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There is a dramatic difference among states™ scope of dependency appel-
late review. For instance, in Pennsylvania, the court has asserted the broadest
appellate jurisdiction: “Our scope of review . . . is of the highest possible
nature. It is this Court™s responsibility to ensure that the record represents a
comprehensive inquiry and that the hearing judge has applied the appropri-
ate legal principles to that record.”105 However, in other jurisdictions, such as
Missouri, courts strictly construe the statutory right to appeal because under
the common law no appellate rights existed. Thus, in In the Interest of L.E.C.,
et al. v. K. C.,106 the Missouri court dismissed a mother™s appeal of a change

99 Id. at 150.
100 G. L. S. v. Department of Children and Families, 700 So. 2d 96, 97, 99 (Florida 1997).
101 Id. at 99.
102 In re Tomi C., 267 Cal. Rptr. 210, 212“213 (1990).
103 Id. at 1185. 104 Id. at 1184.
105 In re E. P., et al., 841 A. 2d 128, 131 (Pennsylvania, 2004).
106 In the Interest of L. E. C., et al. v. K. C., 94 S. W. 3d 420 (Missouri, 2003).
144 Legal Ethics in Child Custody and Dependency Proceedings

in the children™s permanency plan because there “is no statutory provision
expressly granting the right to appeal” from a change in permanency plan-
ning.107 The Missouri court also rejected policy arguments for providing
parents appeals from non¬nal orders because it would “cause inef¬ciency
and lengthen the time needed to address the ultimate issue of parental rights
termination.”108
Finally, some courts strictly construe rules of appellate procedure. For
instance, in a California case the mother prematurely ¬led a notice of appeal
on an issue of permanency planning, an issue that under California appellate
rules must be brought by a writ, not a direct appeal. The court denied the
mother™s request to treat the appeal as timely ¬led and as properly ¬led
under the “constructive ¬ling” doctrine, which provides liberal appellate
procedures to prisoners appealing ¬nal judgments.109 The court also refused
the mother™s request to treat the appeal as the appropriate extraordinary
writ because such relief is appropropriate only when the appeal was timely
¬led.110

107 Id. at 424.
108 Id. at 425. An Illinois court in In re Brandon, 771 N. E. 2d 1117 (Illinois 2002), held that denial

of a change of placement motion was not a ¬nal order and, therefore, was not appealable.
The court de¬ned a “¬nal order” as one that changes the status quo. Because the parents™
change of custody motion was denied, it “did not permanently determine the rights of the
parties nor de¬nitely resolve any issue in the case. The ultimate issue, the return home of the
children, remained to be determined.” Id. at 1120“1121.
109 In re Ricky H. v. Lisa H., 12 Cal. Rptr. 2d 578 (California 1992).
110 Id. at 584.
6 The Constitutionality of Legislative and Executive
Regulation of the Practice of Law and De¬ning
the Attorney-Client Relationship



Alex de Tocqueville noted that “people in democratic states do not mis-
trust the members of the legal profession, because it is known that they are
interested to serve the popular cause; and the people listen to them with-
out irritation because they do not attribute to them any sinister designs.”1
Times have changed. Today, polls by myriad sources indicate that the pub-
lic™s trust and respect for attorneys have atrophied since de Tocqueville™s era.
It is not uncommon to confront contemporary descriptions of attorneys as
“parasites, hired-guns of large corporations or grasping clients, motivated by
greed and neglectful of the public good.”2 The public™s principal complaints
about lawyers concern (1) perceptions of greed; (2) a minimal commitment
to pro bono publico obligations; (3) fomenting a system of nastiness, rather
than cooperation through alternative dispute resolution; and (4) a failure of
attorney self-regulation to control and cure de¬ciencies in the attorney-client
relationship. For instance, a poll by the American Bar Association found that
42 percent favor expanding “alternatives to lawsuits by encouraging use of
mediation, arbitration, and other alternative dispute resolution programs.”3
And 56 percent of the public believes that “lawyers tend to recommend more
legal work than necessary because it increases their fees.”4
However, the most critical public attitude is the public™s distrust of attorney
self-regulation; “lawyer discipline is an oxymoron” according to a majority of


1 Senator Paul Simon, Foreword: Ethics in Law and Politics, 28 LOY. U. CHI. L. REV. 221, 225
(1996)(quoting Alexis de Tocqueville, DEMOCRACY IN AMERICA 275“276 (Phillips Bradley,
ed., 1987)(1835)). The author presented some of the following analysis in William Wesley
Patton, Legislative Regulation of Dependency Court Attorneys: Public Relations and Separation
of Powers, 24 J. LEGIS. 3 (1998).
2 Simon, supra note 1, at 225.
3 Gary A. Hengstler, Vox Populi: The Public Perception of Lawyers: ABA Poll, ABA J., September

1993, at 62.
4 Richard Delgado, Rodrigo™s Thirteenth Chronicle: Legal Formalism and Law™s Discontents, 95

MICH. L. REV. 1105, 1116 (1997).

145
146 Legal Ethics in Child Custody and Dependency Proceedings

the public.5 Because the American Bar Association and state bar associations
want to avoid, at all costs, public rather than attorney and judicial control of
lawyer regulation and discipline, there has been a renewed emphasis on train-
ing law students and lawyers regarding legal ethics. For instance, training in
legal ethics usually begins in the second year of law school, is tested on the bar
examination, and continues inde¬nitely through mandatory continuing legal
education requirements.6 However, the legal profession™s renewed emphasis
on self-regulation and ethics training has been an insuf¬cient response to the
public™s concern because “[w]hile many lawyers view ethics as the absence of
disciplinary measures and adherence to the profession™s own Model Rules of
Professional Conduct, the public views ethical conduct on a much broader
scope, to include things such as fee disputes, lack of client relations and
communication problems.”7
Because of the public™s continuing political action to promote systemic
ethical changes in the legal system, pressure has been put on state legisla-
tors, administrative agencies, and Congress to step in and provide the per-
ceived needed regulation. The most recent example of legislative regulation
of the attorney-client relationship is the Sarbanes-Oxley Act of 2002,8 which
requires attorneys practicing before the Securities and Exchange Commis-
sion to

report evidence of a material violation of securities law or breach of ¬du-
ciary duty or similar violation by the company or any agent thereof, to the
chief legal counsel or the chief executive of¬cer of the company . . . and if
counsel or of¬cer does not appropriately respond to the evidence (adopting,
as necessary, appropriate remedial measures or sanctions with respect to the
violation), requiring the attorney to report the evidence to the audit com-
mittee of the board of directors comprised solely of directors not employed
directly or or indirectly by the issuer, or to the board of directors.9

Such legislatively mandated ethical rules place attorneys in a Catch-22
dilemma because violating the legislative statute can lead to contempt or civil
¬nes; however, following that statutory ethical precept can lead to discipline

5 Michael J. Hall & Jean Guccione, Complaining Consumers Getting Scant Satisfaction: Problems

Remain in Bar™s “Model” System, L.A. DAILY J., July 11, 1994, at 1, 10. “[T]he public™s distrust
of attorneys, and the legal profession in general, is heightened by the imposition of lenient
sanctions for attorney misconduct.” Blaine Workie, Chemical Dependency and the Legal
Profession: Should Addiction to Drugs and Alcohol Ward Off Heavy Discipline?, 9 GEO. J. LEGAL
ETHICS 1357, 1372 (1996).
6 Lorie M. Graham, Aristotle™s Ethics and the Virtuous Lawyer: Part One of a Study on Legal

Ethics and Clinical Legal Education, 20 J. LEGAL PROF. 5 (1995“1996).
7 Hengstler, supra at 62. 8 Public Law No. 107-204 (2002).
9 Section 307 (1) and (2); Professional Responsibility Section Fall 2002 Newsletter, at 4 (American

Association of Law Schools).
The Constitutionality of Legislative and Executive Regulation 147

by the state bar, and perhaps even disbarment, if the state bar™s ethical rules
con¬‚ict. For instance, prior to the passage of the Sarbanes-Oxley Act, the
California Supreme Court rejected proposed amendments to California Rules
of Professional Responsibility, Rule 3-600, which would have permitted govern-
mental attorneys to disclose certain client con¬dentiality in order to report
corruption. Because the California con¬dentiality rules are contained in the
Business and Professions Code, the California Supreme Court permitted the
legislature to promulgate a whistle-blower act, which appeared to cover attor-
neys. However, after the passage of the Sarbanes-Oxley Act, the California
Bar Association quickly noti¬ed its members that the federal act violated
several of California™s Rules of Professional Responsibility and that attorneys
were at risk if they blindly followed the requirements of the federal act.10
The con¬‚ict between the federal standard and the California con¬dentiality
standard became a bit murkier after the California Supreme Court modi¬ed
Rule 3-100 to permit attorneys to disclose, but not require disclosure, if they
“reasonably believe that disclosure is necessary to prevent a criminal act that
the attorney reasonably believes is likely to result in death of or substantial
bodily harm to an individual.”11
Although con¬‚icts in legislatively and judicially mandated attorney ethics
rules are problematic in every area of legal practice, such con¬‚icts are most
troubling in the area of child custody and dependency proceedings for sev-
eral reasons. Perhaps more than in any other area besides criminal law,
high-pro¬le cases of child abuse raise cries by the electorate for imme-
diate legislative ¬xes. Public outcry in speci¬c cases has led legislators to
promulgate expedited cures to perceived weaknesses in the laws and court
procedures protecting children. For example, after the killing of 7-year-old
Megan Kanka on July 29, 1994, her death became a national symbol of
crimes against children and led to the rapid promulgation in forty-¬ve states
and Congress of laws requiring noti¬cation of the location of child preda-
tors. Although such statutes might be wise legislative responses if carefully
debated and drafted, because of the tremendous public pressure and the expe-
dited legislative debate concerning those statutes, they were often inartfully
crafted. For instance, “Megan™s laws in nine states have been challenged,

