those who care about children
would do well to insist on raising the bar for everyone associated with legal
matters involving children.

Martin Guggenheim
Professor of Clinical Law
New York University School of Law
Acknowledgments




I wish to express my appreciation to the J. Allan Cook and Mary Schalling
Cook Trust Fund for assisting me during my research and writing of this
book. Their continued support of children™s law scholarship has planted
many seeds that will, I hope, produce extensive improvements in poor and
abused children™s legal access.
I also thank Marvin Ventrell and the National Association of Counsel for
Children for permission to publish their Recommendations for Representation
of Children in Abuse and Neglect Cases and the American Bar Association
for granting permission to publish its Standards of Practice for Lawyers Who
Represent Children in Abuse and Neglect Cases.
This book is dedicated to the hundreds of children I have had the oppor-
tunity to represent in custody, dependency, delinquency, and educational
proceedings. Although the life of a child advocate can be described as the
poet Milton characterized Samson after pulling down the temple pillars,
“all passion spent,” the hope is that, either incrementally or in one blinding
revelation, the legal system will stop failing our children.




xi
Introduction




It is known that approximately 43 percent of marriages in America end in
divorce.1 Even though millions of our children™s lives are dramatically affected
by the family law child custody system, the shifting character of relationships
in the United States is having an equally important impact on children™s lives.
By 1994 approximately 11 percent of children were born out of wedlock, and
40 percent of American children would live with “their unmarried mother
and her boyfriend some time before their 16th birthday. . . . ”2 In 1994 of
the 18.6 million children living in single-family homes, two-thirds of those
children had one parent as a result of divorce or legal separation.3 Research
has also demonstrated a direct correlation between unwed pregnancy or
single-parent families and poverty, poor health, child abuse, and juvenile
delinquency.4 It is therefore not surprising that annually there are more
than 2.9 million reports of child abuse in this country and that a signi¬cant
percentage of those reports result in child dependency actions.5

1 Family and Fertility, National Institute of Child Health & Human Development, at 2 (2003),
http://www.nichd.nih.gov/publications/pubs/coundbsb/sub4.htm#divorce. Contemporary
divorce data are incomplete because the marriage and divorce national database admin-
istered by the National Center for Health Statistics was eliminated in 1995 “because of
lack of resources.” COUNTING COUPLES: IMPROVING MARRIAGE, DIVORCE, REMARRIAGE,
AND COHABITATION DATA IN THE FEDERAL STATISTICAL SYSTEM, at 25“26 (The Data Col-
lection Committee of the Federal Interagency Forum on Child and Family Services,
December 13, 2001).
2 Increased Cohabitation Changing Children™s Family Settings, 13 Research on Today™s Issues, at

1 (September 2002, Demographic and Behavioral Sciences Branch, Center for Population
Research, National Institute of Child Health and Human Development, National Institutes
of Health).
3 Richard Kuhn & John Guidubaldi, Child Custody Policies and Divorce Rates in the United

States, Paper presented at the 11th Annual Conference of the Children™s Rights Council, at
1 (Washington, D.C. 1997).
4 Family and Fertility, supra note 1, at 9.
5 John E. Myers, De¬nition and Origins of the Backlash Against Child Protection, in EXCELLENCE

IN CHILDREN™S LAW, 21, 32 (National Association of Council for Children, 1994).

1
2 Legal Ethics in Child Custody and Dependency Proceedings

Family child custody and child dependency proceedings take up a signif-
icant portion of states™ judicial calendars. For instance, in California in the
1998“9 ¬scal year there were 1,594,807 civil ¬lings.6 Of those civil ¬lings,
there were 155,920 family law cases and 41,890 child dependency proceed-
ings, for a cumulative total of 12.5 percent of all civilly litigated disputes.
It is no wonder that, in the more than 1 million child custody and juvenile
dependency cases litigated annually in the United States, numerous issues
involving legal ethics confound, confuse, and capture the tens of thousands
of attorneys litigating these emotionally laden disputes.7
Child custody and dependency proceedings are unique legal universes that
often involve legal issues that defy the ethical categories articulated by the
American Bar Association Model Rules of Professional Conduct, state ethical
rules, and judicial and executive pronouncements upon best practices and
minimum standards of representation. And unlike ordinary civil cases, which
are usually permanently resolved in a single judgment, custody and depen-
dency proceedings can continue for years in successive court hearings until
the child reaches the age of majority.8 In these quasi-criminal/quasi-civil sys-
tems, notions of zealous advocacy collide with the parties™ and court™s visions
of children™s best interests. Attorneys representing abusing parents often ¬nd
themselves at the cusp of ethical violations of client con¬dentiality as they
struggle with their own conscience in not disclosing their clients™ future plans
or propensity for reabusing their children. And perhaps to a greater extent
than in any other legal area, economic necessity tacitly sanctions con¬‚icts of
interests among multiple party representation that would never be tolerated
in criminal and/or ordinary civil proceedings. Unconscionably underfunded
dependency court systems presumptively permit one attorney to represent
multiple siblings unless an actual con¬‚ict of interest arises. And in civil cus-
tody hearings one or more parents, and usually the children who are the
subject of the hearing, do not even have legal representation; if they do, it
may be no more than a lay guardian ad litem who frequently, unlike a lawyer,
has no duty of con¬dentiality or loyalty to the client.
But on an even more elemental level, a jurisprudential debate has per-
sisted for almost twenty years regarding whether children in child protection
and/or family custody proceedings should be represented by counsel and, if
so, what the appropriate model of representation should be. “The questions
of when and why counsel should be appointed for children lie at the heart of


6 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 1989“1990 THROUGH 1998“1999, at
46 (Judicial Council of California, Administrative Of¬ce of the Courts, 2000).
7 Id. at 46, 56.
8 Child Custody Proceedings Reform: High-Con¬‚ict Custody Cases: Reforming the System for

Children, Conference Report and Action Plan, at 1 (American Bar Association Family Law
Section, September 8, 2000, http://www.abanet.org/child/wingspread.html).
Introduction 3

all dialogue about ethical issues in representing children.”9 In 1984, Martin
Guggenheim articulated several reasons why attorneys in child family cus-
tody cases are not advisable.10 Whether the child™s attorney adopts the role
of fact-¬nder or zealous advocate, Professor Guggenheim argues that such
representation (1) is arbitrary because the child™s attorney will merely sub-
stitute his or her world view in determining the child™s best interest; (2) until
the state has proven that the parents neglected or abused their children, the
presumption should be that the parents speak for the child™s best interest; and
(3) taking away parents™ decision-making power and placing it in a child™s
attorney before a ¬nding of abuse may be unconstitutional.11 He further
argues that even if the petition is sustained, counsel serves no real purpose
until the child is at least 7 years old and has suf¬cient capacity to assist the
attorney. If the child is not competent to assist in the case, the child™s attorney
is not only “irrelevant; having counsel is also potentially destructive of our
legal process” because the attorney as fact-¬nder supplants the role of judge
as fact-¬nder.12 Professor Guggenheim further argues that providing coun-
sel for children in family custody cases needlessly “becomes an invitation
to pry into the personal affairs of the separating spouses,” thus stripping
parents of their right to decide what secrets will be publicly revealed. Profes-
sor Guggenheim has recently demonstrated that at the heart of the United
States Supreme Court opinions regarding children™s rights is a core principle
that children™s rights, vis-` -vis the government, are best protected by focus-
a
ing on parental rights, not children™s autonomy. “Simply stated, the bulk of
laws affecting children and the law in the United States are interwoven with
the laws of parental authority. One can fully grasp the complete scope of
children™s rights under American law only by knowing the rights of their
parents.”13 He argues that a best interest of the child standard, rather than a
parental rights doctrine, leads to unnecessary state intervention into family
lives: “Any alternative to the parental rights doctrine empowers state of¬cials
to meddle into family affairs and base their decisions on their own values. . . .
A best interests inquiry is not a neutral investigation that leads to an obvious
result. It is an intensely value-laden inquiry. And it cannot be otherwise.”14
John E. B. Myers has gone even further in arguing that parties in child
protection cases, including children, meet informally with a judge, without
any attorneys, in a form of alternative dispute resolution in which the rules
of evidence are suspended, all information disclosed is con¬dential, and the

