Legal Ethics in Child Custody and Dependency Proceedings - A Guide for Judges and Lawyers

Arguing that the 80 year-old Federal Arbitration Act badly needs major changes, the authors, who have previously written major articles on arbitration law and policy, set out their own views and argue among themselves about the necessary reforms of arbitration. The book contains draft legislation for use in international and domestic arbitration and detailed explanation of the precise justifications for proposed legislative changes. It also contains two proposals that might be deemed radical---to ban arbitration related to the purchase of products by consumers and to prohibit arbitration of employment disputes. Each proposal is vetted fully and critiqued by one or more of the other co-authors. Cover 1 Half-title 3 Title 5 Copyright 6 Contents 7 Foreword 11 Acknowledgments 13 Introduction 15 1 Conflicts of Interest 21 I. Children's Attorneys: Potential Divided Loyalties 21 II. Conflicts of Interest Involving Parents' Attorneys 27 III. The Department's Attorney: Who Is the Client? 30 IV. Judges: Limits and Responsibilities of the Neutral and Detached Magistrate 37 2 Competent and Zealous Representation 41 I. Children's Attorneys: Zealous Advocates or Best Interest Storytellers? 42 A. Children's Competence as a Key in Deciding the Model of Advocacy 44 B. The Lawyer's Role as the Child's Guardian Ad Litem 47 C. Hybrid Models of Child Representation 49 II. Parents' Attorneys 49 A. Failure to Complete Lawyering Responsibilities 49 B. Competence and Zealousness 51 III. The Department's Attorney: Furthering Justice or Zealous Advocate? 58 IV. Judges: Neutral Magistrates or Children's Defenders? 66 V. Emerging Issues Regarding Substitution of Counsel and Self-Representation 75 A. The Right to Substitute Counsel 75 B. The Right to Self-Representation 79 3 Confidentiality 82 I. Children's Attorneys: Safety versus Secrecy 83 II. Parents' Attorneys: Duty to Disclose Child Abuse? 88 III. The Department's Attorney: Disclosure and Trial Tactics 93 IV. Judges: Parties' Privacy versus Public Overseer 96 4 The Ethics of Alternative Dispute Resolution in Child Custody and Dependency Proceedings 102 Introduction 102 I. Alternative Dispute Resolution versus Litigation in Custody Cases 106 II. Advantages and Disadvantages of Alternative Dispute Resolution in Child Custody and Dependency Proceedings 109 III. Coming Full Circle: The Evolution of Child Custody Mediation 114 IV. The Legitimacy of Informal Settlements and the Limits of Mediators' and Arbitrators' Jurisdiction in Child Custody and Dependency Proceedings 115 A. Finality and Scope of Arbitrated and Mediated Custody and Dependency Settlement Agreements 116 B. The Duty of Candor: Good Faith, Puffing, and Lies 121 V. The Scope of Alternative Dispute Resolution Confidentiality 125 VI. The Role of the Mediator 131 5 Ethical Considerations and Constraints in Child Custody and Dependency Appeals 134 I. The History of the Right to Appointed Appellate Counsel in Child Custody and Dependency Proceedings 135 II. Standing to Appeal 137 III. The Duty of Competence in Custody and Dependency Appeals 138 IV. The Duty and Scope of Zealous Appellate Representation 141 V. The Duty of Candor and Loyalty on Appeal 148 VI. The Procedural and Substantive Scope of Appeals 155 6 The Constitutionality of Legislative and Executive Regulation of the Practice of Law and Defining the Attorney-Client Relationship 159 I. A Short History of the Role of Courts, Legislatures, and the Executive in the Regulation of Attorneys 162 A. Wisconsin: Separation of Powers in Regulating Attorneys in Child Custody and Dependency Proceedings 165 B. California: Comity over Independence? 