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permitted in dependency proceedings based upon the court™s need for that
data in determining the child™s best interest.138 The policy of liberally admit-
ting evidence in child dependency cases is succinctly stated in California
Welfare & Institutions Code §355(a): “Any legally admissible evidence that
is relevant to the circumstances or acts that are alleged to bring the minor
within the jurisdiction of the juvenile court is admissible and may be received
in evidence.”
Most jurisdictions have a presumption that judges are capable of remain-
ing detached and neutral, even in light of the admission of highly inadmis-
sible prejudicial evidence; however, some commentators have questioned
the wisdom of that presumption for a legal system based so squarely upon


132 Id. 133 Id. at 3.
at 2“3.
134 Id. 135 Id. at 3“4.
at 2“3.
136 Id. at 4“5.
137 In the Interest of A.V., 554 N.W. 2d 461 (North Dakota 1996); State v. Bolin, 922 S.W. 2d 870,

873 (Tennessee 1996).
138 State v. Simmons, 299 So. 2d 906 (Louisiana 1974); In re Lucero L., 96 Cal Rptr. 2d 56 (2000).
Competent and Zealous Representation 55

subjective and normative decisions, like child dependency and family law pro-
ceedings.139 In addition, other commentators and courts have demonstrated
the judicial and systemic cultural biases inherent in these proceedings.140 It
is therefore problematic when a juvenile court judge presides over both a
criminal prosecution and a child dependency action based upon the same
predicate child abuse. Because the evidentiary standards in those proceed-
ings are often very different, the juvenile court judge is likely to be affected
by inadmissible evidence in one or both proceedings.141
The Oregon Supreme Court in In re Complaint as to the Conduct of the
Honorable Ronald D. Schenck142 demonstrated the problems that occur when
one judge hears both the dependency and criminal trials. In Schenck a judge
heard the mother™s probation violation case in which it was alleged that she
had not participated in the required sexual offender treatment program. A
few months later, the mother received notice that a hearing regarding her
children™s custody was scheduled before the same judge in the dependency
court. The mother™s attorney moved to disqualify the judge in the depen-
dency case based upon her inability to receive a fair trial. However, the judge
denied the disquali¬cation motion.143 Interestingly, the district attorney in
the criminal action joined the mother™s motion seeking the judge™s recusal.144
In a subsequent telephone conversation between the mother™s attorney and
the judge, the judge asked, “Who in the hell made you God™s gift to the legal

139 See, e.g., Thomas M. Mengler, The Theory of Discretion in the Federal Rules of Evidence, 74
IOWA L. REV. 413, 445 (1989) (“A judge cannot keep prejudice to a fair minimum without,
in a rough and ready way, tabulating it.”); Teri Kathleen Martin, Developing Disposition
Decisonmaking Guidelines for Juvenile Courts 80 (1985) (unpublished Ph.D. dissertation,
University of Illinois at Chicago) (“Emotionalism rather than reason appears to pre-
vail [even in the] legal community charged with decision-making responsibilities for
the alleged child molester.”) See also William Wesley Patton, Evolution in Child Abuse
Litigation: The Theoretical Void Where Evidentiary and Procedural Worlds Collide, 25 LOY.
L. A. L. REV. 1009, 1011“1013 (1992).
140 Kenneth Cruce Smith, A Pro¬le of Juvenile Court Judges in the United States, JUV. JUST.,

Aug. 1974, at 27“29; Richard Delgado, Norms and Normal Science: Toward a Critique of
Normativity in Legal Thought, 139 U. PA. L. REV. 933, 943“944 (1991); Frederich Schauer,
The Authority of Legal Scholarship, 139 U. PA. L. REV. 1003, 1011 (1991); Michael S. Wald,
State Intervention on Behalf of “Neglected ” Children: A Search for Realistic Standards, 27
STAN. L. REV. 985, 1017, n. 168 (1975); Smith v. Organization of Foster Families, 431 U.S.
816, 834 (1977); Caramae Richey Mann, Courtroom Observations of Extra“Legal Factors in
the Juvenile Court Dispositions of Runaway Boys: A Field Study, JUV. & FAM. CT. J., Nov. 1980,
at 1, 43.
141 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
(1990).
142 In re Complaint as to the Conduct of the Honorable Ronald D. Schenck, 870 P. 2d 185 (Oregon

1994).
143 Id. at 190“191. 144 Id. at 192.
56 Legal Ethics in Child Custody and Dependency Proceedings

profession?”145 In addition, even though the presiding judge of the judicial
district ordered the judge to postpone the dependency hearing, the judge
refused and ordered all parties to appear. However, the mother™s attorney
successfully received a stay of that proceeding from the Oregon Supreme
Court.146 The Oregon Supreme Court found that the juvenile court judge
should have recused himself in the dependency case per Judicial Canon 3 C(1)
based upon either the questioning of the judge™s “impartiality” or “actual per-
sonal bias or prejudice.”147 However, the judge was not sanctioned because
the Oregon Supreme Court held that the trial judge never ¬nally ruled on
the recusal motion and because the stay prevented any biased hearing from
taking place.148 One must wonder whether such an “actual prejudice” stan-
dard will provide a suf¬cient deterrent effect from such clearly unwarranted
judicial misconduct.
Even if the evidentiary rules in dependency and family court liberally admit
evidence, there are limits on the judge™s discretion to engage in independent
fact investigation. For instance, it violates the canons of judicial ethics for
the court to engage in ex parte judicial contacts.149 Thus, in Guadalupe A. V.
Superior Court,150 it was held that the juvenile court judge™s social conduct
with the minor during the trial was judicial misconduct. At a Christmas party
hosted by the Department for foster families, the judge spoke with the minor
foster child three times and on one occasion picked up the child “and carried
her away for ¬ve minutes.”151 Even though the dependency judge had a good
motive for communicating with the minor and his foster mother, because
an issue in the pending case was the extent of the minor™s “stranger anxiety,”
the judge™s carrying away the child from her foster mother was the equivalent
of an out-of-court experiment, which is an impermissible collateral inves-
tigation by the court that “abdicates his or her [judge™s] responsibility for
deciding the parties™ dispute on the pleadings and evidence properly brought
before the court.”152

145 Id. 146 Id.
147 Id. 148 Id.
at 194.
149 For instance, California Canons of Judicial Ethics, Canon 3 (7) states, “A judge shall not
initiate, permit, or consider ex parte communications, or consider other communications
made to the judge outside the presence of the parties concerning a pending or impending
proceeding. . . . ”
150 Guadalupe A. v. Superior Court, 285 Cal. Rptr. 570 (1991).
151 Id. at 574.
152 Id. at 575 citing Wenger v. Commission on Judicial Performance, 175 Cal. Rptr. 420 (1981);

Jones v. Sieve, 281 P. 2d 898 (1986). Of course, not all ex parte judicial communications are
prohibited. For instance, in jurisdictions that de¬ne juvenile probation personnel as of¬cers
of the court, the court can entertain ex parte requests for juvenile arrest warrants; however,
“substantive information that is learned through these communications [with probation
of¬cers] should ultimately be provided to the probationer in accordance with the applicable
Competent and Zealous Representation 57

Whether an ex parte communication between a juvenile court judge and
the child™s guardian ad litem (GAL) is ethically prohibited depends upon
the legal status of the GAL. For instance, the Alabama State Bar determined
that an ex parte communication between the juvenile judge and the GAL
violated the Alabama Rules of Professional Conduct because the GAL was
de¬ned by statute as the child™s advocate, rather than as an advisor to the
court.153 Presumably, if the GAL is de¬ned as an investigative arm of the
court, rather than as the child™s zealous advocate, ex parte communications
would not violate any ethical constraints.154
In a recent case a superior court judge in a criminal child abuse case called
the 16-year-old victim “into his chambers but did not inform the defense
lawyer. The prosecution declined an invitation to attend the meeting.”155 The
in-chambers meeting with the girl lasted twenty minutes, and no court record
was made; however, according to the complaint, the judge commended the
girl on her testimony, offered to write her a letter of recommendation for
college, and told her, “I could be your grandfather.”156 After the in-chambers
meeting with the child victim, the judge sentenced the abuser, her uncle, to



rules.” Utah Ethics Advisory Committee Informal Opinion 97“4, August 28, 1997). See
also Virginia Judicial Ethics Advisory Committee Opinion 00“4, May 8, 2000 (a judge may
not have ex parte communication with a probation of¬cer preparing a presentence report).
But see U.S. v. Gonzales, 765 F. 2d 1393 (9th Cir. 1985) (holding that a probation of¬cer
when preparing a presentence report is “acting as an arm of the court and this permits
ex parte communication.”). Ex parte communications in criminal cases can be suf¬ciently
prejudicial and can implicate the appearance of impropriety suf¬ciently to warrant rever-
sal of a conviction. See, e.g., Thomas M. Mengler, The Theory of Discretion in the Federal
Rules of Evidence, 74 IOWA L. REV. 413, 445 (1989) (“A judge cannot keep prejudice to
a fair minimum without, in a rough and ready way, tabulating it.”); Teri Kathleen
Martin, supra note 139, at 80 (“Emotionalism rather than reason appears to prevail [even
in the] legal community charged with decision-making responsibilities for the alleged
child molester.”). See also William Wesley Patton, supra note 141, 1009, 1011“1013; In
re Hancock, 136 Cal. Rptr. 901 (1977). And in In the Matter of Disciplinary Proceedings
Against Daniel R. McNamara, 421 N. W. 2d 513, 367“370 (Wisconsin 1988), an attorney,
who also served part-time as a family court commissioner, was given a one-year suspen-
sion for, among other violations, ex parte communication with an adverse party in the
litigation with knowledge that the party was represented by counsel.
153 Alabama State Bar Opinion No. 2002“02. That opinion cited several jurisdictions that had

come to the same conclusion: See, e.g., Moore v. Moore, 809 P. 2d 261 (Wyo. 1991); Veasey v.
Veasey, 560 P. 2d 382 (Alaska 1977); Riley v. Erie Lackawanna R. Company, 119 Misc. 2d 619,
463 N.Y.S. 2d 986 (1983); De Los Santos v. Superior Court of Los Angeles County, 27 Cal. 3d
677, 613 P. 2d 233 (1980).
154 For a discussion of the many roles of GALs, see Michelle Johnson-Weider, supra note 22, at

