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Deana Fleming Wendy Sotolongo Angie StephensonAssociate Counsel Parent Representation Child Welfare AttorneyGuardian ad Litem Indigent Defense Attorney General Office

Ethics for Juvenile Abuse, Neglect & Dependency Attorneys

Welcome and thank you for participating in this webinar. In an effort to keep things running smoothly, we have a few tips…

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• Continuing education credit: CIP staff will submit the list of participants to the NC Bar. It is each individual’s responsibility to cover any CLE costs. For paralegals seeking credit, please request a Certificate of Completion from Rebecca.G.McCloskey@nccourts.org. You will then need to submit that to the NC Bar. This webinar is approved for 1 hour of ethics credit.

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Dealing with Other Parties

DSS filed a juvenile petition alleging that 6 year old Kitty is abused and neglected based on a broken arm allegedly intentionally caused by Mother’s boyfriend while babysitting when Mother was at work. Mother did not want boyfriend to get in trouble and did not seek medical attention. Father has not seen Kitty since she was an infant, but pays child support through wage-withholding. Mother is represented by court-appointed counsel. Father waived court-appointed counsel and is pro se. He has never trusted attorneys. Boyfriend was named as a caretaker in the petition, but has been released as a party from the juvenile case. He has child abuse charges pending.

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Father wants to ask for custody of Kitty. He never approved of her mother’s lifestyle and judgment. He drafts a responsive pleading after searching the internet. Before he files it, he asks Mother’s attorney to “just take a look” to see if he is “on track.” What action(s) may Mother’s attorney take?

a.Mother’s attorney reviews and edits the documents. After all, he is a licensed attorney.

b.Mother’s attorney advises Father to seek legal counsel.

c.Mother’s attorney advises Father that he has no chance of getting custody. Fathers never win in DSS court.

d.Any of the above.

Dealing with Unrepresented PersonRPC Rule 4.3

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:

(a)Give legal advice, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.

Comment #1: Need to identify client, explain interests to unrepresented person, and avoid misunderstanding.

2002 FEO 6. Opinion rules that the lawyer may not prepare the answer to a complaint for an unrepresented adverse party to file pro se.

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Kitty is voluntarily placed with her maternal grandparents. Mother insists that she never complained about arm pain, so she had no reason to take her to the doctor. Her attorney sends his paralegal to just ask Kitty a few questions about what happened. Kitty is happy to speak to the paralegal about her mother.

a.There is no rule violation. A non-attorney paralegal is asking the questions.

b.There is no rule violation as long as Kitty’s Mother consents.

c.There is a rule violation only if DSS has non-secure custody of Kitty.

d.There is a rule violation because a GAL Attorney Advocate was appointed when the juvenile petition was filed.

Communications with Represented Person RPC Rule 4.2

Comment # 4: A lawyer may not make a communication prohibited by this Rule through the acts of another.

Comment # 8: This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding…who is represented by counsel concerning the matter to which the communication relates. The Rule applies even though the represented person initiates or consents.

RPC 249. Opinion rules that a lawyer may not communicate with a child who is represented by a GAL and an attorney advocate unless the lawyer obtains the consent of the attorney advocate.

o See Inquiry & Opinion # 4 regarding attorney instructing agent.

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In addition to GAL Attorney Advocate, GAL Volunteer is appointed to represent Kitty’s best interest. GAL Volunteer is preparing recommendations for a court report to be submitted at disposition. Without notice, GAL Volunteer goes to Mother’s house for an interview.

a.GAL Volunteer violated the Rules of Professional Conduct as an agent of GAL Attorney Advocate.

b.GAL Volunteer is required to obtain permission of Mother’s attorney before speaking to her.

c.There are no violations of the Rules of Professional Conduct.

d.If Mother had a Rule 17 GAL appointed to represent her, GAL Volunteer would have to obtain permission of the Rule 17 GAL.