170 II. Conclusion 177 Appendix A: National Association of Counsel for Children Standards 179 NACC Recommendations for Representation of Children in Abuse and Neglect Cases 181 Contents 181 Executive Summary 182 NACC Recommendations for Representation of Children in Abuse and Neglect Cases 183 I. Introduction 183 II. Children's Legal Representation Policy 183 III. Needs Checklist for Children 185 IV. Representation Models 191 Appendix B: American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases 199 Defending Liberty, Pursuing Justice 201 Preface 201 Part I – Standards for the Child's Attorney 202 A. Definitions 202 B. General Authority and Duties 204 C. Actions to be Taken 210 D. Hearings 215 E. Post Hearing 221 F. Appeal 222 Part II – Enhancing the Judicial Role in Child Representation 223 Preface 223 G. The Court's Role in Structuring Child Representation 224 H. The court's Role in Appointing the Child's Attorney 225 I. The Court's Role in Lawyer Training 228 J. The Court's role in Lawyer Compensation 230 K. The Court's Role in Record Access by Lawyers 232 L. The Court's Role in Assuring Reasonable Lawyer Caseloads 232 Appendix 233 Court-Appointed Special Advocates August 1989 234 Counsel for Children Enhancement February 1987 234 Bar Association and Attorney Action February 1984 235 Bar and Attorney Involvement in Child Protection Cases August 1981 235 Appendix C: In re Car Simulation and Analysis 237 Other Authorities 253 Cases and Ethics Opinions 261 Index 269 Cover......Page 1 Half-title......Page 3 Title......Page 5 Copyright......Page 6 Contents......Page 7 Foreword......Page 11 Acknowledgments......Page 13 Introduction......Page 15 I. Children's Attorneys: Potential Divided Loyalties......Page 21 II. Conflicts of Interest Involving Parents' Attorneys......Page 27 III. The Department's Attorney: Who Is the Client?......Page 30 IV. Judges: Limits and Responsibilities of the Neutral and Detached Magistrate......Page 37 2 Competent and Zealous Representation......Page 41 I. Children's Attorneys: Zealous Advocates or Best Interest Storytellers?......Page 42 A. Children's Competence as a Key in Deciding the Model of Advocacy......Page 44 B. The Lawyer's Role as the Child's Guardian Ad Litem......Page 47 A. Failure to Complete Lawyering Responsibilities......Page 49 B. Competence and Zealousness......Page 51 III. The Department's Attorney: Furthering Justice or Zealous Advocate?......Page 58 IV. Judges: Neutral Magistrates or Children's Defenders?......Page 66 A. The Right to Substitute Counsel......Page 75 B. The Right to Self-Representation......Page 79 3 Confidentiality......Page 82 I. Children's Attorneys: Safety versus Secrecy......Page 83 II. Parents' Attorneys: Duty to Disclose Child Abuse?......Page 88 III. The Department's Attorney: Disclosure and Trial Tactics......Page 93 IV. Judges: Parties' Privacy versus Public Overseer......Page 96 Introduction......Page 102 I. Alternative Dispute Resolution versus Litigation in Custody Cases......Page 106 II. Advantages and Disadvantages of Alternative Dispute Resolution in Child Custody and Dependency Proceedings......Page 109 III. Coming Full Circle: The Evolution of Child Custody Mediation......Page 114 IV. The Legitimacy of Informal Settlements and the Limits of Mediators' and Arbitrators' Jurisdiction in Child Custody and Dependency Proceedings......Page 115 A. Finality and Scope of Arbitrated and Mediated Custody and Dependency Settlement Agreements......Page 116 B. The Duty of Candor: Good Faith, Puffing, and Lies......Page 121 V. The Scope of Alternative Dispute Resolution Confidentiality......Page 125 VI. The Role of the Mediator......Page 131 5 Ethical Considerations and Constraints in Child Custody and Dependency Appeals......Page 134 I. The History of the Right to Appointed Appellate Counsel in Child Custody and Dependency Proceedings......Page 135 II. Standing to Appeal......Page 137 III. The Duty of Competence in Custody and Dependency Appeals......Page 138 IV. The Duty and Scope of Zealous Appellate Representation......Page 141 V. The Duty of Candor and Loyalty on Appeal......Page 148 VI. The Procedural and Substantive Scope of Appeals......Page 155 6 The Constitutionality of Legislative and Executive Regulation of the Practice of Law and Defining the Attorney-Client Relationship......Page 159 I. A Short History of the Role of Courts, Legislatures, and the Executive in the Regulation of Attorneys......Page 162 A. Wisconsin: Separation of Powers in