10 Attorneys Cautioned on Sarbanes-Oxley Disclosure, CAL. B.J. (October 2003); Ethics Alert:
The New SEC Attorney Conduct Rules v. California™s Duty of Con¬dentiality (California Bar
Association 2003).
11 California Rules of Professional Conduct, Rule 3-100, effective July 1, 2004, is substantially

similar to Assembly Bill Number 1101, which modi¬ed the California Business and Profession
Code, section 6068 to permit such attorney disclosures. Because the California Supreme
Court virtually adopted AB 1101, there was no issue of separation of powers because the
California Supreme Court, in effect, approved the legislative draft of the new California
con¬dentiality rules.
148 Legal Ethics in Child Custody and Dependency Proceedings

stricken or stalled in the courts, in part because they have been applied
retroactively.”12
Although judges are not immune from political pressure, they often are
more insulated than legislators. This chapter analyzes the historical and con-
stitutional roles of legislatures, the executive, and courts in promulgating eth-
ical rules that de¬ne the role of attorneys and the attorney-client relationship.
By studying separation of powers, attorneys working in child custody and
dependency proceedings will be better able to resolve con¬‚icts among ethi-
cal standards and to fashion legal arguments regarding which set of ethical
precepts controls attorneys™ conduct.


I. A SHORT HISTORY OF THE ROLE OF COURTS, LEGISLATURES,
AND THE EXECUTIVE IN THE REGULATION OF ATTORNEYS

Most legal historians from the turn of the twentieth century until the 1960s
characterized the role of courts in regulating attorneys as an absolute and
inherent power. It was not uncommon for claims to be made that since
the Magna Charta, legislatures “always recognized [that] the admission of
attorneys was a matter of judicial discretion.”13 Broad claims of judicial
independence were proffered: “[F]or more than six hundred years it has
been the practice of the courts to admit attorneys upon their own exami-
nation, and . . . at the time the Colonies separated from the mother country,
the power of examination and admission of attorneys was vested in the
courts.”14 It was argued that the admission and regulation of attorneys are
so essential to the functioning of the courts that courts™ power is “˜inherent™
or ˜implied™ in the judicial of¬ce itself.”15
However, as the history of attorney regulation in relation to the separation
of powers developed, some scholars began to question the exclusive power
of courts to admit and regulate attorneys. During the 1970s and 1980s, arti-
cles began to promote a model of “concurrent jurisdiction” over attorney
regulation to be shared by the courts and legislature. These analyses set the
cusp of exclusive and/or inherent court regulation at the point at which leg-
islative regulation of attorneys would unreasonably hamper the necessary


12 Problems in “Megan™s Laws”: Courts Must Bring Order to States™ Sex Predator Reporting Rules,

June 8, 1997, at M4; Nicholas Riccardi & Jeff Leeds, Public Getting Information
L.A. TIMES,
on 63,900 Sex Offenders, L.A. TIMES, June 27, 1997, at A1.
13 Note, Legislative or Judicial Control of Attorneys, 8 FORDHAM L. REV. 103, 105 (1939).
14 Blewett Lee, The Constitutional Power of the Courts over Admission to the Bar, 13 HARV. L.

REV. 233, 245 (1899).
15 Charles A. Degnan, Admission to the Bar and the Separation of Powers, 7 UTAH L. REV. 82, 86

(1960).
The Constitutionality of Legislative and Executive Regulation 149

and legitimate functions of the courts.16 The increasing promotion of the
concurrent jurisdiction theory is not surprising because other areas of law
that crossed both legislative and judicial turf “[f]or decades . . . [had]been
the subject of a concurrent jurisdiction.”17
But the tension between a doctrine of concurrent jurisdiction and the often
con¬‚icting doctrine of inherent and/or exclusive jurisdiction in the separate
branches of government sometimes has created constitutional crises. Often
courts avoided such direct con¬‚icts by using notions of comity to prevent
direct confrontation with legislators. For instance, the Pennsylvania Supreme
Court in Hoopes v. Bradshaw18 recognized that the smooth functioning of
the judicial branch requires cooperation between the two branches of gov-
ernment.19 To avoid continuing constitutional battles between the courts
and state legislatures, many states amended state constitutions by vesting
most of the power to regulate attorneys in state supreme courts. “Since 1945,
Alaska, Florida, Georgia, Missouri, New Jersey and Puerto Rico have adopted
new constitutions. In every one but that of Georgia rule-making power is
expressly granted to the highest court of the jurisdiction.”20 Vesting state
supreme courts with the inherent or express constitutional power to regulate
attorneys was proposed by the American Bar Association as early as 1938.21
And in 1927, Pound and Wigmore recognized that unbridled discretion of
attorney regulation in the legislature, as opposed to the courts, is problematic
in a number of ways:

[L]egislatures have neither the immediate familiarity with the day-by-day
practice of the courts, which would allow them to isolate the pressing prob-
lems of procedural revision nor the experience and expertness necessary to
the solution of these problems; legislatures are intolerably slow to act and
cause even the slightest and most obviously necessary matter of procedural

16 A 1970s note argued for concurrent jurisdiction unless “the regulation in issue unreasonably

hampered the judiciary. . . .” Note, The Inherent Power of the Judiciary to Regulate the Practice of
Law “ A Proposed Delineation, 60 MINN. L. REV. 783, 802 (1976). See also Charles W. Wolfram,
Lawyer Turf and Lawyer Regulation “ The Role of the Inherent-Powers Doctrine, 12 U. ARK.
LITTLE ROCK L. J. 1, 4“6 (1989“1990): (arguing that although courts have an “af¬rmative”
inherent powers doctrine to regulate attorneys without legislative enactment, courts have
sometimes exceeded their authority in also arguing that they possess a “negative” inherent
powers doctrine that provides the court with exclusive authority to regulate attorneys).
17 A. Leo Levin & Anthony G. Amsterdam, Legislative Control over Judicial Rule-Making: A

Problem in Constitutional Revision, 107 U. PA. L. REV. 1, 3 (1958).
18 Hoopes v. Bradshaw, 80 A 1098 (1911).
19 See also John M. Mulcahey, Separation of Powers in Pennsylvania: The Judiciary™s Prevention

of Legislative Encroachment, 32 DUQ. L. REV. 539, 541 (1994).
20 Levin, supra note 17, at 5.
21 American Bar Association, THE IMPROVEMENT OF THE ADMINISTRATION OF JUSTICE 11“12

(3d ed. 1952).
150 Legal Ethics in Child Custody and Dependency Proceedings

change to be long delayed; legislatures are subject to the in¬‚uence of other
pressures than those which seek the ef¬cient administration of justice and
may often push through some particular and ill-advised pet project of an
in¬‚uential legislator while the comprehensive, long-studied proposal of a
bar association molders in committee; and legislatures are not held respon-
sible in the public eye for the ef¬cient administration of the courts and hence
do not feel pressed to constant reexamination of procedural methods.22

Most states now vest the constitutional power to admit and regulate attor-
neys in the state supreme court; however, most jurisdictions also reserve
concurrent jurisdiction with the state legislature in those areas relevant to
the police power and protection of consumers that do not directly ham-
per the essential role of the courts. “Today, as for the last quarter-century,
professional discipline of a lawyer in the United States is conducted pur-
suant to regulations contained in regulatory codes that have been approved
in most states by the highest court in the jurisdiction in which the lawyer
has been admitted.”23 However, the battle over which governmental entity
will regulate the practice of law has in recent years extended to executive
administrative committees as well. Contemporary legal process scholarship
has demonstrated that attorney regulation now involves “often-overlapping
claims to regulatory authority” including regulatory agencies, such as the
Securities and Exchange Commission and the New York Stock Exchange.24
One legal process scholar has catalogued three different classes of organiza-
tions that have some regulatory role over the legal profession:
One class consists of legal institutions with broad missions that include
some incidental regulation of lawyers. Judges and juries regulate lawyers
through their decisions in legal malpractice and fee-dispute cases. Congress
regulates lawyers, primarily through antitrust and consumer protection
laws, through fee caps and fee-shifting statutes, and by imposing conditions
on the delivery of subsidized legal services. Trial courts regulate litigators
through their powers to disqualify counsel, cite for contempt, impose sanc-
tions for procedural violations, and exclude evidence improperly obtained.
To varying degrees, the agencies that administer the federal tax, patent,
immigration, banking, and securities laws regulate lawyers who practice
before them.25

In addition, a second class of institutions, such as law ¬rms, regulates partners
and associates. And ¬nally, the third set of attorney regulatory institutions are