9 Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil
Litigation, 64 FORDHAM L. REV. 1571, 1618 (1996).
10 Martin Guggenheim, The Right To Be Represented but Not Heard: Re¬‚ections on Legal Repre-

sentation For Children, 59 N. Y. U. L. REV. 76 (1984).
11 Id. at 127. 12 Id. at 102.
13 Martin Guggenheim, WHAT™S WRONG WITH CHILDREN™S RIGHTS 17 (2005).
14 Id. at 38“39.
4 Legal Ethics in Child Custody and Dependency Proceedings

“judge decides what is needed to help the family and keep the child safe. The
judge discusses her ideas with the others, and comes to a resolution.”15 And
Emily Buss articulates a child™s attorney role as neutral observer who does
not express an opinion regarding the child™s best interest, but who rather
ensures that the process operates fairly and that the other attorneys perform
competently.16
But even if a state decides to appoint counsel for children in abuse and
neglect proceedings and in family law custody cases, at what age does the
child have capacity to determine the goals of the litigation and his or her best
interest? The problem is that the child psychological developmental literature
does not provide “de¬nitive, ¬xed information upon which to ground simple,
age-based rules.”17 Generalizations regarding the minimum age of compe-
tency to make legal decisions and to assist counsel in child abuse and family
law proceedings vary from age 7 to 15 before a child can make a reasoned
choice among legal alternatives.18 Other developmental psychologists argue
that legal policymakers miss the point when they classify children as merely
too young to have capacity or as old enough to make decisions because they
ignore the “transitional developmental stage” of adolescence and because
“children cross over the line to legal adulthood at different ages for different
purposes.”19 Even though legislators persist in using categorical age of major-
ity rules for different social activities, such as driving, drinking, and voting,
the use of categorical age limits in de¬ning children™s competency to assist
in their legal proceedings is not helpful because each child™s developmental
pace is different; age brackets are at once underinclusive and overinclusive
when applied to individual children™s developmental capacity for decision
making.20 Elizabeth Scott and Thomas Grisso provide the following assess-
ment of the child developmental literature: “[S]cienti¬c authority indicates
that, in general, the cognitive capacity for reasoning and understanding of
preadolescents and many younger teens differs substantially in some regards

15 John E. B. Myers, Session 3: Children™s Rights in the Context of Welfare, Dependency, and the
Juvenile Court, 8 U.C. DAVIS J. JUV. L. & POL™Y 267, 285“286 (2004).
16 Emily Buss, Confronting Developmental Barriers to the Empowerment of Child Clients, 84

CORNELL L. REV. 895 (1999).
17 Id. at 919.
18 Id. at 920; Thomas Grisso, What We Know about Youth™s Capacities as Trial Defendants, in

Thomas Grisso & Robert G. Schwartz, YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE
ON JUVENILE JUSTICE 162“163 (2000); Guggenheim, at 86 [“accord children seven years
of age and older the power to direct their own counsel in delinquency proceedings”].
19 Elizabeth S. Scott, The Legal Construction of Adolesence, 29 HOFSTRA L. REV. 547, 548, 557“558

(2000).
20 Id. at 560. [“In fact, one likely effect of the categorical approach is that minors will sometimes

continue to be treated as legal children when they are competent to make decisions or perform
adult functions.”]
Introduction 5

from that of older teens and adults. Tentative authority also supports the
conclusion that, by mid-adolescence, youthful capacities for reasoning and
understanding approximate those of adults.”21 Therefore, it is clear that the
minimal American Bar Association rules for representing child clients pro-
vide attorneys with far too little guidance regarding when the child client
possesses suf¬cient capacity to direct the litigation.22
Attorneys representing parents and/or children in custody and dependency
proceedings are often required to meet standards of representation that are
substantially more demanding than those of the average practitioner. For
instance, in California, even though the California Supreme Court has held
that attorneys, once sworn into of¬ce, are presumptively competent to repre-
sent any party in any court in the state,23 dependency attorneys must establish
“minimum standards of experience and education” in order to represent a
party,24 including “training and education in the areas of substance abuse
and domestic violence . . . [and] child development. . . . ”25 The dissonance
between these elevated standards of competence and the unrealistically high
caseloads in these expedited proceedings provides attorneys with a night-
mare Catch-22 scenario in which the more competently they represent some
clients, the less competently they represent others in this zero-sum legal uni-
verse. The excessively large attorney caseloads in these proceedings often lead
to a statistically deterministic certainty of incompetent representation in a
high percentage of cases.26


21 Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective

on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 160 (1997).
22 American Bar Association Rule MR 1.14 provides: (a) When a client™s ability to make ade-
quately considered decisions in connection with the representation is impaired . . . because
of minority . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client; (b) A lawyer may seek the appointment of a guardian or take
other protective action with respect to a client only when the lawyer reasonably believes the
client adequately act in the client™s own interest.”
23 The California Supreme Court in Smith v. Superior Court, 440 P. 2d 65, 73 (Cal. 1968) held

that “[t]he admission of an attorney to the bar establishes that the State deems him compe-
tent to undertake the practice of law before all our courts, in all types of actions.”
24 California Welfare & Institutions Code § 317.5.
25 California Rules of Court, Rule 1438.
26 For instance, in 1991, the County of Los Angeles, California paid private dependency

attorneys $9,839,971.22; however, by 1998 that cost rose to $16,510,750. PACE SYSTEM
APPOINTEE EARNINGS SUMMARY REPORT OF THE LOS ANGELES SUPERIOR COURT MP DIS-
TRICT FOR APPOINTEE TYPES, ALL JUVENILE DEPENDENCY CASES 07/02/97 THROUGH 06/29/98,
at 15; January 22, 1990, Dependency Court Legal Services Contract, at 1. And in 1998
in Los Angeles County parents™ dependency attorneys had caseloads of between 413 and
658 cases. PACE SYSTEM, supra, at 1“15. And each of those dependency cases was com-
pensated at a ¬‚at rate of just $380 per case. Amy Bentley, Ventura Defense Attorneys Fear
Dependency Court System Unfair, L. A. DAILY J., Jan. 7, 1999, at 3.
6 Legal Ethics in Child Custody and Dependency Proceedings

Judges often fare no better because it is sometimes impossible to remain a
“neutral and detached magistrate” when the judicial of¬cer sees that incom-
petent counsel for one or more parties might result in a disposition that is
dangerous for the children before the court. But what de¬nes the ethical cusp
between the judge ensuring fairness in the hearing and exceeding those ethical
bounds by becoming the equivalent to a zealous advocate for the child? How
can and should the judge react to media reports that intimate that a speci¬c
case before the court resulted in a travesty of injustice? How does the judge
meet the ethical duty to educate the public regarding the legal system without
commenting on the con¬dential proceedings or without prejudicing parties
before the courts? And what should be the ethical response of judges to the
overburdened child dependency system in which precious court resources
pressure judges and attorneys to litigate fundamental rights to child custody
and termination of parental rights in approximately ten to twenty minutes
per case?27 How do judges resolve the internal con¬‚ict of interest between the
“whistle-blower” persona that can ensure a more accurate and accountable
legal system and the rise up the judicial ladder, which often requires political
deftness and understated service?
And ¬nally, how should counsel representing the Department of Family
and Children™s Services handle the many ethical conundrums that must
be resolved on a daily basis? What are the bounds of advocacy for these
government lawyers? What data must be disclosed sua sponte, who is the
client, and what rules apply when a social worker is civilly sued for malpractice
and the Department attempts to avoid liability by claiming that the worker™s
acts were outside the scope of employment?
These are the many issues upon which this book revolves. To provide
guidance to judges, government attorneys, and counsel for both parents and
children, the following chapters review several sets of ethical standards, judi-
cial cases, attorney general opinions, and state bar ethics opinions. Although
many of these terribly complex ethical maelstroms require answers yet to
be written, this text provides the foundation for identifying and analyzing
attorneys™ ethical duties. Although it might be impossible to practice law
for an entire career without violating ethical precepts, a judgment tempered
through analysis of existing ethical precedent is likely to bene¬t both attor-
neys and clients. It is with this goal that I offer the following analyses of the
ethical issues involved in representing parties in child custody and depen-
dency proceedings.