77; Michael J. Dale, supra note 21, at 769.
155 David Houston, Judge Faces State Disciplinary Hearings over Alleged Conduct, L. A. DAILY J.,

February 20, 2004, p. 1, 5.
156 Id. at 5.
58 Legal Ethics in Child Custody and Dependency Proceedings

“16 years in state prison.” The complaint is being investigated by the Judicial
Performance Commission.157
Judges are also prohibited from intervening for personal reasons in a child
welfare investigation pending in another court. In In the Matter of Bruce M.
Kaplan,158 the New York Commission on Judicial Conduct publicly admon-
ished a judge for using the prestige of his of¬ce to in¬‚uence a child abuse
investigation.159 The judge presided over a series of ex parte applications
between a husband and wife regarding child visitation. The judge became
friends with the wife. One night when the daughter was visiting her father, the
judge and the wife heard the daughter “yelling” in the husband™s apartment.
When police of¬cers arrived at the wife™s house, the judge intervened, intro-
duced himself as a family court judge and family friend, and accompanied the
police, parents, and daughter to the hospital for examination.160 Because the
daughter suffered “abrasions, redness and tenderness about the neck, back
and extremities,” a report was entered into the Central Child Abuse Reg-
istry, which automatically triggered an investigation by a caseworker.161 The
judge once again intervened on behalf of the mother and convinced a unit
caseworker and her supervisor to conduct an in-home study of the father™s
home. The judge described the husband as “violent” and related details from
the couple™s court case in which the judge had earlier presided. The judge
further cajoled the caseworker to forbid visitation between the daughter and
the husband.162 The Commission on Judicial Conduct found that the judge™s
“advocacy exceeded the limitations placed upon judges” because “he used the
in¬‚uence and prestige of that of¬ce to advance the cause of his friend and her
daughter.”163 In addition, the Commission found that the court wrongfully
gave the appearance of using con¬dential court data for private purposes.164
The dissent found that the judge committed “no misconduct” and voted to
dismiss the complaint.165
In a similar case in North Carolina, In re Inquiry Harrell,166 the North
Carolina Supreme Court censured a judge for personally intervening in a
child abuse investigation in the juvenile court.167 The judge “interjected him-
self at every stage of the matter and at times during the course of proceedings

157 Id.
158 In the Matter of the Proceeding Pursuant to Section 44, Subdivision 4, of the Judiciary Law in
Relation to Bruce M. Kaplan, A Judge of the Family Court, May 6, 1996 (1996 WL 4418512).
159 Id. at 4. 160 Id. at 1“3.
161 Id. at 2. 162 Id. at 2“3.
163 Id. at 3. 164 Id. at 4.
165 Id., dissent, at 5“6.
166 In re Inquiry Concerning Harrell, 414 S. E. 2d 36 (1992).
167 Id. at 36“39.
Competent and Zealous Representation 59

in the matter acted as an advocate” for his friends, who were the adoptive
parents of the allegedly abused child.168 The court found that the judge™s
active involvement in his friends™ child abuse case, including his letter to the
State Attorney General seeking a clari¬cation of the term “physical injury,”
was a clear violation of the canons of judicial ethics.169
Finally, even though judges have an interest in the expeditious resolution of
proceedings, they may not place expediency above due process. For instance,
the California Supreme Court in McCullough v. Commission on Judicial Per-
formance170 removed a judge from of¬ce, in part for his proceeding with an
action without the presence of the defendant and his attorney. The judge
had refused a continuance for the absent attorney based upon a court order
requiring the attorney to appear before a judge in another county on the
same day. The California Supreme Court held that the trial court™s refusal
to grant a continuance was “willful misconduct,” and even though the trial
judge may have wished to punish the absent attorney, he, in effect, punished
the lawyer™s client.171
This same prohibition on punishing clients for their attorney™s behavior
is applicable in dependency courts as well. In some jurisdictions, legisla-
tures have established that expediency is in children™s best interest and that
continuances should not be liberally granted if they would be against the
children™s best interest.172 However, juvenile court judges must reasonably
exercise their discretion on continuance motions. In In re Michael R.,173 the
trial court abused its discretion and committed prejudicial error in not con-
sidering a mother™s motion for a continuance before a permanency planning
hearing. And in In re Julian L.,174 the dependency court judge abused his
discretion in denying the continuance motion of an attorney representing a
parent in a termination of parental rights hearing, even though the attorney
was appointed less than two weeks prior to the hearing and had informed the
court that he had not yet had an opportunity to fully communicate with this
client and determine her wishes regarding the case. The court clearly indi-
cated that dependency court discretion to expedite proceedings is trumped


168 Id. 169 Id.
at 37. at 38.
170 McCullough v. Commission on Judicial Performance, 260 Cal. Rptr. 557 (1989).
171 Id. at 563.
172 See, e.g., California Welfare & Institutions Code §352(a) provides that the juvenile court judge

shall “give substantial weight to a minor™s need for prompt resolution of his or her custody
status, the need to provide children with stable environments and the damage to a minor
of prolonged temporary placements” in deciding whether to grant a continuance in a child
dependency proceeding.
173 In re Michael R., 7 Cal. Rptr. 2d 139 (1992).
174 In re Julian L., 78 Cal. Rptr. 2d 839 (1998).
60 Legal Ethics in Child Custody and Dependency Proceedings

by due process requirements, whether they be constitutional or statutory due
process rights.175
Judges in dependency court are overburdened with extensive caseloads
and have too little time either to research the applicable law or hear the full
panoply of arguments that attorneys may wish to litigate. For instance, in
California in the 1998“9 ¬scal year, out of the 8.6 million cases ¬led, com-
bined domestic cases numbered 645,433, and of those cases 41,890 were
child dependency ¬lings.176 There were only 1,880 authorized judgeships to
handle the 8.6 million cases ¬led, for a per judge caseload of 4,588.177 In
addition, 123 judges speci¬cally designated juvenile, juvenile delinquency,
and/or juvenile dependency jurists handled a total of 142,450 dependency
and delinquency cases for a per juvenile judge caseload of 1,158 cases
per year.178 Some have argued that juvenile court judges™ perceptions of
their overcrowded docket lead to three negative results: (1) “˜violating par-
ents™ due process; (2) ˜rubber stamping Human Resource Services,™ and (3)
being impatient with and verbally abusive to parents.”179 Some critics of
the dependency system opine that judges give the Department great def-
erence because of their need “to rush overcrowded dockets. . . . ”180 If it is
true that there is a correlation between the size of judges™ caseloads and the
merit of verdicts, juvenile court judges and attorneys practicing in those
courts have a duty to educate the public and legislators on the importance
of funding the juvenile courts properly so that the quality of fact-¬nding
can improve and so that the merits, not court management, are outcome
determinative.

175 In Montigny v. Montigny, 233 N. W. 2d 463, 467 (Wisconsin 1975), the Wisconsin Supreme
Court held that judges have a sua sponte duty to appoint a guardian ad litem for children
in custody decisions and held that the trial court™s failure to appoint a GAL was “an abuse
of discretion, patently prejudicial . . . to the minor children.” The majority disagreed with
the concurring opinion that argued that the GAL position is often duplicative of others™
arguments and therefore not a cost-ef¬cient way to determine the best custody placement
options: “In these instances the investigations and trial participation and opinions of a
guardian ad litem can be cumulative and redundant and a source of substantial additional
costs and fees that parties can ill afford.” Id. at 470. For discussions of the importance and
role of GAL in representing children™s interests in custody and/or dependency proceed-
ings, see William A. Kell, Voices Lost and Found: Training Ethical Lawyers For Children, 73
IND. L. J. 635 (1998); Cindy Callahan & Vince Willis, Searching for Answers: About the Role
of the Guardian Ad Litem, 36 MD. B.J. 46 (May/June, 2003).
176 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 1989“1990 THROUGH 1998“1999,

at viii, x, and 56 (California Judicial Council, Administrative Of¬ce of the Court, 2000).
177 Id. at 42.
178 Id. at 56; CALIFORNIA DIRECTORY OF ATTORNEYS (Daily Journal Corporation 2004).
179 Sandra Anderson Garcia & Robert Batey, supra note 36, at 1079, 1092.
180 Id. at 1095.
Competent and Zealous Representation 61

V. EMERGING ISSUES REGARDING SUBSTITUTION OF COUNSEL
AND SELF-REPRESENTATION

It is not surprising that parents™ and children™s counsel constantly search for
precedent to extend parties™ rights in child protection proceedings. It is also
foreseeable that arguments by analogy to criminal proceedings, the hallmark
of procedural due process, would form the basis for expanding due process
in dependency proceedings.181 Therefore, in states that have determined
that parents have a constitutional right to counsel in some child protection
proceedings pursuant to the Fourteenth Amendment due process clause as
elucidated in Lassister v. Department of Social Services, or per a state statute,
it was only a matter of time before they sought expansion of the right to an
attorney to (1) substitute attorneys who parents and/or children determine
are either incompetent or with whom the attorney-client relationship has
broken down and/or (2) the right to self-representation.