22 Levin, supra note 17, at 10.
23 RESTATEMENT 3D THE LAW GOVERNING LAWYERS, Section 1, Comment (b) (2000).
24 Ted Schneyer, Legal Process Scholarship and the Regulation of Lawyers, 65 FORDHAM L. REV.
33, 34 (1996).
25 Id. at 35“36.
The Constitutionality of Legislative and Executive Regulation 151

bar associations that usually act under the auspices of a state supreme court.26
In addition to the potentially con¬‚icting attorney standards in these three
different sets of regulatory forces, some suggest that regulation is in¬nitely
more complicated because the different roles of attorneys, both contextually
and normatively, call out for differing standards, rather than universal rules
applicable to all attorneys in all legal and nonlegal situations. “[T]he central
premise underlying Who Should Regulate Lawyers? . . . is that the traditional
claim that a uniform set of ethical rules and enforcement practices governs all
lawyers in contexts is both descriptively false and normatively unattractive.”27
But as this chapter illustrates, the battle between the courts, state legisla-
tures, and administrative agencies over attorney regulation continues to be
hotly contested in the area of child custody and dependency proceedings.
This chapter uses the experiences in Wisconsin and California to illustrate
the many separation of powers dilemmas inherent in every state regarding
attorney regulation because those jurisdictions provide the largest published
history involving these disputes. As the following analysis demonstrates, the
Wisconsin model places a heavy emphasis upon the exclusive powers of the
Wisconsin Supreme Court to regulate attorneys. In contrast, the California
model places greater emphasis upon comity and concurrent regulatory power
among the judiciary, legislature, and executive branches and ¬nds separation
of powers violations only when interference by another branch of govern-
ment frustrates the essential and inherent power of the California Supreme
Court to function independently.


A. Wisconsin: Separation of Powers in Regulating Attorneys
in Child Custody and Dependency Proceedings
The Wisconsin Supreme Court has described the separation of powers in that
state as one in which each branch has “exclusive core constitutional powers,
into which the other branches may not intrude . . . a system of ˜separateness
but interdependence. . . .™”28 In addition, to ensure that one branch of gov-
ernment does not take or receive an “overabundance” of power, each branch
is also limited in the amount of power that it may delegate to another branch
because an excessive delegation of power “will undermine the checks and
balances built into our system of government,” which leads to unaccount-
ability.29 However, the Wisconsin Supreme Court often avoids confrontation

26 Id. at 36“37.
27 David B. Wilkins, How Should We Determine Who Should Regulate Lawyers? “ Managing and

Context in Professional Regulation, 65 FORDHAM L. REV. 465, 482“484 (1996).
28 Panzer v. Doyle, 680 N. W. 2d 666, 684“685 (2004).
29 Id. at 684“685.
152 Legal Ethics in Child Custody and Dependency Proceedings

with another branch if the issue is one outside of its core powers and is one
that reasonably may be viewed as of concurrent interest. “Sometimes the
court will choose, even in an area where it has considerable power, to defer
to either the legislative or the executive branch or both. I would call that a
form of interbranch diplomacy.”30
However, the history of separation of powers battles among the Wisconsin
Supreme Court, legislature, and executive in relation to the regulation of the
practice of law has been anything but a history of compromises and shared
power. In fact, the Wisconsin Supreme Court has adamantly protected its
“exclusive authority to regulate the practice of law and to discipline members
of the Wisconsin bar for professional misconduct.”31 More than in any other
state, the Wisconsin Supreme Court has usually refused to apply comity and
instead has declared unconstitutional almost every such intrusion by the
legislature and/or executive branches into its central core of exclusive power
to regulate. For instance, when the executive branch through its Department
of Administration (DOA) proposed making the judiciary™s computer system
part of the state™s general computer system, the Wisconsin Supreme Court
“simply refuse[d] to permit the DOA to implement its plan. . . .”32
And the Wisconsin Supreme Court has declared unconstitutional almost
all attempts by the legislature and the executive branches to regulate the areas
of child custody and dependency proceedings. The ¬rst legislative encroach-
ment into Wisconsin™s child dependency cases occurred in 1987 when the
legislature imposed a special legal education requirement for attorneys prior
to their appointment by the court as guardians ad litem.33 The Wisconsin
Supreme Court declared the mandatory continuing legal education require-
ment unconstitutional because the legislation trespassed upon the court™s
core power to regulate attorneys admitted to the practice of law: “[I]t is the
province of the judiciary ultimately to decide the ¬tness of those who practice
before it and to regulate their activities following the admission to practice. A


30 Dianne Molvig, Is Our Judiciary a Co-Equal Branch of Government?, 70 WIS. LAW. 14, 16“17
(August 1997).
31 Leaf v. Supreme Court of the State of Wisconsin, 979 F. 2d. 589, 592“593 (1992); State ex. Rel.

Fiedler v. Wisconsin Senate, 454 N. W. 2d 770, 773 (1990).
32 David A. Saichek, Shared Powers: Harmony without Hegemony, 69 WIS. LAW. 3 (October

1996). Former Chief Justice Nathan S. Heffernan stated that he thought that the executive
acted “in good faith. They thought our computer system could be taken over; they didn™t
realize that this would compromise the integrity of the judiciary, that it™s a separation of
powers issue. But this is a constant threat. And I think that the main thing that the courts
have to be worried about is that they are not treated just as another bureaucracy; that they are
independent, and that under the constitution they are independent of both the legislature
and the governor. . . .” Id. at 3.
33 Section 757.48(1)(a), Stat., as amended by 1987 Wisc. Act 355.
The Constitutionality of Legislative and Executive Regulation 153

concomitant of this authority is the power to decide whether special training
for a particular area is appropriate.”34
However, the court found that before an attorney is admitted to practice, the
legislature and courts have concurrent power and interest in establishing the
minimum requirements for admission to the practice of law. The court has
the inherent power to require minimum attorney quali¬cations, just as the
legislature has the right to regulate preadmitted attorneys under its “power
to promote the general welfare.”35 But, the Wisconsin Supreme Court held
that once attorneys are admitted, the court retains exclusive, not concurrent,
power to regulate them and that “whenever the court™s view of the public
interest requires it, the court has the power to make appropriate regulations
concerning the practice of law in the interest of the administration of justice,
and to modify or declare void any such rule, law, or regulation by whomever
promulgated, which appears to the court to interfere with the court™s control
of such practice for such ends.”36
The Wisconsin Supreme Court stated that it already regulated attorneys™
minimal competence, and should an attorney provide incompetent repre-
sentation, the attorney can be sued for legal malpractice and is also sub-
ject to disciplinary action inherent in the judiciary™s regulation of the state
bar. It held that the legislature™s mandatory legal education requirements
for guardians ad litem were unconstitutional because they impose “practi-
cal impediments to the court™s discharge of its substantive decisionmaking
authority, and usurps the uniquely judicial function of determining the qual-
i¬cations of those seeking to represent a minor litigant™s interest.”37
In another separation of powers battle in 1995, the Wisconsin legisla-
ture promulgated a statute taking away trial judges™ power to appoint coun-
sel for indigent parents in child dependency proceedings.38 The Wiscon-
sin Supreme Court established a multivariate test for determining whether
legislative encroachment upon judicial discretion violates the separation of
powers. First, the analysis must determine whether the Wisconsin Consti-
tution grants power to a particular branch of government to regulate the
issue in dispute. The court determined that the statute was a budget-saving
measure and involved the legislature™s general power to “allocate govern-
mental resources.”39 The second prong of the test is to determine whether
the regulated area is also within the judiciary™s constitutional power. The
court found that it was because “[a]ttorneys are of¬cers of the court and


34 Fiedler v. Wisconsin Senate, 454 N. W. 2d 770, 772 (1990).
35 Id. 36 Id. at 773“774.
at 773.
37 Id. at 774.
38 1995 Wis. Act 27, section 244v, amending Wis. Stat. Section 48.23(3).
39 Joni B. v. State, 549 N. W. 2d 411, 413 (1996).
154 Legal Ethics in Child Custody and Dependency Proceedings

the duty to furnish representation derives from the constitutional provisions
that place the responsibility upon the courts.”40 The third prong of the sep-
aration of powers analysis is to determine whether a branch of government
has exclusive power to regulate the area or whether the area of regulation is
concurrent between or among the three branches of government.41 However,
the Wisconsin Supreme Court determined that it need not decide whether
the power to appoint counsel is an exclusive judicial power or a shared power
because “the level of [legislative] intrusion here is impermissible under either
scenario.”42 The court made an interesting distinction between the right of
a parent to counsel and the right of the courts to appoint counsel. Although
the legislature, pursuant to its budget power, may abrogate a statutory, rather
than a constitutional, right to counsel, it may not take away the court™s inher-
ent power to appoint counsel for indigent parents in dependency cases. “A
court™s inherent power to appoint counsel is not derived from an individual
litigant™s constitutional right to counsel, ˜but rather is inherent to serve the
interests of the circuit court.™”43 The Wisconsin Supreme Court held that
because indigent parents pose special problems for judges trying to deter-
mine the best interests for children, the court must have the power to appoint
counsel to be able to function as a fact-¬nder and to perfect the interests of
justice. It thus held the statute unconstitutional because it abrogated courts™
inherent power to appoint counsel for indigents in the interest of justice.44
In another budget-cutting measure, the Wisconsin legislature passed a
statute that set a fee schedule for paying court-appointed guardians ad litem
in child dependency actions.45 However, the Wisconsin Supreme Court had
also promulgated a rule of court that provided that