27 For instance, in Los Angeles County, dependency judges hear “¬ve to ten new cases and as
many as 25 reviews a day of cases already under court jurisdiction.” William Wesley Patton,
Forever Torn Asunder: Charting Evidentiary Parameters, The Right to Competent Counsel
and the Privilege Against Self-Incrimination in California Child Dependency and Parental
Severance Cases, 27 SANTA CLARA L. REV. 299, 301 (1987).
1 Con¬‚icts of Interest




It might seem unusual for a book on legal ethics to begin with the complicated
issue of con¬‚icts of interest. However, if an attorney waits until after the
initial client interview to determine whether a con¬‚ict exists or is likely to
develop during representation, the attorney might prejudice the client by
having to con¬‚ict off the case at some later time. Con¬‚icting off the case will
not only lengthen the litigation time-line by requiring another attorney to
prepare the case but also will increase the client™s emotional trauma inherent
in contested litigation. Therefore, before an attorney considers the detailed
facts inherent in any case, engages in an intake or initial client interview,
and even reviews all the available evidence, counsel should consider actual
and potential con¬‚icts of interest. Furthermore, it is essential for counsel
to continually assess con¬‚icts questions until the completion of the client™s
representation.


I. CHILDREN™S ATTORNEYS: POTENTIAL DIVIDED LOYALTIES

Because of the tremendous expense of representing parties in child depen-
dency cases, one money-saving shortcut is to use a system in which a single
legal of¬ce represents multiple parties.1 For instance, a government attor-
ney of¬ce, such as a county counsel, district attorney, or public defender
of¬ce, might represent parents, children, and/or the Department of Child and
Family Services in different cases. However, because of the possibility of

1 Inrecent years Congress and state legislatures have not only limited funds for representing
indigents based upon budget concerns but also the types of cases that legal services attorneys
can ¬le on behalf of their clients. However, the United States Supreme Court in Legal Servs.
Corp. v. Velazquez, 531 U.S. 533 (2001) limited the legislature™s control over the ambit of
attorneys™ zealous representation by declaring that such restrictions violate separation of
powers and/or First Amendment principles. See Laura K. Abel & David S. Udell, If You Gag
the Lawyers, Do You Choke the Courts? Some Implications for Judges When Funding Restrictions
Curb Advocacy by Lawyers on Behalf of the Poor, 29 FORDHAM URB. L. J. 873 (2002).

7
8 Legal Ethics in Child Custody and Dependency Proceedings

con¬‚icts of interest, disclosure of con¬dential data, and breaches of loyalty,
such multiparty representation usually violates the canon of ethics. For
instance, in Illinois State Bar Association Opinion No. 91-17 2 a public
defender™s of¬ce represented both parents and children in child neglect pro-
ceedings. The attorneys shared a common of¬ce, secretaries, and investiga-
tory services. The Illinois State Bar held that this shared arrangement involved
an obvious ethical violation because parents and children are often, if not
usually, in con¬‚ict in these cases and con¬dential material may be shared
among different public defenders representing adverse parties. The Illinois
State Bar Ethics Committee held that if the public defenders did not share
secretaries or investigators and had independent law practices suf¬ciently
shielded from one another, then no con¬‚ict would exist.3 It further held that
the shared lawyering context was not only unfair to the parent and child
clients but also “to attorneys themselves. Public defenders have no immu-
nity from malpractice actions . . . [and] probably are vulnerable to federal
civil rights actions. . . .”4
In Appeal in Yavapai County Juvenile Action No.J-8545 5 the Arizona
Supreme Court held that the trial court erred when it refused to appoint
separate counsel for the children, rather than having them represented by
parents™ or prospective custodians™ counsel, because those individuals “would
each be pursuing their individual interests at the proceedings and not neces-
sarily the best interest of the children.”6 The Arizona Supreme Court rejected
the trial court™s logic in refusing to appoint counsel for the children merely
because they were currently in custody in another state.
The most frequent type of multiple representation in child dependency
cases involves one attorney representing several siblings. Conceptually and
economically, such multiple representation seems to be a good policy. A
single attorney representative for sibling groups could coordinate all the
children™s needs, see the total family picture from the perspective of all the
children, and save the taxpayers millions of dollars in legal fees as well.
However, representation of sibling groups is fraught with numerous actual
and probable con¬‚icts.7
Consider the following hypothetical:
An attorney is appointed to represent a sibling group comprising seven
children ages 3, 4, 5, 6, 8, 11, and 12 in a child dependency action. The

2 Illinois State Bar Association Opinion No. 91“17 (January, 1992).
3 Id. 4 Id. at 4.
at 3“4.
5 Appeal in Yavapai County Juvenile Action No. J-8545, 680 P. 2d 146 (Arizona 1984).
6 Id. at 148.
7 A discussion of the con¬‚icts between the child™s stated preference and the attorney™s opinion

regarding the child™s best interest is discussed, infra, in Chapter 2, Competent and Zealous
Representation.
Con¬‚icts of Interest 9

Department argued that the 8-, 11-, and 12-year-old children should
be placed in long-term foster care or guardianship because they were
unadoptable; that the 4-, 5-, and 6-year-old children should be placed for
adoption; and that the 3-year-old should be placed separately in a placement
that could care for the child™s special needs.8
In the abstract, if the Department™s recommendations were accurate and
in the children™s best interests, and not in opposition to the children™s stated
preferences, nothing seems to prevent multiple representation in this case.
However, during the attorney™s initial interviews with the children, he discov-
ered the following information: (1) the 3-year-old was very closely bonded
with the 8-, 11-, and 12-year-old children and (2) many of the children in the
three placement groups wanted to continue sibling association and visitation
even after the termination of parental rights. The court in Carroll v. Superior
Court 9 determined that there were numerous actual and several probable
con¬‚icts of interest inherent in one attorney representing all of the siblings
in this case because termination of parental rights and adoption would end
the legal relationship among the siblings and make ful¬llment of their desire
to continue sibling association unlikely. The court noted that zealously argu-
ing for adoption of the 3-year-old child would, in effect, argue against the
other children™s desires to have continuing postadoption contact with her.
The court also noted that some siblings might forgo their right to argue for
their best interests in order to assist a permanent placement of a brother or
sister that was in that child™s best interest but that would result in a severance
of sibling association.Because the attorney had interviewed all the children
in the case and had established an attorney-client relationship with each
child, the only remedy consistent with the requirements of con¬dentiality
and client loyalty was for the attorney to con¬‚ict off the representation of
all of the siblings: “[T]he attorney must be relieved from representation of
any of the minors . . . [and] an attorney may not be appointed to represent
multiple minors if it is reasonably likely an actual con¬‚ict of interest between
or among them may arise.”10
Con¬‚icts of interest in representing multiple siblings also arise in contexts
in which one attorney discovers, through interviews, con¬dential informa-
tion that will assist one sibling but will harm the others.For instance, assume
that an attorney is appointed in a child dependency action to represent three
children, ages 14(sister), 11(brother), and (sister) 6. The petition alleges sex-
ual abuse by the mother™s boyfriend of the 14-year-old sister and that the
11-year-old brother once saw the mother™s boyfriend lying on top of his

8 These facts are based upon Carroll v. Superior Court, 124 Cal. Rptr. 2d 891 (Cal. App. Ct.
2002).
9 Id. 10 Id.
at 894“897. at 897.
10 Legal Ethics in Child Custody and Dependency Proceedings

