. 2
( 9)


76 New York Advisory Committee on Judicial Ethics, Opinion 89-104 (September 12, 1989).
Con¬‚icts of Interest 25

case will invariably be admissible in the dependency case, and because under
most circumstances the criminal verdict and fact determinations will be res
judicata and collateral estoppel in the dependency case, which requires a lower
burden of proof than the criminal trial.77
Granting a continuance in the child dependency or custody case until the
conclusion of the criminal case might appear to be a relatively simple solution
to the Fifth Amendment problems inherent in parallel criminal and civil child
abuse actions; however, that remedy is replete with problems.78 First, con-
tinuing the dependency case does not provide the child or nonabusive family
members with suf¬cient safety and/or reuni¬cation services. Second, unlike
expedited dependency and child custody civil proceedings, criminal cases
may take years to process before a verdict is rendered. Third, courts have noted
that judges have very limited authority in limiting criminal prosecutors™ dis-
cretion in how and when they will litigate cases because prosecutorial discre-
tion is an executive function that is protected by separation of powers interfer-
ence from the judicial bench.79 Another possible accommodation is to permit
the civil child dependency or child custody proceeding to be litigated, but to
grant use immunity for parents forced to testify prior to the criminal child
abuse proceeding. Although this approach works in those states in which
an immunity statute exists, other jurisdictions have determined that judges
have no inherent authority to provide use immunity, and still others have
held that use immunity is an executive decision for prosecutors, not judges.80
However, in contrast to cases that have permitted dependency court judges
to accept dual roles in different courts or in alternative employment, the New
York Advisory Committee on Judicial Ethics found that a surrogate court
judge could not serve “on a county task force on child abuse and neglect,
which is funded by a charitable organization.”81 Even though the Committee
found that the child abuse organization would not be likely to appear before
the judge, “its public education function and its name alone might raise a
question” and might “re¬‚ect adversely upon impartiality or interfere with

77 For cases involving resjudicata and/or collateral estoppel in criminal and dependency cases,
see In re R.W.B., 241 N.W. 2d 546 (N.D. 1976); In re Robert J. v. Leslie M., 59 Cal. Rptr. 2d 905
(1997); In re Paternity of Amber J.R., 557 N.W. 2d 84 (Wisc. 1996); In re Linda O., 95 Misc.
2d 744, 408 N.Y.S. 2d 308 (Fam. Ct. 1978).
78 For a full exploration of the problems inherent in concurrent criminal and civil child abuse

trials, see William Wesley Patton,The World Where Parallel Lines Converge: The Privilege
Against Self“Incrimination in Concurrent Civil and Criminal Child Abuse Proceedings, 24 GA.
L. REV. 473, 518“524 (1990).
79 See, e.g., In re Padget, 678 P. 2d 870 (Wyo. 1984).
80 Patton, supra note 76, at 510“518.
81 New York Advisory Committee on Judicial Ethics, Opinion 88“150, December 8, 1988 (1988

WL 547000).
26 Legal Ethics in Child Custody and Dependency Proceedings

the performance of judicial duties.”82 California takes a different approach
by not prohibiting judicial membership in organizations, but by placing
the burden on the judge to sua sponte disclose to parties appearing before
him or her; the judge™s membership “in an organization [is] relevant to the
question of disquali¬cation, even if the judge believes there is no actual basis
for disquali¬cation.”83
The California approach seems to be the wiser one for several reasons.
First, permitting dependency and family court judges to associate with orga-
nizations that help educate the public regarding child abuse will give them a
forum for expressing their views and will assist them in meeting their pro-
fessional responsibilities of educating the public regarding the juvenile court
system. Second, it will permit judges to educate such organizations about
the realities of the dependency and family law systems and the realistic need
for change. Finally, a vague rule concerning which organizations and under
what circumstances judges can join will chill their interest in educating the
public. The California scheme fully protects advocates in its judges™ court-
rooms because they must sua sponte disclose the membership and recuse
themselves if a potential con¬‚ict arises.

82 Id. at 1.
83 CaliforniaRules of Court, California Code of Judicial Ethics, Canon 3, Advisory Committee
Commentary, 1996 Amendment.
2 Competent and Zealous Representation

The requirement of competency is perhaps less controversial than the man-
date for zealousness. Media and lay portrayals of the evils of the legal system
circle around a mistaken understanding of the meaning and importance of
zealousness,1 which has become synonymous with frivolous causes of action
and with grand incivility among those involved in the legal system. It is not
surprising, therefore, that the express requirement of Canon 7 of the ABA
Code of Professional Responsibility that “[a] lawyer should represent a client
zealously within the bounds of the law” was eliminated from the ABA Model
Rules of Professional Conduct except in the Preamble and Comments.2 And
the American Academy of Matrimonial Lawyers has noted that zealous rep-
resentation “is not always appropriate in family law matters.”3 In contrast,
the concept of competence has received a radically different reception by the

1 “Lawyers, especially family and divorce lawyers, have not fared well in the view of the larger

society regarding how they tend to handle disputes.” Robert D. Benjamin, The Use of Mediative
Strategies in Traditional Legal Practice, 14 J. AM. ACAD. MATR. LAW. 203, 229 (1997).
2 The Bounds of Advocacy, 9 J. AM. ACAD. MATR. LAW. 1, 2 (1992). For instance, in the

Preamble, section 7 to the ABA Model Rules of Professional Conduct, it is noted that
“a lawyer can be a zealous advocate on behalf of a client and at the same time assume
that justice is being done.”
3 The Bounds of Advocacy, Preliminary Statement (American Academy of Matrimonial

Lawyers). The Preliminary Statement further distinguishes itself from the ABA Rules of
Professional Conduct, which “perhaps weighed certain principles more heavily in the bal-
ancing process than previous codes. While reaf¬rming the attorney™s obligation of com-
petent and zealous representation, the Standards promote greater professionalism, trust,
fair dealing, and concern for the opposing parties and counsel, third persons, and the
public. In addition, they encourage efforts to reduce costs, delay, and emotional trauma and
urge interaction between parties and attorneys on a more reasoned, cooperative level. . . . ”
The ABA Family Law Section has also noted the sometimes incompatibility of zealousness
with the best interests of families. “High-con¬‚ict custody cases seriously harm the children
involved . . . [and] drain court, family and mental health resources. . . . ” High-Con¬‚ict Cus-
tody Cases: Reforming the System for Children: Conference Report and Action Plan 1 (The
Johnson Foundation Wingspread Conference Center, Wisconsin, September 8“10, 2000,

28 Legal Ethics in Child Custody and Dependency Proceedings

public and bar, and it is not surprising that it is the ¬rst rule in the ABA
Model Rules of Professional Responsibility.4
Rather than disappearing, the requirement of competency has not only
survived numerous ethical code iterations but it has also been re¬ned and
expanded. For instance, in many jurisdictions competency to represent chil-
dren in child dependency proceedings now requires knowledge in areas
well beyond legal theory. For instance, in California the superior court is
required to screen and appoint “competent” counsel with suf¬cient min-
imum standards of education in “the law of juvenile dependency” and in
“child development, child abuse and neglect, substance abuse, [and] domes-
tic violence. . . . ”5 However, even though the respectability of zealousness and
competency may have ¬‚uctuated historically, state bar ethics opinions and
judicial decisions clearly indicate that both are still essential components
of the lawyer-client relationship. The dif¬culty is not in comprehending
de¬nitions of competency and zealousness, but rather in applying them in
discrete contexts. The following discussion provides myriad examples and
analyses that will help attorneys and judges involved in child custody and
child dependency cases decide how to stay on the cusp between zealousness,
incivility, and contempt and between general legal knowledge and situational


There is no clear consensus among juvenile law scholars, judges, legislators,
or children™s organizations regarding the best de¬nition of the attorney-child
client relationship.6 However, no matter whether the children™s representative

4 ABA Model Rules of Professional Conduct, Rule 1.1 states that “[a] lawyer shall provide com-
petent representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation.”
5 California Rules of Court, Rule 1438 (c); California Welfare and Institutions Code § 317.6.
6 For instance, the American Bar Association Model Rules, Rule 1.14(a) and (b), and Comment

#5 provide that competent minors shall receive the same zealous, loyal, and competent repre-
sentation as an adult client. The American Bar Association Institute of Judicial Administration
Joint Commission on Juvenile Justice, Standard 3.1(b)(ii)(b) provides that where a juvenile
client is capable of “considered judgment,” the child shall determine what is in his or her
best interest. Further, Standard 4.2 and Introduction at 3, 8, provide, “Where a client™s capac-
ity may be affected by extreme youth, mental disability, or other cause . . . such dif¬culties
only underline the attorney™s duty to seek to effective communication and consultation with
the juvenile and do not justify adoption of a ˜guardian™ . . . role.” In addition, the American
Bar Association Standards for Child Abuse and Neglect Cases, Standard A-1 provides that the
child™s attorney “owes the same duties of undivided loyalty, con¬dentiality and competent
representation to the child as is due to an adult client.” And Standard B-1 provides for
representation of “the child™s expressed preferences and follow[ing] the child™s directions
Competent and Zealous Representation 29

is a zealous advocate or a guardian ad litem, that attorney has a duty of
competency and zeal.7 But most jurisdictions fail to suf¬ciently articulate the
role of children™s attorneys in child custody and dependency proceedings,
and many jurisdictions have created hybrid roles that combine mutually
inconsistent aspects of both the zealous lawyer model and the guardian ad
litem model. For instance, the following models of child representation exist
in different states: (1) the pure zealous advocate model in which the attorney
argues the competent child™s stated preference even if the attorney does not
think that it is in the child™s best interest; (2) the pure guardian ad litem model
in which the attorney argues what he or she views as the child™s best interest
even if it con¬‚icts with the child™s stated preference; (3) a zealous advocate
model unless the attorney thinks that the child™s preference is dangerous,
and if so, the attorney may request the appointment of a separate guardian