A. The Right to Substitute Counsel
Although criminal defendants have a right to court-appointed counsel, they
do not have an absolute right to require substitution of appointed counsel.
Because the appointment of counsel for criminal defendants is constitution-
ally mandated, those defendants are entitled to competent representation.
If a defendant suf¬ciently articulates the counsel™s incompetence or demon-
strates that the attorney-client relationship has deteriorated to a level affect-
ing competent representation, the criminal court has the discretion to order
a substitution of court-appointed counsel.182 Because the substitution of
counsel in criminal cases is based upon the constitutional right to compe-
tent counsel, extending such a right to dependency cases must be predicated
upon a constitutional right to appointment of counsel. But many states have
held that appointment of counsel is only required if Lassiter applies, such as in
a case that involves expert testimony and a possible criminal conviction, and
in which the procedural status is termination of parental rights rather than
merely a temporary placement of the child outside the home.183 Therefore,

181 For instance, dependency lawyers analogized to Gideon v. Wainwright, 372 U.S. 335 in arguing

in Lassiter v. Department of Social Services, 452 U.S. 18 (1981), that parents have a Fourteenth
Amendment due process right to counsel in termination proceedings. They further argued by
analogy to criminal cases in Santosky v. Kramer, 455 U.S. 745 (1982), that the burden of proof
should be beyond a reasonable doubt, rather than clear and convincing or preponderance
of the evidence in termination proceedings.
182 U.S.v. Anderson, 189 F. 3d 1201, 1210 (10th Cir. 1999).
183 In re Christine P., 277 Cal. Rptr. 290 (California 1991); K. P. B. v. D. C. A., 685 So. 2d 750

(Alabama 1996); Joni B. v. State, 549 N. W. 411 (Wisconsin 1996).
62 Legal Ethics in Child Custody and Dependency Proceedings

many states have held that if there is no constitutional mandate to appoint
counsel, then there is no right to the substitution of counsel either.
However, some jurisdictions that recognize a right to counsel in depen-
dency cases also recognize a right to substitution of counsel. For example,
in California it has been held that “parents must have some mechanism for
challenging the representation when they perceive inadeqacy, or the right
to counsel is meaningless. . . . ”184 If appointment of counsel was constitu-
tionally required, some courts have held that refusal to substitute counsel
is reviewed under the Chapman v. California185 harmless error standard,
in which the error will be presumed prejudicial unless the presumption is
rebutted beyond a reasonable doubt by demonstrating that failure to sub-
stitute counsel did not contribute to the dependency court adjudication or
disposition.186 Other courts have held that parents claiming error in not sub-
stituting counsel have the burden of demonstrating that, absent the error,
the parent “would have obtained a more favorable result had such a [substi-
tution] motion been granted.”187
Dependency courts have not favored parents™ motions for substitution
of counsel. Cases in which recalcitrant parents have requested up to six
attorney substitutions have jaded jurists™ views toward the legitimacy of many
colorable claims of breakdowns in the attorney-client relationship.188 For
instance, in In re Chevelle D.,189 the court described the uncooperativeness
of the father: “We are left with the distinct impression father™s relationship
with any attorney would be marred by the same ˜communication™ problems
caused by father™s refusal to cooperate.” To prevent reversal in a signi¬cant
number of cases, courts have very strictly construed the requirements that
parents articulate their desire speci¬cally and suf¬ciently and the grounds for
the substitution of appointed counsel.190 First, it is clear that there is no sua

184 In re A. H., 2004 WL 1172675 (California, May 27, 2004; not published).
185 Chapman v. California, 386 U.S. 18 (1967).
186 People v. Marsden, 84 Cal. Rptr. 156 (California Supreme Court 1970) [denial of substitution

of counsel in an adult criminal action]; In re Sadie D., 2002 WL 1303401 (California, June
14, 2002; unpublished).
187 In re A. H., 2004 WL 1172675 (California, May 27, 2004; unpublished).
188 For instance, in In re Bernard W., 2003 WL 22133859 (California, September 16, 2003), the

court noted that the “[m]other had a history of asking the dependency court, the presiding
judge of the dependency court, and the court administrator to relieve counsel and appoint
a new attorney.” Upon the mother™s seventh substitution motion, the court noted that the
motion was based upon evidence that was “patently false.”
189 In re Chevelle D., 2003 WL 141334 (California, January 21, 2003; unpublished). State v.

McDowell, 681 N. W. 2d 500 (Wisconsin 2004); State v. Crain, 84 P. 3d 1092 (Oregon 2004);
People v. Walsh, 770 N.Y.S. 2d 230 (2003).
190 On the other hand, dependency court judges who think that an attorney may be providing

incompetent representation may not discharge and substitute another attorney without ¬rst
holding a hearing and determining the wishes of the client. In re A. H., 2004 WL 1172675
Competent and Zealous Representation 63

sponte obligation on the court to determine whether substitution should take
place.191 Second, ambiguous requests are insuf¬cient to trigger the court™s
duty to hold an informal hearing regarding the substitution.192 “Although ˜a
proper and formal legal motion™ is not necessarily required, there must be
some clear indication by defendant that he wants a substitute attorney.”193 For
instance, a parent™s request to retain private counsel and “also . . . a hearing on
[her] assigned attorney” was insuf¬cient to require inquiry into substitution
of appointed counsel, and the parent™s request for the court to instruct her
counsel about the scope of competent representation was insuf¬cient to
invoke a hearing.194 And a parent who asserts that her attorney “doesn™t
represent me in the way I wanted to be represented,” without more facts to
speci¬cally demonstrate that an “irreconcilable con¬‚ict has arisen” between
her and her attorney is insuf¬cient to ¬nd that failure to grant a hearing was
an abuse of discretion.195
However, the requirement of expressing the desire to substitute counsel
clearly together with suf¬cient grounds to trigger court inquiry has led to a
Catch-22. If the parent details the reasons for wanting substitution of counsel
with great detail, the court™s refusal to hold a hearing will not be held an abuse
of discretion because the court will have denied the hearing based upon the
parent™s complaints. However, as demonstrated above, if the request is too
general or vague, no duty to hold a hearing is triggered. For instance, in In re
Saddie D.,196 a father wrote to the dependency judge asking for a substitution
of counsel because counsel lacked an interest in his case and did not respond
to messages. Even though the trial court did not hold a hearing regarding
substitution of counsel, the court of appeal determined that no abuse of
discretion occurred because the judge had suf¬cient facts upon which to
decide the substitution motion. The court held that “we cannot say beyond
a reasonable doubt that failure to hold a hearing contributed to the result”
in the termination of parental rights.197


(California, May 27, 2004; unpublished). Orcutt v. State, 173 N. W. 2d 66 (Iowa 1969); In re
Christine P., 277 Cal. Rptr. 290 (California 1991); K. P. B. v. D. C. A., 685 So. 2d 750 (Alabama
1996); Joni B. v. State, 549 N. W. 2d 411, 414 (Wisconsin 1996).
191 People v. Leonard, 93 Cal. Rptr. 2d 180 (2000); In re Jarred H., 2002 WL 1732573 (California,

July 25, 2002; unpublished).
192 In re B. H., 2003 WL 1473563 (California, March 24, 2003; unpublished).
193 People v. Lucky, 115 Cal. Rptr. 2d 828 (California 2002).
194 In re Crystal M., 2002 WL 387863 (California, March 13, 2002; unpublished).
195 In re Jarred H., 2002 WL 1732573 (California, July 25, 2002; unpublished).
196 In re Sadie D., 2002 WL 1303401 (California, June 14, 2002; unpublished).
197 See also In re Karen L., 2002 WL 31873405 (California, December 20, 2002; unpublished),

which held that even though the trial judge erroneously believed that the court lacked
jurisdiction to substitute attorneys, failure to hold a hearing or substitute counsel was not
prejudicial.
64 Legal Ethics in Child Custody and Dependency Proceedings

Courts have held that parents™ most frequent complaints regarding the
quality of their attorneys often do not rise to the level of a signi¬cant impair-
ment of the right to competent counsel, and therefore such complaints do
not state suf¬cient evidence to require substitution of counsel. One of the
most common complaints about dependency attorneys is that they do not
perfect parents™ desires about how the litigation should proceed. But sev-
eral courts have determined that because most “tactical decisions” are the
province of the attorney, not the client, substitution motions have usually
been denied.198 In addition, the frequent complaint that dependency court
attorneys either do not meet and discuss the case with parents or do not
meet until a few hours before a hearing has likewise been held insuf¬cient
to support a substitution of counsel.199 For instance, in Cardell T.,200 the
father alleged that “his attorney only spent ¬ve minutes with him before the
hearing. . . . ”201
The number of cases in which parents allege that they have either been
neglected or mistreated by their attorneys should give the profession cause
to futher investigate the quality of dependency court legal services. However,
ethical violations, such as not contacting clients, failing to adequately counsel
clients, and refusal to engage in requested trial strategies, are often not suf¬-
cient to require a substitution of counsel under current standards. The legal
response to attorney neglect and incivility toward clients is that “[u]nless
the attorney™s attitude toward the father™s position resulted in her failure to
pursue legally cognizable options, the father™s right to assistance of counsel
was not substantially impaired.”202 This disjunction between parents™ nega-
tive attitudes toward their attorneys and the lack of judicial remedies other
than attorney disciplinary proceedings fosters the poor reputation of parents™


198 In People v. Washington, 2002 WL 2017096 (California, August 29, 2002; unpublished), the
court held that counsel™s refusal to hire an expert to impeach the accuracy and relevance
of photographs was merely a tactical decision and did not demonstrate that the “attorney-
client relationship had irretrievably broken down.” See also In re Tallie G., 2003 WL 21362761
(California, June 12, 2003; unpublished); In re Hope, 2004 WL 473979 (California, March 12,
2004; unpublished).
199 In In re Justin C., 2003 WL 22995273 (California, December 22, 2003; unpublished), the

parent alleged that “he had had ˜no contact™ with counsel and counsel failed to prepare
him to testify”; however, because the parent could not demonstrate suf¬cient prejudice, the
refusal to substitute counsel was not an abuse of discretion.
200 Cardell T., 2004 WL 1588025 (California, July 15, 2004; unpublished). Id.; People v. Cleveland,

11 Cal. Rptr. 3d 236 (California 2004).
201 In In re Ashley A., 2001 WL 1497713 (California, November 27, 2001; unpublished), the

parent explained that “he did not have a chance to discuss the case with his counsel until a
few days prior to the hearing. . . . ”
202 In re Tallie G., 203 WL 21362761 (California, June 12, 2003; unpublished.)
Competent and Zealous Representation 65

counsel. It is clear that greater educational efforts are needed to impress upon
this corps of counsel the importance of public relations in relation to client
satisfaction.


