At its Annual Meeting this week in S.F., the ABA House of Delegates is being asked to adopt Standards of Practice for Lawyers Representing Children in Custody Cases that will put children at risk in order to impose an inflexible definition of lawyer and a covert (and irresponsible) ideology of children’s rights on courts conducting custody proceedings and the lawyers who represent the affected children. (Click here for the Original Document in pdf form, approved by the Council of the ABA Family Law Section on May 2, 2003; or click here for an unformatted text version from ABA.)
Here are the major components of the Proposal, in the words of the Report (emphases added):
These Standards distinguish two distinct types of lawyers for children: (1) The Child’s Attorney, who provides independent legal representation in a traditional attorney-client relationship, giving the child a strong voice in the proceedings; and (2) The Best Interests Attorney, who independently investigates, assesses and advocates the child’s best interests as a lawyer.
These Standards seek to keep the best interests of children at the center of courts’ attention, and to build public confidence in a just and fair court system that works to promote the best interests of children. These Standards promote quality control, professionalism, clarity, uniformity and predictability.These new Standards will improve practice nationwide by making it a clear that a lawyer always acts as a lawyer.
The major suggested change from existing laws is that the Standards delete use of the term “guardian ad litem” for lawyers representing children. . . . [A] person who serves essentially as a witness, by making a report on facts not otherwise in evidence, is not serving as a an attorney and thus is not covered under these Standards. The lawyer, when accepting such an appointment, figuratively puts his or her bar card in an envelope and is a volunteer in this nonlegal capacity.The Child’s Attorney should abide by the client’s decisions about the objectives of the representation with respect to each issue on which the child is competent to direct the lawyer, and does so.
- If the Child’s Attorney determines that pursuing the child’s expressed objective would put the child at risk of substantial physical, financial or other harm, and is not merely contrary to the lawyer’s opinion of the child’s interests, the lawyer may request appointment of a separate Best Interests Attorney and continue to represent the child’s expressed position, unless the child’s position is prohibited by law or without any factual foundation. The Child’s Attorney should not reveal the reason for the request for a Best Interests Attorney, which would compromise the child’s position, unless such disclosure is authorized by the ethics rule on confidentiality that is in force in the state.
These Standards do not presume that children of certain ages are “impaired,” “disabled,” “incompetent,” or lack capacity to determine their position in litigation. Disability is contextual, incremental, and may be intermittent. Lawyers for children are entitled to and should receive adequate and predictable compensation that is based on legal standards generally used for determining the reasonableness of privately-retained lawyers’ hourly fees in family law cases.
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- “Courts should assure that payment is commensurate with the fees paid to equivalently experienced individual lawyers who have similar qualifications and responsibilities.”
What’s going on here? Under the pretense of prescribing ethical requirements for attorneys representing children in custody cases, the Proposed Standards sweep away State statutes and precedent regarding the limited rights of minors in litigation matters or the goals of children’s lawyers in family court matters, as well as current ethical rules for attorneys representing persons under a disability (including, specifically, minors), and simply announce new children’s rights that an attorney ethically must protect and assert to avoid being in violation of his or her ethical standards.
It’s ironic that the Proposed Standards insist on giving children the same rights as adult clients, but are filled with cautions stemming from the special, nonadult shortcomings of minors — from the lawyer’s need to understand child development and form a special relationship of trust with the client (especially useful to talk the client out of dangerous objectives), to the child client’s capacity to be influenced unduly by parents (or by the lawyer), and to the child’s tendency to frequently change his or her mind as to objectives and to be unreliable as a source of information.
Current ethical rules, and volumes of court opinions, already deal rather well with the situation of a child client:
Model Rule 1.14 (a) already covers clients whose ability to make adequate decisions is impaired “because of minority“. It requires the lawyer to maintain a normal attorney-client relationship “as far as reasonably possible,” not to be the government-paid, robot-mouthpiece of an adolescent or subteen. The Commentary to Rule 1.14 says “children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.” Having your wishes heard and considered is a far cry from being entitled to totally control an attorney’s position and decision-making.
Similarly, EC 7-11 of the Code of Professional Responsibility reminds us that the role of lawyer is not always that of blindly zealous advocate: “The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of the particular proceeding.” (emphases added)
As the New York County Family Court has explained: “There is nothing in the statutes nor in the case law, however, which say a Law Guardian in a custody proceeding should advocate for the child’s wishes at the expense of his over-all interests or at the expense of a full presentation of the facs.” Therefore, the role of the child’s representative under EC 7-11 is to exercise a “mature judgement” to safeguard the child’s interests. Scott L v. Bruce N., 134 Misc.2d 240 (1986).