[n]otwithstanding any provision of the statutes, in all cases where the
statutes ¬x a fee and provide for the payment of expenses of an attor-
ney to be appointed by the court to perform certain designated duties,
the court appointing the attorney, after the services of the attorney have
been performed and the disbursements incurred, shall ¬x the amount of
his or her compensation for the services and provide for the repayment of
disbursements in such sum as the supreme court has speci¬ed. . . .46


40 Id. at 413.
41 The Wisconsin Supreme Court, for instance, found that the power to revoke probation was
a power shared by both the legislature and the courts and held that a statute shifting such
review to an administrative committee was not a violation of separation of powers. State v.
Horn, 594 N. W. 2nd 772 (1999).
42 Id. at 414. 43 Id. at 414“415.
44 Id. at 415.
45 Wis. Code Sections 48.235(8); 977.08(4m) (1993“1994).
46 Wisconsin Supreme Court Rule 81.01 (1994); Rule 81.02 (1994).
The Constitutionality of Legislative and Executive Regulation 155

The legislature set the attorney fees for court-appointed counsel at “$50 per
hour for time in court, $40 per hour for time out of court, and $25 per
hour for travel time related to the case.”47 The Wisconsin Supreme Court
found that both the legislature and the court have inherent power to regulate
the payment of attorneys and that the court “should abide by the statutes
when it can retain quali¬ed and effective counsel at the statutory rate for
a case before it.”48 However, it held that even though the branches share
the regulation of court-appointed attorney fees, the statute was unconstitu-
tional on its face because it totally stripped the court of discretion to pay
the rate necessary to appoint competent attorneys in individual cases. “A cir-
cuit court should . . . depart from the statutory fee schedule and order com-
pensation at a rate . . . set by the Supreme Court . . . or a higher rate when
necessary to secure quali¬ed and effective counsel for a case before it.”49
The Wisconsin Supreme Court further declared that “[a] statute within the
area of power shared by the two branches, yet outside of the judiciary™s
exclusive authority, will be constitutional only if it does not unduly bur-
den or substantially interfere with the judicial branch.”50 The court thus
extended its power well beyond powers explicitly stated in the state consti-
tution to “inherent, implied and incidental powers” that involve functions
necessary to “enable the judiciary to accomplish its constitutionally or leg-
islatively mandated functions.”51 Because the power to appoint counsel is
inherent in the court, that power to appoint includes “the power to compen-
sate,” and the judiciary “has the ultimate authority to set compensation.”52
The Wisconsin Supreme Court thus found a way to assert its independent
power while at the same time suggesting that courts should, if it is in the
interest of justice, follow the legislature™s determination of the appropri-
ate compensation. The court thus struck a balance between independence
and comity among the branches of government. But it substantially limited
the historical effect of judicial comity by noting that its “silence” when the
legislature or executive branches exercise discretion in an area of inherent
court rights indicates “neither judicial acquiescence in the exercise of that
power nor a concession that the legislature™s power over the subject matter is
paramount.”53

47 State v. Bay¬eld, 531 N. W. 2d 32, 34 (1995).
48 Id. 49 Id.
at 35.
50 Id. at 37.
51 Id.; “Intrinsic to the separation of powers is the doctrine of inherent power of the judiciary.

This doctrine is based on the principle of necessity; courts must have certain powers to
carry out their functions as courts.” Shirley S. Abrahamson, Remarks of the Hon. Shirley S.
Abrahamson Before the American Bar Association Commission on Separation of Powers and
Judicial Independence, 12 ST. JOHN™S J. LEGAL COMMENT. 69, 72 (Fall 1996).
52 Id. at 38. 53 Id. at 39.
156 Legal Ethics in Child Custody and Dependency Proceedings

The Wisconsin Supreme Court™s separation of powers jurisprudence pro-
motes a strong and independent judiciary that stands shoulder to shoulder
with the legislature and executive branches. That court, most importantly,
possesses inherent, express, implied, exclusive, and plenary jurisdiction to
regulate attorneys. However, the court has promoted some interdependency
among the branches through an application of comity in areas of concur-
rent jurisdiction involving the exercise of the police power in protecting
consumers.


B. California: Comity over Independence?
There is no question that comity among coequal branches of government
may lead to a smoother and more friendly political environment; however,
when one branch of government either acquiesces or is forced into a sub-
sidiary role, the checks and balances inherent in the separation of powers are
weakened. As stated by a Maryland court, although “the separation of powers
concept may constitutionally encompass a sensible degree of elasticity . . . [it]
cannot be stretched to a point where, in effect, there no longer exists a separa-
tion of governmental power. . . .”54 Until the last two decades, the California
Supreme Court had adopted an exclusive power model of court regulation
of the legal profession much like that in Wisconsin. For instance, in 1926 In
re Crate55 involved a power struggle between the California legislature under
its newly created State Bar Act and the California courts regarding whether a
disquali¬ed attorney would be readmitted. The California Supreme Court, in
no uncertain words, determined that the courts, not the legislature through
its State Bar Act, had the exclusive power over the regulation of attorneys.
The Supreme Court noted that “it is obvious that they [the courts] can
possess no inherent powers prior to their existence, and they owe their exis-
tence to the Constitution. Their inherent powers are therefore derived from
that paper.”56 The court further opined, “[I]f the courts exercise a consti-
tutional function in making provision for a bar, how can the Legislature
divest the power through the exercise of an assumed police power? It is too
clear for words that the Legislature cannot, under the feeble guise of regula-
tion, destroy a constitutional function of either of the other departments of
government.”57

54 Attorney General of Maryland v. Waldron, 426 A. 2d 929, 933 (Maryland 1981) [holding
unconstitutional a statute prohibiting retired judges who accept pensions from practicing
law for compensation because the regulation of attorneys is an inherent power of the court
and the statute was not reasonably related to its legislative goal].
55 In re Crate, 273 P. 617 (1928), rv™d, 279 P. 131 (Cal. 1929).
56 Id. at 620. 57 Id. at 624.
The Constitutionality of Legislative and Executive Regulation 157

The California Supreme Court jealously guarded its inherent and exclu-
sive power to regulate attorneys in a series of cases through the 1980s. For
instance, in 1935 the court determined that the legislature violated separa-
tion of powers by reinstating to the practice of law attorneys convicted of
felonies, an act that the court described as “tantamount to the vacating of
a judicial order by legislative mandate.”58 The court continued its trend of
exclusive rights analysis in 1978 when it determined that the legislature vio-
lated the separation of powers by promulgating a statute giving nonlawyers
the right to appear in municipal court because it infringed upon the judi-
ciary™s exclusive right to admit attorneys to the practice of law.59 And in 1981
the court held that the legislature exceeded its police power by providing in
the California Labor Code that workers™ compensation judges could suspend
attorneys from practicing law in those courts.60
But the California Supreme Court™s historical assertion regarding its exclu-
sive and plenary power to regulate the practice of law was dramatically pared
back by two cases decided in the 1990s and the early twenty-¬rst century.
First, in Santa Clara County Counsel Attorneys Association v. Woodside61 the
court renewed the concept of concurrent jurisdiction over some areas of
attorney regulation because the legislature, through its police power, has an
interest in protecting consumers. The case involved governmental county
counsel who ¬led a job action against the county. The California Supreme
Court held that a statute that permitted the ¬ring of attorneys at will was
unconstitutional. The court noted that the legislature may “˜put reason-
able restrictions upon the constitutional functions of the courts provided
they do not defeat or materially impair the exercise of those functions.™”62
The California Superior Court delineated a series of questions that must
be answered to determine whether legislation unconstitutionally encroaches
upon the court™s inherent and plenary right to regulate attorneys:

(1) Is the statute “of general application, which does not affect the tradi-
tional areas of attorney admission, disbarment and discipline”?
(2) Does the statute “permit an attorney to act in such a way as to seri-
ously violate the integrity of the attorney-client relationship, so as to
˜materially impair™ the functioning of the courts”?
(3) Does “a direct and fundamental con¬‚ict” exist between the statute
and “attorneys™ settled ethical obligations, as embodied in this state™s

58 In re Lavine, 41 P. 2d 161, 163 (Cal. 1935).
59 Merco Construction Engineers, Inc. v. Municipal Court, 581 P. 2d 636 (Cal 1978).
60 Hustedt v. Worker™s Compensation Appeals Board, 636 P. 2d 1139, 1146 (1981).
61 Santa Clara County Counsel Attorneys Association v. Woodside, 7 Cal. 4th 525; 28 Cal. Rptr.