throughout the course of litigation.” In 1996 a group of juvenile law advocates, professors,
and judges found that the child™s lawyer “must presume the child client™s capacity.” Fordham
Conference on Ethical Issues in the Legal Representation of Children, XIV FORDHAM L. REV.
1279, at 1339 (1996). Those juvenile law scholars stated that if a child client is competent,
the lawyer must act upon and carry out the child client™s “well-reasoned . . . rational deci-
sion” even when it may threaten the child™s life or result in death.” Id. at 1345. Finally,
the National Association of Counsel For Children Revised Standards of Practice (1999),
Standard 4 requires “zealous, loyal, and competent child client representation unless the
child™s attorney determines that the child™s expressed preference would be seriously inju-
rious to the child, in which case the lawyer shall, after unsuccessful use of the attorney™s
counseling role, request the appointment of a separate guardian ad litem and continue to
represent the child™s expressed preference, unless the child™s position is prohibited by law
or without any factual foundation. The child™s attorney shall not reveal the basis of the
request for the appointment of a guardian ad litem which would compromise the child™s
position.” However, many state legislatures have set the role of children™s attorneys as
more of a guardian ad litem than as a zealous advocate. And in California, the legislature
has stated that the child™s counsel shall not advocate for the return of the minor if, to
the best of his or her knowledge, that return con¬‚icts with the protection and safety
of the minor. California Welfare and Institutions Code § 317(e). On the other hand, the
California Supreme Court, which promulgated and approved the California Rules on
Professional Responsibility, has not made an exception for attorney-child client relation-
ships that differs from the zealous, loyal, and competent representation owed to adult
clients. William Wesley Patton, Legislative Regulation of Dependency Court Attorneys:
Public Relations and Separation of Powers, 24 NOTRE DAME J. LEGIS. 3 (1998).
7 “In 1974, by its passage of the Child Abuse Prevention and Treatment Act (CAPTA), Congress

established a statutory right to representation, although not necessarily by counsel, for all chil-
dren who are the subjects of child protection proceedings.” Randi Mandelbaum, Revisiting
the Question of Whether Young Children in Child Protection Proceedings Should Be Represented
by Lawyers, 32 LOY. U. CHI. L. J. 1 (2000); David R. Katner, Coming to Praise, Not to Bury, The
New ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect
Cases, 14 GEO. J. LEGAL ETHICS 103 (2000). “The attorney appointed as an attorney for
the child . . . owes the same duties of undivided loyalty, con¬dentiality, and zealous rep-
resentation of the child™s express wishes as he or she would to an adult client, with a few
modi¬cations.” Marvin R. Ventrell, The Child™s Attorney, 17 FAM. ADVOC. 73, 73 (1995).
30 Legal Ethics in Child Custody and Dependency Proceedings

ad litem to argue the child™s best interest; and (4) the lawyer as a neutral
fact-¬nder for the court who does not articulate a position regarding the
child™s stated preference.8

A. Children™s Competence as a Key in Deciding the Model of Advocacy
Most of the con¬‚icts inherent in selecting the appropriate or required attor-
ney role in representing children center upon the capacity of the child client
to make informed decisions. ABA Model Rule 1.14(a) provides that
When a client™s ability to make adequately considered decisions in con-
nection with the representation is impaired, whether because of minority,
mental disability or for some other reason, the lawyer shall, as far as reason-
ably possible, maintain a normal client-lawyer relationship with the client.
And Rule 1.14(b) provides that if the client lacks suf¬cient capacity, “[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 cannot adequately act in the client™s own interest.”9

Further, Comment 1 to Rule 1.14 warns that incompetency is not the same
as limited or impaired capacity and that children often have competency to
make some decisions even if they cannot make other, more sophisticated
[A] client lacking legal competence often has the ability to understand,
deliberate upon, and reach conclusions about matters affecting the client™s
own well-being. Furthermore, to an increasing extent the law recognizes
intermediate degrees of competence. For example, children as young as ¬ve
or six years of age, and certainly those of ten or twelve, are regarded as
having opinions that are entitled to weight in legal proceedings concerning
their custody.

Children™s attorneys therefore need to understand the distinction between
“[c]apacity [which] refers to a client™s ability to understand information

8 See Emily Buss, ˜You™re My What?™ The Problem of Children™s Misperceptions of Their Lawyers™

Roles, XIV FORDHAM L. REV. 1699, 1700“1703 (1996). For example, the court in Fox v.
Willis, 822 A. 2d 1289, 1292 (2003) noted that the role of children™s representatives might
be as “attorney,” “[g]uardian ad litem,” and “investigator” and that there are actually
“four different roles: ˜waiver, pure representation, pure investigation, or a combination.™”
9 The Restatement of the Law Governing Lawyers, § 35 provides that “[a] lawyer representing a

person whom the lawyer reasonably believes to be [incompetent] . . . may seek the appoint-
ment of a guardian or take other protective action with respect to a decision on a question
within the scope of the representation when doing so is practical and will advance the client™s
objectives or interests. . . . ” And the American Academy of Matrimonial Lawyers, Bounds of
Advocacy, 1.2 Comment states that if the client is incompetent, the de¬nition of “competent
representation” “may require that the attorney recommend that the client consult a mental
health professional.”
Competent and Zealous Representation 31

relevant to the case and the ability to appreciate the consequences of
decisions . . . [from] [c]ompetence [which] is a legal standard, and denotes
a speci¬c level of skill, knowledge, or ability.”10
The American Academy of Matrimonial Lawyers (AAML) has taken a
completely different approach from the ABA Model Rules in its standards
for representing children in child custody cases. Instead of an age-neutral
policy, AAML Standard 2.2 “provides a rebuttable presumption that chil-
dren twelve and older are unimpaired and that children younger than twelve
are impaired.”11 However, creating a presumption of incompetence based
upon age alone is problematic from the child™s perspective. First, who has
the burden of rebutting the presumption? It certainly should not be the child
because children do not have access to the variables underlying a conclusion
of legal competency and because they do not have access to someone, other
than their own attorney, to argue their own competence. In addition, if a
child™s attorney comes into the relationship with a presumption of incom-
petency of children younger than age 12, it is likely that the attorney will
not spend suf¬cient time or resources to attempt to rebut that presumption
because of the high caseloads and low pay in child dependency proceedings.
In fact, it is likely that the child™s attorney will have to determine the child™s
competency within forty-eight hours of the child being taken into custody
and based upon a short initial interview at the detention hearing just before
attending that proceeding. The presumption of incompetency can substan-
tially harm children because critical decisions are made at the initial detention
hearing. For instance, suppose that a 7-year-old child at the detention hear-
ing informs her attorney that she wants to remain with her 12-year-old sister
and wants to be removed from her abusing parents™ home. If the child is
competent, the child™s attorney under Model Rule 1.14 is required to imple-
ment the child™s stated preference. However, assume that the attorney thinks
that the 7-year-old girl is not at risk and would fare better in her parents™
home than in foster care. How will the child™s attorney™s disagreement with
the child™s stated preference affect counsel™s determination of the minor™s
competence? If the attorney ¬nds the child incompetent, then counsel may
not be required to zealously argue the child™s express wish to be removed
from her parents™ home and be placed with her older sister in foster care.
The Fordham Conference Report (FCR) took a position directly opposite
that of the AAML and indicated that “as a starting point of a capacity analysis,

10 JenniferL. Renne, Legal Ethics in Child Welfare Cases 39 (American Bar Association, 2004).
“The most critical distinction between the two concepts is that competence is a characteristic
that someone either possesses or doesn™t. It is an all or nothing principle.”
11 Michael Drews & Pamela Halprin, Determining the Effective Representation of a Child in

Our Legal System: Do Current Standards Accomplish the Goal?, 13 FAM. CT. REV. 73, 79
32 Legal Ethics in Child Custody and Dependency Proceedings

the lawyer must presume the child client™s capacity.”12 The FCR places the
burden on the attorney to determine competently, based upon the totality of
the circumstances, whether the child is competent: “As with adults, lawyers
have an ethical obligation to advocate the position of a child unless there is
independent evidence that the child is unable to express a reasoned choice.
Where such evidence exists, a lawyer must engage in additional fact ¬nding
to determine whether the child has or may develop the capacity to direct the
lawyer™s action.”13
The child-centered model outlined in the FCR was extensively expanded
in the book by Jean Koh Peters, Representing Children in Child Protective
Proceedings: Ethical and Practical Dimensions.14 She proposed a model of
child advocacy in which the attorney must focus not only on the child™s
capacity to make reasoned decisions within a “child-in-context” mode but
also must look at the child™s capacity in relation to the theory of the case.15
Peters places a heavy burden upon the child™s attorney not only to fully
investigate all relevant evidence regarding the child™s capacity but also to
determine whether any bias is inherent in the attorney™s conclusion regarding
the child™s competency. According to Peters, the attorney should consider the
following factors:

1. child™s development stage (cognitive ability, socialization, and emo-
tional development)
2. child™s expression of a relevant position (ability to communicate with
lawyer and ability to articulate reasons)
3. child™s individual decision-making process (in¬‚uence, coercion,
exploitation, conformity, variability, and consistency)
4. child™s ability to understand consequences (risks of harm and ¬nality
of decision)16

Therefore, under each of the discrete standards and rules of the vari-
ous professional organizations, once the child is determined suf¬ciently
competent to make a reasoned choice among alternatives, the attorney™s

12 Report of the Working Group on Determining the Child™s Capacity to Make Decisions, 64
FORDHAM L. REV. 1339, 1339“1340 (1996).
13 Id. at 1312“1313. Criticisms of the FCR are that its recommendations “fail to appreciate

that a child cannot be neatly categorized and may need an advocate acting primarily as an
attorney with regard to one issue, while at other times the child may need an advocate acting
primarily as a guardian ad litem.” Drews & Halprin, supra note 11, at 83.