14-year-old sister on the couch. Also assume that the 11-year-old brother
informs the attorney that he wants his statements to remain con¬dential. The
14-year-old sister informs that attorney that she wants to be placed outside
the home, but wants continuing contact with her siblings. The 11- and 6-
year-old children want to remain in the home. The attorney is thus faced with
an actual con¬‚ict of interest because he now possesses data that can assist the
14-year-old in proving the sexual abuse case and make her removal from the
home more likely. However, if the attorney uses that con¬dential informa-
tion, the attorney would violate the duty of loyalty and con¬dentiality to the
11-year-old brother. In addition, because the use of that con¬dential data
may inform the court that the 6-year-old sister may also be at risk of sexual
abuse by the mother™s boyfriend, the use of that data would frustrate her
desire to stay at home with her mother rather than being placed in relative
or foster care.
Although providing siblings with separate counsel in custody and depen-
dency proceedings will undoubtedly increase the cost of legal representation,
there is a sound reason why some courts have held that “any doubt about the
existence of a con¬‚ict [in representing an abused child] should be resolved
in favor of disquali¬cation.”11 The American Bar Association has described
an adult client™s reaction to con¬‚icts of interest in legal representation as a
feeling of betrayal and a “fear that the lawyer will pursue that client™s case
less effectively out of deference to the other client. . . .”12 But the effect on
abused children is substantially greater: “The abused child, already betrayed
by a trusted adult, has ¬nally taken a substantial emotional risk by having
faith in her attorney. She has relied upon the attorney to protect and argue
her case. What must she think when yet another trusted adult abandons her?
The jurogenic effects of the legal system re-victimize the child.”13
It is thus critical for attorneys to determine whether actual or poten-
tial con¬‚icts of interest are inherent and probable in the representation of
multiple sibling groups. To calculate the potential for con¬‚icts of interest,
the attorney should consider the following factors. First, the greater the
age gap between the siblings, the higher the risk for a con¬‚ict of interest.
This is because young siblings are much more likely to be adoptable and
to have their parental rights severed than are older children. For instance,
even if a 2-year-old and a 15-year-old have psychologically bonded, many
courts have determined that the older child will be placed in long-term


11 Inthe Matter of H.Children, 608 N.Y.S. 2d 784, 785 (New York 1994).
12 Model Rules of Professional Conduct Rule 1.7, comment 6.
13 William Wesley Patton, The Interrelationship Between Sibling Custody and Visitation and

Con¬‚icts of Interest in the Representation of Multiple Siblings in Dependency Proceedings, 23
CHILD. LEGAL RTS. J. 18, 29 (2003).
Con¬‚icts of Interest 11

foster or relative care while the younger child will be adopted.14 Second,
if one of more siblings have special needs, it increases exponentially the
chances that the children will be ordered into different placements. For
example, in Adoption of Hugo 15 the court refused to place a 2-year-old boy
with special needs in the same adoptive home with his 6-year-old sister
because it determined that the paternal aunt had the special training needed
to care for the special needs child. Although the Massachusetts Supreme
Court found that sibling association is important, it held that the best
interest of placing the younger child in a home in which a relative could
care for his special needs was more important than continuing the sibling
relationship.16
Third, the strength of sibling bonds among siblings, as well as between
siblings and foster parents, will often determine con¬‚icts of interest that
might arise because closely bonded siblings are more likely to argue that they
should be placed together. For instance, in In the Interests of David A,17 two
siblings who had close psychological bonds with one another were placed
into different foster homes. At the termination of parental rights hearing, the
court rejected placing both siblings into the same placement because, even
though they were bonded to each other, the court found that they were also
bonded to their separate foster parents and that separation from the foster
parents would cause the children substantial psychological harm.18
Fourth, the availability of placements with relatives should be considered.
Many jurisdiction have a statutory presumption for relative placement if
placement cannot be made in one or both parents™ homes.19 If siblings are
placed with the same or with different relatives, association issues are less
likely to arise, which decreases the probability of con¬‚icts among the siblings.
However, a large percentage of out-of-home custody awards do not involve
relatives. For instance, “of California™s 98,000 children under court supervi-
sion, sixty percent had siblings, but ˜forty-one percent were not living in the


14 For an analysis of cases in which psychologically bonded siblings have been placed separately

and cases in which the siblings™ association rights have been severed, see William Wesley
Patton & Dr. Sara Latz, Severing Hansel from Gretel: An Analysis of Siblings™ Association
Rights, 48 U. MIAMI L. REV. 745 (1994); William Wesley Patton, The Status of Siblings™ Rights:
A View into the New Millennium, 51 DEPAUL L. REV. 1 (2001).
15 Adoption of Hugo, 700 N. E. 2nd 516 (Mass. 1998), cert. denied, 526 U.S. 1034 (1999).
16 Id. at 524.
17 In the Interests of David A., 1998 WL 910258 (Conn. Super Ct., Dec. 18, 1998).
18 Id. at 5.
19 For instance, California Welfare & Institutions Code § 361.2 provides a hierarchy or presump-

tive placements ¬rst withboth parents, then one parent, then relatives, next with a “nonrelative
extended family member,” then a foster home, and ¬nally with a licensed community care
facility, foster family agency, or a group home.
12 Legal Ethics in Child Custody and Dependency Proceedings

same foster home . . . [and] [f]orty-eight percent of siblings in foster care do
not live with relatives.™”20
The California Supreme Court in In re Celine R.21 established perhaps the
most rigorous standards in the nation regarding con¬‚icts of interest in repre-
senting multiple siblings.22 Celine R. is remarkable not only for its heightened
tests for con¬‚icts of interests among siblings but also because the Depart-
ment™s attorney attempted to persuade the California Supreme Court that the
rules of professional responsibility, and in particular, the prohibition against
representation of clients whose interests con¬‚ict, should not apply to juve-
nile clients. The Department™s attorney urged that the Supreme Court “hold
that the Rules of Professional Responsibility cannot and do not apply strictly
to attorneys representing minors in juvenile dependency proceedings. . . .”23
The California Supreme Court was, needless to say, hostile to that position
at oral argument and rejected the reasoning.24 Instead, the court established
a rule that “an attorney may not represent multiple clients if an actual con-
¬‚ict of interest between clients exists and may not accept representation of
multiple clients if there is a reasonable likelihood an actual con¬‚ict of inter-
est between them may arise.”25 In addition, the court held that, whenever
an actual con¬‚ict of interest arises, “the court will have to relieve counsel
from multiple representation” and the attorney may not represent any of the
siblings.26
However, the California Supreme Court further held that the standard for
reversible error is identical to the standard of error in cases in which children
were erroneously denied representation. The children must prove on appeal
that it is “reasonably probable the result would have been more favorable to
the appealing party [siblings] but for the error.”27 The California Supreme
Court in In re Celine R. thus created a rigorous standard for determining
whether con¬‚icts of interest exist, but created such a demanding standard of
prejudice that rarely will such con¬‚ict result in a reversal of the dependency
trial court judgment.

20 William Wesley Patton, supra note 12, at 19; Rod Kodman, Re“Victimizing Innocent Victims:

How California Violates the Constitutional Rights of Its Abused and Neglected Children,
4 J. L. & POL™Y 67, 87 (2000).
21 In re Celine R., 1 Cal. Rptr. 3d 432 (2003).
22 The author orally argued In re Celine R. in the California Supreme Court.
23 Respondent™s Answer Brief on the Merits in In re Celine R., ¬led in the California Supreme

Court on April 15, 2003, at page 29 (copy in author™s ¬les).
24 Id. at 441. 25 Id. at 442.
26 Id. at 442.
27 Id. at 444. For an extensive analysis of the appropriate standards of appellate review in

child dependency proceedings, see William Wesley Patton, Standards of Appellate Review
for Denial of Counsel and Ineffective Assistance of Counsel in Child Protection and Parental
Severance Cases, 27 LAY. U. CHI. L. J. 195 (1996).
Con¬‚icts of Interest 13