2d 617 (1994).
62 Id. at 543.
158 Legal Ethics in Child Custody and Dependency Proceedings

Rules of Professional Conduct or some well-established common law
rule”?
And in Obrien v. Jones63 in 2000 the California Supreme Court found
that two statutes, which provided that the Governor, the Senate Commit-
tee on Rules, and the Speaker of the Assembly shall appoint members of
the State Bar court that hears attorney disciplinary actions, did not vio-
late separation of powers because those appointments do not interfere with
the court™s regulation of attorneys because of the “numerous structural and
procedural safeguards . . . that exist both within the attorney discipline sys-
tem and within the State Bar Court appointment process established by this
court”; these safeguards include the following: (1) the Supreme Court must
review the ¬ndings of the State Bar court, (2) the statutory quali¬cations for
State Bar judges are consistent with those established by the Supreme Court,
(3) the executive and legislative applicants will be evaluated by the court™s
Application Evaluation and Nomination Committee, and (4) the appoint-
ment of judges to the State Bar court does not involve an “immediate threat to
[a] liberty [interest].”64 The California Supreme Court thus held that execu-
tive or legislative decisions that are consistent with Supreme Court standards
and that are reviewable by the court do not necessarily violate separation of
powers.
In 1998 the California legislature modi¬ed Welfare & Institutions Code
Section 317(e) to strip from abused children in child dependency proceed-
ings the normal attorney-client relationship required for all other competent
California citizens. Section 317(e) was quickly drafted and passed with little
debate after a high-pro¬le child abuse case.65 The legislature stripped from
attorneys the right to argue a child™s stated custody preference, even if the
attorney found the child competent to make such a decision, if “to the best
of his or her [the child™s attorney™s] knowledge, that return con¬‚icts with the
protection and safety of the minor.” The statute was thus arguably inconsis-
tent with the decades of Supreme Court opinions and bar opinions requiring
attorneys to provide competent clients zealous, competent, and loyal advo-
cacy.66 Whittier Law School Legal Policy Clinic brought a writ to declare the
amendments to Section 317(e) unconstitutional based upon the separation

63 Obrien v. Jones, 96 Cal. Rptr. 2d 205 (2000).
64 Id.at 208“209; 213, 215“216, 230.
65 Lance Helms, a 2-year-old, was allegedly killed by the father™s girlfriend after he was returned

to his father™s home. “At a spirited fact-¬nding hearing on how to prevent such deaths, Sen.
Daniel Boatwright (D-Concord) said ˜the law failed this child™ and criticized those connected
to the case, especially . . . Lance Helms™ court-appointed lawyer.” Mark Gladstone, Child
Welfare System Blasted, L.A. TIMES, January 20, 1996, at B1.
66 As early as 1902 the court noted the duty of zealous representation. People v. Puttman, 61 P.

961, 962 (1902), The California State Bar has also mandated zealous advocacy in both civil
The Constitutionality of Legislative and Executive Regulation 159

of powers because the California legislature had rewritten the nature of the
attorney-client relationship in child dependency cases in a manner that was
in direct con¬‚ict with the Supreme Court™s dictates.67 The writ argued that
none of the standards in Santa Clara were met indicating concurrent juris-
diction in de¬ning the attorney-client relationship. First, Section 317(d) is
not a statute of “general application,” but rather focuses exclusively upon
a small segment of attorneys representing children in dependency proceed-
ings. Second, forcing the child™s attorney to remain silent and not zealously
argue the child™s case “would permit an attorney to act in such a way as to
seriously violate the integrity of the attorney-client relationship. . . .” And
¬nally, Section 317(e) creates an absolute con¬‚ict with “settled ethical obli-
gations, as embodied in this state™s Rules of Professional conduct or some
well-established common law rule.”68
The writ also argued that the amendments to Section 317(e) violated the
separation of powers test enunciated in Obrien. First, unlike in Obrien,
the legislature in Section 317(e) set out a completely different standard of
lawyer-client zealousness, competence, and loyalty than the standards set by
the California Supreme Court. Attorneys were thus trapped in a Catch-22
because they must either violate the statute and risk contempt or violate
the Supreme Court™s dictates and risk disbarment. Second, unlike in the
Obrien case, child dependency proceedings do involve the liberty interest
in family association between parents, children, and relatives. And ¬nally,
unlike the Obrien case in which the court must review all decisions by State
Bar court judges, the Supreme Court is not required to review any depen-
dency trial court ¬ndings. Thus, it will never see the vast majority of cases in
which the legislature stripped abused children of their right to zealous and
competent counsel. The writ argued that because amended Section 317(e)
results in “a material impairment of the court™s inherent power over admis-
sion and discipline” of attorneys, it violated the state separation of powers
clause.
The California Supreme Court did not decide the separation of powers
issue because it determined that the issue was not yet ripe and dismissed the
writ.69 However, the writ demonstrates the California legislature™s continuing
foray into the regulation of attorneys. We will have to wait for another case
to determine the constitutionality of Section 317(3).


and criminal cases. In the Matter of Kopinski (1994) 2 Cal. State Bar Ct. 716, 728. In addition,
California Business & Professions Code Section 6068(e) mandates attorney loyalty.
67 Whittier Law School Legal Policy Clinic v. Attorney General, Case Number G031321, California

Fourth Appellate District, Division 3. The author was also the author of the writ.
68 Writ, at 16“18.
69 The writ was denied as unripe on June 10, 2003.
160 Legal Ethics in Child Custody and Dependency Proceedings

But it is not just the California legislature that is continuously chipping
away at the California Supreme Court™s inherent power to regulate attorneys.
From the 1990s to the present, the court itself, under the leadership of Chief
Justice Ronald George, has moved further toward a model of concurrent
jurisdiction over attorney regulation and a model that views comity as a cen-
tral goal of governmental branch interdependence. To understand the genesis
of this shift from exclusive court authority, it is necessary to understand the
relationship between the Chief Justice of the California Supreme Court and
the California Judicial Council.
The California Judicial Council is a constitutional body authorized pur-
suant to California Constitution, Article VI, Section 6 “to make recommen-
dations to the courts to improve the administration of justice.”70 Perhaps
the most interesting structural element of this constitutional body is that the
Chief Justice of the California Supreme Court is a member.71 Although the
Judicial Council is an autonomous body, its power is subsidiary to the other
three branches of government because its pronouncements cannot be “incon-
sistent with statute” and presumably with decisions of the California Supreme
Court. Its mandate is to “survey judicial business and make recommenda-
tions to the courts, make recommendations annually to the Governor and
Legislature, adopt rules for court administration, practice and procedure,
and perform other functions prescribed by statute.”72 Historically, few sepa-
ration of powers con¬‚icts have arisen between the California Judicial Council,
the Supreme Court, and the legislature because most Chief Justices of the
Supreme Court, as members, have been able to mollify such con¬‚icts. How-
ever, when the current Chief Justice of the California Supreme Court, Ronald
George, became a member of the Judicial Council, the constitutional pic-
ture changed radically. Although the legislature lacks the power to order the
California Supreme Court to act within the court™s inherent and exclusive
jurisdiction in running judicial operations, the legislature can order the Judi-
cial Council to perform certain tasks. If the Chief Justice, as a member of
the Judicial Council, does not stand up for judicial independence, then the
legislature can do indirectly what it cannot do directly by ordering the Judi-
cial Council to perform functions that would violate separation of powers
if conducted directly by the legislature. One author has noted that since the
ascension of Chief Justice Ronald George as a member of the Judicial Coun-
cil, it has assumed “a larger role in the administration and operation of our

70 Wisniewski v. Clary, 120 Cal. Rptr. 176, 179 (Cal. Ct. App. 1975).
71 California Constitution, art. VI, section 6 provides that “[t]he Judicial Council consists of the

Chief Justice and one other judge of the Supreme Court. . . .”
72 CaliforniaConstitution, art. VI, section 6.
The Constitutionality of Legislative and Executive Regulation 161

state courts . . . [and the Judicial Council] has “taken power away from local
courts.”73 The legislature has therefore been able to enact legislative changes
in the judiciary indirectly through the Judicial Council that historically would
have not been tolerated by the California Supreme Court. It is obvious that
having the Chief Justice of the California Supreme Court serve as a member
of the Judicial Council adds legitimacy to the Judicial Council™s actions and
probably reduces the chances that the Supreme Court will actively oppose
those pronouncements because doing so would, in effect, allege that the Chief
Justice, as well as the other members of the Judicial Council, violated separa-
tion of powers. Thus, actions by the Judicial Council, unlike direct actions by
the legislature, have a form of de facto Supreme Court comity even though
there is no assurance that a majority of the members of the Supreme Court
agree with the views of the Chief Justice. Although it is perhaps pragmatically
bene¬cial to have the Chief Justice as a member of the Judicial Council, it
nonetheless often creates a constitutional dilemma and dilutes the court™s
plenary, inherent, and often exclusive power to regulate the legal profession.
One of the most interesting and as of yet unlitigated separation of powers
battles among the California legislature, Judicial Council, and the Supreme
Court occurred in 1997 when the legislature ordered the Judicial Council to
“adopt rules of court regarding the appointment of competent counsel in
dependency proceedings.”74 The Judicial Council responded by promulgat-
ing California Rules of Court, Rule 1438 that set the following educational
requirements, practical experience, and mandatory legal education as a pre-
requisite for attorney eligibility to be appointed by trial courts to represent
indigent parties in child dependency proceedings:75
(1) “Only those attorneys who have completed a minimum of eight hours
of training or education in the area of juvenile dependency, or who
have suf¬cient recent experience in dependency proceedings in which
the attorney has demonstrated competency, shall be appointed to
represent parties.”76
(2) “˜Competent counsel™ means an attorney who is a member in good
standing of the State Bar of California, who has participated in training