In your Editor’s opinion (which this time is based on actual experience*), if the Proposed Standards are adopted and then followed, they would — rather than achieve their stated goals — do the following:
1. Make it more difficult for a child’s attorney to get all relevant information in front of the judge. Under the Proposal, the Child’s Attorney would instead have the obligation to try to suppress or hide facts from the court that would not help achive the client’s expressed objectives — including coaching the client before in camera interviews or testifying about how to stress or leave out particular information. And, more important perhaps, because both types of attorney a prohibited from making a report to a court, force more matters to proceed to trial in order to get necessary information before the court. (Can’t we trust judges to weigh the value of a Report from the child’s lawyer?)
2. Cause the public to lose confidence in the courts. (Try these questions in a poll: “Would you support the government paying lawyers to help children oppose their parents in custody cases? Do you think your child would do a good job directing a lawyer’s in such a case?)
3. Create great confusion in places where little or none exists.
4. Greatly incease expenses for the government (and all parties) at a time when all state governments are cutting budgets — if e.g.,
- a Best Interests Attorney is appointed at the request of a Child’s Attorney (and must begin a fresh, undirected investigation);
- the child’s lawyer can’t play the mediator-like role of getting the parents to come to an agreement in the child’s best interests and settle;
- important information must come in through an evidentiary hearing rather than through the Report of the child’s lawyer; compensation is increased as suggested in the Standards, to the same level as private-practice attorney’s in the area — which would probably mean at least tripling the courrent fees for court-appointed children’s lawyers
5. Multiply the number of motions by lawyers for one or both parents seeking to have the child’s lawyer dismissed or disciplined for failing to meet the new Standards.
6. Cause many dedicated children’s lawyers to refuse appointment rather than being forced to play the role of child’s mouthpiece as a Child’s Attorney; to serve less effectively as a Best Interests Attorney without the ability to submit Reports to the court and the parties; or to risk bar discipline should they act according to their best judgment and conscience to prevent harm to a client. And,
7. Most important, injure many minor clients by giving them (a) too much power over their fate — resulting in prolonged proceedings, and custody settlements or court decisions that place them in harmful situations; (b) a false impression of their ability to influence the outcome of the custody proceeding, resulting in frustration, rage, cyncism; or (c) a tool to use in a battle with one or both of their parents.
Courts may not be appointing children’s lawyers in enough cases. Certainly, many court-appointed lawyers need more training and more diligence. And, too few lawyers may be willing to take on the complicated, demanding role of a child’s court-appointed lawyer — especially, because the fees are so low. There is, however, no great crisis over the role of the child’s lawyer unless you posit that the child has the same rights as any adult party to a custody proceeding and the same right to control counsel. Is that where we want our law and legal ethics to go?
Through experience, common sense, and fairness, we have learned that a custody determination is far more likely to discern the child’s best interests, if the child’s input is sought, and fully considered, and the child has the advantage of receiving advice from a knowledgeable and caring legal professional.
- The child has the right to be saved from his or her own immature judgment, which can often undervalue or ignore important interests and needs — especially longterm ones.
We don’t need to create new rights for children in custody cases — certainly not under the guise of promulgating legal ethics rules, rather than legislative or judicial action.
This Editor believes: Each child in a custody case has the right to a lawyer who respects his or her individuality and opinion (giving it all the consideration and weight it merits in the circumstances), and who has the mature judgment, competence and diligence needed to determine and effectively advocate and protect the child’s best interests.
*I practiced in NYS Family Court for a decade in various capacities (including law clerk and private practitioner), with the bulk of my work being the representation of children as a court-appointed Law Guardian (in about 400 proceedings). I also headed the not-for-profit Law Guardian Backup Center, in 1991 and 1992, giving research assistance and advice to hundreds of Law Guardians. In addition, I sat on the NYSBA Committee on Juvenile Justice and Child Welfare, which drafted the Law Guardian Representation Standards for Custody Cases (1992). As with the proposed ABA Standards, the NYSBA Custody Standards were drafted without regard to court precedent or existing general ethical rules for representing minors — instead, they both covertly impose a children’s rights agenda in the name of giving children a meaningful voice. The NYSBA Standards (at 23) state that the Law Guardian’s position and plan for each case should be developed with “the agreement” of any child able to “articulate his or her desires and to assist counsel.”