Whether the children will have a malpractice action against their depen-
dency court attorney will depend upon the malpractice standard adopted in
the jurisdiction. If that standard requires that the plaintiff demonstrate that
a more favorable outcome would have occurred absent the malpractice, the
children may ¬nd themselves in the same dilemma as under the In re Celine
R. remedy.
The Massachusetts Supreme Court in Care and Protection of Georgette 28
reached a similar conclusion in a multiple sibling case in which one attorney
represented four sisters (Beth, Judith, Georgette, and Lucy) in a termina-
tion of parental rights proceeding. The trial court terminated the father™s
rights to Beth and Judith, but placed Georgette and Lucy in the permanent
custody of the Department of Social Services. Georgette and Lucy appealed
based upon a claim of ineffective assistance of counsel because the trial coun-
sel who represented all four sisters argued con¬‚icting interests and refused
to zealously argue Georgette™s and Lucy™s desire to remain in their father™s
home.29 Although the Massachusetts Supreme Court rati¬ed the siblings™
rights against con¬‚icts of interest in their legal representation, the court
held that the sisters “failed to demonstrate any prejudice based upon the
overwhelming proof of the father™s un¬tness.”30 However, the court was
dissatis¬ed with the current status of professional rules regarding con¬‚icts
of interest in representing children and recommended that the “standing
advisory committee on the rules of professional conduct” devise new ethical
standards for the representation of abused children.31



II. CONFLICTS OF INTEREST INVOLVING PARENTS™ ATTORNEYS

Parents™ counsel have frequently run into ethical problems when representing
both a mother and a father in child custody or dependency proceedings, even
if the attorney attempted to secure waivers regarding con¬‚icts of interest.
For example, in Oklahoma Bar Association v. Max M. Berry 32 an attorney
represented a wife in a divorce proceeding, but she discharged him and
retained new counsel. After the husband and wife remarried, they again
divorced three years later, and this time the attorney represented the husband.
Even though the wife informed the attorney that it was inappropriate to
represent her husband because he had earlier represented her in the prior
divorce, the attorney continued to represent her husband. The Oklahoma


28 Care and Protection of Georgette, 785 N. E. 2d 356 (2003).
29 Id. 30 Id. at 361.
at 358“361.
31 Id. at 367“368.
32 Oklahoma Bar Association v. Max M. Berry, 969 P. 2d 975 (Oklahoma 1998).
14 Legal Ethics in Child Custody and Dependency Proceedings

Supreme Court held that the attorney engaged in a con¬‚ict of interest that
also breached his duty of loyalty to the wife.33
In a more egregious con¬‚ict of interest case, Kentucky Bar Association
v. Ronald A. Newcomer,34 a mother in an initial interview of a contested
custody case disclosed con¬dential data to an attorney. Because the mother
lacked suf¬cient funds to hire the attorney, she proceeded in propria persona.
However, at the custody hearing the same attorney represented the father
and disclosed con¬dential information gleaned during his initial interview
with the mother. The Kentucky Supreme Court suspended the attorney for
three years for violating the rule against con¬‚icts of interest and for divulging
con¬dential information obtained during the initial client interview with the
mother.35
Although con¬‚icts of interests are quite apparent when an attorney rep-
resents two clients with con¬‚icting interests in the same proceeding, it is
more dif¬cult to determine whether an attorney can represent parties in
separate and/or collateral proceedings. For instance, in In the Matters of the
Commitment of the Guardianship and Custody of Destiny D.,36 the New York
City Legal Aid Society Criminal Division represented a father in a criminal
proceeding based upon child abuse. The New York City Legal Aid Society
Juvenile Rights Division was also representing the abused children in a termi-
nation of parental rights proceeding based, in part, on the facts underlying
the father™s criminal case. The father informed the Legal Aid Society that
it should not represent the children because of a possible con¬‚ict of inter-
est and a potential breach of con¬dentiality. A family court judge denied the
father™s con¬‚ict motion and held that the father must demonstrate (1) a prior
attorney-client relationship with the Legal Aid Society, (2) a substantial rela-
tionship between the dual representations, and (3) “that the interests of the
children in these proceedings are materially adverse to the matters in which
the attorney or ¬rm previously represented.”37 The court determined that
there was not a suf¬cient con¬‚ict to require withdrawal because the Juvenile
Division of the Legal Aid Society never represented the father, because the
issues in the criminal trial and the termination hearing were “suf¬ciently
dissimilar,” and because there was merely “speculation” that con¬dential
information from the father™s criminal representation would be disclosed.
The New York court thus set a very high threshold to prove a con¬‚ict of

33 Id. at 976“977.
34 Kentucky Bar Association v. Ronald A. Newcomer, 977 S. w. 2d 20 (Kentucky 1998).
35 Id. at 21“22. See also The Florida Bar v. Walter Benton Dunagan, 731 So. 2d 1237 (Florida

1999).
36 In the Matter of Glen L. Houston, N.Y.S. 2d (Nov. 14, 2002) [not reported; Westlaw Allstates

database].
37 Id.
Con¬‚icts of Interest 15

interest between cases represented by separate divisions of a governmental
legal services of¬ce. One must wonder whether a narrower test would apply
to con¬‚icts of interest within different branches of a private civil or criminal
law ¬rm.
In In the Matter of Glen L. Houston 38 an attorney was retained by a mother
in a divorce action. Subsequently, the mother informed the attorney that
the father had sexually molested her daughter, and the attorney advised the
mother to ¬le a domestic violence petition. The husband was arrested for
sexual abuse and domestic violence. “At the request of the husband, and with
the consent of wife,” the attorney agreed to represent the husband in the
criminal action.39 The husband was sentenced to three years in prison. The
attorney never informed the wife that, if she consented to the representation,
she and her daughter might be called as witnesses, and after the conviction
the attorney never informed the wife that she could seek a custody modi¬ca-
tion under the divorce limiting the father™s access to the child. Even after the
wife said that she did not want the husband to have visitation, the attorney
protected the husband™s interest to the disadvantage of the wife “by enter-
ing a decree containing joint custody and unsupervised visitation” for the
husband.40 The court found that there was a clear con¬‚ict of interest even
though the attorney represented the two clients in separate proceedings and
also held that the wife™s consent to the con¬‚ict was not valid because the
attorney had not properly counseled her regarding the consequences of the
con¬‚ict waiver.41 The attorney was suspended for eighteen months.42
In a similar case, Board of Bar Overseers Of¬ce of the Bar Counsel Mas-
sachusetts Bar Disciplinary Decisions, Admonition 00“68,43 a law ¬rm simul-
taneously represented a mother charged with child abuse and in an unrelated
matter also represented the father of the child. Subsequently, a police report
made it clear that the father would be an adverse witness against the mother
in the child abuse action. The Massachusetts Bar Disciplinary Committee
found a clear con¬‚ict of interest because the state professional responsibility
law treated lawyers within an of¬ce identically to a single lawyer representing
two clients with con¬‚icts of interest: “Mass. R. Prof. C. 1.10(a) provides that,
while lawyers are associated in a ¬rm, none of them shall knowingly represent
a client when any one of them practicing alone would be prohibited from
doing so by the rules on con¬‚ict of interest.”44 The attorney received only a


38 In the Matter of Glen L. Houston, 985 P. 2d 752 (New Mexico 1999).
39 Id. 40 Id. at 754.
at 753.
41 Id. at 755“756. 42 Id. at 756.
43 Board of Bar Overseers Of¬ce of the Bar Counsel Massachusetts Bar Disciplinary Decisions,

Admonition 00“68, 2000 WL 34200490 (2000).
44 Id.
16 Legal Ethics in Child Custody and Dependency Proceedings

private admonition because he “mistakenly believed that since the father did
not ¬le the neglect and abuse complaint, he was not adverse” to the mother™s
interests.45
Attorneys should rarely accept dual representation of mothers and fathers
in child dependency proceedings in which only one of the parents is alleged
to have abused their children because of the high potential for con¬‚icts of
interest. It is very common for the nonabusing parent to appear supportive
of the abusive parent at an initial client interview based upon (1) a true belief
that the abuse allegation is untrue; (2) a sense of duty to one™s spouse or
lover even if the abuse occurred; (3) fear derived from threats by the abu-
sive spouse; or (4) a fear that cooperation with the Department might lead
to loss of the abusing spouse during a period of incarceration in the crim-
inal case, which might reduce the economic vitality of the family. Even if
the nonabusing spouse consents to dual representation, the attorney should
reluctantly represent both spouses because often, deep into the dependency
case, the nonoffending spouse™s position may be altered dramatically in two
ways. First,the Department may amend the petition to allege that the nonof-
fending parent knew of the abuse but failed to report it or to protect the
children from the abusing parent. And second, the Department may pose a
disposition alternative in which the nonoffending parent will have to elect
between the marriage relationship and the relationship with her children.
One of the most common disposition alternatives is to require the nonabus-
ing parent to elect between allowing an abusing spouse or boyfriend to live
in the children™s home or to eject him and retain custody of her children.
Because of the inherent con¬‚icts in defending the offending and nonoffend-
ing parents or lovers, an attorney should rarely, if ever, represent both parties
in child dependency and/or child custody proceedings.