73 Rex S. Heinke, The Transformation of the Sate Courts: The Association Is Moving to Participate

More Fully in the Judicial Council Rule-Making Process, L.A. LAW., April, 2001.
74 California Welfare and Institutions Code Section 317.6(a)(1997).
75 In 1976 the California legislature gave the Judicial Council the power to draft rules regarding

practice and procedure for the juvenile courts. Hon. Phil S. Gibson, Chief Justice Urges
Effective Plan to Give Courts Rule-Making Power, 15 CAL. ST. B.J. 331 (1940); Harry N.
Scheiber, Innovation, Resistance, and Change: A History of Judicial Reform and the California
Courts, 1960“1990, 66 S. CAL. L. REV. 2049, 2086“2087 (1993).
76 California Rules of Court, Rule 1438(b)(3).
162 Legal Ethics in Child Custody and Dependency Proceedings

in the law of juvenile dependency, and who demonstrates adequate
forensic skills, knowledge and comprehension of the statutory scheme,
the purposes and goals of dependency proceedings, and procedures
for ¬ling petitions for extraordinary writs.”77
(3) “Within every three years attorneys are expected to complete at least 8
hours of continuing education related to dependency proceedings.”78
There is no doubt that had a rule similar to Rule 1438 been promulgated in
Wisconsin that the Wisconsin Supreme Court would have declared it uncon-
stitutional because it would have stripped from the court the power to de¬ne
attorney competence and to specify minimal educational requirements, and
the right to choose whichever attorney the court wanted to represent indigent
parties.
It is also clear that the supreme courts in several other jurisdictions also
would have declared the rule unconstitutional. For instance, the Oklahoma
Supreme Court in Archer v. Ogden79 declared unconstitutional a statute that
stripped nonresident attorneys admitted to the Oklahoma bar from practic-
ing in that state because “once admitted to the [Bar] Association, [attorneys]
shall be permitted to practice law within all courts of this State. . . .”80 In Ball
v. Roberts81 the Arkansas Supreme Court declared unconstitutional a statute
that required attorneys to have recent criminal law experience and education
to qualify for appointment as a criminal defense attorney. In Succession of
Wallace82 the Louisiana Supreme Court held that it has the exclusive power
to de¬ne the attorney-client relationship and that a statute that changed the
rules for attorney withdrawals in cases violated the separation of powers. The
Supreme Court of Illinois in People v. Finley83 struck down a rule requiring
greater expertise for attorneys than that required by the court.84 It is therefore
clear that in states that assert exclusive power in the state supreme court to
regulate the practice of law, and in California prior to the 1990s, California
Rules of Court, Rule 1438 would be declared unconstitutional as a violation
of the separation of powers.
However, it is unclear how the current California Supreme Court will
rule once someone challenges the additional attorney requirements under

77 California 78 California Rules of Court, Rule 1438(b)(3).
Rules of Court, Rule 1438(b)(1).
79 Archer v. Ogden, 600 P. 2d 1223 (Oklahoma 1979).
80 Id. at 1226.
81 Ball v. Roberts, 722 S. W. 2d 829 (Arkansas 1987).
82 Succession of Wallace, 574 So. 2d 348 (Louisiana 1991).
83 People v. Finley, 519 N. E. 2d 898 (Illinois 1988).
84 And the Maine Supreme Court in In re Honorable James P. Dunleavy, 838 A. 2d 338 (Maine

2003), held that even if the legislature creates a new court, it cannot usurp the Supreme
Court™s inherent authority to regulate the professional conduct of judges.
The Constitutionality of Legislative and Executive Regulation 163

Rule 1438. The court must ¬rst determine whether the Judicial Council is a
co-equal branch of government and whether it can order the courts to act.
Although Article VI, Section 6 of the California Constitution clearly states that
the Judicial Council is subordinate to the legislature because its rules may not
be inconsistent with statutes, it is silent regarding con¬‚icts between Judicial
Council rules and Supreme Court decisions. Some have argued that the Judi-
cial Council is subservient to the court because the California Constitution
merely provides that the Council “shall survey judicial business and make
recommendations to the courts,” not give orders to the courts. Two lower
appellate courts have held that the Judicial Council™s rules may not con¬‚ict
with courts™ interpretations of the state constitution.85 But even if the Judicial
Council lacks the power to order the courts to accept its new rules de¬ning
competent counsel in child dependency proceedings, the court must look to
the separation of powers problem in the legislature mandating the Judicial
Counsel to promulgate attorney regulations inconsistent with those of the
court. If the court decides this issue consistently with its past cases, it will
hold Rule 1348 unconstitutional as a separation of powers violation because it
totally strips courts™ power to appoint attorneys who do not meet the Judicial
Council™s standards of attorney competence.


II. CONCLUSION

Although this chapter™s discussion of separation of powers in relation to
the inherent, plenary, exclusive, and/or concurrent powers of the executive,
legislature, courts, and administrative agencies to regulate the practice of
law may seem merely academic, in reality, it is an essential body of law for
every attorney practicing in child custody and dependency proceedings to
understand. As more con¬‚icting ethical obligations are foisted upon them
from a variety of powerful sources, attorneys need to understand how to
formulate strategies, defenses, and attacks upon unreasonable ethical rules,
minimum educational requirements, and mandatory continuing legal edu-
cation standards. As the previous discussion has illustrated, custody and
dependency attorneys not only have a self-interest in the rules that de¬ne the
attorney-client relationship but they also have an obligation to their clients
because those rules might substantially dilute the attorney™s obligations and
place clients in jeopardy of losing the precious promises of competency,
con¬dentiality, loyalty, and zealousness. It is incumbent upon each of us
who practices in these highly visible and emotional proceedings to address

85 In re Jeanette H., 275 Cal. Rptr. 9, 15 (1990); Cantillon v. Superior Court, 309 P. 2d 890 (1957).
164 Legal Ethics in Child Custody and Dependency Proceedings

proposed changes in the rules of ethics and procedure, which form the basis
of the law affecting children. Whether it be a letter in response to a state
bar association proposal, a supreme court rule change, a proposed legislative
enactment, or an amendment to administrative rules, we should individually
and collectively provide our expert input at each stage in the process of ethical
rules evolution. We owe ourselves and our clients no less.
appendix a


National Association of Counsel
for Children Standards
NACC Recommendations for Representation
of Children in Abuse and Neglect Cases
National Association of Counsel for Children



NACC Recommendations for Representation of Children in Abuse and
Neglect Cases was produced as part of the NACC™s objective to establish the
practice of law for children as a legitimate profession and legal specialty. As
part of that objective, the NACC periodically produces standards of practice
or guidelines for the representation of children.
The document was adopted by a unanimous vote of the NACC Board of
Directors on April 28, 2001.

Copyright 2001



CONTENTS


EXECUTIVE SUMMARY

NACC RECOMMENDATIONS FOR REPRESENTATION OF CHILDREN IN ABUSE
AND NEGLECT CASES
I. Introduction
II. Children™s Legal Representation Policy
A. Overview
B. Child Welfare Cases
C. Private Custody and Adoption Cases
III. Needs Checklist for Children Involved in Abuse and Neglect Cases
A. Systemic Safeguards
B. Advocacy Duties
C. Advocacy Issues
IV. Representation Models
A. Advocate Directed Representation
1. The Attorney Guardian ad Litem Hybrid
167
168 Legal Ethics in Child Custody and Dependency Proceedings

2. The Lay Guardian ad Litem Model
3. The “Two Distinct Lawyer Roles” Model
B. Client Directed Representation
1. Traditional Attorney
2. Child™s Attorney (ABA Standards Model)
3. Child™s Attorney (ABA/NACC Model)
V. Resources


EXECUTIVE SUMMARY


The lack of standards of practice or guidelines for attorneys representing
children in child protection proceedings has frequently been cited as a major
cause of substandard and ineffective legal representation of children. Unlike
more traditional areas of practice where the model of representation and the
lawyer code of conduct are essentially uniform from state to state, the practice
of law for children has no commonly accepted uniform model or code, and
many states provide inadequate guidance for attorneys doing this work. This
is the case in part because the practice of law for children is a unique and
relatively recent development, and because the evolution has occurred on a
state by state basis. Additionally, there has been signi¬cant disagreement as to
whether representation for children should take a traditional client directed
(“expressed wishes”), or an advocate directed (“best interests”) form, making
it dif¬cult to adopt a model.
Important progress was made toward the creation of a uniform model of
representation with the creation of the ABA Standards of Practice for Lawyers
Who Represent Children in Abuse and Neglect Cases in 1996. Still, jurisdic-
tions struggle to adopt clear and comprehensive guidelines for children™s
attorneys, frequently because of the long-standing debate over the form of
representation.
The NACC Recommendations for Representation of Children in Abuse and
Neglect Cases is a document designed to assist jurisdictions in the selection
and implementation of a model of child representation. Rather than urging
jurisdictions to choose a particular model, this document sets out a checklist
of children™s needs that should be met by whatever representation scheme is
chosen. It is the NACC™s hope that this approach will allow jurisdictions to
focus on what matters, serving the child client, and avoid becoming mired
in the debate over best interests and expressed wishes.
The NACC believes that children™s legal service needs can be met by both
client directed (“expressed wishes”) and advocate directed (“best interest”)
Appendix A. National Association of Counsel for Children 169

models of representation. In an effort to help jurisdictions understand vari-
ous models, this document includes a section describing the various models
of representation.
Whatever form of representation jurisdictions choose, the NACC believes
that every child subject to a child protection proceeding must be provided
an independent, competent, and zealous attorney, trained in the law of child
protection and the art of trial advocacy, with adequate time and resources to
handle the case.