Communications with Represented Person RPC Rule 4.2

Rule 4.2 only prohibits communications with a represented person during the lawyer’s representation of a client. The Rules of Professional Conduct do not apply to non-lawyers.

There is no indication that GAL Attorney Advocate directed GAL Volunteer as an agent to obtain certain information.

2006 FEO 19. Opinion rules that the prohibition against communications with represented persons does not apply to a lawyer acting solely as guardian ad litem.

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Parents with Competency Issues

Kitty’s mother, Katy, has a Full Scale IQ of 74; well below average. She also has been diagnosed as having a Personality Disorder NOS. She has problems controlling her anger and, at times, has had outbursts that include screaming, cursing and threatening others.

While Katy and her attorney have met several times, Katy has had difficulty focusing on preparing for the adjudication hearing. Her attorney is not sure if Katy understands what the hearing is about and Katy has become very hostile during parts of their meetings. However, Katy has been clear that she wants her child to stay with the maternal grandparents and not be placed with Father.

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At the pre-trial for the adjudication, Katy tells the court that she does not want her court-appointed attorney to represent her. She wants to represent herself. Katy’s attorney is surprised by Katy’s request. The judge asks the attorney for her position on Katy’s request.

a. Her attorney agrees wholeheartedly that the request should be granted. Katy will be fine on her own!

b. Her attorney asks for a recess to meet with her client.

c. Her attorney states that she can neither agree nor disagree with the request.

d. Her attorney asks that the request be denied.

e. Her attorney asks for a GAL for Katy.

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Declining or Terminating Representation RPC Rule 1.16

(a) ...[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:…(3) the lawyer is discharged.

Comment: [5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

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Based on the mother’s statements during the waiver hearing, the judge finds that there is a substantial question as to the mother’s competence. Prior to conducting the hearing on whether or not to appoint a Rule 17 GAL for the mother, the judge asks Katy’s attorney for her position on the issue.

a. Katy’s attorney says she wholeheartedly supports the appointment of a GAL for her client.

b. Katy’s attorney says she can neither support nor oppose the appointment of a GAL for her client.

c. Katy’s attorney says that she opposes the appointment of a GAL for her client.

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Client with Diminished Capacity RPC Rule 1.14

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem or guardian.

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Client with Diminished Capacity RPC Rule 1.14

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Comment #7: If a legal representative has not been appointed, the lawyer should consider whether appointment of a guardian ad litem or guardian is necessary to protect the client’s interests.

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The judge appoints a Rule 17 GAL for the mother and keeps Katy’s attorney in the case.

a. Katy’s attorney no longer has to worry about talking to the mother; the GAL is now the client.

b. Katy’s attorney can have the GAL sign consent orders and notices of appeal.

c. Katy’s attorney can have the GAL sign a relinquishment for adoption.

d. All of the above apply.

e. Some of the above apply (but don’t make me say which ones).

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Rule 1.14, Comment #2: The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.

Rule 17(e)…Duty of guardian ad litem. Any guardian ad litem appointed for any party pursuant to any of the provisions of this rule shall file and serve such pleadings as may be required within the times specified by these rules, unless extension of time is obtained.  After the appointment of a guardian ad litem under any provision of this rule and after the service and filing of such pleadings as may be required by such guardian ad litem, the court may proceed to final judgment, order or decree against any party so represented as effectually and in the same manner as if said party had been under no  legal disability, had been ascertained and in being, and had been present in court after legal notice in the action in which such final  judgment, order or decree is entered. 

Parent GAL & Relinquishment

GS 48-3-602 as amended, effective 10/1/2012. If a parent is incompetent, the clerk, after the filing of an adoption petition, appoints a GAL for the parent. The GAL investigates whether the adoption of the incompetent parent’s child should proceed. There is hearing on this before the clerk, and the clerk can then order the GAL to execute a consent or relinquishment, upon a determination that the adoption is in the child’s best interest.