III. THE DEPARTMENT™S ATTORNEY: WHO IS THE CLIENT?

Although historically both the legislature and courts have held that the same
attorney could represent both the Department and the child abuse victim,
contemporary cases have indicated that such dual representation is at the
very least a bad policy and at worst an insoluble con¬‚ict of interest.46 A

45 Id. For a discussion regarding a con¬‚ict of interest in representing adverse parties in separate

paternity and guardianship proceedings, see The Florida Bar v. Jeffrey Evan Cosnow, 797
So. 2d 1255, 1259 (Florida 2001), in which the Florida Supreme Court issued a sixty-day
suspension and a one-year probation sentence.
46 In 2000 the California legislature deleted county counsel as one of the governmental attorneys

available to represent children under California Welfare & Institutions Code § 317 (c). In
addition, in Los Angeles County Dept. Children™s Services v. Superior Court, 7 Cal. 4th 525
(1996), the court rejected county counsel™s argument that trial courts could not determine
Con¬‚icts of Interest 17

Department attorney who also represents abused children will be placed
in a dilemma of receiving con¬dential information from the child that the
attorney cannot disclose to the Department without the consent of the child.
Thus, the attorney will either have to violate his duty of zealousness and
competence owed to the Department or violate his duty of con¬dentiality
owed to the child.47
Although the Department historically has argued that it represents the
best interest of children, internal budgetary pressures often pit the needs of
the child against the services available to the Department. “The presence of
perverse incentives in the child welfare system is not uncommon. In several
areas, the availability of funding, rather than the family™s needs, may dictate
the service chosen.”48 For instance, in the current era of diminishing public
funds and fewer prospective adoptive parents for abused children, the federal
government provides states with adoption subsidies that bring in tremendous
revenue.49 The revenue implications of placing a child in an adoptive home
with the federal adoption subsidy, rather than placement with a relative or


as a matter of policy that county counsel not be appointed to represent children. In addition,
Senate Bill 2160 provided that as of July 1, 2001 the social worker, represented by county
counsel, can no longer qualify as the child™s guardian ad litem and Welfare and Institutions
Code § 326 was repealed.
47 For instance, the City of New York Committee on Professional and Judicial Ethics, in Opinion

Number 1997-2 (March 1997), at 13“14, concluded, “A lawyer employed by a social services
agency generally must preserve con¬dences and secrets relating to the abuse or mistreatment
of a minor client . . . [and] [w]ithout client consent, the lawyer may not disclose client con-
¬dences or secrets to others employed by the agency unless the lawyer determines that the
agency employees would preserve the con¬dentiality of the disclosures.” Another possible
problem is that any information shared with the Department might be disclosed to a criminal
prosecutor and that evidence might be used against the child or other family members in a
criminal prosecution. For instance, in North Dakota Attorney General Opinion (December 9,
1999) [1999 WL 1939465] it was held that prosecutor scan share data discovered in juvenile
proceedings with other prosecutors handling related criminal cases without creating a con-
¬‚ict of interest. And some state child abuse registries mandate disclosure to law enforcement
of any data regarding child abuse allegations. See, e.g., California Penal Code § 11169: “An
agency . . . shall forward to the Department of Justice a report in writing of every case it
investigates of known or suspected child abuse or severe neglect which is determined not
to be unfounded. . . .” Under certain circumstances, mandated child abuse reporters, while
working in a different capacity, such as a member of a board of directors of a child abuse
prevention program not run by the Department of Child and Family Services, “do not have
a reporting duty. . . .” Oregon Attorney General Opinion Number OP “5543 (June 12, 1984)
at 1“2 [1984 WL 192140).
48 Steven Wilker, Child Abuse, Substance Abuse, and the Role of the Dependency Court, 7 HVBLJ

1 (1990) [West Law 7 HARV. BLACKLETTER J. 1 (page reference numbers not available).
49 “California received $3.9 million last year [1999], the ¬rst year of the [adoption] incentive

program”; in Los Angeles there was a 65 percent increase in adoptions and in Orange County
there were “351 adoptions, a two year increase of 48%.” James Rainey, Foster Child Adoptions
Soar in California, L. A. TIMES, Orange County Edition, May 8, 2000, at A22.
18 Legal Ethics in Child Custody and Dependency Proceedings

foster parent that is not equally federally subsidized, have a clear and strong
in¬‚uence on the Department™s choice of child placement.50
Even though California attorneys who represent the Department of Child
and Family Services have fought for decades to retain the right to represent
both the Department and abused children,51 an often overlooked comment to
American Bar Association Model Rules of Professional Conduct, Rule 1.7, which
de¬nes con¬‚icts of interest, demonstrates that such dual representation by
the Department is ethically problematic. Comment, paragraph 5 provides
the following test to determine whether an attorney should even attempt
to obtain clients™ consent to dual representation: “[W]hen a disinterested
lawyer would conclude that the client should not agree to the representation
under the circumstances, the lawyer involved cannot properly ask for such
agreement or provide representation on the basis of the client™s consent.”
One might ask whether knowing the potential and actual con¬‚icts of interest
inherent in dual representation of the Department and the abused child
could lead any “disinterested lawyer” to conclude that that relationship is
truly in the child™s best interest, especially because other attorneys without
such con¬‚icts are available to represent the child.
In North Carolina State Bar Opinion RPC 14: County Attorney as Guardian
Ad Litem 52 a county attorney who did not represent the Department of Social
Services in any proceedings, but who occasionally answered legal questions
concerning the Department as counsel for the ¬ve-member Board of Com-
missioners, sought to act as a guardian ad litem in dependency court. The
North Carolina Bar Association held that there was a suf¬cient con¬‚ict of
interest that prohibited the attorney from acting as a guardian ad litem and
also held that due to the children™s youth, they could not waive that con¬‚ict
of interest.53


50 Id. After the federal adoption subsidy was passed in 1997 the number of adoptions in
California rose from 4,021 in 1997 to 5,908 in 1999. Id. In “Los Angeles County workers
said they felt pressured to increase the number of adoptions, sometimes coercing relatives to
adopt.”
51 For a history and discussion of the cases in which county counsel argued that no con¬‚ict of

interest existed in representing both the Department and the abused child, see Los Angeles
County Department Of Children and Family Services v. Superior Court, 59 Cal. Rptr. 613
(1997); In re Zeth S., 108 Cal. Rptr. 2d 527 (2001).
52 North Carolina State Bar Opinion RPC 14 (October 24, 1986).
53 Id. at 1. InTennessee Attorney General Opinion No. 93-10 (February 3, 1993), it was held that

a juvenile court youth services of¬cer could not also serve as a part-time police of¬cer due
to the con¬‚ict of interest between the law enforcement duties and the duties of the youth
services of¬cer in assisting the juvenile court. In New Jersey v. Clark, 735 A. 2d 1, 4“6 (N.J.
1999), the court held that it was a con¬‚ict of interest for a criminal defense attorney to also
be employed part-time by the municipal prosecutor in the same county where the defense
trial took place because of the appearance of impropriety.
Con¬‚icts of Interest 19