NACC RECOMMENDATIONS FOR REPRESENTATION OF CHILDREN IN
ABUSE AND NEGLECT CASES

I. INTRODUCTION

This document is designed to assist children™s attorneys, courts, and policy
makers working to improve the legal representation of children. The focus
is on the representation of children in abuse and neglect proceedings. The
document also has application in private custody and adoption matters.
Rather than prescribing one speci¬c model of representation, this document
provides a policy framework for the legal representation of children, followed
by a checklist of children™s needs that representation should meet, whatever
form of representation states choose. The document describes various models
of representation in an effort to help the reader appreciate the strengths and
weaknesses of each.
The NACC is aware of the debate in the child advocacy community over
the two primary models of representing children “ the attorney guardian ad
litem (advocate directed “best interests” model) and the traditional attorney
(client directed “expressed wishes” model). While this debate can be useful,
the NACC suggests that rather than spending time and resources debating
the merits of the various models, states should focus on ensuring that the
model of representation used meets the children™s needs checklist.


II. CHILDREN™S LEGAL REPRESENTATION POLICY

A. OVERVIEW

The NACC believes that each child must be valued as a unique human being,
regardless of race, ethnicity, religion, age, social class, physical or mental
disability, gender, or sexual orientation. Each child is vested with certain
fundamental rights, including a right to physical and emotional health and
170 Legal Ethics in Child Custody and Dependency Proceedings

safety. In order to achieve the physical and emotional well being of chil-
dren, we must promote legal rights and remedies for children. This includes
empowering children by ensuring that courts hear and consider their views
in proceedings that affect their lives.
Children™s attorneys play a critical role in empowering children and ensur-
ing that children™s views are heard in legal proceedings. Outcomes in our
adversarial process are directly tied to the quality of legal representation.
Additionally, the presence of children™s attorneys is critical to ensuring the
timeliness of proceedings.
The NACC believes that attorneys representing children should have a
combination of knowledge, training, experience, and ability which allows
them to effectively discharge their duties to their clients. The NACC sup-
ports federal, state, and local programs to enhance the competence of these
attorneys.


B. CHILD WELFARE CASES

The NACC believes that in order for justice to be done in child abuse and
neglect related court proceedings, all parties, including children, must be
represented by independent legal counsel.1 The children who are the sub-
jects of these proceedings are usually the most profoundly affected by the
decisions made, and these children are usually the least able to voice their
views effectively on their own. In many jurisdictions, however, courts do not
appoint independent attorneys for all children in abuse and neglect related
proceedings. NACC believes that federal, state, and local law must mandate
that independent attorneys be appointed to represent the interests of children
in all such proceedings.


C. PRIVATE CUSTODY AND ADOPTION CASES

The NACC believes that while legal representation is not required for every
child who is the subject of a child custody determination, the judge should
appoint an attorney to represent the child in certain cases: when there are
certain substantive allegations that make child representation necessary “
i.e., when there is an allegation of child neglect or abuse (physical, sexual,
or emotional) by a parent or household member, when there is a culture of

1 The U.S. Department of Health and Human Services supports this principle. Adoption 2002:

The President™s Initiative on Adoption and Foster Care. Guidelines for Public Policy and State
Legislation Governing Permanence for Children, U.S. Dept. of HHS ACF ACYF Children™s
Bureau, 1999.
Appendix A. National Association of Counsel for Children 171

violence between the parents, when there is an allegation of substance abuse
by a parent, when there are allegations of non-paternity, or when there is an
allegation of or fear about child snatching “ as well as when there are certain
procedural situations which make child representation necessary “ e.g., when
a child will be a witness or when the case develops an extremely adversarial
nature. In addition, the judge should consider appointing an attorney to
represent the child in certain other cases: when there is an allegation of
mental illness on the part of a parent, when a custodial parent is relocating
geographically, when child representation can reduce undue harm to the
child from the litigation itself, when the child has exceptional physical or
mental health needs, when the child expresses a strong desire to make his or
her opinions known to the judge, when there is a pro se parent, when there
is a third-party custody action against a parent (e.g., by a grandparent), or
when the failure to appoint a representative for the child would otherwise
impede the judge™s capacity to decide the case properly. (Attorneys can be
instrumental in ensuring that judges have the necessary data upon which to
make an informed decision.)


III. NEEDS CHECKLIST FOR CHILDREN

The NACC encourages jurisdictions to adopt a system of legal representation
of children which satis¬es the following checklist. The representation scheme
should ensure that each of the following children™s rights or needs are satis¬ed
through a combination of systemic safeguards, advocacy duties, and basic
advocacy issues.


A. SYSTEMIC SAFEGUARDS

1. Children need competent, independent, and zealous attorneys. The sys-
tem of representation must require the appointment of competent, indepen-
dent, zealous attorneys for every child at every stage of the proceedings. The
same attorney should represent the child for as long as the child is subject to
the court™s jurisdiction.
Comment A: Competence is the foundation of all legal representation. The
fundamental requirements of competency as de¬ned in each jurisdiction,
combined with the ability to function without constraint or obligation to any
party other than the child client, are of paramount importance. (See, ABA
Model Rules of Professional Conduct (Model Rules): Preamble; 1.14(a); ABA
Model Code of Professional Responsibility (Model Code): EC 7-1; EC 7-12;
ABA Standards of Practice for Lawyers who Represent Children in Abuse and
Neglect Cases (ABA Standards): Preface; A-1.)
172 Legal Ethics in Child Custody and Dependency Proceedings

Comment B: Competent representation includes knowledge, skill, thor-
oughness, and preparation. This includes knowledge of placements and ser-
vices available for the child, and services available to the child™s family. (See,
Model Rule: 1.1; Model Code DR 6-101(A)(1)(2); ABA Standards B-1; C.)
Jurisdictions should provide special initial and periodic training to all attor-
neys in child welfare proceedings covering substantive law (federal, state,
statutory, regulatory, and case law), procedure, trial advocacy, child welfare
and child development.
Comment C: Continuity of representation is important to the child. The
same lawyer should represent the child for as long as the child is under the
jurisdiction of the court. Temporary substitution of counsel, although often
unavoidable, should be discouraged. Any substitute counsel must be familiar
with the child and the child™s case.
2. Children need attorneys with adequate time and resources. The system of
representation must include reasonable caseload limits and at the same time
provide adequate compensation for attorneys representing children.
Comment A: The NACC recommends that a full time attorney represent no
more than 100 individual clients at a time, assuming a caseload that includes
clients at various stages of cases, and recognizing that some clients may be
part of the same sibling group. This is the same cap recommended by the
U.S. Dept. of HHS Children™s Bureau and the American Bar Association.
One hundred cases averages to 20 hours per case in a 2000-hour year.
Comment B: For the sake of the child client and the interests of the system,
attorneys must be provided appropriate and reasonable compensation. The
NACC adopts the following position of the Dept. of HHS on this point:
“Primary causes of inadequate legal representation of the parties in child
welfare cases are low compensation and excessive caseloads. Reasonable com-
pensation of attorneys for this important work is essential. Rather than a ¬‚at
per case fee, compensate lawyers for time spent. This will help to increase
their level of involvement in the case and should help improve the image of
attorneys who are engaged in this type of work. When attorneys are paid a
set fee for complicated and demanding cases, they cope either by providing
less service than the child-client requires or by providing representation on
a pro bono or minimum wage basis. Neither of these responses is appropri-
ate. Rates should also re¬‚ect the level of seniority and level of experience of
the attorneys. In some of¬ces, lawyers handling child welfare cases receive
lower pay than other attorneys. This is inappropriate. Compensation of attor-
neys handling children™s cases should be on a par with other lawyers in the
of¬ce handling legal matters of similar demand and complexity. The need for
improved compensation is not for the purpose of bene¬ting the attorney, but
Appendix A. National Association of Counsel for Children 173