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Client Relationship & Candor Toward the Court

The court adjudicated Kitty abused and neglected, and at disposition, continued placement with the maternal grandparents. When father was not awarded custody, he decided an attorney would be helpful and requested court-appointed counsel. Father’s attorney met with him after disposition, and three times during the first nine months after disposition. Three months after their last meeting, when the first permanency planning hearing was scheduled, Father’s attorney sent Father a letter that was returned with no forwarding address. Father’s attorney brings the letter to the Permanency Planning Hearing. Father is not present for the Permanency Planning Hearing.

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Father’s attorney should:

a.Zealously represent the position Father took during their last meeting

b.Motion the Court to withdraw from representation

c.Ask for the case to be continued, so that she can take further steps to communicate with Father

d.Continue to represent Father without asserting any position other than to preserve his right to appeal the Court’s decision to cease reunification efforts

Abiding by the Client’s DecisionsRPC Rule 1.2(a)

A lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

RPC 223. Opinion rules that a lawyer must take reasonable steps to locate and communicate with the client. If the client cannot be located, the lawyer must withdraw.

2003 FEO 16. Opinion rules that, after diligent efforts to locate a client, a lawyer must move to withdraw. If motion is denied, a lawyer may participate in the proceedings according to the known objectives of the client. A lawyer may not advocate for a particular position or outcome.

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Before the hearing, the GAL volunteer tells the Attorney Advocate he has never been to Kitty’s foster home, but during the hearing the GAL volunteer testifies that his recommendations were based on an observation of Kitty in her foster home. The Attorney Advocate believes this statement to be false. Attorney Advocate should:

a.Confront the GAL volunteer about the discrepancy while the GAL is still on the witness stand.

b.Discretely, slip the Judge a note, so that the Judge does not base her decision on false information.

c.Correct the statement during closing argument.

d.Nothing, because the discrepancy is not material.

Candor Toward the TribunalRPC Rule 3.3(a)

A lawyer shall not knowingly offer evidence the lawyer knows to be false. If a witness called by the lawyer has offered evidence the lawyer knows to be false, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Comment # 5. Duty to refuse to offer evidence a lawyer knows is false is premised on lawyer’s obligation as officer of the court to prevent the trier of fact from being misled.

Comment #10. Remedial measures must be seasonable, but not necessarily immediate. Reasonable remedial measures must be taken before a third party relies to his or her detriment on the false information.

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After the Permanency Planning Hearing, the social worker learns that Mother has moved back in with Boyfriend, and a new child has been born. DSS Attorney files a petition and asks the Court for a Nonsecure Custody Order for Baby. Before the ex parte hearing, DSS attorney learns that Boyfriend is accepting a plea and will be going to prison for two years for abusing Kitty. DSS attorney should:

a.Wait to tell the Judge about this information until the 7-day Hearing, when all the parties are present.

b.Provide this information to the judge in the ex parte hearing.

c.Let Boyfriend’s provisionally appointed attorney inform the Judge.

d.None of the above.

Candor Toward the TribunalRPC 3.3(d)

In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse

Comment # 15. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, there is no balance of presentation by opposing advocates. The lawyer for the represented party has the duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

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Resources

Citations to the Rules of Professional Conduct and ethics opinions are courtesy of the North Carolina State Bar.

Materials are property of the North Carolina State Bar.

http://www.ncbar.com/menu/ethics.asp

Juvenile Law Bulletin #2013/01Guardians ad Litem for Respondent Parents in Juvenile Cases

http://sogpubs.unc.edu/electronicversions/pdfs/jvlb1401.pdf

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Contact InformationDeana Fleming

(919) 890-1322

deana.k.fleming@nccourts.org

Wendy Sotolongo

(919) 354-7230

wendy.c.sotolongo@nccourts.org

Angie Stephenson

(919) 527-6402

angie.stephenson@dhhs.nc.gov

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