In addition to con¬‚icts of interest between the Department and abused
children regarding placements, another con¬‚ict sometimes develops when
the abused child alleges injury while in the custody of the Department or the
Department™s agent. Although a quick resolution of such legal complaints
is clearly in the abused child™s best interest, the Department, like most tort
defendants, often uses legal strategies that strengthen its case and weaken the
child™s.54 For instance, a recent series of newspaper reports have delineated
the Los Angeles Department™s stalling tactics used against child abuse tort
victims. In fact, one study demonstrated that the County Counsel and the
county claims adjuster routinely denied every tort claim by abused children in
foster care ¬led against the county.55 In addition, many attorneys representing
foster children suing the Department “accused the county counsel™s of¬ce
of stone-walling court-ordered efforts to investigate the cases,” although
County Counsel explained that such delays are caused by con¬dentiality
laws.56 It is uncertain what pressures would develop if County Counsel had
dual representation in these cases. If the foster child made any statements
to the Department or County Counsel regarding the tort, County Counsel
might have to con¬‚ict off the case.
In a rather surprising analysis, the South Carolina Bar Ethics Advisory
Committee held that an attorney who regularly is hired at $100 per depen-
dency annual review to act as the guardian ad litem for children can, as long
as it is not a case in which the attorney represented the child before the
court, be hired to represent the Department of Social Services.57 The Ethics

54 In addition to discovery strategies that county counsel may use in civil litigation in which
children are suing the government, there are other more signi¬cant trial strategies demon-
strating a glaring con¬‚ict between the government™s interest and the child™s interest. For
instance, a series of newspaper articles on the government™s alleged psychological abuse of
child witnesses has pointed out the inherent con¬‚ict when the government™s goal of criminal
conviction or avoidance of a tort judgment clearly con¬‚icts with the emotional health of
young child witnesses. For instance, the District Attorney during the penalty phase of their
father™s trial called to the stand his four children “as witnesses whose testimony help edse-
cure the death penalty for their father.” Caitlin Liu, Children™s Testimony in Case Assailed,
L. A. TIMES, July 26, 2001, at B1. Psychological experts indicated that the children may be
emotionally traumatized for the rest of their lives when they recognize that their testimony
resulted in their father™s death. Id. at B11; Jean Guccione, Jury Urges Execution of Man Who
Killed 2 of His Children, L. A. TIMES, July 26, 2001, at B1. In another case, attorneys repre-
senting California in a suit against the state for failing to provide textbooks to schools “came
under ¬re in news reports Thursday for sharply questioning schoolchildren to discredit their
testimony that they don™t have enough textbooks. . . .” Late Reports, L. A. DAILY. J., Sept. 17,
2001, at 1.
55 Cheryl Romo & Megan Webb, County Rejects All Claims by Abused Foster Kids, Study Says, L

A. DAILY. J., April 24, 2001, at 1.
56 Greg Krikorian, Lawyers for Children Say County Fails to Cooperate, L. A. TIMES, August 22,

2001, at B1.
57 South Carolina Bar Ethics Advisory Committee, Advisory Opinion 89-01 (1989), at 1“3.
20 Legal Ethics in Child Custody and Dependency Proceedings

Committee did not ¬nd a con¬‚ict of interest because the child would have
legal representation that would ameliorate any “propensity for con¬‚ict and
inadequate representation. . . .”58 The Ethics Committee did not even discuss
the appearance of impropriety or of unfairness that might be created in the
minds of parties in the dependency action. The Louisiana Attorney Gen-
eral held that, in the analogous area of criminal law, a district attorney may
not serve as a public defender even if the prosecutor has not been involved
in the prosecution of defendants in any way because of the appearance of
impropriety.59 One must wonder why in the area of con¬‚icts of interest a
similar rule should not apply in child dependency actions that implicate a
fundamental right similar to, although not identical to, the liberty interest
inherent in criminal trials.
Another common dual representation by County Counsel involves con-
¬‚icts of interest between the Department and one of its employees. Most
ethics codes clearly state that “[i]n representing an organization, a mem-
ber shall conform his or her representation to the concept that the client
is the organization itself. . . .”60 However, in some jurisdictions that use a
“prosecutorial model” of agency representation, the governmental attorney
represents “the people” of the state, rather than the agency itself in which the
“attorney may override the views of the agency in court.”61 But the Ameri-
can Bar Association recommends against adoption of prosecutorial models
of representation because of the many impediments: (1) caseworkers will not
have a legal representative in court, (2) the caseworker™s expertise may not
be adequately considered, (3) the governmental attorney may be a general-
ist without suf¬cient training in child protection cases, (4) political issues

58 Id. at 3.
59 Louisiana Attorney General Opinion, No. 00-446 (February 19, 2001). The opinion was
based upon state statutory and constitutional grounds, and therefore it did not discuss
actual con¬‚icts of interest or due process deprivations by having the district attorney™s
of¬ce represent criminal defendants. And in New York Attorney General Informal Opinion
No. 88-54 (August 17, 1988) it was held that although there is nothing to prevent a govern-
ment employee from serving in two legal roles, “a person serving as a county social services
attorney and as an assistant district attorney may not participate as an assistant district attor-
ney in any cases in which he could potentially be called as a witness.” Id. at 1“2. The opinion
noted that child abuse reporting laws could require the district attorney during the depen-
dency case to inform the district attorney of possible criminal violations by the parents and
that the district attorney in the criminal case might call as a witness the assistant district attor-
ney from the dependency case in violation of Code of Professional Responsibility, DR 5“101.
60 California Rules of Professional Conduct, Rule 3-600. This rule is subject to Rule 3-310, which

provides that “[a] member shall not concurrently represent clients whose interests con¬‚ict,
except with their informed written consent.”
61 Standards of Practice for Lawyers Representing Child Welfare Agencies, Rule A-3, Commentary

(American Bar Association, August 2004).
Con¬‚icts of Interest 21

may affect the attorney™s decision making, (5) the agency may be unaided
in its larger policy decisions such as how the case might result in political
fallout, and (6) con¬‚icts may arise if the prosecutor also is involved in a
child delinquency proceeding involving the children in the child protection
case.62
However, under the agency-representation model a con¬‚ict often arises in
that “caseworkers may believe the attorney represents them personally rather
than the agency as a whole.”63 Even if the agency attorney knows that the
social worker is not his or her client, a lawyer-client relationship between the
Department™s counsel and a Department employee often develops inadver-
tently. Consider the following hypothetical:

The Department™s attorney receives a telephone call from one of the Depart-
ment™s caseworkers who says she needs to talk. When they meet outside
courtroom number 281 the children™s services worker informs counsel that
she has been named in a 42 U. S. C. §1983 action for intentionally sexually
abusing a foster child and volunteers that, although she did not commit the
abuse, she did put her arm around the boy. When counsel returns to the
of¬ce he informs his supervisor of the facts of the case, and the supervisor
tells the attorney to prepare a points and authorities motion to demonstrate
that the children™s worker acted outside the scope of her employment and
that therefore the county is not responsible.64 What should the Depart-
ment™s counsel do?