B. The Right to Self-Representation
In 1975 the United States Supreme Court in Faretta v. California203 held that
a defendant in a criminal case has a Fourteenth Amendment due process
right to self-representation. It is not surprising that parents might argue
that they too have a right to self-representation if it is determined that they
have a constitutional right to counsel under Lassiter v. Department of Social
Services.204 However, no state court has held that parents have a federal
constitutional right to self-representation.205 The court in In re Angel W.206
articulated the rationale for not applying Faretta™s constitutional mandate
to dependency proceedings: “[T]he Sixth Amendment does not apply in
dependency proceedings so its structure cannot provide a basis for ¬nding
a correlative constitutional right of self-representation.” The court noted
that Faretta was based upon “the history of the right of self-representation
since the founding of the United States” and that there was no such his-
tory in regard to self-representation in dependency cases. The court further
held that, even though the right to self-representation is not mandated by
independent state constitutional grounds, parents have a statutory right to
self-representation pursuant to Welfare & Institutions Code § 317 (a) and (b),
which provide: “When it appears to the court that a parent . . . of the child
desires counsel but is presently ¬nancially unable to afford and cannot for
that reason employ counsel, the court may appoint counsel . . . unless the
court ¬nds that the parent . . . has made a knowing and intelligent waiver of
counsel. . . . ”207 The court held that parents therefore have a right to waive
counsel “in circumstances where appointment of counsel is mandatory” at
any time during the proceedings. But unlike the strict admonitions required
by the United States Supreme Court for accepting a waiver of counsel, a
waiver of the statutory right to counsel does not require “a full Faretta-type

203 Faretta v. California, 422 U.S. 806 (1975).
204 Lassiter v. Department of Social Services, 452 U.S. 18 (1981).
205 The closest a court has come to accepting the analogy to Faretta is in In re Brian R., 3 Cal. Rptr.

2d 768, 777 (1991), where the court stated that “[e]ven assuming, arguendo, that Faretta
applies to a parent in a juvenile dependency proceeding, we would have no dif¬culty, on this
record, in determining that appellant™s waiver of counsel rose to the standard enunciated in
Faretta. . . . ”
206 In re Angel W., 113 Cal. Rptr. 2d 659; 93 Cal. App. 4th 1074 (2001).
207 Id. at 1083.
66 Legal Ethics in Child Custody and Dependency Proceedings

admonition and inquiry . . . ,” although a judge should ensure that the parent
is competent to make a knowing and intelligent waiver of the statutory right
to counsel. The In re Angel W. court cautioned against paternalistic decisions
denying competent adults the right to self-representation even though the
court might conclude that waiver of counsel is against the parent™s interest
and even though there is “[t]he possibility of disruption and delay” as long
as the pro se lititgant is not “so disruptive as to signi¬cantly delay the pro-
ceedings or render them meaningless and negatively impact the rights of the
minor in a prompt and fair hearing. . . . ” For instance, in In re K. T.208 the
trial court™s denial of self-representation to the mother was not an abuse of
discretion because the mother “had engaged in serious and obstructionist
misconduct more than once. The trial court was not required to gamble that
[she] could contain herself without the restraining presence of counsel, when
faced with the reality that she would lose her child.”
In re Angel W. has generated a number of appellate opinions de¬ning the
nature and scope of parents™ statutory right to self-representation. Courts
have consistently held that the request for self-representation must be clear
and unambiguous. For instance, a request for substitution of counsel and/or
pro per status was insuf¬cient where the parent in reality was merely asking for
the court to instruct counsel on counsel™s ethical responsibilities.209 In addi-
tion, reversal based upon a denial of the statutory right to self-representation
is only required if under a harmless error analysis the parent proves that “it
appear reasonably probable that a result more favorable to appellant would
have been reached had she represented herself.”210 Because it will be the
rare case in which a parent can demonstrate that he or she could have liti-
gated the proceeding more competently than counsel, reversal based upon
a denial of the statutory right to self-representation is more theoretical than
probable.
Although minors in juvenile delinquency proceedings have been held to
possess a right to self-representation under Faretta,211 children in California
do not have a right to self-representation in child dependency proceedings
for two reasons. First, like adults, there is no federal or state constitutional
basis for the right to self-representation. Second, unlike adults who have a
state statutory right to self-representation, the statute requiring the court to
appoint counsel for minors unless such appointment is against their interest


208 In re K. T., 2004 WL 1328273 (California, June 15, 2004; unpublished).
209 In re Crystal M., 2002 WL 387863 (California, March 13, 2002; unpublished).
210 In re Angel W., supra at 1085; In re Fabian Z., 2003 WL 22120896 (California, September 15,

2003; unpublished).
211 In re Shawn F., 40 Cal. Rptr. 2d 263 (1995).
Competent and Zealous Representation 67

does not have a reference to the right to self-representation.212 Therefore,
dependency courts have not been required to determine the level of compe-
tence that an abused child must possess in order to validly waive the statutory
right to appointment of counsel and to proceed in pro per.


212 California
Welfare & Institutions Code § 317(c) provides, “Where a child is not represented
by counsel, the court shall appoint counsel for the child unless the court ¬nds that the child
would not bene¬t from the appointment of counsel.”
3 Con¬dentiality




Attorneys in child custody and child dependency proceedings are much more
than mere litigators. One of the central roles in these emotionally charged
legal arenas is acting as counselors, not only regarding legal issues but also
on nonlegal issues. ABA Model Rule 2.1 provides that client representation
includes reference to “other considerations such as moral, economic, social
and political factors. . . . ” It is thus not surprising that in these disputes,
which involve heightened sensitivity, con¬dentiality is a central concern of
the parties.1 However, because the best interest of children is central to the
child custody and juvenile dependency systems, con¬‚icts with the duty of
con¬dentiality often arise in contexts in which that con¬dential information
demonstrates an admission of past child abuse or threats of future abuse.
This chapter discusses the often differing and sometimes con¬‚icting
balance between client con¬dentiality and children™s safety. When is a judge
permitted to disclose con¬dential data either to defend the court system or
to educate the public, and under what circumstances must or can attorneys
disclose con¬dential client data? Finally, what is the constitutional limit of
the court™s power to issue contempt citations for violations of con¬dentiality,
and what sanctions are reasonably likely for attorneys who disclose con¬-
dential client information that can be both embarrassing and incriminating
for parties in concurrent criminal child abuse actions, as, for instance, in
Conduct of the Honorable Ronald D?2
1 Children™s advocates in California dependency actions have a responsibility of determining
whether the child has the need for legal assistance in any other disputes: “[C]ounsel shall
investigate the interests of the child beyond the scope of the juvenile proceedings and report to
the court other interests of the child that may need to be protected by the institution of other
administrative or judicial proceedings.” Welfare and Institutions Code § 317(e). However,
the child™s counsel does not have the obligations of a “social worker and is not expected to
provide nonlegal services to the child.” Id.
2 870 P. 2d 185 (Oregon 1994). For a discussion of the issues that arise during concurrent crimi-

nal and civil child abuse proceedings based upon the same child abuse allegations, see William
Wesley Patton, The World Where Parellel Lines Converge . . . , 24 GA. L. REV. 473 (1990).

68
Con¬dentiality 69

I. CHILDREN™S ATTORNEYS: SAFETY VERSUS SECRECY

Abused children are extremely emotionally vulnerable. Often, they have
been abused by a known adult, and their ability to trust strangers is very
compromised. The American Psychological Association has described the
abused child™s psychological status as “severe emotional distress . . . [p]ost
traumatic stress disorder . . . stigmatization [guilt and shame] incorporated
into the child™s self-image. . . . ”3 That assessment has been recently con-
¬rmed in a description by the U.S. Department of Justice: “[F]ear, anxiety,
posttraumatic stress symptoms, depression . . . poor self-esteem, stigmati-
zation, dif¬culty with trust, cognitive distortions, dif¬culty with affective
processing . . . and peer socialization de¬cits.”4 Therefore, the concept of con-
¬dentiality between the abused child and his or her attorney is a much more
complex question than in most legal contexts. If the child™s attorney promises
the protection of con¬dentiality and violates that trust, the attorney will not
merely create an incentive for the child to withhold potentially relevant data
but will also exacerbate the child™s fragile mental health and reduce his or
her willingness to cooperate with adults in helping seek, as near as possible,
emotional equipoise.
The ABA Model Rules of Professional Responsibility make no distinction
between adult and child clients regarding an attorney™s duty of con¬dentiality.
The limited exception provides that “[a] lawyer may reveal such information
to the extent the lawyer reasonably believes necessary . . . to prevent the client
from committing a criminal act that the lawyer believes is likely to result in
imminent death or substantial bodily harm. . . . ”5 Although that language
might provide a lawyer representing an alleged child abuser the discretion to
divulge the criminal intent to re-abuse the child, because the child is not the
perpetrator of the future criminal act, ABA Model Rule 1.6 (b)(1) does not
provide the child™s attorney with discretion to disclose the threatened abuse.
Although most states have adopted language similar to ABA Model Rule
1.6(b)(1), no jurisdiction permits an attorney to disclose that con¬dential
data regarding future criminal action by someone other than the attorney™s
client, unless some other law mandates such disclosure.6 And even the more

3 Amicus curiae brief ¬led by the American Psychological Association in Maryland v. Craig,
110 S. Ct. 3157 (1990).
4 CHILD PHYSICAL AND SEXUAL ABUSE: GUIDELINES FOR TREATMENT 25 (U.S. Dept. of Justice,

2003).
5 ABA Model Rules of Professional Conduct, Rule 1.6 (b) (1).
6 Each of the evolutionary iterations of Model Rule 1.6(b)(1) refer to disclosures of the client™s

future criminal acts, not acts of others disclosed by the client. See 1979 draft, 1980 discussion,
1981 draft, 1982 draft, and 1991 proposal. Stephen Gillers & Roy D. Simon, Jr., REGULATION
OF LAWYERS: STATUTES AND STANDARDS 70“74 (1974). For a discussion of each state™s peculiar
version of Model Rule 1.6(b)(1), see Gillers & Simon at 74“78.
70 Legal Ethics in Child Custody and Dependency Proceedings