15 Drews & Halprin, supra note 11, at 84; Ann M. Haralambie, In Whose Best Interest?, 34-June

JTLATRIAL 42 (1998).
16 Peters, supra note 14, at 1312“1313.
Competent and Zealous Representation 33

role is usually to represent the child™s stated preference zealously and compe-
tently, absent unusual circumstances such as imminent serious danger to the

B. The Lawyer™s Role as the Child™s Guardian Ad Litem
A continuing problem with the appointment of advocates for children is the
ambiguity inherent in the de¬nition of the advocate™s role. When an attor-
ney is appointed to represent a child in a child custody or dependency case,
ambiguities arise over whether that appointment is as a zealous advocate
or a guardian ad litem or both, because the speci¬c role de¬nes the ambit
of zealousness, the child™s role in selecting the ultimate resolution, and the
con¬dentiality of the information gleaned by the attorney during the repre-
Because of the inherent consequences to the child of the role of the attorney,
the Fordham Conference recommended that lawyers should never function
in dual roles in representing a child client:
When it is uncertain whether a lawyer has been appointed to represent a
child as the child™s lawyer, to serve as the child™s guardian ad litem, to serve
in a dual lawyer/guardian ad litem role, or to serve the child in some other
role, the lawyer should elect to represent the child as a lawyer.18 [And] a
lawyer should not serve as both a child™s lawyer and guardian ad litem. When
a lawyer has been appointed to serve in both roles, the lawyer should elect
to represent the child as a lawyer and not to serve as guardian ad litem. If
that is not permissible, the lawyer should elect to decline the appointment
where feasible.19
However, assuming that the attorney practices in a jurisdiction in which
counsel are appointed as guardians ad litem (GALs), the attorney must recog-
nize the differences between the zealous advocate model and the best interest
(GAL) model. “In custody matters, the guardian ad litem has traditionally
been viewed as functioning as an agent or arm of the court, to which it owes
its principal duty of allegiance, and not strictly as legal counsel to a child
client [and] essentially functions as the court™s investigative agent. . . . ”20 In

17 Most states now require appointment of a guardian ad litem for children in child dependency

proceedings based upon federal mandates for funding under federal child abuse legislation.
See, e.g., Utah Attorney General Opinion No. 77-027, October 14, 1977; S. C. Code Ann.
Sec. 20-7-110A; South Carolina Attorney General Informal Opinion, April 2, 1996 (1996 WL
18 Report of the Working Group . . . , supra note 12, at 1302.
19 Id. at 1302.
20 Fox v. Willis, 822 A. 2d 1289, 1294 (2003). The Fox court held that because guardians ad litem

perform judicial functions that they were entitled to at least quali¬ed immunity. Id. at 1297.
34 Legal Ethics in Child Custody and Dependency Proceedings

2001 twenty-two states mandated guardians ad litem, twenty-three provided
a CASA (court-appointed special advocate), and eleven provided both to
assist the court in determining the child™s best interest.21 Guardians ad litem
are often called to testify and make representations; however, because the GAL
usually does not have a duty of loyalty and con¬dentiality toward the child,
the GAL can give recommendations inconsistent with the express wishes of
the child.22 However, if the child™s advocate operates in an attorney role,
American Bar Association Ethics Rule 3.7 provides that “[a] lawyer shall not
act as advocate at a trial in which the lawyer is likely to be a necessary wit-
ness except where: (1) the testimony relates to an uncontested issue”; (2) the
issue involves a controversy regarding the quality or cost of attorney services;
or (3) “disquali¬cation of the lawyer would work substantial hardship on
the client.”
Although the Child Abuse Prevention and Treatment Act of 1974 required
the appointment of guardians ad litem for children in states receiving fed-
eral funds, the Act did not specify the role of the GAL. Therefore, states
have used GALs for different purposes ranging from zealous advocates to
mere judicial fact-¬nders. Some have argued that if the role of the GAL is
identical to the role of a child™s attorney, then appointing both is duplica-
tive and a waste of juvenile resources. However, GALs in most jurisdictions
need not be attorneys; their roles, even as advocates, are clearly differenti-
ated. To clarify the distinctions between the role of a child™s attorney and
a child™s GAL, the Alaska Bar Association held that GALs, whether they be
lay persons or attorneys appointed speci¬cally as a GAL, are “not bound by
the normal duty of con¬dentiality, but rather should act within the con-
text of the proceeding and be responsive to the reason for his appointment,
namely the best interest of the child . . . [however] the attorney must warn
the child that any statements made or positions taken by the child may be
disclosed to the Court if the attorney deems such disclosure to be in the
child™s best interest.”23 The Alaska Bar Association noted that children will
not intuitively distinguish between the roles of attorneys and GALs, and
therefore, the GAL must clearly explain the lack of a duty of loyalty and
con¬dentiality so that the “child™s natural trust and perception . . . not be

21 Michael J. Dale, Providing Counsel to Children in Dependency Proceedings in Florida, 25 NOVA

769, 795 (2001).
22 See Michelle Johnson-Weider, Guardians Ad Litem: A Solution without Strength in Helping
Protect Dependent Children, 77 FLA. B. J. 87 (April 2003).
23 Alaska State Bar Association, Ethics Opinion No. 854 (November 8, 1985).
24 Id.; see also Claudia Wright, Representation of Children in a Uni¬ed Family Court System in

Florida, 14 U. FLA. J. L. PUB. POL™Y 179, 189“191 (2003).
Competent and Zealous Representation 35

C. Hybrid Models of Child Representation
Unlike Alaska, many states have not suf¬ciently clari¬ed the role of children™s
advocates, or that role is de¬ned in ways that appear mutually inconsistent.
For example, in California there is a direct con¬‚ict between the supreme
court™s de¬nition of zealous lawyering and the legislature™s pared-back advo-
cacy model for children™s advocates in Welfare and Institutions Code § 317,
which holds that children™s attorneys may not argue for the return of a
child if the attorney reasonably believes that it might endanger the child
However, because of the very low pay in representing children in abuse
cases, many attorneys carry such a heavy caseload that they can neither
zealously present their child client™s case nor perform suf¬cient investiga-
tive functions to properly inform the court of the child™s best interest. For
instance, in Los Angeles, the Children™s Law Center, the quasi-public contract
¬rm representing children in dependency court, averaged approximately
240 clients per year per staff attorney.25


Parents™ attorneys, like social workers, judges, and other attorneys involved
in the child dependency and custody courts, are poorly paid, seldom lauded
publicly, and carry excessively high caseloads.

A. Failure to Complete Lawyering Responsibilities
A heavy caseload is not an excuse, justi¬cation, or defense to incompetent
representation. For instance, in Attorney Grievance Commission of Maryland
v. Alan C. Drew,26 the Maryland court of appeal stated, “This Court has
never considered that an attorney™s decision to take on more work than the
attorney could properly handle was a mitigating factor. . . . Acceptance of
˜workaholism™ as an excuse for lack of diligence would effectively ˜gut™ the
duty of diligence.”
In addition, lack of adequate preparation time is no defense to a charge of
incompetence. In People v. Barbara J. Felker 27 the Colorado Supreme Court
found that the parents™ attorney violated the duty of competence (ABA Model
Rule 1.1) when the attorney™s only preparation for a child support case “was

25 William Wesley Patton, Searching for the Proper Role of Children™s Counsel in California
Dependency Cases; Or the Answer to the Riddle of the Dependency Sphinx, 1 J. CENTER CHILD.
FAM. CT. 21, 31 (1999).
26 Attorney Grievance Commission of Maryland v. Alan C. Drew, 669 A. 2d 1344, 1349 (1996).
27 People v. Barbara J. Felker, 770 P. 2d 402, 404 (Colorado 1989).
36 Legal Ethics in Child Custody and Dependency Proceedings

accomplished in the car on the way to the courthouse. . . . ” Fortunately in
the Felker case, when new counsel was appointed, counsel was able to secure
child support until the child reached the age of 18.
The most frequently sustained ethical violation against parents™ attorneys
is their failure to complete the client™s case, often leaving parents without the
adoption or custody of their child upon which they had reasonably relied. For
instance, in In the Matter of Anonymous Member of the South Carolina Bar,28
an attorney was privately reprimanded for failing to complete a stepfather
adoption. The court invalidated a conditional consent to adoption because
the biological father had not consented to the stepparent adoption; then,
the attorney, even after being noti¬ed that the biological father was now
willing to consent, failed to re¬le the adoption papers. In addition to the
private reprimand, the court ordered the attorney either to complete the
stepparent adoption or to return the $500 fee.29 And in In the Matter of
Kenneth L. Mitchum30 an attorney was publicly reprimanded for failing to
complete an adoption and for failing to keep his clients informed regarding
the status of the case.31 Similarly, in Kentucky Bar Association v. L. M. Tipton
Reed 32 an attorney was disbarred for neglecting to ful¬ll his promise to a
mother to vacate a custody order removing her daughter from her custody.33
And the Kansas Supreme Court in In the Matter of Terri Stroh Tweedly 34
inde¬nitely suspended an attorney for failing to represent the client in a
termination of parental rights action: “Respondent [attorney] failed to keep
appointments, failed to return telephone calls, and failed to obtain service
on the incarcerated defendant [father].”35 It is clear that the bar needs to