Regulating Attorneys in Child Custody and Dependency Proceedings......Page 165 B. California: Comity over Independence?......Page 170 II. Conclusion......Page 177 Appendix A: National Association of Counsel for Children Standards......Page 179 Contents......Page 181 Executive Summary......Page 182 II. Children's Legal Representation Policy......Page 183 III. Needs Checklist for Children......Page 185 IV. Representation Models......Page 191 Appendix B: American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases......Page 199 Preface......Page 201 A. Definitions......Page 202 B. General Authority and Duties......Page 204 C. Actions to be Taken......Page 210 D. Hearings......Page 215 E. Post Hearing......Page 221 F. Appeal......Page 222 Preface......Page 223 G. The Court's Role in Structuring Child Representation......Page 224 H. The court's Role in Appointing the Child's Attorney......Page 225 I. The Court's Role in Lawyer Training......Page 228 J. The Court's role in Lawyer Compensation......Page 230 L. The Court's Role in Assuring Reasonable Lawyer Caseloads......Page 232 Appendix......Page 233 Counsel for Children Enhancement February 1987......Page 234 Bar and Attorney Involvement in Child Protection Cases August 1981......Page 235 Appendix C: In re Car Simulation and Analysis......Page 237 Other Authorities......Page 253 Cases and Ethics Opinions......Page 261 Index......Page 269 This book provides the first fully annotated discussion of the ethical universe surrounding state mandated and private legal disputes involving the custody and best interest of children. It surveys thousands of court cases, statutes, state bar ethics codes, Attorney General opinions, and model codes regarding ethical constraints in family and dependency proceedings. The book is unique in two ways. It analyzes ethical rules not only in terms of the chronology of these proceedings, but it also surveys those principles for each of the primary participants - children's counsel, parents' counsel, government attorneys, and judges. The book contains chapters on pre-hearing alternative dispute resolution, motion and trial practice, appellate procedures, and separation of powers. Finally, the book provides a complete child abuse case file with a comprehensive analysis of the inherent ethical issues This 2006 book provides a fully annotated discussion of the ethical universe surrounding state-mandated and private legal disputes involving the custody and best interest of children. It surveys thousands of court cases, statutes, state bar ethics codes, Attorney General opinions and model codes regarding ethical constraints in family and dependency proceedings. The book not only analyzes ethical rules in terms of the chronology of these proceedings, it also surveys those principles for each of the primary participants - children's counsel, parents' counsel, government attorneys and judges. The book contains chapters on pre-hearing alternative dispute resolution, motion and trial practice, appellate procedures and separation of powers. Finally, the book provides a complete child abuse case file with a comprehensive analysis of the inherent ethical issues. This Book Provides The First Fully Annotated Discussion Of The Ethical Universe Surrounding State Mandated And Private Legal Disputes Involving The Custody And Best Interest Of Children. It Surveys Thousands Of Court Cases, Statutes, State Bar Ethics Codes, Attorney General Opinions, And Model Codes Regarding Ethical Constraints In Family And Dependency Proceedings. Conflicts Of Interest -- Competent And Zealous Representation -- Confidentiality -- The Ethics Of Alternative Dispute Resolution In Child Custody And Dependency Proceedings -- Ethical Considerations And Constraints In Child Custody And Dependency Appeals -- The Constitutionality Of Legislative And Executive Regulation Of The Practice Of Law And Defining The Attorney-client Relationship. William W. Patton. Includes Bibliographical References And Index. It might seem unusual for a book on legal ethics to begin with the complicated issue of conflicts of interest.