“disclosure-friendly” con¬dentiality rule enacted by the American Academy
of Matrimonial Lawyers, Rule 2.26, applies only to a client™s threat of child
abuse: “An attorney should disclose evidence of a substantial risk of physical
or sexual abuse of a child by the attorney™s client.”
This dilemma may have been solved by the proposed changes to cur-
rent Model Rule 1.6 by the ABA Ethics 2000 Commission. The proposed
modi¬cation provides that a lawyer may reveal con¬dential information “to
prevent reasonably certain death or substantial bodily harm.”7 Although
the Reporter™s Explanation of Changes clearly states that the “Commission
is proposing substantial expansion of the grounds for permissive disclo-
sure under Rule 1.6” and that “the exception currently recognized for client
crimes threatening imminent death or substantial bodily harm be replaced
with a broader exception for disclosures to prevent reasonably certain death
or substantial bodily harm, with no requirement of client criminality,” the
proposed rule is still ambiguous.8 For example, every hypothetical that the
Commission provides in its application of Rule 1.6 only permits con¬dential
disclosures involving acts by the client. Therefore, the proposed modi¬cation
to Model Rule 1.6 is susceptible to two reasonable interpretations. The ¬rst is
that the Commission merely intended to expand the nature of the dangerous
acts committed or threatened to be committed by the client from those under
the current rule, which must be “criminal” and which will cause or threaten
“imminent death or substantial bodily harm,” to an expansion that includes
“non-criminal” acts or threats that will be reasonably certain to cause death
or bodily harm. This interpretation would not permit a child™s attorney to
disclose the child™s con¬dential statement that a parent had threatened the
child with future serious bodily harm. However, another reasonable inter-
pretation of the Ethics 2000 Commission™s proposed changes to Model Rule
1.6 is that the omission of the word “client” in relation to threats of rea-
sonably certain death or serious bodily injury was an intentional omission
and that therefore the child™s attorney could disclose the child™s con¬den-
tial data regarding threats by a third party. Because nothing in the history
of the Ethics 2000 Commission™s modi¬cations to Model Rule 1.6 clari¬es
this ambiguity, we will have to wait for clari¬cation if the ABA adopts these
proposed changes.9

7 See Ethics 2000 Rule 1.6, www.abanet.org/cpr/e2k-rule16h.html). However, see Utah State Bar

Ethics Opinion Number 95-06 (July 28, 1995), in which it was held that “[w]hen an attorney
has reason to believe a person who is not a client has abused a child and the information
upon which the belief is based derives from the attorney™s representation of a client,” the
attorney may disclose the abuse if required by state law, such as a mandatory child abuse
reporting law that requires “any person” to “immediately notify” of¬cials of such abuse.
8 Id. at 1 of Model Rule 1.6 Reporter™s Explanation of Changes.
9 Although David L. Walther discusses the changes proposed by the Ethics 2000 Commission

and says that “[t]he ABA Commission proposes allowing disclosure of con¬dences to prevent
Con¬dentiality 71

However, the Model Rules permit disclosure of con¬dential attorney-client
data if disclosure is required by law.10 Therefore, if an attorney practices in a
jurisdiction that has de¬ned attorneys as mandated child abuse reporters, the
attorney may be required to disclose the child™s con¬dential data regarding
the past abuse by another person without violating the code of ethics. Three
different types of mandatory child abuse reporting systems exist among the
states: (1) statutes that do not mention attorneys; (2) statutes that include
attorneys among those obligated to report child abuse; and (3) statutes
that include attorneys, but provide certain exemptions from reporting.11
Currently, “[t]wenty-three states have reporting statutes that provide that
anyone ˜may™ report abuse, but nearly half exempt attorneys in some way.
Sixteen states require all individuals to report child abuse, but twelve of those
states exempt communications covered by the attorney-client privilege.”12
Alabama, Alaska, Arkansas, California, Colorado, Georgia, Iowa, Kansas,
Louisiana, Maryland, Massachusetts, Michigan, Missouri, Montana, North
Dakota, South Carolina, South Dakota, Vermont, Virginia, Washington, West
Virginia, and Wisconsin all have statutes that speci¬cally exempt attorneys
from reporting under certain circumstances.13 And of the sixteen states that
require all persons to report child abuse, twelve recognize the attorney-client
privilege as an exception to mandated reporting.14
But most mandated child abuse reporting statutes only require disclosure
if the observer has reasonable grounds for concluding that the child has been
or is being abused, and not subject to threats of future abuse. For example, in
California mandated reporting is required only if the reporter “has knowledge
of or observes a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect.”15 However, in other
statutes, like the one in Texas, the duty to report extends not only to observed
abuse but also to cases where the child “may be abused or neglected. . . . ”16
Therefore, if a child provides an attorney or other mandated reporter with
information about a fear of future abuse at some unspeci¬ed time in the

death or substantial bodily harm from criminal conduct,” he does not address the ambiguity
created by deleting the reference in Model Rule 1.6 to the “client™s” acts as opposed to acts by
third persons.
10 ABA Model Rules of Professional Conduct, Rule 1.6 (b) (1) Comment 19, titled “Disclosures

Otherwise Required or Authorized” states that con¬dential data can be disclosed if “[t]he
lawyer must comply with the ¬nal orders of a court or other tribunal of competent jurisdiction
requiring the lawyer to give information about the client.” Brooke Albrandt, Turning in the
Client: Mandatory Child Abuse Reporting Requirements and the Criminal Defense of Battered
Women, 81 TEX. L. REV. 655, 657 (2002).
11 Id. 12 Id. at 658.
13 Ellen Marrus, Please Keep My Secret: Child Abuse Reporting Statutes, Con¬dentiality, and

Juvenile Delinquency, 11 GEO. J. LEGAL ETHICS 509, 517, fn. 37 (1998).
14 Id. at 517 and fns. 39“40. 15 California Penal Code § 11166(a).
16 Texas Family Code § 261.101(b); Marrus, supra note 13, at 658.
72 Legal Ethics in Child Custody and Dependency Proceedings

future, it is unclear whether the mandatory reporting statutes in many states
are implicated.
Therefore, what can an attorney do when practicing in a state in which the
future crime exception does not apply to the child client™s con¬dential data
and in which the child™s attorney is not a mandated reporter? The Los Angeles
County Bar Association (LACBA) has provided a sophisticated analysis of
children™s attorneys™ options. That opinion is even more interesting because
at the time it was written California had not even adopted the discretionary
disclosure standard of Model Rule 1.6(b)(1).17 The LACBA determined that
under California rules of professional responsibility an attorney is ethically
bound to follow a competent child client™s desire to keep attorney-client data
con¬dential, even if the attorney believes that con¬dentiality is not in the
child™s best interest and even if the information relates to probable further
abuse. The only escape clause for the attorney is the obligation to withdraw
from representing the competent child client if “the disagreement between
the attorney and client materially impairs the attorney-client relationship
such that the attorney cannot competently perform is or her duties.”18 Under
the LACBA opinion, if the attorney concludes that the minor client is not
suf¬ciently competent to make a reasoned decision concerning the con¬-
dentiality of the future abuse data, the attorney (1) may not disclose the
con¬dential information by merely substituting the attorney™s own opinion;
(2) may seek appointment of a guardian ad litem without disclosing the
con¬dential data to the court; and (3) if a guardian ad litem is appointed,
“the attorney may ethically disclose the minor™s con¬dential information to
the guardian ad litem, and should follow the instructions of the guardian ad
litem, even if those instructions con¬‚ict with those of the minor client.”19
The conclusion that the attorney must follow the guardian ad litem™s express
orders to violate the incompetent child™s directive of con¬dentiality was
based not upon any speci¬c ethics rule but rather upon statutory law, which
states that a child must act through a GAL in order to perfect the child™s legal
rights and that a GAL, as a ¬duciary, is empowered to determine the child™s
best interest, even if that decision con¬‚icts with the child™s express wishes.20


17 Los Angeles County Bar Association Professional Responsibility and Ethics Committee,
Formal Ethics Opinion No. 504, May 15, 2000. Effective on July 1, 2004, California Business
& Professions Code § 6068(e) will include, for the ¬rst time, the future criminal act disclosure
discretion of ABA Model Rule 1.6(b)(1). AALS Professional Responsibility Section Newsletter,
Spring 2004. For a copy of the new California rule, see www.leginfo.ca.gov.
18 LACBA, Ethics Opinion No. 504, at 6, quoting from California Rules of Professional Conduct

3“700(C)(1)(a).
19 LACBA, Ethics Opinion No. 504, at 1, http://www.lacba.org/showpage.cfm?pageid=429).
20 Id. at 10, relying on California Family Code § 6601 and Moeller v. Superior Court, 16 Cal. 4th

1124 (1997).
Con¬dentiality 73

The LACBA Ethics Opinion Number 504 is problematic for several reasons.
First, if the child is competent, the opinion™s suggestion that the child™s attor-
ney withdraw from the case provides no solution for the ethical dilemma. The
attorney™s withdrawal from representation will not protect the child client
from the threatened child abuse. In fact, even if the attorney is replaced by
another, the second attorney will face the same dilemma. In addition, with-
drawal will harm the child™s best legal interest because the decision regarding
legal custody or permanency will be postponed until the new lawyer gets
up to speed on the case. But perhaps of equal importance, the abused child
will lose another trusted adult, and thus the child™s fragile mental health and
emotional problems may be exacerbated. How easily will the abused child be
able to shift loyalty and trust to a second attorney? Therefore, even though
most ethics codes permit an attorney to withdraw when his or her ability to
represent the client zealously and competently is compromised by con¬‚icts
between the client and the attorney, in cases in which an attorney represents
an abused child, withdrawal should be viewed as a drastic remedy that should
rarely, if ever, be exercised.
The LACBA Ethics Opinion Number 504 remedy of appointing a guardian
ad litem for abused children who lack capacity to make reasoned choices
is equally problematic because of the lack of speci¬city in the instructions.
The broad sweeping language that the “attorney may ethically disclose the
minor™s con¬dential information to the guardian ad litem and should follow
the instructions of the guardian ad litem, even if those instructions con¬‚ict
with those of the minor client” requires disclosure well beyond that con-
templated by the ABA Model Rules, which limit the discretionary disclosure
to cases of threatened serious bodily injury. Further, what if the minor was
competent when the statement was made and when he or she asserted con¬-
dentiality, but later becomes incompetent? It would seem that the moment of
substantive importance is the time when the child con¬dentially discloses the
threatened abuse, not when the attorney™s conscience is tested by remaining
silent. Attorneys who are uncertain about their minor client™s competency to
make the decision to refuse disclosure of future child abuse must be very care-
ful when deciding whether to seek a mental health competency evaluation
of the child. For instance, in Maryland “a mental health provider who learns
of an instance of child abuse or neglect must report it, regardless of whether
the person revealing the information was referred by an attorney. The only
exception is if the attorney™s referral occurs after the initiation of a criminal
proceeding against a defendant, as part of the attorney™s trial preparation.”21