28 In the Matter of Anonymous Member of the South Carolina Bar, 377 S.E. 2nd 572 (South
Carolina 1989).
29 Id. at 528529. See also Grove v. State Bar of California, 58 Cal. Rptr. 564 (1967).
30 501 S.E. 2d 733, 735 (South Carolina 1998).
31 In People v. Baird, 772 P. 2d 110, 111 (Colorado 1989), an attorney was publicly censured

for failing to complete a stipulated agreement for a change of custody order. And in In re
Randall B. Kopf, 767 S.W. 2d 20, an attorney was publicly admonished for failing to complete
a stepdaughter adoption within a ¬ve-year period.
32 Kentucky Bar Association v. L. M. Tipton Reed, 814 S. W. 2d 927 (Kentucky 1991).
33 In In the Matter of Rodney H. Roberts, 366 S. E. 2d 679, 680 (Georgia 1988), an attorney was

disbarred when he lied to his clients that he had ¬led an adoption proceeding on their behalf
and that the adoption was ¬nalized. And the Minnesota Supreme Court in In the Matter
of the Application for the Discipline of Richard W. Curott, 375 N.W. 2d 472, 473“474 (1985)
publicly reprimanded and suspended for two years an attorney who failed “to complete work
for a client in a timely manner” in a grandparent visitation action.
34 In the Matter of Terri Stroh Tweedly, 20 P. 3d 1245, 1247 (Kansas 2001).
35 In In re Paul L. Wood, 686 So. 2d 35, 36 (Louisiana 1997) an attorney was suspended for failing

to complete an adoption matter and for failing to return the client™s ¬les. And in People v.
Paulson, 930 P. 2d 582, 583 (Colorado 1997) an attorney was suspended for failing to perfect
his client™s “effort to gain custody of her grandson.” In Broadway v. Kentucky Bar Association,
Competent and Zealous Representation 37

provide greater continuing education to counsel representing parents in child
custody and dependency proceedings so that counsel can learn not only the
substantive law but also case management skills that will enable diligent,
as well as zealous and competent, representation in these expedited legal

B. Competence and Zealousness
Parents™ attorneys owe their clients the same duties of competence and zeal-
ousness owed to all other clients. Yet, attorneys representing accused par-
ents in dependency court have a dif¬cult job because society rarely provides
such counsel with positive feedback because of their “unpopular . . . ethical
responsibility to zealously represent persons accused of socially abhorrent
conduct.”36 However, counsel representing mothers and/or fathers are not
shielded by their inexperience or lack of legal expertise in the sometimes
very complicated legal proceedings involving child custody.37 For instance,
in Toledo Bar Association v. Vild 38 the parents™ attorney failed to order a
home study in preparation for an adoption proceeding. Although the dis-
ciplinary panel found that the attorney™s failure to secure the home study
was “a result of his complete inexperience and lack of knowledge regarding
adoption procedures . . . ,” the panel publicly reprimanded the attorney for
violating Code of Professional Conduct, DR 6“101(A)(1), which provides that
“a lawyer shall not undertake a legal matter which he is not competent to han-
dle, unless he associates with a lawyer who is competent to handle it.”39 And
in People v. Aron40 an attorney in a child custody matter was suspended from
practice for thirty days for failing to adequately “research the issues involved
before giving legal advice” and for failing to advise his client that she could
be criminally responsible for violating a child custody order. The mother
was arrested and the children taken into protective custody and returned to

997 S. W. 2d 467 (Kentucky 1999) an attorney voluntarily resigned after the state bar brought
charges that he, among other violations, falsely informed a mother that he had adequately
represented her in a visitation and custody dispute. The California Supreme Court in Lester
v. State Bar, 131 Cal. Rptr. 225 (1976) suspended an attorney for willful failure to perform
legal services in a paternity case. See also In Re Complaint of Wesley Scott Bridges, 728 P. 2d 863
(Oregon 1986), wherein the state supreme court disbarred an attorney for failing to perform
work for a parent in a divorce action.
36 Sandra Anderson Garcia & Robert Batey, The Roles of Counsel for the Parent in Child Depen-

dency Proceedings, 22 GA. L. REV. 1079, 1080 (1988).
37 One study found that “lack of training” was one of the principal factors in the inef¬ciency

of child dependency courts. Id. at 1079, 1080.
38 702 N.E. 2d 865 (Ohio 1998).
39 Id. at 865-866.
40 People v. Aron, 962 P. 2d 261 (Colorado 1998).
38 Legal Ethics in Child Custody and Dependency Proceedings

their father in another state. The mother “received a deferred sentence from
the court, based in part on her reliance on Aron™s [the attorney™s] advice
regarding keeping her children with her” in another state.41
Although many disciplinary cases have involved parents™ attorneys™ incom-
petence, perhaps an equal number of cases involve overly zealous attorney
behavior in which the attorneys either suggest or facilitate illegal conduct.
In People v. Chappell 42 the Colorado Supreme Court disbarred an attorney
in a child custody case who instructed a mother how to run away with her
child after the court ordered a transfer of custody to the father. The attor-
ney explained to the mother “˜the underground™. . . assisted in emptying her
bank accounts, and had advised her on how to avoid being caught.”43
And in a very complicated case, Harrison v. Mississippi Bar,44 the Missis-
sippi Supreme Court disbarred an attorney, in part because he counseled a
mother to violate a court order placing the custody of her daughter with her
husband. The case was complicated because of the mother™s allegations that
the father had sexually abused the daughter and because the Department
of Social Services in California had intervened in another state for a court
order denying the change of custody to the father. However, after medical
examinations proved insuf¬cient evidence of sexual abuse, the California
dependency court withdrew its jurisdiction and ordered implementation of
the Mississippi court order changing the daughter™s custody to the father. The
Mississippi disciplinary committee found that the mother™s attorney “aided
Singley [the mother] in hiding Chrissy” from her father.45
Courts have also disciplined parents™ attorneys for ex parte communi-
cations and failure to give notice to adverse parties. In both In the Matter
of Carl S. Black46 and in Iowa Supreme Court Board of Professional Ethics
and Conduct v. Donna Lesyshen,47 the Kansas and Iowa Supreme Courts

41 Id. at 262“263. See also People v. Dowhan, 951 P. 2d 905, 905“907 (Colorado 1998), in which

an attorney was suspended for forty-¬ve days for failing to competently counsel a mother
regarding the perils of moving to another jurisdiction before a court modi¬cation was made
of the custody agreement. As a result, custody of the mother™s child was transferred to the
father, she was held in contempt of court, ¬ned $1,500 with $1,000 suspended, and granted
visitation with her son only every other weekend. Id. at 906.
42 People v. Chappell, 927 P. 2d 829 (Colorado 1996).
43 Id. at 830“831.
44 Harrison v. Mississippi Bar, 637 So. 2d 204 (Mississippi 1994).
45 See also People v. Mercer, 35 P. 3d 598 (Colorado 2001), in which the court found that an

attorney™s return to the noncustodial father of plane tickets sent to the mother to enable
the children to travel to visit under a court order with the father was not a violation of
ethics because there was insuf¬cient evidence that the mere return of plane tickets “assisted,
facilitated or supported the violation of the court visitation order.” Id. at 607.
46 In the Matter of Carl S. Black, 941 P. 2d 1380 (Kansas 1997).
47 Iowa Supreme Court Board of Professional Ethics and Conduct v. Donna Lesyshen, 585 N. W.

2d 281 (Iowa 1998).
Competent and Zealous Representation 39

suspended attorneys for representing mothers in ex parte child custody pro-
ceedings without notifying the fathers of those legal hearings. And the Kansas
Supreme Court in In the Matter of Daniel L. Swagerty 48 publicly censured
an attorney who represented prospective adoptive parents for his failure to
notice and obtain consent from the presumed father.
Parents™ counsel are sometimes confused over the difference between zeal-
ous advocacy and inappropriate fact investigation. For instance, ABA Model
Rule 4.2 states, “In representing a client, a lawyer shall not communicate about
the subject of the representation with a party whom the lawyer knows to
be represented in the matter by another lawyer, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.” What if the par-
ents™ attorney wants to speak with the child who is the subject of the petition?
Because children in many jurisdictions are represented by the Department™s
attorney, must parents gain his or her consent before speaking with the
allegedly abused child?
The answer to a related question, whether the parents™ attorney must
seek the consent of the Department™s attorney before questioning a social
worker, is no. In Michigan Standing Committee on Professional and Judicial
Ethics Opinion RI-316 49 the Ethics Committee indicated that counsel for a
minor may directly contact a social worker because (1) the social worker is
a governmental employee; (2) the child™s attorney is statutorily obligated to
contact government employees involved in the case; and (3) the commentary
to ABA Rule 4.2 provides, “Communications authorized by law include, for
example, the right of a party to a controversy with a government agency
to speak with government of¬cials about the matter.”50 Because parents, as
well as children, are involved as parties with a government agency in the
dependency case, it would appear that parents™ counsel need not obtain the
consent of the Department™s attorney before speaking with the social worker.
The Ethics Committee further provided that “[i]n order for all parties asso-
ciated with the case to accomplish the goals of the Child Protection Act, both
the guardian ad litem and lawyer for the parents must have access to the
government agency that is responsible for the investigation and ultimate rec-
ommendation to the court relating to any plan the court may impose should

48 In the Matter of Daniel L. Swagerty, 739 P. 2d 937 (Kansas 1987).
49 Michigan State Bar Standing Committee on Professional and Judicial Ethics, Opinion RI316
(December 13, 1999).
50 Id. at 2. See also Alaska Bar Association Ethics Opinions Nos. 71-1 (April 14, 1971) and 84-11