rather to ensure that the child receives the intense and expert legal services
required.”
3. Children need attorneys who understand their role and duties. The system
of representation of children must be well de¬ned by statute, bar standards,
administrative guidelines, supreme court directive or other documents such
that every attorney appointed for a child can understand his/her precise role
and duties, and such that an attorney can be held accountable for perfor-
mance of those duties.
Comment: It is helpful here to distinguish between role and duties. Role
refers to whether, for example, the attorney is client directed (traditional
attorney model or child™s attorney models) while duties refer to those actions
to be taken by the attorney (investigation, calling witnesses, etc.). Although
duties are in part dependent on role, most commentators agree that certain
fundamental duties should apply regardless of role. See ABA and ABA/NACC
Revised Standards C Actions to be Taken.
4. Children need an opportunity to present their positions to the court
through counsel. The system of representation must provide the child with
an opportunity for his/her needs and wishes to be expressed to the court.
Comment: Children have an independent perspective and may have infor-
mation and positions to present to the court on a wide range of issues includ-
ing but extending beyond the issue of placement. Other parties and the court
may otherwise be unaware of the child™s perspective or of how certain deci-
sions subjectively affect the child.
5. Children need con¬dential communication with their attorneys. The
attorney has a duty to explain the extent of con¬dentiality in developmentally
appropriate language.
Comment A: Every child should have the right to communicate con¬den-
tially with the representative. (See, Model Rules: 1.6, 3.7; Model Code: DR
4-101; 5-102; ABA Standards: A-1; Comment B-2(2).)
Comment B: But see Alaska Ethics Op. 854. Some jurisdictions include attor-
neys as mandatory reporters, and pure con¬dentiality may be precluded with
a GAL “ advocate directed representation system.
6. Children need to be involved as litigants in the entire litigation process,
including any post disposition, termination of parental rights, and adoption
proceedings. The system of representation must recognize the child as a party
to the litigation and must include the child in all phases of the litigation,
including the opportunity to participate in arguments and jury selection
where applicable, offer exhibits, call witnesses, examine and cross examine
174 Legal Ethics in Child Custody and Dependency Proceedings

witnesses and engage in motions and discovery processes. The child must
also be given notice of all proceedings and copies of all pleadings.
Comment: The child should be physically present early in the proceed-
ings, so as to allow all parties and their representatives the opportunity to
become acquainted with the child as an individual. Although the child™s
presence may not be required at every court hearing, it should not be waived
by the representative, unless the child has already been introduced to the
court and his/her presence is not required by law, custom, or practice in
that jurisdiction. Every child should be noti¬ed through counsel of every
court hearing, every agency meeting, and every case conference or negoti-
ation among the various professionals involved in the case and the child™s
attorney should be noti¬ed concerning any change in the child™s welfare,
placement, education, or status. Every child should be considered a party
to the litigation, and should therefore, be entitled to any and all bene¬ts
under the law granted to any other party. Every child should have access to
suf¬cient information to allow his/her representative to provide competent
representation including the child™s representative having access to social
services, psychiatric, psychological, drug and alcohol, medical, law enforce-
ment, school and other records relevant to the case, and opportunity for
interviewing child welfare caseworkers, foster parents and other caretakers,
school personnel, health professionals, law enforcement, and other persons
with relevant information. This access may require the representative to ¬le
motions for discovery, subpoenas, subpoenas duces tecum, depositions and
interrogatories, according to the discovery mechanisms an opportunity to
appeal an adverse ruling. available in the jurisdiction. Every child should
have the opportunity to present his/her witnesses in the court proceedings.
This requires the representative to investigate facts, identify and communi-
cate with witnesses, and issue subpoenas to ensure that witnesses appear in
court.

7. Children need judicial review of adverse decisions. The system of repre-
sentation must provide an opportunity to appeal an adverse ruling.
Comment: Children need to have access to the court after the adjudication
occurs. This may require the representative to forego informal resolution of
issues at the review stage of the litigation. See State ex rel. Jeanette H., 529
S.E. 2d 865 (2000).

8. Children need to be able to hold their attorneys accountable. The system
of representation must provide recourse for ineffective assistance of counsel.
Comment: Every child should be able to hold the representative accountable
for providing less than competent representation.
Appendix A. National Association of Counsel for Children 175

9. Children need an attorney with a fair opportunity to be effective in the
court system. The system of representation must include a court system that
devotes adequate time and resources to cases.
Comment: Courts cannot be “rubber stamp” agencies for social service
agencies and must be equipped to handle caseloads responsibly. See, Resource
Guidelines, Improving Court Practice in Child Abuse and Neglect Cases,
National Council of Juvenile and Family Court Judges, 1995 NCJFCJ,
Reno, NV.


B. ADVOCACY DUTIES

1. Children need attorneys who fully understand their cases. The attorney
must perform a full and independent case investigation.
Comment: The child™s attorney has a duty of full investigation of the case.
(See, Model Rule: 4.2; Model Code: DR 7-104 (A) (1); ABA Standards: C-
2(4); C-6.)
2. Children need meaningful communication with their attorneys. The
attorney must observe the child, and dependent upon the child™s age and
capabilities, interview the child. The attorney must engage in regular and
meaningful communication with the child. Children need to participate in
making decisions that affect their cases. The attorney has a duty to involve the
child client in the process, whether under a client directed model or advocate
directed model. The attorney has a duty to explain his/her role to the child
in developmentally appropriate language.
Comment A: Under a client directed model, the scope of representation
by the child™s attorney includes the duty to abide by the client™s decision
concerning the objectives of the representation. (See, Model Rule: 1.2(a);
Model Code: DR 7101(A)(1); EC 7-7; EC 7-8; ABA Standards: B-4.)
Comment B: This is a universal need, and it applies whether or not the child
is pre-verbal. Visual encounters with children who are represented, even with
pre-verbal children, are crucial to the representation. Otherwise, the repre-
sentative is limited by relying upon the mental impressions of third parties.
The child™s attorney has a duty of effective, thorough, and developmentally
appropriate communication with the client, including the duty to meet with
the client. (See, Model Rules: 1.4 (a), (b); Model Code: EC 7-8; 9-2; ABA
Standards: C-1; A-3; B-1(5); D-2; E-2; F-4.)
Comment C: Children need education about the law and all options available
under the legal system. This need is restricted to developmentally appropriate
clients, capable of communication.
176 Legal Ethics in Child Custody and Dependency Proceedings

Comment D: The child client must be informed about the responsibilities
and obligations of the representative, as well as the ability and requirements
of the representative to accomplish these things.
3. Children need loyal attorneys. The child™s attorney is prohibited from
representation that would constitute a con¬‚ict of interest.
Comment: Attorneys must be aware of the potential for con¬‚ict while repre-
senting a sibling group. Additionally, the child™s attorney must be sensitive to
the age and maturity of the client where waiver is an issue. (See, Model Rules:
1.7; Model Code: DR 5-101 (A); 5-105(A), (C); 5-107 (B); ABA Standards:
B-2(2).)
4. Children need the full bene¬t of legal counsel. The attorney must pro-
vide competent, independent and zealous representation for each client. The
attorney must have adequate time and resources to devote to the child™s case,
and to understanding his/her role and duties, insuring con¬dentiality, and
full active participation in all stages of the child™s case.


C. ADVOCACY ISSUES

1. Children need permanence. The attorney must advocate for timely reso-
lution and permanent resolution (absent compelling reasons to the contrary)
of the case.
Comment: The child™s attorney has a duty of diligent and prompt representa-
tion, and a duty to expedite litigation, especially where placement of a young
child is at issue. (See, Model Rule: 1.3; 3.2; Model Code: DR 6-101(A)(3); EC
6-4; ABA Standards: B-1(4); C-6.)
2. Children need their immediate and basic needs met. The attorney must
advocate for food, shelter, clothing, and safety, including a safe temporary
placement where necessary and for educational, medical, mental health, and
dental needs.
Comment: The child™s most immediate physical needs must be addressed
and should be the highest priority for the child™s representative. After the
immediate needs of sustaining life have been addressed, the child™s educa-
tion, mental health, medical, and dental needs must be addressed. Children™s
attorneys should act as a kind of “watchdog” for the children™s needs, insuring
that services are provided.
3. Children need family relationships. The attorney must advocate for con-
tinuation of appropriate familial relationships and family preservation ser-
vices where appropriate.
Appendix A. National Association of Counsel for Children 177

Comment: Without jeopardizing the child™s physical or emotional safety,
arrangements to maintain familial relationships (including siblings) which
are not deemed to be harmful to the child should be established as soon as
practicable. Family services may include visitation and services for family
members: parenting education, medical and mental health care, drug and
alcohol treatment, housing, etc. Such family services may also be appropriate
to continue other meaningful relationships and ongoing activities where
feasible.

4. Children need to be protected from unnecessary harm that can result
from legal proceedings. The attorney must advocate for the utilization of
court processes that minimize harm to the child, and make certain that the
child is properly prepared and emotionally supported where the child is a
witness.


IV. REPRESENTATION MODELS

The following representation models are presented to assist states in eval-
uating and formulating models of representation. States should consider
the requirements of the federal Child Abuse Prevention and Treatment Act
(CAPTA) regarding the appointment of representation for the child. The U.S.
Department of Health and Human Services, Children™s Bureau has indicated
that although CAPTA requires a GAL best interests representative, that role
may be ¬lled by either an attorney GAL or more traditional client directed
attorney.


A. ADVOCATE DIRECTED REPRESENTATION

1. THE ATTORNEY GUARDIAN AD LITEM HYBRID 6 MODEL.

This model provides an attorney to represent the child and instructs the
attorney to represent the child™s “best interests.” The attorney GAL advocates
for a result which he/she believes (not necessarily what the child believes) is
in the child™s “best interests.” Rather than taking direction from the client,
as is the case in traditional attorney representation of adults, the attorney

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