21 75
Maryland Attorney General Opinion 76 (February 8, 1990). See, e.g., Ronni K. Burrows
& Elaine Buzzinotti, Legal Therapists and Lawyers Care-Giving Partnerships for the Next
Century, 19 FAM. ADVOC. 33 (1997).
74 Legal Ethics in Child Custody and Dependency Proceedings

In addition, there is always a problem with a substitute consent justi¬ca-
tion, which is a phenomenon in which an attorney judges a client™s compe-
tency by taking into account a decision by the client with which the attorney
disagrees. This phenomenon is especially salient when dealing with child
clients. It would be simple for the attorneys or the guardians ad litem, once
appointed, merely to determine that because they think it is unreasonable
to remain silent about the threatened abuse that the child client in assert-
ing con¬dentiality must be incompetent to make that decision. However,
children may make reasonable decisions to suffer physical abuse when the
alternative is to be torn from all blood relationships and from all persons
with whom the child has bonded psychological relationships. Even adults,
after reading the thousands of cases in which children are abused in foster
and group homes, might question whether it is better to suffer abuse at home
or risk being an orphan in a child dependency system in which the number
of children separated from their families exponentially exceeds the number
of prospective adoptive homes.
For instance, not a single state has met the federal government permanency
planning goals mandated in the Adoption and Safe Families Act of 1997.22 The
federal government review of the California dependency system found that
there was noncompliance regarding “the percentage of children achieving
reuni¬cation within 12 months of entry into foster care . . . , the percentage
of children discharged to ¬nalized adoptions within 24 months of entry into
foster care, and that in 19% of cases no diligent efforts had even been made
to locate a permanent placement for children already removed from their
home.”23 That federal report also found that in California, in “18 percent
of applicable cases, the frequency and/or quality of caseworker visits with
parents were not suf¬cient to promote the safety and well-being of the child
or promote the attainment of case goals. . . . ”24 Therefore, before a child™s
attorney concludes that the child™s decision to suffer abuse is so unreasonable
as to constitute incompetency in decision making, the attorney should factor
in the reality of foster care, rather than merely asking what he or she would
do were the attorney in the child™s shoes.


II. PARENTS™ ATTORNEYS: DUTY TO DISCLOSE CHILD ABUSE?

There is often an intimate connection between an attorney™s duty of loyalty
to a client and the duty to avoid actual or apparent con¬‚icts of interest.

22 Laura Meckler, States Fail New Test of Child Care System, at 1 (Associated Press, Aug. 19,
2003).
23 FINAL REPORT: CALIFORNIA CHILD AND FAMILY SERVICES REVIEW 6“8 (U.S. Department of
Health & Human Services, Administration for Children and Families, Administration on
Children, Youth and Families Children™s Bureau, January 2003).
24 Id. at 10.
Con¬dentiality 75

Attorneys who represent parents generally have been excluded as mandated
child abuse reporters, especially because that information could lead not
only to the loss of custody of children but also to their clients™ incarceration
through criminal prosecution.25 It would seem axiomatic that an attorney
who represents the Department and who is responsible for ¬ling dependency
actions against parties could not also defend parents in similar cases ¬led by
the Department.
However, sometimes, because of budget constraints, counties attempt to
have attorneys accept such dual roles. For instance, in South Carolina a
part-time public defender who represented parents in criminal child abuse
actions entered into a contract with the Department of Social Services to also
provide attorney services to that agency in dependency court.26 The South
Carolina Ethics Advisory Committee held that “[a]ny attorney who becomes
a member of the solicitor™s of¬ce [representing the Department of Social
Services] would be precluded from defending criminal prosecutions in the
county. If an attorney can perform those duties without becoming a member
of the solicitor™s of¬ce, the attorney can defend criminal prosecutions in the
same county but should ¬rst obtain the client™s knowledgeable consent.”27
The Ethics Advisory Committee made a distinction between public defenders
and all other county attorneys in relation to the dual role. It said that a
public defender is absolutely forbidden from working in any capacity for
the Department of Social Services because the public defender “could be in
the position of representing as public defender a person being prosecuted
by the solicitor™s of¬ce, which is the attorney™s other employer”; then, the
attorney would clearly have “divided loyalties” and possible access to “¬les
in the Solicitor™s Of¬ce,”28 creating an actual or apparent con¬‚ict of interest.
However, the Ethics Advisory Committee noted that other county attorneys,
as long as there is no con¬‚ict of interest, may represent the Department of


25 For example, “[w]hen an attorney is representing a battered woman with abused children,
the attorney would be prohibited from reporting the suspected abuse to DSS [Department
of Social Services]. If the attorney made the report, and DSS substantiated the allegations,
the attorney™s client could be criminally prosecuted.” Christine A. Picker, The Intersection of
Domestic Violence and Child Abuse: Ethical Considerations and Tort Issues for Attorneys Who
Represent Battered Women with Abused Children, 12 ST. LOUIS U. PUB. L. REV. 69, 89 (1993).
And in North Carolina State Bar Revised Opinion Number RPC 120 (July 17, 1992), the state
bar held that if an attorney learns of possible child abuse while representing a husband and
wife in an unrelated matter and does not report the child abuse, the state bar “will not treat
this conduct as unethical” even if failure to report might be deemed a criminal violation.
However, on January 13, 1995, in North Carolina State Bar Opinion Number RPC 175, it was
held that an attorney for a parent has discretion whether or not to report suspected child
abuse to the Department of Social Services “even if to do so may result in substantial harm
to the interests of the client.”
26 South Carolina Bar Ethics Advisory Committee, Opinion 85“21 (1985), at 1.
27 Id. at 2. 28 Id. at 3.
76 Legal Ethics in Child Custody and Dependency Proceedings

Social Services on a part-time basis. But because many county attorneys serve
as the child™s guardian ad litem in dependency court, they are not permitted
to also represent the Department of Social Services.29
Parents™ attorneys are often faced with cases in which they determine that
following the parents™ wishes and zealously arguing their case will not, in their
view, be in the best interest of the children or may, in fact, place children at risk.
ABA Model Rules of Professional Conduct, Rule 1.16(b)(3) permits an attorney
to withdraw from a case if “a client insists upon pursuing an objective that
the lawyer considers repugnant or imprudent” as long as the “withdrawal
can be accomplished without material adverse effect on the interests of the
client. . . . ”30 However, because the attorney cannot disclose con¬dential data
to the judge in support of the motion to withdraw from representation, in
most cases the mere act of seeking to withdraw might prejudice the parent
client because the judge will speculate about the reasons underlying the
withdrawal request. If the judge thinks that the withdrawal is based upon
con¬dential evidence that is relevant to the children™s safety, the judge, in a
close case, may be less willing to return the children to their parents. The
parents™ attorney is thus caught in a Catch-22. If he or she seeks withdrawal
it might clue the dependency court judge that facts not in evidence indicate
that returning the child to the parents might be dangerous, but zealously
arguing the parents™ stated preference might facilitate that danger to the
children.
What is clear is that the parents™ attorney usually may not reveal that con-
¬dential data to the court or the Department of Social Services. For instance,
in The Florida Bar v. Susan K. Glant,31 an attorney was appointed to represent
a parent in her motion to obtain custody of two of her four children who had
been removed earlier from the father™s custody by the Department of Health
and Rehabilitative Services (HRS) based upon allegations of sexual abuse by
the father. The mother™s attorney knew that she wanted custody of only two
of the four children, but the attorney thought that if the other two children
were placed in the father™s home they would be further sexually abused. In an
earlier action the Department did not litigate child sexual abuse allegations
against the father due to insuf¬cient evidence.32 Therefore, the mother™s
attorney sent a letter to the Department demanding further investigation
and “included a copy of an un¬led motion for custody modi¬cation which
asked that the mother be given custody of all four children,” even though


29 Id. at 3“4.
30 Stephen Gillers & Roy D. Simon, Jr., REGULATION OF LAWYERS: STATUTES AND STANDARDS
1996 163 (1996).
31 The Florida Bar v. Susan K. Glant, 645 So. 2d 962 (Florida 1994).
32 Id. at 963.
Con¬dentiality 77

the attorney knew that the mother wanted custody of only two of them.33
The Florida Supreme Court, after noting that the mother™s attorney™s proper
remedy was to have withdrawn in the case, determined that she violated
Florida Rule of Professional Conduct 4 1.2(a), which “requires a lawyer to
abide by a client™s decision regarding the objectives of representation”; the
court held that the violation warranted a public reprimand with six months
of probation as an appropriate sanction.34 Although the Florida Supreme
Court did not discuss the issue, the mother™s attorney also arguably violated
her duty of con¬dentiality and loyalty to the mother because in her motion
to withdraw she disclosed con¬dential information that the mother wanted
to remain con¬dential. In addition, had the court further investigated the
case and concluded that the mother actually knew of the father™s sexual abuse
of the other children, the court might have decided that none of the mother™s
children should live with her because she was in denial and could not pro-
tect them from the father should he visit with them. The mother™s attorney
would also have violated the requirements of zealous and competent repre-
sentation under that scenario. In fact, the mother™s attorney would have been
the strongest state witness against the mother.
The Utah State Bar Ethics Advisory Committee determined that a parent™s
attorney who discovers evidence that her client has abused her children is
more constrained in disclosing that abuse than in a case in which the attorney
learns from the parent client that a third party has abused her children.35 The
Ethics Committee held that an attorney can disclose “information leading the
attorney to believe a person who is not his client has subjected a child to abuse,
even if such information is obtained during the course of representing the
attorney™s client and even if the client objects to the disclosure.”36 However,
if the suspected child abuser is the attorney™s client, the attorney™s choices
are more limited. The Utah Ethics Committee determined that the attorney
is not under a mandatory duty to disclose the client™s child abuse and that
the disclosure, if made, can only relate to past, not to future abuse.37 The
Ethics Committee noted that the Utah ethics standards are in con¬‚ict with
mandatory child abuse reporting laws and client con¬dentiality rules. It
therefore found that the resolution of the con¬‚icting ethical and statutory
duties constituted a legal, not an ethical question, and thus was beyond the
committee™s jurisdiction.38 However, the Ethics Committee indicated that
due process may trump legal ethics because Utah Constitution, Art. I, § 12