(Nov. 1, 1984), permitting access to governmental witnesses as long as the attorney “reveals to
the employee his identity and representation and the connection between the representation
and the communication.” Id. at Opinion No. 71-1. See also Alabama State Bar Opinion
Number 2003“03.
40 Legal Ethics in Child Custody and Dependency Proceedings

jurisdiction be obtained in the case.”51 The practice of giving parties access
to the social worker without a formal requirement of consent by the Depart-
ment™s lawyer is consistent with the policy of permitting liberal informal
discovery in dependency proceedings in order to expedite permanency.52
However, the same informal access to the social worker does not apply
when the parents™ attorney wishes to question the abused child. Even if the
Department™s attorney also represents the child, the policy underlying the
liberal access rules for social workers does not apply because children are not
governmental employees who are mandated to conduct the fact investigation
for the government. Thus, in South Carolina Bar Ethics Advisory Committee
Opinion 97-15 53 the Ethics Committee held that ABA Rule 4.2 mandated
that parents™ counsel gain the consent of the child™s guardian ad litem before
questioning the child.54 Although the Ethics Committee indicated that ABA
Model Rule 4.2 was not directly applicable because the child was represented
by a guardian ad litem and not counsel, it held that, because the child lacks
the capacity to represent herself, a guardian ad litem for discovery purposes
should be treated as an alternative equivalent of a party represented by coun-
sel. The Ethics Committee noted that even if the child wants to speak with the
parents™ counsel, consent of the child™s representative is still required because
the child lacks capacity to waive the consent requirement.55
Parents™ attorneys have often been disciplined for exceeding the bounds of
zealous advocacy by implementing illegal acts and/or violations of court and
procedural rules to perfect the parents™ wishes. For instance, in Broadway v.
Kentucky Bar Association 56 a father™s attorney forged the judge™s signature on
a change of custody order, and the father used that order without knowledge
of its falsity to regain custody of his child. The Kentucky Supreme Court per-
manently disbarred the attorney because the forgery “re¬‚ects adversely on the

51 Id. at 3.
52 For example, California Rule of Court, Rule 1420 provides that the dependency discovery rule

“shall be liberally construed in favor of informal disclosures, subject to the right of a party
to show privilege or other good cause not to disclose speci¬c material or information. . . . ”
53 South Carolina Bar Ethics Advisory Committee Opinion 97-15 (December 1997).
54 Id. at 1.
55 Id. at 2. The North Carolina State Bar, in Communication with a Child Represented by GAL

and Attorney Advocate, RPC 249 (April 3, 1997), also held that a parents™ counsel must
seek consent from either the GAL or child™s lawyer in order to interview the abused child.
The Ethics Committee also indicated that a prosecutor in the criminal child abuse action
and the Department™s attorney in the dependency proceeding must also garner consent
before interviewing the child. Id. at 1. And the Wisconsin Supreme Court in In the Matter
of Disciplinary Proceedings Against Frank X. Kinast, 530 N.W. 2d 387 (Wisconsin 1995), held
that a wife™s attorney in a civil custody proceeding must obtain consent from the child™s GAL
or attorney before questioning the minor.
56 Broadway v. Kentucky Bar Association, 8 S. W. 3d 572 (Kentucky 2000).
Competent and Zealous Representation 41

lawyer™s honesty, trustworthiness or ¬tness. . . . ”57 In Ex rel. Nebraska State
Bar Association v. Thomas R. Zakrezewski 58 the Nebraska Supreme Court
suspended an attorney for ¬ling a false af¬davit alleging that his client™s
ex-wife™s attorney directed her to ¬le a false child abuse claim against his
client. The Court merely suspended the offending attorney because the action
involved the attorney™s brother and because the attorney “was so personally
involved that a proper level of objectivity was lost.”59 And in a similar case in
Florida, The Florida Bar v. Charles F. Wishart,60 the Florida Supreme Court
found that the referee™s recommendation for disbarment was excessive and
instead issued the attorney a three-year suspension because the ethical viola-
tions involved a custody proceeding involving his step-granddaughter. The
attorney, in representing the child™s father, sent the judge letters “containing
information that was beyond the scope of the evidence presented at the prior
hearings and potentially damaging to the mother.”61 The dissent argued that
disbarment was appropriate because the justice could “think of no more
¬‚agrant misconduct by an attorney than deliberately disobeying a series of
direct orders by the court . . . [and because the attorney] indicated that he
would engage in this conduct again not only when his granddaughter was
involved but on behalf of clients as well, if he felt it necessary.”62 And in Dis-
ciplinary Action Against Shirley A. Dvorak,63 an attorney in a divorce action
was suspended from practice for one year after using con¬dential and priv-
ileged statements by a witness in a guardian ad litem questionnaire for the
purposes of humiliation and denial of access to witnesses.
In Colorado v. Karen J. Roose 64 a mother™s counsel in a termination of
parental rights proceedings lied to the court regarding material facts, includ-
ing an assertion that she represented the mother even though another court
had relieved her as counsel and forbidden her from ¬ling any more motions
for the mother.65 Because of the attorney™s attempted involvement in the
case, the mother refused to cooperate and appear at the termination hear-
ing, which resulted in the severance of her parental rights.66 Based upon

57 Id. at 573. In In the Matter of Disciplinary Proceedings Against Curt M. Weber, 579 N.W. 2d
229 (Wisconsin 1998) an attorney represented parents in a termination of parental rights
case even though his license had previously been revoked. Luckily, the client was not severely
prejudiced and was able to secure other counsel to perfect his legal rights. Id. at 230.
58 Ex rel. Nebraska State Bar Association v. Thomas R. Zakrezewski, 560 N. W. 2d 150 (Nebraska

59 Id. at 156.
60 The Florida Bar v. Charles F. Wishart, 543 So. 2d 1250 (Florida 1989).
61 Id. at 1250“1251. 62 Id. at 1252“1253.
63 Disciplinary Action Against Shirley A. Dvorak, 611 N.W. 2d 147, 150“151 (North Dakota

64 Colorado v. Karen J. Roose, 44 P. 2d 266 (Colorado 2002).
65 Id. at 267“268. 66 Id. at 268“269.
42 Legal Ethics in Child Custody and Dependency Proceedings

the misstatements of material facts and the attorney™s effect of stripping the
mother of a zealous advocate and presence at the termination hearing, the
attorney was disbarred.67
Parents™ attorneys also have been disciplined for breaching rules of civility
in highly charged emotional custody proceedings. For instance, in Cuyahoga
County Bar Association v. Stafford,68 a case involving a contested visitation
schedule, one attorney called the other “a piece of shit,” who then responded
that the other attorney was “a total asshole.”69 The Ohio supreme court
publicly reprimanded both attorneys for engaging in “undigni¬ed or dis-
courteous conduct which is degrading to a tribunal” based upon ABA DR
7-106(C)(6).70 And in In the Matter of Carl S. Black 71 the Kansas Supreme
Court found that an attorney violated a state rule of professional conduct
by using “means that have no substantial purpose other than to embarrass,
delay, or burden a third party” when he made “angry outbursts” criticizing
a party opposing his client for wearing “the uniform of the United States
Army . . . ” in a child custody hearing.72
Because parents™ attorneys are often solo practitioners without the assis-
tance of other attorneys to help with often unconscionably heavy caseloads
and because of the very low pay for dependency court work, often they either
rely too much on lay employees or use inexperienced attorneys without pro-
viding suf¬cient supervision. One must question whether court-appointed
attorneys who carry a caseload of approximately 658 cases representing par-
ents accused of abusing or neglecting their children can provide all those
clients zealous and competent representation.73 For example, in Harrison v.
Mississippi Bar 74 the Mississippi Supreme Court disbarred an attorney, in
part, for failing to supervise a nonlawyer employee. The attorney used that
lay employee to hide his client™s daughter from her father, even though the
father had a court custody order. The court found that the attorney violated
Rule 5.3(b), which provides “that with respect to a nonlawyer employed or
retained by or associated with a lawyer: (b) a lawyer having direct supervi-
sory authority over the nonlawyer shall make reasonable efforts to ensure
that the person™s conduct is compatible with the professional obligations of
the lawyer.”
And in In the Matter of Robert C. Yacavino75 the New Jersey Supreme
Court issued a three-year suspension to an attorney for failing to supervise

67 Id. at 73.
68 Cuyahoga County Bar Association v. Stafford, 733 N. E. 2d 587 (Ohio 2000).
69 Id. 70 Id. at 586.
at 587.
71 In the Matter of Carl S. Black, 941 P. 2d 1380 (Kansas 1997).
72 Id. at 1383“1384. 73 Id. at 32.
74 Harrison v. Mississippi Bar, 637 So. 2d 204 (Mississippi 1994).
75 In the Matter of Robert C. Yacavino, 494 A. 2d 801 (New Jersey 1985).
Competent and Zealous Representation 43

a subordinate attorney in an adoption matter. The court™s description of the
attorney™s satellite of¬ce is an ethical horror story: The novice attorney “was
left virtually alone and unsupervised in the year that he serviced the ¬rm™s
Pompton Plains of¬ce. The of¬ce was lacking in the essential tools of legal
practice. Partners rarely attended the of¬ce; no member of the ¬rm inquired
as to the status of the of¬ce matters.”76 The court indicated that a supervising
attorney has several ethical obligations regarding new lawyers: (1) collegial
support, (2) “a systematic organized routine for periodic review of a newly
admitted attorney™s ¬les,” and (3) assurance that supervised attorneys con-
form to the rules of professional conduct.77
Attorneys who represent parents must be careful not to exploit the mother™s
or father™s vulnerability during the stressful proceedings because doing so
might result in the permanent severance of their relationship with their
children. The Alaska Bar Association Ethics Committee determined that it
is “unethical for a lawyer to become intimately involved with a client of
the ¬rm during the course of the ¬rm™s representation in a termination of
parental rights proceeding.”78 The Ethics Committee noted a number of dele-
terious effects stemming from such an intimate relationship with a parent:
(1) a potential that the attorney will be called as a witness; (2) psycholog-
ical harm to the parent client; and (3) the possibility that sexual conduct
may be “exchanged for legal services, non-consensual, coercive, or illegal.”79
Because of the fragile emotional condition of parents facing termination
of their parental rights, the Ethics Committee held that such a sexual rela-
tionship “triggers the presumption” of harm to the client, and the ¬rm,
not just the attorney having the sexual relationship, must withdraw from
representing that client.
The previous examples of parents™ attorneys™ ethical violations clearly
demonstrate the failure of our current professional machinery to suf¬ciently
educate, support, and regulate these attorneys regarding diligence, compe-
tence, and zealousness in child dependency and custody proceedings. Parents™
counsel often serve on large informal panels of appointed attorneys and work
in isolation as solo practitioners without the support and ethical sounding
board provided in governmental of¬ces or even in small to medium-sized
law of¬ces. If the salary scale or ¬‚at-fee rate for parents™ attorneys were suf-
¬ciently increased to reduce the necessity of such high caseloads, many of
the issues involving competency and underzealous advocacy would quickly