First, attorneys can only represent more than one client if they reasonably
believe that they can adequately represent both interests simultaneously and
if they gain both clients™ consent, unless the clients™ interests are adverse.65 In
this case who is the Department™s client? Generally the client is the Depart-
ment, not employees of the Department.66 However, some ethics codes and
judicial opinions use a subjective standard in determining whether a lawyer-
client relationship has been established. If the client reasonably believed that
he or she was consulting an attorney for advice, even if the attorney had no

62 Id. 63 Id. at Rule B“1.
at Rule B“1, Commentary.
64 This hypothetical is loosely based upon an hypothetical illustration contained in Debra
Bassett Perschbacher & Rex R. Perschbacher, Enter at Your Own Risk: The Initial Consultation
& Con¬‚icts of Interest, 3 GEO. J. LEGAL ETHICS 689, 689“690 (1990).
65 Id. at 694“695; Klemm v. Superior Court, 142 Cal. Rptr. 509, 512 (1977).
66 ABA Model Rules of Professional Conduct, Rule1.13 provides that “[a] lawyer employed or

retained by an organization represents the organization. . . .” “California evidentiary and
ethical rules view the public entity as the client.” Richard C. Solomon, Wearing Many Hats:
Con¬dentiality and Con¬‚icts of Interest Issues for the California Public Lawyer, 25 SW. U.L. REV.
265, 272 (1996); Cal. Evid. Code § 175.
22 Legal Ethics in Child Custody and Dependency Proceedings

intention of creating an attorney-client relationship, a legal and ethical rela-
tionship probably was created.67 If it is determined that this was an initial
consultation or that the prospective client reasonably believed that it was
an initial consultation, then for all intent and purposes an attorney-client
relationship was established. The conclusion could “lead to disquali¬ca-
tion of the lawyer involved, disquali¬cation of the lawyer™s entire law ¬rm,
and restricted access to the lawyer™s work product by substitute counsel.”68
Therefore, when a Department attorney is faced with a scenario in which
an employee of the Department might think that the meeting is an initial
consultation, counsel should immediately inform the employee that he or
she represents the Department, not the employee, and that counsel poten-
tially may be placed in an adverse relationship with the employee.69 This,
of course, will probably induce the employee into silence, which may in
the long run harm the Department because critical data will be lost and
the employee will then have to continue operating on the job without per-
ceived necessary legal advice. Thus, the Department™s counsel and the Depart-
ment are caught in a Catch-22. However, the potential for such con¬‚icts of
interest to arise can be diminished by explicitly informing the Department™s
employees in handbooks and training sessions of the role of the Department™s
attorneys. The American Bar Association Standards suggest that the agency
attorney “must clearly communicate that he or she represents the agency
as an entity and should use the con¬‚ict resolution system [American Bar
Association Model Rule 1.13] when the caseworker™s opinion varies from
the agency policy or the attorney has reason to question the caseworker™s
decision.”70

67 State Bar of California Formal Op. 1984“84 (during a meeting in which a client informed
attorney of facts underlying her causeof action, an attorney-client relationship was estab-
lished even though the attorney formally rejected the representation, and the attorney
could not take another client in which use of the information gleaned from that prospec-
tive client might be used). ABA Informal Op. 1413, June 23, 1978, indicates that “[w]e
are clear that a Government lawyer assigned to represent a litigant, and who undertakes
to do so, has an attorney-client relationship with the litigant, and that the lawyer™s sta-
tus as a Government employee does not exempt him or her from professional obligations,
including those to preserve a client™s con¬dences and secrets, that are imposed upon other
lawyers.”
68 Perschbacher, supra note 46, at 704; River West, Inc. v. Nickel, 234 Cal. Rptr. 33, 41 (1987).

Richard C. Solomon, supra note 48, at 332“333; Civil Service Commission of County of San
Diego v. Superior Court, 209 Cal. Rptr. 159 (1984) (county counsel who represented the
county in lawsuit with a commission that had been previously advised by county counsel
required disquali¬cation of county counsel from the litigation); ABA Informal Opinion 929,
April 6, 1966.
69 ABA Formal Op. 97-405, April 19, 1997.
70 Standards of Practice, supra note 58, Rule B-1.
Con¬‚icts of Interest 23

IV. JUDGES: LIMITS AND RESPONSIBILITIES OF THE NEUTRAL
AND DETACHED MAGISTRATE

Unlike most state rules of professional responsibility for attorneys that delin-
eate speci¬c con¬‚icts of interest that counsel must avoid, such as representing
two parties with con¬‚icting interests,71 most canons of judicial ethics merely
rely upon the general prohibitions that judges “[s]hould uphold the integrity
and independence of the judiciary” and “[s]hould avoid impropriety and the
appearance of impropriety in all his activities.”72 There are very few exam-
ples of judicial ethics cases in child dependency and custody law that have
illustrated those con¬‚icts of interest.
However, in one case the New York Advisory Committee on Judicial
Ethics was asked whether a “part-time Village Justice” could also serve as
a caseworker with the County Child Protective Services, which investigates
child abuse and neglect allegations.73 The Committee found that such dual
employment did not violate the state judicial code, which provided that a
part-time judge “may accept private employment or public employment
in a federal, state or municipal department or agency, provided that such
employment is not incompatible with judicial of¬ce and does not con¬‚ict or
interfere with the proper performance of the judge™s duties.”74 The Commit-
tee noted that very few child protection cases ever come before the Village
Justice courts and that another judge would be available to hear any case
in which the part-time judge had been involved in his capacity as a County
Child Protective Service employee.75 However, the Committee did not ana-
lyze this dual role under the traditional standard of whether it created an
appearance of impropriety or undermined the independence of the court.
It is certainly foreseeable that any witnesses questioned by the judge in his
investigation in the child abuse case might have real concerns about the use of
their statements should the case be litigated in the part-time judge™s court-
room, even if that judge did not preside over the case. One must wonder
whether the Committee would come to the same conclusion if the part-time
judge worked in the criminal prosecutor™s of¬ce in investigating criminal
allegations. Is the inherent con¬‚ict between judge and prosecutor, two jobs

71 See, e.g., ABA Model Rules of Professional Conduct, Rule 1.7(a): “A lawyer shall not represent a

client if the representation of that client will be directly adverse to another client. . . .” See also
Rule 1.8(a): “A lawyer shall not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security or other pecuniary interest adverse to a client. . . .”
72 Iowa State Bar Association Judicial Ethics, Canons 1 & 2.
73 New York Advisory Committeeon Judicial Ethics, Opinion 96-34, April 25, 1996 (1996 WL

940912).
74 Id. at 1; New York Rules Governing Judicial Conduct, section 100.6(b)(4).
75 Id. at 1.
24 Legal Ethics in Child Custody and Dependency Proceedings

that are de¬ned as mutually exclusive based upon separation of powers, any
different from con¬‚ict in the dual role of judge and social worker? Because the
social worker is employed by the executive branch, does the judge™s intimate
relationship with the executive branch raise the appearance of impropriety
in his alternative role as judicial of¬cer? Such dual roles in which judges work
for both the executive or legislative branches of government should therefore
be scrutinized closely for con¬‚icts of interest.
In a more troubling opinion, the New York Advisory Committee on Judi-
cial Ethics held that a judge need not recuse him- or herself merely “because
a proceeding comes before the judge in one court which involves basically
the same persons and most of the same issues involved in a prior proceeding
before the judge in the other court, so long as the judge feels he or she will be
impartial in the second proceeding.”76 In that case the judge presided in both
the dependency court and in a criminal court trial based upon the same case of
child abuse. Unfortunately, the Committee™s decision that no con¬‚ict existed
was based solely upon the judge™s conclusion regarding impartiality, not upon
several other serious questions inherent in such dual judging. First, the order
of the two trials raises signi¬cant questions. If the judge heard the depen-
dency case before hearing the criminal case, he or she could become privy to
considerable relevant and highly prejudicial evidence that was legally admis-
sible in the dependency case, but that would be inadmissible in the criminal
case because of its higher evidentiary standards. The next question is whether
the criminal trial is a court hearing or a jury trial. If it is a jury trial, then it
might not be prejudicial for the dependency court judge to supervise the guilt
phase of the criminal trial because the court would not be the fact-¬nder.
However, if the jury trial is a bench trial, in almost all cases the judge should
recuse him- or herself because he or she will have had access to a great deal
of evidence not admissible in the criminal cases. In addition, if the criminal
case is a court trial, the dependency judge may have sentencing information
gleaned from the dependency trial that would be impermissible to consider
in the criminal sentencing hearing. If so, the judge should recuse him- or
herself as well. If the sentencing hearing is decided by the jury, it is a much
closer case because the dependency court judge™s role in the criminal case
may only be to ensure that the sentence decided by the jury is consistent with
justice. However, if the judge must determine any sentence enhancements
based upon the culpability of the criminal defendant, then there is a poten-
tial that exposure to the dependency court evidence could either consciously
or unconsciously affect his or her decision. If the criminal trial takes place
¬rst, fewer problems arise because the evidence presented in the criminal


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