33 Id. 34 Id. at 963.
at 963“964.
35 Compare Utah State Bar Ethics Advisory Committee Opinion 97-12 (January 23, 1998) with

Opinion 95-06 (July 28, 1985).
36 Opinion 97-12, fn. 6 quoting from Opinion 95-06.
37 Opinion 97-12, at 2. 38 Id. at 3.
78 Legal Ethics in Child Custody and Dependency Proceedings

provides “that a person accused of a criminal offense shall not be compelled to
give evidence against himself. Arguably, this extends through the attorney-
client relationship to mean the client™s attorney cannot be compelled to
give such evidence.”39 If the Ethics Committee had reached the opposite
conclusion, that a parent™s attorney may disclose or can be legally compelled
to disclose a parent™s confession of child abuse, then certainly attorneys would
have a duty to counsel and admonish parents during the formation of the
attorney-client relationship about the possibility of disclosure, even if that
admonition might chill the parent™s willingness to inform the attorney fully
of all material facts necessary to ensure competent representation.
The tide is, however, changing to permit more disclosures. For instance,
in McClure v. Thompson40 the Ninth Circuit recently held that an attorney
was not incompetent based upon his revelation, without client consent, of
con¬dential data he had discovered from his client concerning the location of
the two children his client was charged with kidnaping because the disclosure
might prevent the resulting death of the children. Of course, the due process
question of whether the government can use such a disclosure by a criminal
defendant™s attorney is far from certain.
For instance, in Baltimore City Department Of Social Services v. Bouknight41
an allegation of physical abuse by the mother was sustained and her child
was returned home upon a condition that the mother would participate in
therapy, enroll in parenting classes, and refrain from using physical punish-
ment against her child. The mother was uncooperative, refused to bring the
child back for a court review hearing, and said that the child had been sent to
live with her aunt. After the mother refused to produce her child based upon
her Fifth Amendment privilege against self-incrimination, the trial judge
held her in contempt of court. The United States Supreme Court found that
holding the mother in contempt of court was constitutional, even though
the production of the child might provide incriminating evidence that could
result in criminal prosecution for child abuse because the mother was the
custodian of the child under a court order. However, the Supreme Court was
very troubled by the use of any information that might be gleaned had the
mother returned her child because of the Fifth Amendment implications.
The Court, therefore, noted that even though the mother was required to
produce the child even if that production might incriminate her, the govern-
ment might not be able to use that information in a criminal prosecution:

[W]e are not called upon to de¬ne the precise limitations that may exist
upon the State™s ability to use the testimonial aspects of Bouknight™s
act of production in subsequent criminal proceedings. But we note that

39 Id.at fn. 3.
40 McClure v. Thompson, 323 F. 3d 1233 (9th Cir. 2003).
41 Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549; 100 S. Ct. 900 (1990).
Con¬dentiality 79

imposition of such limitations is not foreclosed. The same custodial role
that limited the ability to resist the production order may give rise to corre-
sponding limitations upon the direct and indirect use of that testimony.42

Just so, the Supreme Court might hold that, even though a parent™s attorney
is mandated to report con¬dential data regarding the parent™s child abuse,
the Court might declare that the purpose of the disclosure is to protect
the child, not to punish the parent. This result, just like that in Bouknight,
would support society™s need to protect children without totally abrogat-
ing the critically important rights against self-incrimination under the Fifth
Amendment.43


III. THE DEPARTMENT™S ATTORNEY: DISCLOSURE
AND TRIAL TACTICS

Assume that the Department™s attorney receives what appears to be con¬den-
tial and/or privileged material from the parents™ attorney and concludes that
the parents™ attorney has intentionally disclosed that data. This situation is
most likely to occur when parents™ counsel uncovers substantial evidence that
the parent intends to further abuse his or her children, but ethical rules pro-
hibit the direct disclosure of the probable future child abuse.44 What are the
options for the Department™s attorney? ABA Formal Opinion 92“368 (Inad-
vertent Disclosure of Con¬dential Material) suggests that the attorney may not

42 Id.
43 For an argument against disclosure of con¬dential client information in cases in which
criminal prosecution is possible, see Brooke Albrandt, supra note 10, at 655, 674, in which
the author concludes that “[g]iven the apparently negligible effect of reporting requirements
on reducing child abuse, it is the position of this Note that mandatory reporting requirements
should not be applied to attorneys.”
44 Whether a parents™ attorney is precluded from disclosing con¬dential information to prevent

threatened child abuse depends upon the ethical rules applicable in the jurisdiction. For
example, in Alabama Bar Association Opinion Number 1995-06 an attorney for a father
discovered that the father was involved in an ongoing investigation about his sexual abuse
of his children. Because the father was so unstable that the attorney could not adequately
represent him, the State Bar held that the attorney could disclose the father™s condition
under two contexts. First, the attorney could disclose “such con¬dential information as
may be required to adequately represent” his client™s interests. And second, pursuant to
Alabama Rules of Professional Conduct, Rule 1.6(b) the attorney could disclose the data if the
attorney “reasonably believes disclosure is necessary to prevent the client from committing
a criminal act which the lawyer believes is likely to result in imminent death or substantial
bodily harm.” Id. There is a continuing debate among state bar associations regarding the
ambit of an attorney™s discretion to disclose client™s threats of future criminal conduct. See
Ira L. Sha¬roff, What Evil Lurks: Client Con¬dentiality Should Not Trump the Life of an
Innocent Person, L. A. DAILY J., January 29, 2003, p. 6, cols. 3“5. And the scope of disclosure of
con¬dential information by government attorneys is broader than the permissible disclosure
by private attorneys, especially in criminal proceedings. Thomas Haviena, Prosecution and
Defense Have Different Disclosure Obligations, L. A. DAILY J., February 2, 2004, p. 7, cols. 1“3.
80 Legal Ethics in Child Custody and Dependency Proceedings

use con¬dential materials that are received through inadvertence where the
“receiving lawyer was not an unintended recipient of the material.”45 And in
ABA Formal Opinion 94“382 it was suggested that, if a government attorney
receives con¬dential data from “someone other than the opposing party™s
lawyer,” the government attorney should notify “her adversary™s lawyer that
she has received the documents.”46 However, the ABA Standing Commit-
tee questioned the duty to disclose receipt of con¬dential data or to refrain
from using that data because that “could prejudice the legitimate rights of
the receiving lawyer™s client to employ such materials in the prosecution or
defense of a legal action.”47 It held that

a lawyer receiving such privileged or con¬dential materials satis¬es her
professional responsibility by (a) refraining from reviewing materials which
are probably privileged or con¬dential, any further than is necessary to
determine how appropriately to proceed; (b) notifying the adverse party or
the party™s lawyer that the receiving lawyer possesses such documents; (c)
following the instructions of the adverse party™s lawyer; or (d) in the case of
a dispute, refraining from using the materials until a de¬nitive resolution
of the proper disposition of the materials is obtained from a court.48

The ABA Standing Committee recognizes that these remedies work well
when the one who disclosed the data is not the opposing attorney. But in
our hypothetical, it was the opposing counsel who released the con¬dential
data. Some states have ruled that zealous advocacy trumps fairness to the
opponent™s client and permits the use of the con¬dential data, as long as the
receiving governmental attorney did not participate in the garnering of that
data:

An attorney who comes into possession of a document of the opposing party
during litigation may use the document at trial provided it is admissible evi-
dence and neither the attorney nor client in any way procured the removal
of the document from the possession of the opposing party. An attorney™s
mere possession of the opposing party™s internal and private memoran-
dum does not require the attorney to withdraw from representation of the
client.49

But what should be the limit of the Department™s use of that con¬dential
information? Clearly, a parent™s admission of an intention to commit future

45 American Bar Association, ASK ETHIC Search, PROF. LAW., V. 8, No. 4 (August 1997) (citing

ABA Formal Opinion 92-368).
46 Id. 47 Id.
48 Id.
49 Id.; Michigan Bar Opinion CI-970 (1983); Maryland Bar Association Ethics Opinion 89-53
(1989); Virginia State Bar Opinion 1076 (1988).
Con¬dentiality 81

child abuse is highly relevant in the dependency case concerning disposi-
tion and reuni¬cation issues. However, whether that data can be introduced
in the dependency proceeding is dependent upon the jurisdiction™s hearsay
rules and upon the court™s determination of whether the parents™ attorney™s
intentional disclosure of the privileged data raises suf¬cient due process
issues to require suppression of that evidence. Although many dependency
jurisdictions have held that the Fourth Amendment exclusionary rule is
inapplicable in those proceedings because of the necessity of considering all
relevant evidence regarding the child™s best interest, it is quite a different
issue to hold that the intentional violation of client con¬dentiality, loyalty,
competence, and zealousness by the parents™ court-appointed attorney does
not suf¬ciently taint the evidence to exclude its introduction.50 Of course,
if the parents™ court-appointed attorney is not a state actor, then the exclu-
sionary rule would not be implicated, and the parents™ only remedies would
be to sue their attorney for malpractice or for invasion of privacy under a
theory of public disclosure of embarrassing private facts and to seek state bar
sanctions for the attorney™s ethical violations.51
Whether the Department™s attorney can disclose con¬dential information
to the prosecutor in a criminal prosecution based upon identical allegations
of child abuse is a detailed statutory question answered differently by the
states. For instance, in California, criminal prosecutors, under limited cir-
cumstances, have access to the data in the Child Abuse Central Registry.52
50 For instance, in In re Christopher B., 147 Cal. Rptr. 390 (Cal. 1978), the court held that
the exclusionary rule is inapplicable in dependency proceedings because of the necessity
of determining the best interests of the child. Some courts have held that even if a search
violates the Fourth Amendment, the exclusionary rule, as opposed to a civil rights action for
damages, is inapplicable in dependency proceedings. See A. R. v. State, 937 P. 2d 1037 (Utah
1997); In re Diane, 494 N. Y. S. 2d 881 (1985); J. A. R. v. Dept. Health & Rehab. Servs., 419
So. 2d 780 (Fla. App. 1982).
51 Although searches by certain governmental employees, such as teachers, are suf¬cient state