76 Id. 77 Id. at 803“804.
at 803.
78 Alaska Bar Association Ethics Committee, Opinion 92-6 (October 30, 1992).
79 Id. at 1“2.
44 Legal Ethics in Child Custody and Dependency Proceedings


Because child dependency proceedings are basically civil cases, is the role
of the Department™s counsel equivalent to that of a private practitioner in
ordinary civil litigation, or does the ultimate dispute over the fundamental
right to parent ethically elevate the Department™s counsel closer to the role
of a criminal prosecutor? The history of the treatment of procedural due
process in the United States Supreme Court adds to the ambiguous status of
the Department™s representative, rather than providing clarity. For instance,
in Lassiter v. Department of Social Services 80 the Supreme Court, in a ter-
mination of parental rights case, for the ¬rst time indicated that the right
to appointed counsel to a party whose personal liberty was not threatened
might be required under some circumstances. The Court noted that the loss
of a fundamental liberty interest, such as the right to rear one™s child, is, like
a loss of liberty, suf¬cient under certain circumstances to trigger the due
process clause of the Fourteenth Amendment requiring the appointment of
counsel.81 However, one year later the Supreme Court held that a standard
of proof by clear and convincing evidence, rather than the criminal court
requirement of beyond a reasonable doubt, was suf¬cient due process in ter-
mination of parental rights cases.82 Dependency cases are thus quasi-criminal
or quasi-civil, depending upon how one characterizes the consequences of
losing the fundamental right to associate and rear children.
If one analogizes to the quasi-criminal model in which the Department™s
counsel functions as a government prosecutor, County Counsel™s ethical
obligations may be signi¬cantly different from that of a quasi-civil private

80 Lassiter v. Department of Social Services, 101 S. Ct. 2155 (1981).
81 Id.
82 Santosky v. Kramer, 102 S. Ct. 1388 (1982). The California Supreme Court in Cynthia D. v.
Superior Court, 19 Cal. Rptr. 2d 608 (1993), determined that because of the unique nature of
the California dependency system, which, unlike the New York system analyzed in Santosky,
has as its main purpose the reuni¬cation of the family in an environment in which parents
have counsel and the state does not have a decisive advantage over the parents, only a pre-
ponderance of the evidence standard was required. However, it is time to rethink Cynthia D.
because of several changes in the California dependency system. First, in a signi¬cant number
of cases reuni¬cation is no longer the immediate or central goal (Welf. & Inst. Code § 361.5).
Second, the California system now requires concurrent planning in which reuni¬cation ser-
vices are to be considered at the same time and to the same extent as permanent alternative
placement in adoption or long-term guardianship. Therefore, the current California system
looks more like the New York system analyzed in Santosky because the state has concurrent
dual purposes in its treatment of the parents and family. These dual purposes increase expo-
nentially the chances of errors in the fact-¬nding process and in the state™s ability to shape the
facts as delineated in Santosky. Therefore, the protection of a clear and convincing evidence
standard is now needed in California just as it was needed in Santosky.
Competent and Zealous Representation 45

litigator. For example, the American Bar Association Standards of Practice
for Lawyers Representing Child Welfare Agencies notes that the agency lawyer
“should work with the agency to bring only appropriate cases to court”
and should counsel the agency regarding the political consequences of its
decisions.83 And in California, the Department™s lawyer, like a criminal pros-
ecutor, must sua sponte proffer exculpatory evidence.84 Some might argue
that the Department™s attorney, like a criminal prosecutor, is entitled to a
grant of absolute immunity while acting in the role of a prosecutor dur-
ing legal advocacy.85 However, others might argue that the roles of criminal
prosecutors and the Department of Children and Family Services counsel
are too dissimilar to provide them with absolute immunity.86 For instance,
the criminal prosecutor, unlike the Department™s counsel, does not have an
identi¬able client, but rather represents the public in general.87
The absence of an identi¬able client places additional ethical burdens
on a criminal prosecutor because he or she has greater autonomy and dis-
cretion in decision making than most other attorneys.88 Therefore, Model

83 American Bar Association Standards of Practice for Lawyers Representing Child Welfare Agen-
cies, Rule C“1(3) (August 2004).
84 Brady v. Maryland, 373 U.S. 83, 87 (1963); ABA Model Code provision DR 7“103(B); Cal.

Const. Art. I, § 1. California Rules of Court, Rule 1420(c) provides the “[p]etitioner shall
disclose any evidence or information within petitioner™s possession or control favorable to
the child, parent, or guardian.”
85 Criminal prosecutors are granted absolute immunity from civil damage claims brought

under §1983. Imbler v. Pachtman, 424 U.S. 409, 428“29 (1976). However, absolute immunity
covers those acts that are traditionally considered within the role as advocate in order to
protect the judicial process. Milstein v. County of Los Angeles, 2001 DJDAR 7514, 7515 (2001).
It does not cover such actions as talking to the press outside the courtroom. Id. at 7515“17.
86 In California several courts have held that social workers while conducting quasi-judicial

acts, such as ¬ling a child abuse report, act like a prosecutor and are entitled to absolute
immunity. Gensburg v. Miller, 37 Cal. Rptr. 2d 97 (1994); Jenkins v. County of Orange, 260
Cal. Rptr. 645 (1989). However, when the social worker™s acts cease being like judicial actions,
such as during the long-term supervision of a dependency case during reuni¬cation, they
may be covered under quali¬ed immunity. Scott v. County of Los Angeles, 32 Cal. Rptr. 643
(1994). Because county counsel who represent the Department that supervises social workers
receive immunity, one might argue that county counsel™s immunity should be coextensive
with that of social workers.
87 Fred Zacharias, The Professional Discipline of Prosecutors, 79 N. C. L. REV. 721, 726 (2001).

Bruce A. Green states that a criminal prosecutor is different from all other attorneys,
including other governmental attorneys, because the prosecutor “is the representative of
the sovereignty in two senses: the lawyer is counsel for the government and a government
of¬cial. In this dual role, prosecutors must serve the government aim of ˜seeking justice.™”
Must Government Lawyers “Seek Justice” in Civil Litigation?, 9 WIDENER J. PUB. L. 235, 238
88 “Prosecutors have signi¬cant, often controlling, discretion to determine which constituency

of the state should be considered dominant in any particular case. As a result, rules governing
con¬‚icts among clients and rules designed to protect the autonomy of decision-making
authority of clients rarely apply to them.” Id.
46 Legal Ethics in Child Custody and Dependency Proceedings

Rules of Professional Conduct, Rule 3.8 (2000) places many constraints upon
prosecutors that might, if imposed upon counsel representing an identi¬able
client, violate the dictates of zealous, loyal, and con¬dential representation.
For instance, under Rule 3.8, a criminal prosecutor must (1) make reasonable
efforts to see that the defendant has been advised of his or her rights and
an opportunity to obtain counsel, (2) not seek to obtain waivers of rights
by an unrepresented client, (3) take care to prevent employees from mak-
ing prohibited extrajudicial statements, and (4) refrain from making public
statements that might be prejudicial to the defendant.89 None of the codes
of professional responsibility places similar burdens upon the Department™s
attorney if he or she has an identi¬able client.
Therefore, are the roles of the prosecutor in a criminal case and that of
the Department™s counsel in a dependency case really ethically analogous,
even though they share many similarities? Perhaps the tie-breaker is the
question of whether these attorneys have obligations greater than those of
zealous, loyal, and competent representation of an identi¬able client. There is
a continuing debate over whether all attorneys owe an overarching duty to do
justice that transcends client obligations. For instance, in 1908 the American
Bar Association required all attorneys to take an oath not to “counsel or
maintain90 any action, proceeding, or defense which shall appear to [us] as
unjust.”91 The greatest consensus on whether an attorney must seek justice
involves criminal prosecutors who as “ministers of justice” “must not attempt
to achieve her ends of justice through unjust means.”92
However, there is much greater debate over whether other governmental
attorneys, like the Department™s counsel, must seek justice or just represent
their client™s interests. For instance, the ABA has determined that “a gov-
ernment lawyer has no greater duty of candor to opposing parties and to
the tribunal than a private party™s lawyer.”93 Most sources do not extend the
prosecutor™s duty “to refrain from seeking judicial rulings that they know
to be contrary to law, to call the court™s attention to its legal or procedural

89 Geoffrey C. Hazard, Jr., Con¬‚icts of Interest in Representation of Public Agencies in Civil
Matters, 9 WIDENER J. PUB. L. 211 (2000).
90 Bruce A. Green, supra note 58, at 241.
91 Robert E. Rodes, Jr., Government Lawyers, 9 WIDENER J. PUB. L. 281, 281“82 (2000), quoting

the Canons of Ethics of the American Bar Association Oath of Admission (1908).
92 Lesley E. Williams, The Civil Regulation of Prosecutors, 67 FORDHAM L. REV. 3441, 3443

(1999); Model Rule of Professional Responsibility, Rule 3.8.
93 Cathleen C. Cavell, Ethical Lawyering in Massachusetts, Chapter 18, §18.4 (2000). In addi-

tion, the ethical standards under the Model Rules of Professional Conduct for Federal Lawyers,
Rule 1.13 “now clearly state that an agency is the client and that, absent illegal or unethical
behavior, a DOJ attorney owes loyalty to that agency.” James R. Harvey III, Loyalty in Gov-
ernment Litigation: Department of Justice Representation of Agency Clients, 37 WM. & MARY L.
REV. 1569, 1596 (1996).
Competent and Zealous Representation 47

mistakes, and to correct the errors and omissions of opposing counsel in
certain situations.”94 Determining whether a Department™s counsel views
his or her role as purely an adversary in representing the Department or as
also one of seeking justice as a governmental representative can be delineated
by the following hypothetical:

County counsel [the Department™s attorney] in a termination of parental
rights case based upon the failure of the parent to visit with the child for a
period of six months as a condition of reuni¬cation, knows that the foster
parents have on several occasions intentionally refused the parent access to
visitation with the child.95 Further assume that the parent™s attorney does
not raise this issue at the termination hearing.96

If the Department™s counsel assumes the role of a zealous civil advocate
for the Department, he or she will probably be constrained by codes of ethics
from sua sponte informing the court of this critical fact, which could demon-
strate that the parent could not be held accountable for failing to visit with the
child. A zealous government counsel might provide several arguments why
disclosure of exculpatory evidence within counsel™s control was not required.
First, it could be argued that requiring disclosure to a parent of exculpatory
evidence “within petitioner™s possession or control” is inapplicable because
the purpose of that section is to provide parents with access to information
that a parent might not on his or her own be able to discover. Second, if
the Department™s legal representative knows that the parent already has that
potentially exculpatory evidence, as in this hypothetical, the duty to disclose
no longer exists. Therefore, the zealous Department™s counsel could con¬-
dently remain silent and let the court terminate the parents™ rights if that
result was consistent with the Department™s litigation goal.
However, what if the Department™s counsel believes that as a governmen-
tal attorney he or she owes loyalty, con¬dentiality, and zealousness to the
Department, as well as a duty to see that justice is served in the individual case?
It is critical that governmental attorneys remain vigilant and independent
in counseling their clients about the ethical, political, and strategic conse-
quences of their actions. Experts have described the problems that develop

94 Bruce A. Green, supra note 58, at 241.
95 Pursuant to Welfare & Institutions Code §366.26(c)(1), if parents have not contacted the child

for six months that evidence is a “suf¬cient basis for terminating parental rights. . . . ”
96 For instance, California Welfare and Institutions Code § 366.26 provides that termination of

parental rights shall not proceed if the court ¬nds that “at each and every hearing at which
the court was required to consider reasonable efforts or services, the court has found that
reasonable efforts were not made or that reasonable services were not offered or provided.”
48 Legal Ethics in Child Custody and Dependency Proceedings

when counsel loses an independent perspective and associates too closely
with the client: “Once a lawyer identi¬es with a client, she now sees things
differently from before, directly as a result of that allegiance.”97 The consen-
sus is that a government lawyer, absent a statutory or ethical mandate, may
not act on his or her own and disclose the fact of the foster parents™ frustra-
tion of parental visits because doing so would violate the ethical duties to the
client, the Department.98
The American Bar Association Standards of Practice cast the agency lawyer
in a hybrid role as zealous advocate for the agency, but with the added respon-
sibility to see that the child™s best interests are also considered by the court.
For instance, Standard D-4 provides that the agency lawyer “[p]lay an active
role in deciding whether the child should testify and/or be present in the
courtroom during hearings.”99 Although that statement, on its face, might
merely refer to the strategic decision whether the child™s live testimony would
assist the agency™s case, the Comments to Standard D-4 indicate that the deci-
sion also involves the child™s psychological health: “It is important to consider
the child™s wishes, any possible effects of the testimony and the child™s devel-
opmental ability to handle cross-examination.” But the Comments also note
that there may be cases in which the agency may not want the child to testify
because it might psychologically harm the child, but where the agency attor-
ney needs the child to testify in order to present suf¬cient evidence of abuse
to withstand a motion to dismiss. And the Comments recognize the role of
the agency and its attorney to propose and/or support prophylactic protec-
tions for child witnesses, such as having the child™s attorney, rather than the
agency™s attorney, examine the child or requesting an in camera hearing with
the child testifying in chambers without the presence of parents.100
Often, the role between the attorney and the Department is de¬ned by
statute. For instance, in Mississippi State Attorney General Opinion No. 94-
0408,101 it was held that the attorney representing the Department acts on
behalf of the Department as a client and has no independent status as a
governmental prosecutor.102 In addition, that opinion held that the Depart-
ment™s attorney has no independent judgment to refuse to ¬le a dependency
petition against the Department™s recommendation or authority to dismiss

97 Robert F. Cochran, Jr. et al., Symposium: Client Counseling and Moral Responsibility, 30 PEPP.

591, 624 (2003).
98 ABA Formal Opinion 94-387 (September 26, 1994).
99 Standards of Practice for Lawyers Representing Child Welfare Agencies, Standard D-4

(American Bar Association, August 2004).
100 Id. Standard D-4, Action and Commentary.
101 Mississippi State Attorney General Opinion No. 94-0408 (August 17, 1994).
102 Id. at 2.
Competent and Zealous Representation 49

a petition or enter into a plea agreement with parents without the consent
of the Department.103
However, a different conclusion was reached in Kansas Attorney General
Opinion No. 90“33,104 in which the state statute permits a nongovernmental
employee to seek a dependency petition and in which the role of the district
attorney is to exercise discretion whether to ¬le that dependency petition.
Under that circumstance, the role of the Department social worker is that
of fact investigator and witness, not the attorney™s client.105 “As such, the
county or district attorney is not required to represent SR [the Department
of Social Services] anymore than the county or district attorney is required
to represent any other witness.”106
In addition to zealous representation, the government™s attorney also owes
the Department a duty of competence. In many jurisdictions criminal pros-
ecutors rotate into assignments in dependency court with little or no train-
ing in this specialized area of law. In one study, assistant state attorneys
“[expressed] concern that prosecuting attorneys do not have the requisite
skills to optimally ful¬ll their mandate to represent the state in the depen-
dency proceedings.”107 Some states, like California, have speci¬c statutes
guaranteeing competent counsel to all parties in dependency proceedings
and requiring attorneys to have speci¬c training in such areas as child devel-
opment before representing a party in court.108
In many states the Department™s attorney is not treated differently from
other attorneys regarding the duty of competence. For instance, the New
York State Bar Association Committee on Professional Ethics was questioned
whether attorneys who represent the Department of Social Services in depen-
dency, paternity, and family law have a duty of competency, even though they
carry excessively large caseloads.109 The Committee indicated that govern-
ment attorneys representing the Department are required to meet the ABA
competency requirements, as well as those contained in the American Law

103 Id. at 3“4. And the Department may not turn over its discretion in dependency cases to a
nonlawyer professional because that would constitute the practice of law without a license.
See Rozmus v. Rozmus, 595 N.W. 2d 893 (Nebraska 1999).
104 Of¬ce of the Attorney General of Kansas, Opinion No. 90-33 (March 19, 1990).
105 Id. at 1. 106 Id. at 3“4.
107 Sandra Anderson Garcia & Robert Batey, supra note 36, 1079, 1090.
108 See California Welfare & Institutions Code §§ 317.5 and 317.6, which provide that “[all parties

who are represented by counsel at dependency proceedings shall be entitled to competent
counsel” and that the California Judicial Council shall “adopt rules of court regarding the
appointment of competent counsel in dependency proceedings. . . . ” Arguably, under these
statutes, the Department is entitled to competent counsel, but because the Department™s
counsel is not appointed by the court, the guidelines and/or requirements for training are
not applicable to the Department™s attorney.
109 New York State Bar Association, Committee on Professional Ethics, Opinion 751 (May 6, 2002).
50 Legal Ethics in Child Custody and Dependency Proceedings

Institute, Restatement Third of the Law Governing Lawyers, § 16(1)(2), which
provides that a lawyer must “proceed in a manner reasonably calculated to
advance [the] client™s lawful objectives,” but also must “act with reasonable
competence and diligence.” The Committee argued by analogy to several
ABA and state bar opinions that have held that legal services lawyers have
a duty to withdraw from cases if their caseload is so excessive as to lead
to incompetent representation.110 The New York Bar Committee also held
that a lawyer may not seek a waiver of the duty of competence from the
client because ABA Model Rule 1.2, Comment provides that “[an agreement
concerning the scope of representation must accord with the Rules of Profes-
sional Conduct and other law.” Thus, the Committee held that a government
lawyer representing the Department may not follow the orders of the Depart-
ment to provide less than competent lawyering, such as when a Department
employee informs the attorney to “just show up” or “just do the best you can
do” without suf¬cient preparation, especially if the government attorney has
an ethical obligation to “seek justice.”111
The recently promulgated ABA Standards of Practice for Lawyers Represent-
ing Child Welfare Agencies mandate very speci¬c tasks for agency attorneys in
de¬ning zealous and competent representation of their clients, including the
following: (1) knowledge of applicable laws, rules, and policies; (2) regular
communication with the agency; (3) development of a case theory and the
petition; (4) suf¬cient fact investigation; (5) participation in all proceedings,
including alternative dispute resolution, such as mediation and negotiation;
(6) preparation and presentation of opening arguments, direct and cross-
examination of subpoenaed witnesses, and closing arguments; and (7) ¬ling
of “necessary post-hearing motions and the notice to appeal.”112
Because of the negative jurogenic effects of the legal system on children,
many jurisdictions have promulgated rules to soften the effects of zealous
advocacy on children in child dependency and/or custody cases.113 And
because expediency is essential to reaching permanency as quickly as possi-
ble for the abused child, most states have promulgated liberal discovery rules

110 For instance, ABA Ethics Opinion 399 (1996) held that legal services lawyers must “with-
draw from some matters if funding and staff reductions greatly increase these lawyers™
workloads, since maintaining an unmanageable case load violates the lawyer™s duty . . . to
provide competent representation.” ABA Ethics Opinion 347 (1981) earlier had informed
legal services lawyers to withdraw from some cases if the caseload might lead to incompetent
111 NESTA Opinion 751, at 2. 112 Standards, Rule B-1 (1)-(27).
113 For instance, in In the Matter of the Application for Disciplinary Action Against Shirley A.