action to implicate the Fourth Amendment and the exclusionary rule, not all searches by
governmental employees are treated identically. New Jersey v. T. L. O., 469 U.S. 325 (1985)
(school searches conducted by school administrators implicate the Fourth Amendment).
However, whether the actor is a suf¬cient state actor to implicate the Constitution is a question
of fact. For instance, courts have reached diametrically opposing judgments on whether social
workers are suf¬cient state actors or independent contractors with no respondeat superior
relationship with the government. See Hunte v. Blumenthal, 680 A. 2d 1231 (1996) [foster
parents are state employees]; Paige Kenal. B. v. Molepske, 580 N. W. 2d 289 (Wisc. 1998)
[children™s guardian ad litem immune]; Tara M. v. City of Philadelphia, 145 F. 3d 625 (3rd
Cir. 1998) [children™s guardian ad litem not immune and is responsible for contribution
for damages to child placed in foster home]; DeShaney v. Winnebago, 489 U.S. 189 (1989)
[government not responsible for injuries to child returned to parent while in parents™ care].
52 For instance, California Penal Code Section 11170 (d) provides that the records shall be made

available to “out-of-state law enforcement agencies conducting investigations of known or
suspected child abuse . . . ” as long as that agency makes a suf¬cient showing of entitlement
and need.
82 Legal Ethics in Child Custody and Dependency Proceedings

However, if a criminal prosecutor represents a party in a child dependency
proceeding, all records “are con¬dential and shall be held separately, and
shall not be inspected by members of the district attorney™s of¬ce not directly
involved in the representation of that minor.”53
Often the Department may want to divulge con¬dential juvenile court
information in order to defend itself against unwarranted allegations of
misfeasance or abuses of discretion. Although the American Bar Associa-
tion Standards of Practice require the agency attorney to protect the “positive
image of the agency,” those standards also hold that the attorney must ensure
that the “agency must abide by con¬dentiality laws, and therefore must keep
some information private.”54 The agency lawyer™s role involves counseling
the agency not only on the con¬dentiality laws but also on the political and
policy consequences of violating those rules and privileges.55

IV. JUDGES: PARTIES™ PRIVACY VERSUS PUBLIC OVERSEER

Juvenile court judges may not comment publicly upon cases pending in their
courtroom that are not yet legally ¬nal.56 In Schenck,57 the Oregon Supreme
Court held that a juvenile court judge violated the prohibition against pub-
licly commenting on pending proceedings by writing a letter to the editor
explaining his problems with trial counsel: he wrote that “her immaturity
led her to view herself as the knight on the white charger and set herself
up as the all knowing and righteous in her own position.”58 The Oregon


53 California Penal Code Section 318.
54 Standards of Practice for Lawyers Representing Child Welfare Agencies, Rule B-1(4) (Ameri-
can Bar Association, August 2004). “The agency attorney must thoroughly understand the
attorney client con¬dentiality issue and work diligently to avoid divulging con¬dential infor-
mation.” Id.
55 Id.
56 In Broadman v. Commission on Judicial Performance, 77 Cal. Rptr. 2d 408, 417“418 (1999),

the California Supreme Court held that a judge committed judicial misconduct by publicly
commenting on a pending case in violation of the California Code of Judicial Ethics, Canon
3B(9), which prohibits jurists from making “public comment about a pending or impending
proceeding in any court. . . . ” The judge commented upon a case pending in his court and
in the Court of Appeal. On the other hand, the court in In re Hendel, (Connecticut Judicial
Review Counsel, March 6, 1989 [unreported memorandum of decision] WestLaw JDDD
database) held that a judge did not violate canons of judicial performance by commenting
on two sexual abuse cases that were closed and ¬nal. One court held that unauthorized
statements by a judge regarding litigants might be outside the protection of absolute judicial
immunity and may subject the judge to monetary damages. Soliz v. Williams III, 88 Cal. Rptr.
2d 184, 195“196 (1999). In Virginia, judges may not comment upon a pending case even if
it is not being litigated within the state of Virginia. Commonwealth of Virginia Judicial Ethics
Advisory Committee Opinion 99-7, Nov. 17, 1999. See also In re Hey, 425 S. E. 2d 221, 222“224
(W.Va., 1992); In re Inquiry of Broadbelt, 683 A.2d 543, 546 (N.J., 1996).
57 Schenck, 870 P. 2d 185 (Oregon 1994). 58 Id. at 200.
Con¬dentiality 83

Supreme Court found that the judge™s editorial demonstrated “malicious-
ness” toward trial counsel and created the appearance that the judge was
not impartial, and the court suspended the judge for forty-¬ve days without
pay.59
However, judges have an af¬rmative duty to speak to the public on “the
law, the legal system, [and on] the administration of justice and non-legal
subjects. . . . ”60 In addition, judicial of¬cers have a duty to publicly comment


59 Id.at 209“210.
60 American Bar Association Canons of Judicial Conduct, Canon 4(B). Although ABA rules of
professional responsibility are not binding on California attorneys, they “can be looked to
as a collateral source, particularly in those instances where there is no direct authority found
under applicable California rules. . . . ” California Compendium on Professional Responsibility,
Formal Op. No 1983-71, at II A-223 (State Bar of California 1983). Alabama judges are not
“prohibited from speaking to groups on the problems of child abuse,” but should refrain
from addressing the quality of services of any child abuse organization which has invited
him to speak, especially if its agents are likely to appear in the judge™s court. Alabama Judi-
cial Inquiry Commission, #87293, March 2, 1987. Arizona Judicial Canon 3B(12) requires “a
judge to participate actively in judicial education programs” and judges may even partic-
ipate in seminars funded by “businesses, foundations or other non-governmental entities
whose interests may come before the judge” as long as no case is pending and the judge
does not accept reduced tuition. Arizona Supreme Court Judicial Ethics Advisory Commit-
tee Opinion 00-02, April 9, 2000. And in Utah judges who hear cases from the Attorney
General™s Of¬ce may participate in a conference administered by that of¬ce as long as the
judge does not “give legal advice, comment on pending cases, or show improper bias . . . ”
and as long as the judge is available to speak to groups who handle cases adverse to the
sponsoring organization as well. Utah Informal Ethics Opinion 99-6, September 23, 1999.
See also Virginia Judicial Ethics Advisory Committee Opinion 01-04, March 28, 2001 (judge
may lecture to cadets in police training programs regarding expectation of police of¬cers
while testifying in court). In Florida judges may serve on a Family Violence Protocol Task
Force in the jurisdiction in which they sit if activities are limited to “offering expertise and
knowledge; teaching, speaking and presenting information designed to educate the public as
to the underlying purposes and efforts of the local task force; and accurately relating the role
of judges in the court system. . . . ” Florida Supreme Court Judicial Ethics Advisory Committee
Opinion No. 95-84, July 28, 1995. See also Utah Informal Opinion No. 88-2, April 15, 1988
(“Judge may serve on county Child Abuse Coordinating Committee as long as she limits her
activities to issues regarding “improvement of the law, the legal system or the administra-
tion of justice.”); Virginia Ethics Advisory Committee Opinion 00-3, March 27, 2000 (judge
may not serve on the board of juvenile group home that accepts court referrals); Wiscon-
sin Judicial Conduct Advisory Committee Opinion 01-1, January 8, 2002 (judge may serve
on a County Community Corrections Advisory Board that develops community resources
and community partnerships.); Arkansas Judicial Ethics Advisory Committee Opinion No.
96-01, December 29, 1999 (juvenile court judge may serve on Policy and Planning Board
of the Division of Youth Services of Department of Human Services because it is a “quasi-
governmental agency that is devoted to the administration of justice); Delaware Judicial
Ethics Advisory Committee Opinion 2001-1, May 15, 2001 (judge may serve as a volunteer
judge in the Teen Court Program as long as the judge™s role is that “of advisor and not as
a participant in the decision-making process” because juveniles who fail the program may
appear later before that juvenile court judge). Florida judges may respond to public criticism
regarding court philosophy in relation to speci¬c cases once the cases are concluded. Florida
84 Legal Ethics in Child Custody and Dependency Proceedings

upon possible revisions of the juvenile justice system that will contribute to
the improvement of the administration of justice.61 Jurists may speak on
issues regarding the improvement of the law and the administration of jus-
tice in public hearings before legislative committees, as well as in any other
public forum.62 The United States Supreme Court in Republican Party of
Minnesota v. White63 recently struck down as unconstitutional restrictions
on judicial candidates from expressing their views on general legal and polit-
ical questions. And the Michigan Committee on Professional and Judicial
Ethics found that a “judge may write an article containing general legal
information, provide work project for inclusion in an educational pamphlet
or cassette tape sold for pro¬t, and receive compensation therefore, provided
that the promotion and sale of the material is not an exploitation of the


Advisory Opinion No. 94-8, April 21, 1994 (citing to Illinois Supreme Court Rules 63A(6) and
64(A) that permit judges to make “public statements in the course of their of¬cial duties or
from explaining for public information the procedures of the court.”). Florida has a liberal
view of judges™ participation in society, which is re¬‚ected in Opinion 98-01 by the following
quotation from Benjamin Cardozo: “This is no life of cloistered ease to which you dedicated
your powers. This is a life that touches your fellow man at every angle of their being, a life
that you must live in the crowd, and yet apart from it, man of the world and philosopher
by turns.” In Nevada, judges may even speak at continuing legal education seminars that
also serve as fund-raisers; however, the judge “may not personally engage in fund-raising
activities or solicitation of attendance for the event.” Nevada Standing Committee on Judicial
Ethics and Election Practices, Opinion JE99-002, April 5, 1999.

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