Dvorak, 611 N.W. 2d 147 (North Dakota Supreme Court, May 18, 2000), the court in a
family law case determined that counsel™s obstruction of the parties™ access to data and other
charges warranted a one-year suspension.
Competent and Zealous Representation 51

that do not require court intervention. For instance, in California dependency
proceedings, “[e]xcept where there is a contested issue of fact or law . . . [the
proceedings] shall be conducted in an informal nonadversary atmosphere
with a view to obtaining the maximum cooperation of the minor upon
whose behalf the petition is brought and all persons interested in his or her
welfare. . . . ”114
Some jurisdictions not only require liberal discovery but also require
counsel, sua sponte, to disclose exculpatory information.115 For instance, the
Colorado Ethics Committee publicly censured a deputy district attorney for
failing to disclose a “child victim™s change in testimony” in a criminal child
abuse proceeding.116 Failure of a criminal prosecutor to disclose exculpatory
evidence is a violation not only of due process but also of the ABA Standards
for Criminal Justice, Standard 3.3-11, which provides, “A prosecutor should
not intentionally fail to make timely disclosure to the defense, at the earliest
feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or
which would tend to reduce the punishment of the accused.”
For example, in People v. Rolfe117 an attorney was publicly censured by
the Colorado Supreme Court for failing to notify the defendant or the court
that “a caseworker for the county department of health and human services
had found the allegations of abuse ˜unsubstantiated.™” Although the United
States Supreme Court cases requiring disclosure of exculpatory evidence may
not apply in child dependency and custody cases,118 and even if the state has
no rule of court requiring such sua sponte disclosure, attorneys who do not
reveal that data may violate other ethical constraints. For instance, if the
child abuse action in People v. Rolfe had been ¬led in the dependency or
family court and if the attorney had presented af¬rmative evidence of the
abuse without disclosing the exculpatory evidence, he or she might be found
to have violated the canons prohibiting an attorney knowingly from mak-
ing a false statement of material fact or law to a court or from engaging in

114 California Welfare and Institutions Code §350.
115 For instance, California Rules of Court, Rule 1420 provides, “This rule shall be liberally
construed in favor of informal disclosures, subject to the party to show privilege or other
good cause not to disclose speci¬c material or information . . . Petitioner [the Department]
shall disclose any evidence or information within petitioner™s possession or control favorable
to the child, parent, or guardian. . . . ”
116 People v. Mucklow, No. 00PDJ010 (Colorado, December 16, 2000).
117 People v. Rolfe (Colorado Case No. 98SA114, August 10, 1998).
118 Of course, a colorable argument can be made for applying the due process duty to disclose

exculpatory evidence to child dependency cases because the Supreme Court has compared
the loss of liberty with the loss of the fundamental right to rear one™s children in both
Santosky v. Kramer, 455 U.S. 745 (1982), and Lassiter v. Department of Social Services, 452
U.S. 18 (1981).
52 Legal Ethics in Child Custody and Dependency Proceedings

conduct involving dishonesty, fraud, deceit, or misrepresentation.119 Even
if the jurisdiction does not have a rule requiring the disclosure of excul-
patory evidence by the Department™s attorney, because the Department is,
by de¬nition, representing the government™s view of the best interest of the
child, such disclosure is consistent with the main function of the attorney™s
representation of the Department. In addition, if the Department™s attorney
does not disclose exculpatory information, a later determination that the
Department, in fact, possessed that data can result either in a continuance
or in a reversal of the juvenile court judgment. Therefore, failure to disclose
that evidence may place the Department™s attorney at risk of violating the
ABA standard that requires agency attorneys to “[p]romote timely hearings
and reduce case continuances.”120 Furthermore, any appellate reversal based
upon a failure to disclose material data might harm the children because
permanency will be postponed.


Just how involved may a judicial of¬cer become in attempting to determine
or perfect what he or she sees as the best interest of a child? In Roberts v.
Commission on Judicial Performance121 the California Supreme Court set out
the parameters of trial court involvement in child dependency cases. In that
case, the trial court “improperly acted as an advocate, prejudged issues, abu-
sively curtailed the presentation of evidence, and treated witnesses, litigants
and an attorney in a rude, intimidating and demeaning manner.”122 The
dependency court judge told both the abused child™s mother and one of her
witnesses that “[y]ou have no credibility with this court. . . . [s]he would have
[the mother], who had abused her own child, babysit hers. Now, I don™t have
to listen to that kind of evidence.”123 The California Supreme Court noted
that a judge™s “serious concern for the welfare of the minor . . . ” may not
be improperly demonstrated through a “nonobjective and nonneutral man-
ner, demonstrating unwarranted impatience, disbelief and hostility toward

119 Even though some courts have found that social workers are absolutely immune from prose-

cution, even if they fabricate evidence in child abuse cases, the Department™s attorney has an
obligation to inform the other parties and the court of the social worker™s lies. Doe v. Lebbos
(9th Cir., Nov. 4. 2003; Lexis 22632).
120 Standards, Rule C-1(2), supra note 89.
121 Roberts v. Commission on Judicial Performance, 661 P. 2d 1064 (1983).
122 Id. at 1066.
123 Id. at 1066“1067. See Alaska Commission on Judicial Conduct Opinion #001 (1994) (judges

may not “criticize jurors verbally, directly to them, for their work as jurors”). See also In re
Jesse G., 2005 WL 905634 (April 20, 2005); Gloria M. v. Superior Court, 21 Cal. Supp. 3d 525,
527 (1971).
Competent and Zealous Representation 53

counsel, litigant, and witnesses.”124 A judge may not “become an advocate
for either party or cast aspersions or ridicule upon a witness.”125 Nor may
the judge act as the child™s legal counsel.
In Chrissy v. Ms. Dept. of Public Welfare126 the federal district court said
that it was an error to rely upon judicial of¬cers to supply legal protection
for the minor in a custody dispute between paternal and maternal relatives:
“The district court erred in attributing . . . [to judicial of¬cers] the constitu-
tional duty to protect Chrissy F.™s procedural rights beyond appointment of
a guardian ad litem. To impose such a duty on a judicial of¬cer in the per-
formance of judicial duties is to circumvent the state appellate procedures
and potentially to cast the judge in a role uncomfortably close to that of
In In the Matter of Louis Grossman128 the New York Commission on Judi-
cial Conduct voted to impose censure on a judge in a custody dispute who
turned the trial into “a series of grueling cross-examinations” of the 4-year-
old child.129 The custody battle was “bitterly contested,” involved threats
from outside sources to manipulate the outcome, and even included bomb
threats.130 The judge strenuously cross-examined the child in chambers
regarding allegations of sexual abuse by the father in four successive one-hour
sessions.131 The New York Commission on Judicial Conduct found that the
trial judge (1) “called the child a liar . . . more than 200 times,” (2) told the
minor “approximately 40 times that he had given contradictory testimony,”
(3) “admonished” the child more than 200 times to tell the truth, (4) asked
the child 150 times who had told him to lie about the abuse, (5) told the
child four times that “he might go to jail if he did not tell the truth,” (6) told
the child that “handcuffs worn by the court of¬cer were used for people
who did not tell the truth,” (7) informed the child more than 50 times that

124 Id. at 1068“1069.
125 Id. citing McCartney v. Commission on Judicial Quali¬cations, 116 Cal. Rptr. 260, 268 (1974).

Although judges need not all ¬t into a single mold or style (Matter of Ross, 428 A.2d 858 (Maine
1981)), they must avoid hostility and discourtesy toward litigants (Furey v. Commission On
Judicial Performance, 240 Cal. Rptr. 859 (1987)), gender bias (Lester v. Lennane, 101 Cal. Rptr.
2d 86 (2000)), and sexual harassment (53 Cal. Rptr. 2d 788 (1996)). For a discussion of the
effects and causes of judges who bully those who appear before them, see Stephen Yagman,
Longtime Cycle of Bench Bullying, L. A. DAILY J., February 12, 2002 at 6.
126 Chrissy v. Ms. Dept. of Public Welfare, 995 F. 2d 595 (District Court, Fifth Circuit, 1993).
127 Id. at 599“600.
128 In the Matter of the Proceeding Pursuant to Section 44, Subdivision 4, of the Judiciary Law in

Relation to Louis Grossman, A Judge of the Civil Court of the City of New York and Acting Justice
of the Supreme Court, First Judicial District, Commission on Judicial Conduct State of New
York, November 20, 1984 (1984 WL 262214).
129 Id. at 2“4. 130 Id. at 2“5.
131 Id. at 2.
54 Legal Ethics in Child Custody and Dependency Proceedings

there would be “serious trouble” or “serious consequences” if he did not tell
the truth, (8) and instructed the child that he “would be punished by God”
and that his lies would hurt his mother.132 Also, the judge™s questioning was
done “roughly and in rapid-¬re fashion.”133 In addition, the record re¬‚ected
that the child cried several times and “protested” fourteen times that he was
tired and needed to rest.134 In ¬nding that the allegations warranted censure,
the Commission found that the judge “ignored his obligation to the child”
and “lost the sense of detachment required of him.”135 Although the dissent
stated that the penalty of “censure” was too severe, the majority might have
given a greater sanction had the judge not had a “heretofore unblemished
career on the bench.”136
The Roberts and Luis Grossman cases make it quite clear that dependency
and family court judges have a duty to remain detached and neutral in
proceedings to determine the custody of children, even if they are passion-
ate about the dispute before the court and even if their reputation has been
impugned. However, because juvenile dependency proceedings often involve
serious allegations of child abuse, it is no wonder that judges want to dis-
cover as many relevant facts as possible so that a correct decision can be made
regarding the child™s safety. Most dependency legislative schemes, therefore,
provide for the liberal introduction of evidence that would not be admis-
sible in criminal cases or even in other ordinary civil cases. For instance,
shaken baby syndrome evidence has been held to be admissible in depen-
dency hearings even though it might not be admissible in criminal court.137
In addition, hearsay evidence clearly inadmissible in criminal trials is often


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